AUD15 v Minister for Immigration
[2016] FCCA 3159
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUD15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3159 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal to affirm delegate’s decision to refuse a Protection (Class XA) visa – Pakistani citizen and seaman – whether denial of procedural fairness in relation to provision of Australian High Commission report or putting of the gist of allegations in report to the applicant – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 91X, 422B, 424A, 425, 438, 476 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 22 ALR 411; (2005) 87 ALD 512 Attorney-General (NSW) v Quin (1990) 170 CLR 1; 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; (1994) 127 ALR 699 Hala v Minister for Justice [2015] FCAFC 13; (2015) 145 ALD 552 Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321 Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901; (2016) 333 ALR 653 Minister for Immigration & Citizenship v SZQHH & Anor[2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 160; (2004) 135 FCR 567 Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 60 ALJR 662; (1986) 67 ALR 21 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125; (2015) 234 FCR 1; (2015) 326 ALR 641 WZANC v Minister for Immigration & Citizenship [2012] FCA 1461; (2012) 210 FCR 585; (2012) 135 ALD 247 WZANC v Minister for Immigration & Anor (No. 2) [2012] FMCA 504; (2012) 266 FLR 121 |
| Applicant: | AUD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 213 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 15 February 2016 |
| Date of Last Submission: | 15 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr FA Robertson |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr PR Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 213 of 2015
| AUD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 18 May 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“2015 Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). A copy of the 2015 Tribunal Decision is at Court Book (“CB”) 623-670.
In the following Reasons for Judgment certain names have been initialized and actual place names omitted, so as to ensure that the intent of s.91X of the Migration Act (applicant’s name not to be published) is not rendered otiose by the publication of names of possible friends and associates.
Factual and procedural background
The factual and procedural background is as follows:
a)the applicant is a citizen of Pakistan who has come to Australia as a merchant seaman on 9 occasions for various periods since January 2009, having been granted Subclass 988 Maritime Crew visas. The applicant's most recent arrival in Australia was on 5 December 2010, following which he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Border Protection (“the Department”) on 30 December 2010: CB 1-58 and 624-625;
b)on 26 August 2011 the Delegate refused to grant the applicant a Protection Visa, and the applicant was notified of that decision by a letter sent to his migration agent: CB 176-200;
c)on 14 September 2011 the applicant made an application to the former Refugee Review Tribunal (“the Tribunal”) for review of the Delegate’s Decision refusing to grant him a Protection Visa: CB 296-299;
d)by letter dated 15 June 2012 the Tribunal invited the applicant to appear before it on 13 July 2012 to give evidence and present arguments in relation to the issues arising in his case. The applicant subsequently appeared before the Tribunal hearing on that date and gave evidence and presented arguments: CB 333-338, 351-353 and 396;
e)on 19 December 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa (“2013 Tribunal Decision”). The applicant was notified of the 2013 Tribunal Decision by letter dated 20 December 2013 sent to his migration agent: CB 382-384;
f)the applicant sought review of the 2013 Tribunal Decision by this Court. On 20 June 2014 the Court made orders by consent quashing the 2013 Tribunal Decision, and remitting the matter to the Tribunal for determination according to law: CB 426-427 and 624;
g)by letter dated 28 July 2014 the Tribunal invited the applicant to appear before it on 10 September 2014 to give evidence and present arguments relating to the issues arising in his case. Prior to the Tribunal hearing the applicant’s new migration agent provided to the Tribunal an applicant's outline of submissions and evidence in support and a witness statement by a person other than the applicant (“KU”): CB 441-447 and 459-469;
h)on 10 September 2014 the applicant appeared before the Tribunal constituted by a different Tribunal member to give evidence and present arguments. The Tribunal also took evidence from the applicant's cousin (“AS”): CB 476-478 and 624;
i)on 24 September 2014 the applicant's migration agent provided the Tribunal with additional submissions and evidence in support of the application, including statutory declarations by RAK and MZK, both declared under oath dated 19 September 2014: CB 481-515 and 525-536;
j)the Tribunal requested that the Australian High Commission verify the identity of the deponents of the statutory declarations by RAK and MZK: CB 565;
k)on 26 November 2014 RAK and MZK attended at the Australian High Commission (“AHC”) in Islamabad, Pakistan, and were interviewed in relation to their statutory declarations and for the purposes of identification verification: CB 590-597;
