AYE16 v Minister for Immigration & Anor
[2017] FCCA 1424
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1424 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection (Class XA) visa – dual Pakistani and South African citizen – whether jurisdiction to review decision of delegate – whether Administrative Appeals Tribunal considered claims made – whether bias – effect of failure to disclose to applicant existence of certificate concerning confidentiality and non-disclosure of documents – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.48A, 48B, 91M, 91N, 91P, 91Q, 375A, 417, 438, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 |
| Applicant: | AYE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 179 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 June 2017 |
| Date of Last Submission: | 19 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 179 of 2016
| AYE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision made by the second respondent, the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) on 30 March 2016. The AAT affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) on 8 October 2014 to refuse to grant the applicant a protection visa (“Protection Visa”).
The AAT Decision appears in the Court Book (“CB”) at CB 329-341.
Factual and procedural background prior to AAT Decision
The factual and procedural background to the matter prior to the AAT Decision is as follows:
a)the applicant is a citizen of Pakistan and South Africa. He claims to be a Sunni Muslim originally from Pakistan who left that country for South Africa in 1997. The applicant entered South Africa on a tourist visa and later married a citizen of South Africa and obtained citizenship of that country in 2006. He and his wife subsequently divorced: CB 124 and CB 332 at [23];
b)on 26 September 2011 the applicant applied for a tourist visa to enter Australia for a two week period from 15-29 October 2011: CB 1-9, eventually entering Australia on 24 November 2011: CB 333 at [27]-[28];
c)the applicant lodged an application for a Protection Visa on 11 January 2012 claiming that he is at risk of harm having been targeted by al Qaeda since 1996, as al Qaeda regard him as an informant: CB 51;
d)on 25 May 2012, the applicant was notified that his Protection Visa application was invalid because of the application of ss.91N and 91P of the Migration Act as he was a national of two or more countries at the time of applying for the Protection Visa: CB 193;
e)on 17 June 2012 the applicant requested that the Minister exercise his power under s.91Q of the Migration Act to determine that s.91P of the Migration Act did not apply to the applicant and to allow the applicant to make a valid Protection Visa application: CB 198;
f)a submission was sent to the Minister in relation to possible Ministerial intervention pursuant to s.91Q of the Migration Act: CB 222-224;
g)on 8 March 2013 the Minister decided to intervene: CB 225, and the Minister tabled a statement to Parliament in respect of his decision to intervene, in which the Minister indicated that the applicant had attempted to make the Protection Visa application but was not able to do so by reason of the operation of s.91P of the Migration Act because the applicant was a national of two countries, but that having regard to the applicant’s particular circumstances the Minister had determined that it would be in the public interests under s.91Q of the Migration Act to lift the statutory bar to allow the Protection Visa application to be made: CB 227;
h)on 15 May 2014 the applicant was invited to attend an interview with the Delegate in respect of his Protection Visa application: CB 230;
i)on 8 October 2014 the Delegate refused the Protection Visa application: CB 249;
j)the applicant lodged an application for review of the Delegate’s Decision on 28 October 2014: CB 266;
k)the Department of Immigration & Border Protection (“Department”) subsequently provided the AAT with a copy of file number CLF2012/6731 and issued a certificate regarding the disclosure of certain information under s.438 of the Migration Act (“438 Certificate”): CB 263;
l)the AAT held a hearing in respect of the applicant's claims on 12 January 2016: CB 309-311; and
m)on 30 March 2016 the AAT affirmed the Delegate’s Decision: CB 329 and CB 341 at [85].
