AWU16 v Minister for Immigration

[2018] FCCA 2721

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2721

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – whether the Tribunal made a jurisdictional error in relation to a WikiLeaks issue – whether the Tribunal as constituted for the third time was bound to follow indications given by the Tribunal as constituted for the second time – whether the Tribunal as constituted for the third time in fact departed from indications given by the Tribunal as constituted for the second time – whether the Tribunal was biased – whether the Tribunal denied the applicant procedural fairness – whether the matter ought to be remitted to the Tribunal where there was a failure to disclose a s.438 certificate – where the substance of the information covered by the certificate was disclosed by the delegate.

Legislation:
Migration Act 1958, ss. 424A, 424AA, 438

Applicant: AWU16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 783 of 2016

Judgment of: Judge Riley

Hearing date: 18 June 2018

Date of last submission: 18 June 2018

Delivered at: Melbourne

Delivered on: 24 September 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Jamie Grant
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The application filed on 18 April 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 783 of 2016

AWU16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection (class XA) visa. 

The applicant’s claims

1. The Minister’s written submissions filed on 4 June 2018 and amended in court on 18 June 2018 summarised the applicant’s claims as follows:

   4. The applicant, a citizen of Ethiopia, arrived in Australia on 15 July 2011 on a Class TR (Subclass 676) Visitor visa. (CB 13). On 14 October 2011, the applicant lodged an application for a Protection visa (the Visa) (CB 1-31). The applicant’s wife was included in the application as a member of the applicant’s family unit. The applicant’s claims to protection were set out in his Visa application and can be summarised as follows:

   4.1. He worked as a missionary for Youth with a Mission (YWAM) in Germany. He also worked closely with Pastor Daniel Gebresellaise (Pastor Daniel), the CEO of Justice for All (also known as Prison Fellowship Ethiopia) (PFE), who is known for his “fearless stance against the government”. As a result, he [the applicant] was suspected of running underground campaigns, and experienced repeated harassment by security forces and agents. He was abused by unknown persons through phone calls and threatening letters. In or around June 2009, he was questioned by police for 15-20 minutes but was not harmed and was allowed to leave.

   4.2. He became a member and regular supporter of the Ethiopian People’s Patriotic Front (EPPF) in 2009. After attending an EPPF meeting in Germany in 2011, he was arrested on his return to Ethiopia and wrongly accused of being associated with Ginbot 7, an anti-government group. He was subjected to three weeks of unlawful detention and torture, before being released with a strict warning to disassociate with anti-government activities. In 2011, a note was left on his windscreen which read “we know what you are doing” and he believed people were following him.

   4.3. In 2011, he and his wife arrived in Australia in 2011 as visitors on valid Ethiopian passports to attend a professional development program. After his arrival he was notified that his family’s home had been raided by security forces, and his belongings had been confiscated, including his laptop and documents. Several of his family members were interrogated, and his father was also assaulted and accused of associations with Ginbot 7.

   4.4. He claimed to fear harm on account of his political opinion as a member of the EPPF, his imputed political opinion due to his association with Pastor Daniel and his membership of the PFE and YWAM, and as a suspected member of the Ginbot 7. He also claimed to fear harm as a failed asylum seeker, and on account of his membership of the particular social groups consisting of, “humanitarian aid workers in Ethiopia” and, “humanitarian aid workers in Ethiopia with international non-government organisations”.

   5. On 10 November 2011, the applicant made submissions to the department in support of his claims as per his Visa application (CB 55-60). The applicant attended an interview before the delegate on 21 November 2011 (CB 116). Following his Visa interview, the applicant submitted a statutory declaration dated 24 November 2011 to the department providing further detail regarding his claims (CB 102).