l)the result of that interview was that a Senior Migration Officer (“SMO”) at the Australian High Commission identified that:
During the process of assessing this case to action the referral it was identified that there were at least a dozen PV applicants claiming to reside at the same address. Many of the applicants had similar claims and were at various stages of the PV process, including some at the primary stage, some at RRT and at least one who has been granted PV. Their details are as follows:…
CB 590;
m)the SMO also made some further conclusions at CB 590-591, including that:
i)one of the visa applicants was “linked in previous reporting to organised fraud in the transit visa caseload in Islamabad (DILSHAD)”;
ii)that the support letters may have been issued without RAK’s knowledge;
iii)that RAK apparently issued support letters at face value;
iv)that it could not be eliminated that the applicant had provided to RAK and MZK financial inducement to provide the letters; and
v)that the accounts of RAK and MZK in relation to the attack on the applicant’s father did not accord with the applicant’s claims in his PV application;
n)on 7 March 2015 the SMO notified the Tribunal that s.438(1)(b) of the Migration Act applied to the information highlighted in pink in the attached report of the interview with MZK and RAK (“AHC Report”). The SMO advised that the information was given to an officer of the Department in confidence, and that in his view the “pink highlighted” part of the information should not be disclosed to the applicant or the applicant's representative for the reasons set out. The SMO concluded that the Tribunal's use and disclosure of the highlighted information was subject to the provisions of ss.438(3) and (4) of the Migration Act: CB 575-587;
o)by letter dated 16 March 2015 (“16 March 2015 Letter”): CB 599-601, the Tribunal advised the applicant that since he had provided declarations by MZK and RAK in support of his claims, the deponents had attended at the AHC in Islamabad, and the AHC had provided the Tribunal with the AHC Report. The 16 March 2015 Letter stated that particulars of the information contained in the AHC Report were:
The AHC report notes that when a list of names was presented neither of them recognised your name as being someone involved with the youth wing of the party.
The AHC report notes that “Of concern was the lack of procedure in the issuance of support letters and that fact that they may be issued without RAK's knowledge. It appears he has issued many letters to various countries and that the majority are issued at face value. MZK and RAK were consistent in their statement about the father being a member. Neither of the signatories knew … [the applicant] from the photographic identification exercise. I had serious doubts about MZK's claim that he had only provided this statement given the claimed low profile of the … [applicant], I had real concerns that neither MZK or RAK were willing to name other members to allow this information to be checked with open source information or with records of other PV applicants in Australia.
The AHC report notes that “the accounts by both MZK and RAK about the incidents with the father do not accord with the accounts in the PV claims made by … [the applicant], in particular the timing, effect and casualties of the claimed bombing. Neither mentioned shooting as the reason for the injury and as senior party figures would reasonably be expected to be aware of this. There were also issues with the claimed holding of meetings at private premises.”
CB 600;
p)the 16 March 2015 Letter further advised the applicant that this information was relevant to the review “because it undermines your claims: to have been actively involved in the ANP; to have held ANP meetings in private premises; that your father was targeted by the Taliban in the circumstances you claim”: CB 601. The 16 March 2015 Letter further advised the applicant that if the Tribunal relied on this information in making the Tribunal Decision, it might reject his protection claims on credibility grounds and conclude that he was not a person to whom Australia owes protection, and invited him to comment on or respond to the information in writing: CB 601;
q)on 22 March 2015 the applicant's migration agent wrote to the Tribunal seeking an extension of time until 10 April 2015 to comment upon the 16 March 2015 Letter. The migration agent also requested that the Tribunal provide a copy of the AHC Report as a matter of urgency: CB 604;
r)the Tribunal granted an extension of time to the applicant to provide comments or response by 10 April 2015, and further advised that the Tribunal Member did not propose to provide a copy of the AHC Report “since the Tribunal Member is only obliged to put particulars of any adverse information to the review applicant, and the Tribunal Member has done so in her letter of 16 March 2015.”: CB 607;
s)on 10 April 2015 the applicant's migration agent provided further additional submissions and evidence in response: CB 608-616;
t)on 3 May 2015 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 623; and
u)on 5 May 2015 the Tribunal advised the applicant by letter sent to his migration agent that the Tribunal had decided to affirm the Delegate’s Decision. The Tribunal provided the applicant with a copy of the Tribunal Decision: CB 617-670.
