AVC15 v Minister For Immigration and Anor (No.2)
[2019] FCCA 614
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVC15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2019] FCCA 614 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether failure by Tribunal to disclose certificate issued purportedly pursuant to s.438 of the Migration Act 1958 (Cth) deprived the applicant of the possibility or whether disclosure of the certificate could have made any difference to the outcome of the review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.438 |
| Cases cited: BEG15 v Minister for Immigration and Border Protection and Anor [2017] FCAFC 198 |
| Applicant: | AVC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1027 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1027 of 2016
| AVC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 7 June 2018 I published reasons for judgment in which I found that the applicant failed on each of the grounds for judicial review on which he relied.[1] I did not, however, dismiss the proceeding because first respondent (Minister) disclosed the existence of a certificate (438 Certificate) that had been issued purportedly pursuant to s.438 of the Migration Act 1958 (Cth) (Act) that relates to the applicant but which the second respondent (Tribunal) had not disclosed to the applicant.
[1] AVC15 v Minister for Immigration & Anor [2018] FCCA 1430
In my earlier reasons I noted that the Minister submitted that, for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection,[2] the purported certificate is invalid, but he submitted that this should not invalidate the Tribunal’s decision because the documents are such that had the certificate and the documents covered by the certificate been disclosed to the applicant, that could not have impacted the review the Tribunal conducted. The basis of that submission was that the documents covered by the certificate are irrelevant to any of the issues that were before the Tribunal.
[2] [2016] FCA 1081
I was of the view that the Minister’s submissions had to be considered having regard to three decisions of the Full Federal Court, these being Minister for Immigration and Border Protection v CQZ15 and Anor,[3] Minister for Immigration and Border Protection v BJN16 and Anor[4] and BEG15 v Minister for Immigration and Border Protection and Anor.[5] I was also of the view, however, that I should not then consider the Minister’s submissions because the High Court had granted special leave to appeal from the orders made by the Full Federal Court in two of those judgments, CQZ15 and BEG15.[6] I was also of the view that I would follow the course Barker J followed in BHG15 v Minister for Immigration and Border Protection,[7] namely, to reserve judgment in the appeal, pending the determination of the appeals by the High Court. I then published my reasons in relation to the grounds on which the applicant relied, and otherwise reserved judgment on the matters arising from the non-disclosure of the 438 Certificate.
[3] [2017] FCAFC 194
[4] [2017] FCAFC 197
[5] [2017] FCAFC 198
[6] BEG15 v Minister for Immigration and Border Protection & Anor [2018]; CQZ15 v Minister for Immigration and Border Protection & Anor
[7] [2018] FCA 761
On 13 February 2019 the High Court handed down its judgments on the appeals.[8] In short, the High Court held that although the failure by the Tribunal to disclose a certificate issued or purportedly issued under s.438 of the Act may constitute a breach of a duty to accord an applicant procedural fairness, such failure will not lead to the setting aside of the Tribunal’s decision unless the disclosure of the certificate could have made any difference to the outcome of the review,[9] or unless the failure operates to deprive an applicant of the possibility of a successful outcome.
[8] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
[9] [2019] HCA 3, at [3],[123]
In these reasons for judgment I consider whether the Tribunal’s failure to disclose to the applicant the 438 Certificate deprived the applicant the possibility of a successful outcome or (which in substance is the same question) whether disclosure to the applicant of the 438 Certificate would have made any difference to the Tribunal’s decision. The determination of these questions turns on the relevance or apparent relevance of the documents covered by the 438 Certificate.
The documents covered by 438 Certificate
The documents covered by the 438 Certificate are in evidence.[10] They are as follows:
a)An internal email advising of the effect of the Full Federal Court’s judgment in SZGIZ v Minister for Immigration and Citizenship.[11]
b)A pro forma document titled “Disclosure Decision Checklist”.
c)A pro forma document which records information that appears to be required to be completed at the time an applicant lodges an application for a protection visa. It contains the applicant’s identification number, the manner in which the application was lodged, whether it discloses a valid residential addressed, and a few other matters.
d)A document titled “Matter Details Summary” advising on the making of consent orders for the remittal of the matter before Tribunal, and other matters relevant to a previous application for judicial review.
e)A copy of the 438 Certificate.
[10] Supplementary Relevant Documents
[11] [2013] FCAFC 71
It is plain that none of these documents are relevant or could reasonably be considered to be relevant to the application for review that was before the Tribunal. The Tribunal’s failing to disclose to the applicant the 438 Certificate, therefore, did not deprive the applicant of the possibility of a successful outcome; and had the Tribunal disclosed to the applicant the 438 Certificate it would have made no difference to the outcome of the review.
Disposition
I propose to order that the application be dismissed. I will consider the question of costs at the time I pronounce my order.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 15 March 2019
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