The Tribunal’s reasons

1. The Minister’s written submissions summarised the Tribunal’s reasons for decision as follows:

   19. The Tribunal did not find the applicant or his wife to be credible witnesses (CB 595-597 [29]) for the following reasons: (1) his “vague and limited” knowledge of the EPPF; (2) the Tribunal found it implausible that a driver transporting him between prisons during his three week detention in 2011 would contact his wife out of compassion (as claimed) having regard to country information which indicated that Ethiopian authorities often acted in an “arbitrary and violent manner without impunity”(sic); (3) the applicant’s wife’s inability to recall the dates that she had visited him in prison; (4) the delegate found the applicant’s claim that the authorities had left a note on his windshield to be implausible again with regard to country information which indicated that Ethiopian authorities often acted in an “arbitrary and violent manner without impunity”(sic); and (5) the total absence of any reports of the targeting of members of the PFE or YWAM by the Ethiopian authorities.

   20. The Tribunal did not accept that the applicant had ever been or was a member or supporter of the EPPF (CB 597-598 [30]), giving no weight to a document indicating the applicant was a member of the EEPF in light of its credibility findings (CB 599 [37]). The Tribunal similarly did not accept that the applicant was a supporter of the Ginbot 7, or the newly merged group Arbegnoch Ginbot for Unity and Democracy Movement (AGUDM), or any other anti-government group (CB 600 [40]).

   21. The Tribunal did not accept that the applicant was interrogated, was suspected of running underground campaigns, or experienced any sort of harassment or questioning from authorities; nor did it accept that the applicant had been abused by unknown persons through phone calls and letters (CB 598 [31]). The Tribunal did not accept that the applicant was arrested in 2011, subjected to three weeks of unlawful detention, tortured, and denied access to proper food and medical treatment; nor did it accept that a threatening note had been left on the applicant’s windscreen in 2011 (CB 598 [32]).

   22. The Tribunal did not accept that the applicant was advised that there had been a raid on his home in 2011, and that his belongings were confiscated. The Tribunal did not accept that the applicant’s father and other family members were interrogated, or that the applicant or any of his family members were of any adverse interest to the Ethiopian authorities (CB 598 [33]).

   23. The Tribunal took into account the Wikileaks cables in which Pastor Daniel was said to have provided information to the United States government on the mistreatment of prisoners. Whilst the Tribunal accepted that the applicant had been involved with PFE and had a level of association with Pastor Daniel, the Tribunal did not identify any reports that indicated that Pastor Daniel had been targeted or harmed by the Ethiopian authorities. The Tribunal accepted that Pastor Daniel would have a degree of protection due to his “fame and international connections” and that he was questioned by authorities after the Wikileaks cables were released. However, the Tribunal found the absence of any reports that Pastor Daniel had been harmed detracted from the credibility of the applicant’s claim that he was of adverse interest to the authorities based on his association with Pastor Daniel (CB 598-599 [34]).

   24. In making its findings, the Tribunal took into account the Tribunal’s Guidelines on Assessment of Credibility (CB 599 [35]) and the psychologist’s reports submitted. It accepted that the applicants had the conditions described in the reports, but did not accept that these conditions were a result of torture or trauma, or due to concerns about their physical safety (CB 599 [36]).

   25. The Tribunal gave little weight to the oral evidence provided by the applicant’s colleague Rebekka Boardman, who had worked with him at YWAM in Ethiopia, as the witness was unable to explain details of the alleged threats against the applicant while they worked together (CB 599 [38]).

   26. Whilst accepting the applicant’s involvement with YWAM and PFE in Ethiopia, the Tribunal concluded that the applicant had not been of any adverse interest to the Ethiopian authorities in the past. Having regard to country information which indicated that Pastor Daniel and the PFE had been working with [the] Ethiopian government, the Tribunal found that the chance of the applicant being seriously or significantly harmed on account of his membership of the particular social groups “humanitarian aid workers in Ethiopia” or “humanitarian aid workers who work with international non-governmental organisations in Ethiopia”, or due to any actual or imputed political opinion, to be remote (CB 599 [39]).