Tribunal Decision
The Tribunal summarised the applicant’s claims for protection as:
a)fear of harm arising from his involvement with the Awami National Party (“ANP”);
b)fear of being targeted on account of his own political activism and that of his family;
c)on account of his ethnicity, namely Pashtoon, and the resulting presumption of his involvement with the ANP and the Taliban; and
d)fear that he will be targeted because he is westernised having worked overseas for Western companies and lived in Australia, which places him at risk of harm from the Taliban: CB 624 at [2].
The Tribunal concluded that it had serious concerns regarding some aspects of the evidence which adversely impacted upon the applicant's credibility, that these concerns impugned the veracity of his evidence as a whole, and lead the Tribunal to find that he was not a credible witness: CB 649 at [30].
The Tribunal nevertheless accepted some of the applicant's claims as set out at CB 649-650 at [31]-[33]. The Tribunal then set out the serious concerns it had in respect of the applicant's remaining claims, as follows:
a)the inconsistencies in the applicant's evidence regarding the warnings he claimed were received by his family regarding their involvement in the ANP: CB 650-651 at [35];
b)secondly, the observations of the Document Examination Unit (“DEU”) in respect of three letters submitted by the applicant, one of which the DEU found had been digitally altered, called into doubt the applicant's claims to have been targeted by the Taliban as claimed: CB 651 at [36] and [37]; and
c)in respect of two letters from the ANP which the applicant had submitted the Tribunal noted that:
i)the DEU had found that the first letter had been altered; that the applicant had stated to the Tribunal hearing in 2012 that the documents he had submitted were genuine and had not been altered, and only conceded that the first letter had been altered once the DEU's findings had been put to him; and that the Tribunal did not consider the first letter to be credible and did not accord it any weight; and
ii)in respect of the second letter dated 5 November 2011 the Tribunal accepted it had been co-authored by RAK with MZK, but that it had concerns about the claims that the applicant is a “permanent active member of the ANP” and that the Taliban attacked “other family members”. given the changes in the applicant's evidence the Tribunal did not accept that other family members had been targeted, did not accept to this extent the evidence of his cousin, AS, nor did it accept the claims in this regard made by the authors of the letter of 5 November 2011; and concluded that it also did not give the balance of the letter any weight as it rejected the claim that the applicant's father had been targeted, and did not give any weight to the claim in the letter that the applicant was in danger in Pakistan: CB 651-653 at [38]-[47];
d)the contradictory information about the shooting attack on his father in December 2008 which lead the Tribunal to find that the amputation of his father's leg was not the result of a Taliban attack as claimed: CB 653 at [48];
e)in respect of the applicant's claim that his father's car was destroyed by a bomb in the city of Mingora, in light of the country information it accepted that the applicant's father was a witness to this event and that his car may have been damaged, but did not accept that he was injured, nor that he was the target of the attack: CB 653 at [49]; and
f)that it had concerns regarding the applicant's delays in claiming asylum and considered that his failure to claim asylum earlier, in circumstances where he claimed he had been subjected to threats, undermined the veracity of his claims: CB 653 at [50].
The Tribunal concluded at CB 653-654 at [51] that it considered that cumulatively the credibility concerns which it had outlined were so serious as to impeach the entirety of the applicant's evidence and the evidence of his witnesses, and it rejected his claims:
a)to be a member of the ANP;
b)to have been actively involved in the ANP; and
c)that he had received threats arising from his membership of the ANP.