AAT Decision
In the AAT Decision the AAT set out the details of the applicant’s Protection Visa application, both from his Protection Visa application and his appearance before the Delegate, including the following:
a)details of an incident in 1996 in which the applicant reported to the police men who lived in the same building as the applicant taking delivery of ammunition;
b)that he was told by his roommate that the men taking delivery of the ammunition were from al Qaeda: CB 331 at [13]-[15];
c)that the men involved in the ammunition delivery were subsequently arrested by the police and bribed the police officers to tell them who had informed upon them, and that in June 1997 the applicant’s father’s house was attacked and his father was kidnapped, but allowed to escape after nine days: CB 331-332 at [17]-[18];
d)that the men concerned had followed his father to a house in which the applicant was living in Lahore, and had shot two men sitting outside the house, and that after that occurred he and his father made arrangements for the applicant to leave Pakistan: CB 332 at [20];
e)the applicant obtained a tourist visa to go to South Africa, and obtained a further visa after he married a local woman and established a business selling electrical goods: CB 332 at [23];
f)the applicant claimed to have completed his education in Lahore in Pakistan in 2000, and this led to significant questioning by the Delegate as to his movements between South Africa and Pakistan between 2001 and 2011, and as to why he returned to Pakistan after allegedly fleeing for his life: CB 333 at [24]-[26];
g)that the applicant did not have any problems with al Qaeda in South Africa until 2011, but that he remained on an al Qaeda hit list, and that in 2011 he received a letter from al Qaeda (“al Qaeda Letter”) threatening him;
h)the applicant had taken the al Qaeda Letter to the local South African police but they had said that they could not protect him, and thereafter he moved from place to place to save himself, and did some research on the internet and learned that al Qaeda did not have a presence in Australia and obtained a visitor’s visa and travelled to Australia on 24 November 2011: CB 333 at [27]-[28];
i)the applicant was asked about the al Qaeda Letter sent to him in South Africa, and al Qaeda’s motivation in sending him a threatening letter rather than simply killing him, to which the applicant indicated that they could not find him, in relation to which the Delegate pointed out that the fact that he had said that the letter was delivered to his house indicated that they knew his whereabouts (on the basis of the applicant’s version of events): CB 333 at [29]-[31]; and
j)referred to a first information report from police in Pakistan dated 8 June 1997 concerning armed men forcing their way into the applicant’s mother’s house and demanding to know the applicant’s whereabouts: CB 334 at [34].
The AAT also noted the Delegate’s findings that the applicant was not a credible witness, and the rejection of the applicant’s claims by the Delegate, and the Delegate’s finding that the 8 June 1997 information report was not a genuine document, a finding based on evidence from DFAT regarding the availability of fraudulent documents in Pakistan: CB 334 at [35].
The AAT then set out what occurred on the application for review, which can be summarised as follows:
a)the applicant lived in Lahore from 1988 onwards having left his home town and lived in apartments with friends and worked as an electrician and studied at night: CB 334 at [37]-[38];
b)that he graduated in Lahore in 2000, having returned from South Africa for four or five months to complete his diploma and lived in a hotel between Lahore and his home town during that time: CB 334 at [39];
c)the incident which the applicant said forced him to flee Pakistan in 1997 was discussed with the applicant, and how the applicant said he had seen ammunition delivered to a room across the corridor, in relation to which the AAT questioned the applicant about how he was able to observe events in a room across a corridor: CB 334-335 at [40]-[42];
d)the AAT discussed with the applicant his reporting of the ammunition deliveries to the police, and the subsequent police raid on the premises, what occurred during the raid, and in particular as to what the applicant could see in the room across the corridor: CB 335 at [43]-[44];
e)the AAT discussed with the applicant how it was that his roommate knew that the men across the corridor were from al Qaeda, and the applicant’s movement to a different address shortly after the police raid, and the information which the applicant had provided to the police concerning the men dealing in ammunition: CB 335-336 at [45] and [47]-[48];
f)the AAT discussed with the applicant the subsequent attack on the house where the applicant was living which resulted in the death of other people at the house: CB 336 at [49];
g)the AAT discussed with the applicant whether or not the applicant had had any problems following his departure from Pakistan in 1997 and up until 2011, in relation to which the applicant said that his father had warned him not to return to Pakistan, a warning which the AAT noted had not previously been mentioned: CB 336 at [51]-[52];
h)the AAT discussed with the applicant a number of occasions on which the applicant had returned to Pakistan since leaving in 1997: CB 336 at [53];
i)the AAT discussed with the applicant the applicant’s fear of al Qaeda linked groups in South Africa, al Qaeda’s presence in South Africa (the AAT noting its understanding that al Qaeda did not have a large presence in South Africa) and how it was that al Qaeda were able to find the applicant in South Africa 14 years after he left Pakistan: CB 336-337 at [54]-[57]; and
j)the AAT told the applicant that it shared concerns expressed by the Delegate as to the applicant’s claims, and in particular indicated that it was concerned about his claims as to:
i)the delivery of ammunition in such an open way as was claimed by him;
ii)how al Qaeda had learnt of his whereabouts in South Africa after 14 years; and
iii)why it was that al Qaeda would simply send him a threatening letter if they knew where he was rather than killing him, given the applicant’s claim that al Qaeda were determined to kill him: CB 337 at [58]-[61].