   27. Having regard to country information, the Tribunal found that the chance or risk of the applicants facing serious or significant harm on account of being failed asylum seekers (CB 600 [41]), or on account of their religion or involvement with the YWAM (CB 600 [42]), to be remote.

   28. In considering the applicant’s circumstances and independent country information cumulatively, the Tribunal found that the applicant did not face a real chance of serious harm (CB 600 [43]) or a real risk of significant harm (CB 600 [44]). The Tribunal therefore found that the applicant did not meet the criteria for the grant of the Visa at ss 36(2)(a) or 36(2)(aa) of the Act (CB 600 [45]).

Ground 1

1. The first ground of review in the application filed on 18 April 2016 (“the application”) is:

   The decision of the Tribunal was affected by an error of law[.]

2. The applicant was unrepresented in the proceedings before this court.  He did not provide written particulars of his grounds of review and he did not provide written submissions. However, in oral submissions, the applicant made a number of points.

a.     WikiLeaks

1. The applicant said, firstly, that the Tribunal had erred in relation to the WikiLeaks issue by giving it insufficient weight.  The applicant noted that the Tribunal said at paragraph 34 of its reasons for decision:

   In making my findings, I have taken into account the Wikileaks’ cables concerning Pastor Daniel Gebresellaise that indicate that the Pastor provided information to the United States government on the mistreatment of prisoners. I accept and have taken into account that the applicant has been involved with JFA-PFE and has a level of association with the Pastor.

2. However, that paragraph went on to say:

   I have also taken into account a report that an Ethiopian reporter said he was interrogated by the Ethiopian authorities concerning the identity of his government source and that he fled the country.9 However, as put to the applicant under s.424AA of the Act, the Tribunal has not identified any reports that the Pastor has been targeted or harmed by the Ethiopian government or anyone else10 and the JFA-PFE website shows that the Pastor is still the president of this group and he was pictured in 2015 signing MOU agreements with both the Federal and Regional Supreme Courts of Ethiopia and the Oromia Justice Bureau.11 The applicant has commented in writing that because the Pastor is involved with foreigners and overseas governments, he is protected but that he would not have the same protection. He commented that the MOU agreement was not signed with the Ethiopian government or parties but with local court houses with the donations of the Netherlands and Norwegian governments. While I have taken into account that the JFA-PFE and the Pastor have signed an MOU with the judiciary, the available evidence also indicates that he and they signed an agreement with the Oromia Justice Bureau which is part of the executive branch of government.12 I accept that the Pastor would have a degree of protection due to his fame and international connections but there is no indication that he has ever been targeted or harmed and the Tribunal has not identified any reports of JFA-PFE members being harmed after the Wikileaks publication. The country information indicates that authorities often act in an arbitrary and violent manner without impunity (sic) against suspected political opponents13 and whilst I am prepared to accept that the Pastor was questioned by the authorities after the Wikileaks’ cables were released, I find the lack of reports indicating that the Pastor is or has been harmed and the country information that he and JFA-PFE are working with the government, detracts from the credibility of the applicant’s claims that he was or has become of adverse interest to the Ethiopian authorities or anyone else on account of the release of the Wikipedia (sic) cables and his association with the Pastor and JFA-PFE. 

   9     British Broadcasting Corporation, Wikileaks cable: Ethiopia report Argaw Ashine ‘flees’, 15 September 2011, It has for example, searched a wide range of sources including US State Department Human Rights Practices reports, Human Rights Watch reports and United Kingdom Home Office reports.

   11    Justice for All - Prison Fellowship Ethiopia website, Oromia Justice Bureau website, An Overview of Oromia Justice Bureau, http:/lwww.oib.gov.et/en/about-us/organization.

   13    See for example, US Department of State, Country Reports on Human Rights Practices 2014 Ethiopia. >

   It seems to me that the Tribunal’s analysis of the WikiLeaks issue was open to it.  The Tribunal’s conclusions on the WikiLeaks point were rational in a legal sense, and there does not appear to have been a denial of procedural fairness in relation to them.  In addition, matters of weight are generally within the Tribunal’s sole discretion.  There seems to be no proper basis in the present case to conclude that the Tribunal’s weighting of the WikiLeaks issue was erroneous in a way that could amount to jurisdictional error.