Given its credibility concerns, the Tribunal also did not accept that:
a)the applicant's father had been targeted by the Taliban as claimed;
b)the applicant or his family moved away from their village following the threats as claimed; and
c)the applicant or his family were or are of any adverse interest to the Taliban,
and found that the applicant's family had not been the target of any harm directed towards them by the Taliban, and on the basis of the country information the Tribunal did not accept that there was a real chance that the applicant would be harmed on account of his father and grandfather's activities within the ANP: CB 654 at [55].
The Tribunal found that the applicant did not face a real chance of persecution, now or in the reasonably foreseeable future from the Taliban, or anyone else, on account of his actual or imputed political opinion, and found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm on these bases: CB 655 at [57]-[58].
The Judicial Review Application
On 18 May 2015 the applicant filed the Judicial Review Application, setting out three grounds of review.
By orders made on 22 July 2015 and 30 September 2015 the Court ordered that the applicant file and serve any amended application giving particulars of the grounds of review and any further affidavits upon which he intended to rely at the hearing.
The applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) on 8 October 2015, containing one ground of review with particulars, as follows:
1. The Tribunal made a jurisdictional error by denying the applicant procedural fairness by refusing to provide the applicant with the report(s) of the Australian High Commission and/or by failing to put the substance of all of the allegations contained within the report(s) to the applicant for comment.
Particulars
(a) During the conduct of the Review Hearing, the Tribunal sought from the Australian High Commission, advice as to the identity of the deponents of statutory declarations submitted by the applicant.
(b) During that identification appointment, the Australian High Commission conducted an interview with those deponents.
(c) As a result of those interviews, the Australian High Commission formed a view, adverse to the applicant, about his claims and documents that he had submitted.
(d) The Australian High Commission reported those views to the Tribunal.
(e) Despite request, the Tribunal failed to produce the report(s) received from the Australian High Commission, but only summarised the adverse information which was said to include (in summary):
i) The deponents did not identify the applicant as a person who was involved in the ANP;
(ii) That the letters of support issued to the applicant were either not genuine or were issued at face value (i.e. without regard as to their content); and
(iii) That the verbal accounts offered by the deponents as to the circumstances of an attack on the applicants father differ from that of the applicant.
(f) The summary provided by the Tribunal was incomplete and/or misleading, in that the Australian High Commission report also contained adverse information which suggested that:
(i) The applicant was one of 11 or so applicants who used the same address for their application and used similar claims when seeking their protection visas;
(ii) That the letters of support may have been issued on financial inducement;
(iii) That the applicant was linked to another PV applicant who was reported to organised fraud;
(g) That additional material, referred to in sub paragraph (f) or the substance of it, was never put to the applicant for comment.
In summary, the now sole ground of review contends that the Tribunal made a jurisdictional error by:
a)denying the applicant procedural fairness by refusing to provide the applicant with the AHC Report; or
b)failing to put the substance of all the allegations contained within the AHC Report to the applicant for comment.
The allegations said to be contained in the AHC Report, but not put to the applicant, are summarised as follows:
a)the applicant was one of eleven or so applicants for protection visas who used the same address for their application and used similar claims when seeking their protection visas;
b)the letters of support may have been issued on financial inducement; and
c)that the applicant was linked to another protection visa applicant linked to organised fraud: Applicant’s Outline of Submissions at [28] (“Undisclosed Information”).
Applicant’s submissions
The applicant’s submissions were as follows:
a)importantly, the 16 March 2015 Letter did not indicate to the applicant anything about, what can be described as allegations of fraud related to the applications for protection visas, including financial inducement for letters of support and the utilisation of the same address for a number of protection visa applicants;
b)the statutory specification of the Tribunal’s duty and power to conduct reviews is conditional upon the Tribunal observing the requirements of procedural fairness: Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; CLR at 615 per Brennan J (“Kioa”); Attorney-General (NSW) v Quin (1990) 170 CLR 1; 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 40 per Brennan J (“Quin”); Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 22 ALR 411; (2005) 87 ALD 512 (“VEAL”) at [10]-[17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
c)the principles of procedural fairness should focus upon the procedure rather than the outcome. Notions of procedural fairness are principles that govern what a decision‑maker must do in the course of deciding how the particular power given to the decision‑maker is to be exercised. They are to be applied to the processes by which a decision will be reached: VEAL at [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
d)procedural fairness ordinarily requires the party affected by a decision to be given the opportunity: Hala v Minister for Justice [2015] FCAFC 13; (2015) 145 ALD 552 at 560-561 per Dowsett, Tracey and Katzmann JJ, to:
i)ascertain the relevant issues and be informed of the nature and content of the adverse material: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; CLR at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”), approving Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; (1994) 127 ALR 699; FCR at 590-591 per Northrop, Miles and French JJ;
ii)deal with adverse information that is credible, relevant and significant to the decision to be made: Kioa at 615 per Brennan J; Quin at 40 per Brennan J; VEAL at [10]-[17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; and
iii)deal with information of a kind that creates a real risk of prejudice, albeit subconscious: Kioa at 615 per Brennan J; VEAL at [10]-[17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
e)the Tribunal, quite clearly, considered that information contained in the AHC Report was credible, relevant and significant enough to warrant the Tribunal writing to the applicant seeking a response in relation to some of the allegations;
f)it is unclear why all of the allegations were not included, particularly given that the withheld allegations are potentially the most serious allegations and the allegations which would be likely to have a significant effect on the assessment of the applicant’s credibility;
g)the SMO noted that “the information about other clients with similar claims at the same address is relevant for the RRT but should not be disclosed to the client”: CB 589;
h)the fact that a number of other applicants (who are apparently linked to the applicant) and are subject to investigation is not an aspect which should have been withheld in full from the applicant;
i)such a procedure offends the very notion of procedural fairness;
j)an allegation (whether ultimately believed by, or relied upon by, the Tribunal or not) that the applicant was engaged in some sort of scheme to obtain protection visas, or is otherwise linked with fraudulent persons, is of significant relevance to the assessment of his credibility and the applicant was entitled to expect to be appraised of such an allegation and be given an opportunity to respond to that allegation;
k)the AHC Report is vague in a number of respects. Had the AHC Report been available, the applicant would have had a further opportunity to address its vagueness, seek to put on further evidence (even if just to disclaim some of the notions advanced by the report) or make further submissions;
l)the unfairness to the applicant can be demonstrated by the applicant’s submissions in response which could do little more than deny and ask questions about what is actually meant by the AHC Report, and make submissions in the following vain: CB 610-612:
7. According to the extract there is a concern of the lack of procedure in the issuance of support letters and that they may be issued without … [RAK’s] knowledge. No details have been provided as to what the “concern” is by the AHC officer other than the letter has issued to “various countries” and were issued “at face value”
…
The Applicant understand that the AHC did not question RAK or MZK about the alleged lack of procedure in issuing support letters.
…
a) The Applicant has not been provided with copies of the photographs shown
…
12. The AHC officer states he or she has “serious doubts” about … [MZK] that “he had only provided this statement given the claimed low profile of the… [Applicant]. However the extract does not include the evidence upon which the AHC officer has come to his or her opinion. This denies … [the applicant] a genuine opportunity to respond other than to reiterate:
That it is for the Tribunal to come to decision about witnesses’ creditability and … [the applicant’s] application, not the AHC; and
It is not … [the applicant’s] case that he had a high political profile in Pakistan per se.
….
15. The Tribunal’s letter states that there were also “issues” with the claimed holding of meetings. This allegation is vague and meaningless. The Applicant’s response is predictable, what issues?
See also the complaints in the submissions at CB 613 at [21];
m)it was crucial for the Tribunal to put to the applicant the entirety of the AHC Report. The allegations made were serious. Some of the more serious conclusions which could be said to be drawn from the AHC Report, namely that the applicant was involved with a ring which was making fraudulent protection visa applications and paying for letters of support must have infected the mind of the Tribunal, notwithstanding the Tribunal’s failure to refer to those aspects of the AHC Report and the associated failure to make findings in relation to those potential conclusions; and
n)when regard is had to the additional allegations which were never put the applicant, it would simply be impossible for the Tribunal to put them out of mind when determining the issues, particularly without squarely addressing those allegations and making findings in relation thereto.