3. Moreover, the Tribunal’s conclusions on the WikiLeaks issue need to be seen in the context of the Tribunal’s general findings that the applicant and his wife were not credible witnesses.  The Tribunal explained its findings on their credibility at paragraphs 29 and 30 of its reasons for decision as follows:

   29. I have considered carefully the applicants’ claims but I do not consider them to be credible witnesses. I do so for the following reasons:

   • The applicant has claimed that he was a member of the EPPF and that he donated money to it and attended meetings and that he would continue to be involved in its new merged form. However when asked at the hearing, he was not aware of its main ideology of Ethiopianism1 and his understanding of the party’s goals and policies was vague and limited as he was only able to state that it was to overthrow the government and bring a more democratic system and that it supported more private ownership of land. Though he was aware that the party had merged with Ginbot 7, he was not able to say the name of the new merged group, Arbegnoch Ginbot 7 for Unity and Democracy Movement (AGUDMJ).2 I have taken into account that the applicant has been outside Ethiopia since 2011 and has been working to support his family. He has also claimed that the applicant claimed that his involvement in EPPF was more due to his involvement of his cousin, however I do not accept that if the applicant was a supporter of this party who was willing to become a member of the party and donate money to it that he would not be aware of such critical matters and I find this detracts from his credibility. 

   • I do not find it plausible or credible that a driver transporting the applicant between prisons with two government officials in a vehicle would contact his wife. The applicant claimed that the driver did this for compassionate reasons and it was submitted that it could have been because the driver had suffered similar treatment, had a grievance with the authorities himself, believed the applicant, was particularly religious and had the same faith as the applicant or believed in the work he was doing. However, these explanations seem very speculative and country information before the Tribunal indicates that the Ethiopian authorities often act in an arbitrary and violent manner with impunity3 which would deter such an action by the driver and I consider this implausibility of the claim detracts from the overall credibility of the applicants.

   • In the statutory declaration of the applicant wife, dated 2 May 2012, it is claimed that she visited the applicant in prison the next day after she was told of his imprisonment. However in the hearing with the first Tribunal, she stated that it was on the same day she was told of his imprisonment. The applicant commented that she was not the main applicant and their culture was based on the man protecting the family and that she had gone through a lot and was a housewife and baby sitter and was not getting support and had issues with her memory and a fear of going back. I have considered this explanation, but I do not accept that it satisfactorily addresses why she could not consistently recall such an important detail relating to such an important event and I consider the inconsistency detracts from the credibility of the applicants.

   •I consider the applicant’s claim that the authorities left a note on his windshield stating vaguely that they “knew what he was doing” to be implausible and not credible. The applicant commented that he was working with Pastor Dan and was working in the prison and getting information from prisoners. He said they wanted to give him a warning and hadn’t found any evidence that he was in opposition and would harm the government. I have considered his response, however country information before the Tribunal indicates that the Ethiopian authorities often act in an arbitrary and violent manner with impunity against suspected political opponents4 and I find this claim that that (sic) they would act in this way rather than taking more direct action against him to detract from his credibility. 

   • The Tribunal has not identified any reports of the Ethiopian authorities targeting members of the JFA-PFE.5 Indeed, its website indicates that it is still operating and working with the Ethiopian government and has signed Memorandum of Understandings (MOUs) with the Federal and Regional Supreme Courts of Ethiopia and the Oromia Justice Bureau which is part of the executive arm of government.6 The applicant commented that the group was more into justice and that in 2005 everything changed, they built toilets and that the government wanted them to focus on mercy missions and not be political. He said the group was linked with international organisations mostly based in the USA and the government did not want to lose benefits given to it by other agencies. In submissions, the relationship between JFA-PFE and foreign donors is noted and that JFA-PFE is an advocacy group. I have taken into account these comments and accept that the Ethiopian government would be concerned about international opinion. Whilst I accept that they have signed a MOU with the judiciary, it is also apparent they have signed a MOU with part of the executive arm of government. Furthermore, country information indicates that Ethiopian authorities often act in an arbitrary and violent manner without impunity (sic) against suspected political opponents7 and I find the total lack of reports indicating that members of this group are or have been targeted and that it is working with the judicial and executive arms of government detract from the credibility of the applicant's claims to have been targeted due to an association with this group. 