Minister’s submissions
In relation to whether there was a breach of procedural fairness by failing to provide the applicant with the AHC Report the Minister submitted as follows:
a)there was no breach of procedural fairness by the Tribunal in failing to accede to the applicant's request for a copy of the AHC Report;
b)since the decision of the High Court in VEAL, it is settled that although procedural fairness may require that the Tribunal provide to an applicant the substance of information contained in a document that is credible, relevant and significant, procedural fairness does not require that the applicant be provided with a copy of the document;
c)in VEAL the Tribunal had been provided with a letter from the Department in which the author had made certain allegations against the applicant, but the Tribunal did not tell the applicant that it had received the letter or ask about the substance of the allegations made in it. While the High Court concluded: VEAL at [21] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, that procedural fairness required that the Tribunal draw the appellant's attention to the information in the letter, it rejected the appellant's contention that he should have been shown the letter: VEAL at [24] to [29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; and
d)in Minister for Immigration & Citizenship v SZQHH & Anor [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ (“SZQHH”) the majority of the Full Court of the Federal Court referred to VEAL and noted that if the decision-maker determines that he or she has information that is credible, relevant and significant, and is apparently adverse to the interests of a person who will be affected by the decision, then ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. Their Honours then stated:
27. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source: Applicant VEAL of 2002 at [15], [29].
In relation to whether procedural fairness required the Tribunal to provide the substance of further information to the applicant the Minister submitted as follows:
a)it is not in dispute that the Tribunal did not provide to the applicant the Undisclosed Information, or the substance thereof, but in the circumstances of this matter, procedural fairness did not require such information to be provided to the applicant;
b)the case is distinguishable from VEAL. In VEAL at [11] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ the High Court noted that neither party had contended that the Migration Act prescribed the course that the Tribunal should have taken in that matter, and that in particular, although the Migration Act made provision in s.424A for an applicant for review to be given certain information, and by s.438 of the Migration Act gave the Tribunal what the heading to that section described as a “discretion in relation to disclosure of certain information etc”, neither party contended that those provisions had been engaged or that the matter was to be decided by the application of those provisions. In relation to s.438 of the Migration Act the Court observed: VEAL at [13] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ that the Secretary had not notified the Tribunal that s.438 of the Migration Act applied in relation to the letter or the information it contained, and therefore the precondition to the operation of s.438(3) of the Migration Act was not met. The High Court concluded that:
For present purposes, it is enough to notice that the Tribunal not having been notified by the Secretary that s.438 applied in relation to the letter or the information it contained, the precondition to the operation of s.438(3) ([i]f the Tribunal is given a document or information and is notified that this section applies in relation to it) was not met. There is, therefore, no occasion to consider the meaning or effect of those provisions of s.438(3) that would have been engaged if that condition had been met.” [footnote omitted].
VEAL at [13] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
c)by contrast in this case, the Tribunal was notified by the Secretary of the Department through the SMO that s.438(1)(b) of the Migration Act applied to the highlighted part of the information in the AHC Report, and that the Tribunal's use and disclosure of that highlighted information was subject to the provisions of s.438(3) and (4) of the Migration Act;
d)as the High Court observed in VEAL at [10] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, the content to be given to the Tribunal's obligation to accord procedural fairness “must, of course, accommodate the particular provisions made in the Migration Act which regulated how the Tribunal was to go about its task.” Here, unlike in VEAL, one of the relevant provisions as to how the Tribunal was to go about its review of the decision was s.438 of the Migration Act. Pursuant to s 438(3) of the Migration Act the Tribunal was entitled to have regard to the AHC Report and to any highlighted information in it, and might, if it thought appropriate to do so having regard to any advice given to it pursuant to s.438(2)(b) of the Migration Act, disclose any matter contained in the document, including any of the highlighted information, to the applicant; and
e)the Tribunal Decision demonstrates that the Tribunal did not have regard to the Undisclosed Information, and it had a discretion whether to disclose any matter or information contained in the AHC Report, the Tribunal's obligation to observe the requirements of procedural fairness in conducting its review did not extend to notifying the applicant of that information.