   • The Tribunal has not identified any reports of members of YWAM having been targeted or harmed within Ethiopia.8 The applicant commented at the hearing that in his past history he had been imprisoned and that his name was on a list and the police went to his family house and will look into his political involvement and that they are interested in who leaked information to Wikileaks. It was later submitted that there would not be any reports of YWAM missionaries being harmed as it was the applicant himself who was responsible for organising, managing and co-ordinating the missions to Ethiopia. I have considered his comments and the submissions, however I consider the total absence of reports of targeting of any members of YWAM detract from the credibility of his claims to have been of interest to the Ethiopian authorities and to have been targeted and harmed as a result.

   30. The applicant wife did not comment on these matters at hearing and given these highly significant and fundamental concerns about their credibility, I do not accept that the applicant has ever been or is a member [or] supporter of the EPPF or that he attended their meetings and donated money to them. I do not accept that he is a supporter of the newly merged group AGUDM. 

   1     ‘Interview with Ethiopian People’s Patriotic Front (EPPF) Foreign Relations Officials’ 2011, Ethiopia.org website,

   < =all>, Ethiopian People's Patriotic Front, Aims Objectives, ‘Ginbot 7 and EPPF Military Wings Merged’ 2015, TesfaNews, 10 January < Accessed 14 October 2015 <CX8O6AODE14667>.

   3    See for example, US Department of State, Country Reports on Human Rights Practices 2014 Ethiopia.    See for example, US Department of State, Country Reports on Human Rights Practices 2014 Ethiopia. http:1/ =236358#wrapper

   5    It has for example, searched a wide range of sources including US State Department Human Rights Practices reports, Human Rights Watch reports and United Kingdom Home Office reports.

   6    Justice for All - Prison Fellowship Ethiopia website, Oromia Justice Bureau website, An Overview of Oromia Justice Bureau.    See for example, US Department of State, Country Reports on Human Rights Practices 2014 Ethiopia.    It has for example, searched a wide range of sources including US State Department Human Rights Practices reports, Human Rights Watch reports and United Kingdom Home Office reports.

1. It seems to me that those credibility findings, especially when taken as a whole, were open to the Tribunal.  The context provided by those credibility findings also supports the Tribunal’s findings in relation to the WikiLeaks issue.  I am not persuaded that the Tribunal made a jurisdictional error in relation to the WikiLeaks issue.

b.     The Tribunal not accepting matters the previous member had accepted

1. The applicant’s second point in oral submissions to the court concerned the fact that the Tribunal was constituted successively by three different members. The decision of the first member was set aside by Judge Burchardt of this court.  On remittal, a second member of the Tribunal conducted two hearings.  However, he was unable to make a decision before his contract expired.  A third member of the Tribunal conducted another hearing and made the decision presently under review.

2. The applicant told the court that the second Tribunal member had accepted most of his case but the third Tribunal member had not.  When the applicant said that the second member had accepted most of his case, he presumably meant that the second member said during a hearing that he accepted certain claims, as the second member did not make a decision as such.