The Minister made further submissions that even if, contrary to the submissions above, the Court was to find that procedural fairness did require the Tribunal to provide the applicant with some or all of the Undisclosed information, the Court should nevertheless exercise its discretion by declining to set aside the Tribunal Decision, because:
a)not every failure to observe the requirements of procedural fairness requires that the decision in question be set aside and a new hearing ordered: Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 60 ALJR 662; (1986) 67 ALR 21; CLR at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ;
b)it is apparent from the reasons in the Tribunal Decision, that even if the Tribunal had notified the applicant of the Undisclosed Information, and the applicant had made submissions to the Tribunal in relation to that information, those submissions could not have made any difference to the Tribunal Decision to affirm the Delegate’s Decision; and
c)in those circumstances, even if the Court was to find that there had been a failure to accord procedural fairness by the Tribunal by reason of it not having provided the applicant with some or all of that information, the Court should nevertheless exercise its discretion and decline to order that the Tribunal Decision be set aside.
Consideration
In relation to the provision by the Tribunal to the applicant of the entire AHC Report, procedural fairness did not require it to be provided. The applicant’s submissions on this point descend into generality, and point to no specific authority which can sustain their argument that the applicant was denied procedural fairness by not being provided with a copy of the AHC Report. Indeed, the authorities indicate to the contrary:
a)in VEAL at [27]-[29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ the High Court said that:
27 The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well‑founded fear of persecution for a Convention reason.
28 The appellant submitted that procedural fairness further required that he be given the letter because, if he did not know who had written the letter, one obvious form of answer to the allegations made in it would be denied to him. He could not say that the author of the letter was not to be believed. That is, he could not attack the credibility of the informer unless he knew who the informer was.
29 So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the “problem of confidentiality”. Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.
b)in SZQHH at [27] per Rares and Jagot JJ the majority of the Full Court of the Federal Court said that:
However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source ….
and in so doing referenced VEAL at [15] and [29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
c)in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901; (2016) 333 ALR 653 (“SZSSJ – High Court”) the High Court, in allowing an appeal from SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125; (2015) 234 FCR 1; (2015) 326 ALR 641 (“SZSSJ – Federal Court”), held that procedural fairness [that] had been afforded to an applicant in a non-statutory migration review process were not entitled to an unabridged copy of a report into data breaches by the Department: SZSSJ – High Court at [92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, a letter putting applicants in the non-statutory migration review process “squarely on notice of the nature and purpose of the assessment and the issues to be considered in conducting the assessment” was sufficient: SZSSJ – High Court at [85]-[92] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
There was therefore no obligation on the Tribunal to provide a copy of the AHC Report to the applicant, and there was by reason of the AHC Report not being provided to the applicant by the Tribunal, no denial of procedural fairness to the applicant.
Whether the applicant was afforded procedural fairness in relation to the provision of information to him by the Tribunal, and in particular the Tribunal’s failure to provide him with the information summarised at [x] above, the Court must take into account the provisions of s.438 of the Migration Act which are set out below. Absent s.438 of the Migration Act s.422B of the Migration Act would apply: Migration Act, s.422B(2). Under s.422B(1) it would be sufficient for the applicant to have been invited to an attended, and given evidence at, the Tribunal hearing, and for matters which concerned the Tribunal to have been put to him for comment: Migration Act, ss.422B(1) and 425(1); SZBEL.
In SZSSJ – High Court at [83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, the High Court observed 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 the repository has chosen not to take into account at all in the conduct of the inquiry.
In this case, however, the Court must have regard to s.438 of the Migration Act.
Section 438 of the Migration Act relevantly provided that:
(1) This section applies to a document or information if:
(a) ...
(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 significance 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 purposes 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.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
In WZANC v Minister for Immigration & Citizenship [2012] FCA 1461; (2012) 210 FCR 585; (2012) 135 ALD 247 (“WZANC – Federal Court”) the Federal Court dealt with the operation of s.438 of the Migration Act at [55]-[57] per Gilmour J as follows:
55 Section 438 operates to put the Tribunal on notice that the document(s) and/or information were provided to the Department in confidence and governs the use to which they may be put by the Tribunal and whether or not in part or whole make disclosure of them to the appellant and in turn to others.
56 It has the effect of significantly confining the entitlement of an appellant and other persons to access such documents or information. Indeed, although the Tribunal may have regard to any matter contained in such documents or to the information (s 438(3)(a)) it is not obliged to disclose any such matter in the documents or the information to the appellant (s 438(3)(b)) in the exercise of the statutory discretion. If it does make any disclosure then it is required to give a direction under s 440 of the Migration Act if it is satisfied in the public interest that further disclosure should be confined. The disclosure of such documents or information to an appellant or other persons accordingly lies within the discretion of the Tribunal.
57 The importance of s 438(3)(a) is to expressly enable the Tribunal to make use of such documents and information despite it being given, in the first instance, in confidence to the Department.
WZANC – Federal Court upheld a judgment of the Federal Magistrates Court in WZANC v Minister for Immigration & Anor (No. 2) [2012] FMCA 504; (2012) 266 FLR 121 (“WZANC (No. 2) – FMC”) where the Federal Magistrates Court at [72] per Lucev FM observed that:
72. Of particular relevance to this case is what the High Court said in VEAL – High Court as to the contents of the letter and the assertion that the identity of the informer had to be revealed to the applicant. What the High Court said in VEAL – High Court must, however, be understood against the background that it was a case decided before the amendments made by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which, among other things, inserted s.422B into the Migration Act, providing that Division 4 of Part 7 of the Migration Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: VEAL – High Court [10] at footnote 16 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
For reasons identified in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 160; (2004) 135 FCR 567 at [86] per Beaumont, Conti and Crennan JJ (“NAVK”), and relevant to the public interest, the “… disclosure of the substance, but not the detail, of the material will often effect a satisfactory compromise between the demands of disclosure and confidentiality …”. The need to preserve confidentiality may not exclude procedural fairness but in some cases may reduce its content to nothing, or at the very least narrow its field of operation: NAVK at [87] per Beaumont, Conti and Crennan JJ (and the cases there cited). As such s.438 of the Migration Act allows the substance of the issues to be put, whilst it also accommodates the problem of confidentiality: VEAL at [27] and [29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
NAVK, must be read subject to the fact that it dealt with a case which preceded the amendments effected by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). NAVK does deal with s.438 of the Migration Act, but in a context which preceded the introduction of s.422B into the Migration Act, which has the effect of making s.438 of the Migration Act part of a mini code with respect to disclosure which is not impacted upon by common law rules of procedural fairness or the provision of s.424A of the Migration Act (prior to the enactment of s.422B of the Migration Act) which were important to the reasoning of the Full Court of the Federal Court in NAVK.
In this case, there is no evidence, and no basis for inferring, that the Tribunal took the Undisclosed Information into account, and the Court cannot speculate that it did so. In determining to affirm the Delegate’s Decision the Tribunal seemingly only had regard to that information which it disclosed to the applicant. Manifestly, it was entitled to have regard to that information, and to exercise its discretion to put that information, obtained from the AHC Report, to the applicant by way of its compliance with its procedural fairness obligations. It was not required to put to the applicant other information in the AHC Report (such as the Undisclosed Information) upon which it did not rely: SZSSJ – High Court at [83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. In so doing, the Tribunal necessarily had to make a discretionary judgment, possibly in the public interest, as to what information was used and disclosed. In those circumstances, the obligation to afford procedural fairness by the disclosure of information to the applicant is necessarily narrowed: NAVK at [86]-[87] per Beaumont, Conti and Crennan JJ. Having regard to the provisions of s.438 of the Migration Act, read in conjunction with s.422B of the Migration Act, it does not appear to this Court that there is any obligation on the Tribunal to either disclose the Undisclosed Information, or to in some other way put the applicant on notice that some other information adverse to the applicant exists, but has not been taken into account by the Tribunal.
For the above reasons, the Court considers that the Tribunal’s failure to disclose the Undisclosed Information was not a denial of procedural fairness to the applicant.
Conclusions and orders
The Court has concluded that the applicant has not been denied procedural fairness, and thereby no jurisdictional error is established in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 9 December 2016
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