3. A complete transcript of the hearings conducted by the second member was not provided to the court.  However, a partial transcript is contained at CB577, in a letter from the applicant’s then solicitor and migration agent to the third member of the Tribunal. It indicates that the second member said the following:

   [1]In a way as the evidence has developed, I don’t know whether ... I don’t know if ... I have not made any decision about whether I accept ... Mr [Applicant] ... your evidence whether you were detained or not ... I don’t know what I think about that yet. But it may be that even if I don’t believe you about that if I accept your (sic) affected by the WikiLeaks it’s possible that I might conclude you have real chance of persecution because of that situation. So it may be that whether I believe you were detained may not determine the application. But on the other hand it may affect my assessment [of] your credibility generally. Here again it may be that the risk to you form (sic) the WikiLeaks situation if I accept you were involved in the prison ministry then maybe credibility problems are not so serious, I don’t know.

   …

   [2]… I am prepared to accept [the Applicant] was doing work with YWAM and that he was in and out of Ethiopia and Germany. …

   …

   [3]I am happy to accept you [were] involved in a prison ministry. I am happy to accept you were involved. That was something that was corroborated with Ms Boardman’s evidence.

   …

   [4]It seems to me that if the Ethiopian government perceive the connection between the applicant’s work and Pastors Dan’s organization sufficiently close to implicate him possibly in the WikiLeaks, in that way I can see where previously there might not have been a real chance of persecution there might be, so you can take it that I will think very seriously about that.

   …

   [5]I think I am not in position, there is such a volume of evidence, I am not in a position to give a favorable decision today ... nor an unfavorable decision. I have not made up my mind. That even if, it may be that if I am not persuaded about the detention I may still be satisfied there is a real chance of persecution and the application may be successful. I just need to think further about [it].

4. The first passage does not indicate that the second member accepted anything at all.  The first passage clearly states that the second member had not made any decision about whether the applicant was detained or not, but then said that, possibly, the WikiLeaks issue might lead the second member to conclude that the applicant faced a real chance of persecution.  However, the second member then went on to note that the credibility issues about the detention issue might undermine the applicant’s claims in relation to the WikiLeaks issue as well.

5. In relation to the second passage, the third member also accepted, at paragraph 39 of his reasons for decision, that the applicant had worked with YWAM and had travelled outside Ethiopia on several occasions.  Outside Ethiopia can be understood as meaning Germany, as that was what the applicant claimed.

6. In relation to the third passage, the third member also accepted, at paragraph 39 of his reasons for decision, that the applicant had been involved with a prison ministry.

7. In relation to the fourth passage, the second Tribunal member did not say that he had accepted that the WikiLeaks issue alone amounted to a real chance of persecution but said that he would think very seriously about it.

8. In relation to the fifth passage, the second member expressly stated that he had not made up his mind.

9. All in all, the passages referred to in the solicitor’s letter either concern matters that the third member accepted, or indicate that the second member had not made up his mind.   Consequently, there is no substance to the applicant’s complaints about this issue.

10. In any event, as a general proposition, any statements made by the second member during the course of the hearings before him would not bind the Tribunal as constituted by the third member, although those statements might give rise to procedural fairness issues.  In the present case, any such issues would have been dealt with by an email from the Tribunal to the applicant’s solicitor, in response to a query from the solicitor, in which the Tribunal said (CB555):

    The Tribunal wishes to advise that it does not intend to revisit all of the evidence from the previous hearings, however at this stage it intends to raise similar concerns as the previous two members.

c.      Tribunal member having closed views

1. The applicant’s third point in oral submissions to the court was that the Tribunal had really closed views. This could be characterised as an allegation of actual or apprehended bias.  However, there was no material before the court to substantiate that allegation.  On the contrary, the material such as it is indicates that the Tribunal gave careful and thorough consideration to the case before it.  The applicant’s allegation in relation to bias is not substantiated.

Summary in relation to ground 1

1. None of the points raised by the applicant in oral submissions amount to a jurisdictional error. I have been able to discern any other basis on which it could be said that the Tribunal made an error of law in this case. Consequently, ground 1 is not made out.

Ground 2

1. The second ground of review in the application is:

   The Tribunal failed to afford the applicant procedural fairness[.]

2. Some aspects of this ground have been addressed in the context of ground 1.  In addition, the Tribunal, as constituted by the third member, invited the applicant to a hearing, adjourned it at the applicant’s request, and eventually conducted a hearing where the applicant was assisted by his solicitor and an interpreter.  There can be no doubt that the applicant was on notice that his credibility was a major factor in the determination of his matter, based on the delegate’s decision, the first Tribunal decision, the statements made by the second member set out above, and the email sent by the Tribunal set out above.

3. The Tribunal noted in paragraph 34 of its reasons for decision that it put certain information to the applicant under s.424AA of the Migration Act 1958 (“the Act”). As the applicant was represented by a solicitor at the hearing, and, as there is no material to the contrary, there is no reason to believe that the Tribunal did not put the information correctly. Apart from the information put under s.424AA of the Act, I have been unable to identify any other information that should have been put to the applicant under s.424A of the Act.

4. All in all, I have been unable to discern anything in this case that could amount to a denial of procedural fairness.

Ground 3

1. The third ground of review in the application is:

   Further particulars to be provided.

2. The further particulars were provided orally at the hearing.  As discussed above, the matters raised by the applicant do not amount to jurisdictional error.

Section 438 certificate

1. As a model litigant, the Minister raised a further issue, being that a delegate of the Minister gave the Tribunal a s.438 certificate. The existence of the s.438 certificate was not disclosed by the Tribunal to the applicant. The Minister conceded that the certificate was invalid, because it was given by a delegate rather than the Secretary. Assuming that the power to give such certificates is not delegable, the Minister argued that the Tribunal’s failure to disclose the existence of the certificate was not a jurisdictional error because the substance of the information covered by the certificate was disclosed by the delegate to the applicant and the Tribunal did not rely on the information in any event.

2. Although the Tribunal did not mention the information covered by the certificate, it remains a possibility that the Tribunal acted on it in some way.  I do not consider that this argument is sufficient to resolve this issue.  However, the Minister’s first point, that the substance of the information was disclosed by the delegate, would answer any procedural fairness argument.

3. The information is exhibited to an affidavit affirmed by Rebecca Bensted on 4 June 2018.  It indicates that the information was obtained from the Five Country Conference.  The substance of the information is that:

   a)the applicant was fingerprinted on 24 August 2010 and 11 May 2011 in ADAB and NAIR, which possibly means in Addis Ababa and Nairobi respectively; and

   b)his wife was fingerprinted on 24 August 2010 in ADAB. 

4. The delegate said in her reasons for decision (CB124) that:

   The applicant claims to have been held in detention as from 24 April – 15 May 2011, or possibly longer. When questioned on how he could be fingerprinted in connection with a UK visa application on 11 May 2011 (folio 49) if he was in prison on this date, he was evasive in his response. When asked to be specific regarding the period of his detention and when and how he was able to lodge his visa application while still in prison he claimed that the original dates he had given could have been incorrect. Following interview, that applicant provided a Statutory Declaration claiming that sympathetic family friends had been able to bail him out of the detention centre so that he could attend his visa interview on the 11 May 2011 (folio 123). I find it curious that these claims were not raised at interview as I would expect the applicant to have a very clear memory of how he was able to loge (sic) a visa application at the same time he his claiming to have been held in detention.

5. In other words, the substance of the information covered by the s.438 certificate, namely, that the applicant was fingerprinted on 11 May 2011, was disclosed to him, and he was given an opportunity to respond to it, well before the Tribunal’s decision. Although the facts that the applicant and his wife were also fingerprinted on 24 August 2010 were not disclosed to the applicant, those facts were not material. In the circumstances, there was no practical injustice arising from the failure to disclose the s.438 certificate, and either no jurisdictional error in relation to it, or, on discretionary grounds, no proper basis to remit the matter.

Conclusion

1. I have carefully read the Tribunal’s reasons for decision and parts of the court book.  I have been unable to discern any proper basis for remitting this matter.  Consequently, the application will be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 24 September 2018