Following the AAT hearing the AAT wrote to the applicant asking him to comment on inconsistencies in his evidence in relation to:
a)the applicant’s account of the delivery of the ammunition to the house in which he lived in Pakistan;
b)how he knew the men involved in the ammunition trade were from al Qaeda; and
c)the circumstances of the delivery of the al Qaeda Letter from al Qaeda to his home in Pretoria in South Africa: CB 338 at [62]-[66].
In its findings in the AAT Decision, the AAT:
a)rejected all of the applicant's claims, and did so based largely on an adverse credibility assessment, noting that there were significant inconsistencies in the applicant's evidence, and a number of the applicant's claims were far-fetched and implausible: CB 338-340 at [67]-[78];
b)acknowledged that there has been a 17 year gap since the claimed events, but was of the view that the applicant’s inability to provide a reasonably clear and consistent account of the events was a strong indication they were not true: CB 339 at [70];
c)found it was significant that despite the applicant’s claim that he was being targeted by al Qaeda, he had returned to Pakistan on at least five occasions after 1997, including 2000 when he stayed for 4-5 months and 2011 when he also stayed for a number of months, and noted that the applicant was evasive about these trips, not only before the AAT but before the Delegate also (as to which see CB 253-255), on both occasions seeking to minimise the number of his return visits to Pakistan, which contributed to the AAT's concerns about his credibility: CB 339 at [72]-[73];
d)after considering all of the evidence, rejected the central claim that the applicant had witnessed ammunition being delivered in Pakistan by al Qaeda members, and as a consequence rejected the claim that the applicant had ever been of adverse interest to al Qaeda whether in Pakistan or South Africa: CB 339-340 at [74];
e)gave very little weight to a first information report dated 8 June 1997 concerning the claimed abduction of the applicant’s father, noting that the document was hand-written with three stamps and could easily have been manufactured, and was not obtained until some 16 years after the events that it recorded, and then not until after the Delegate had observed (Delegate’s Decision at CB 253) that the applicant had not provided any documentary evidence in support of his claims: CB 340 at [75];
f)found that the applicant’s claims with respect to al Qaeda continuing to search for him in his village some 15 years after he left Pakistan to be far-fetched and implausible, and that he was unable to provide any credible evidence to support his assertion that al Qaeda had a large presence in South Africa which meant that he would be at risk of harm if he remained there: CB 340 at [77]; and
g)found that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention, and that the applicant did not satisfy the criteria set out in s.36(2)(a) of the Migration Act, having taken into account the applicant’s claims and all of the relevant evidence: CB 340 at [79], and for the same reasons finding that the applicant was not entitled to complementary protection: CB 340-341 at [80]-[81].
Grounds of Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. I am a citizen of Pakistan and South Africa. I Came to Australia on Visitor Visa. I obtained my Australian Visitor Visa on 24th Nov 2011.
2. I belongs to Sunni Muslim background from [name of town deleted] Pakistan. I left Pakistan for South Africa in 1997. I obtained South African citizenship in Nov 2006
3. Then I applied for Protection visa on 11th Jan 2012 and delegate refused to grant the visa on 8th Oct 2014
4. I applied for a Review of that decision on 28th Oct 2014. Since then I was called for an interview for my application on 12th Jan 2016.
5. I have feared of life threat in South Africa and Pakistan. I am not able to go back.
6. I claimed that in 1996 men who lived observed me in same building that taking delivery of ammunition and this reported to Police who raided the men's room. At that time two of them were killed and 9 people were detained by local police
7. Even after that incident I moved to another place in Lahore and I went to local Police station to seek protection and help from Police. But the refused to do so.
8. My Fathers House back home in Pakistan were also attached by those men's in June 1997 and my father was kidnapped.
9. Then after I obtained the Tourist Visa for South Africa to escape from the whole fear and mess up in Pakistan by Al-Qaeda. Because I was on hit list on Al-Qeada
10. Then after few years I was located By Al-Qeada in South Africa and they tried to threaten me there. I was so Scared and wasn't not able to tell anyone about this.
11. I had fear to life threat from Al-Qeada. Al-Qeada has large networks and connections around the world So thay have strong connections in South Africa and they were able to locate me Because I was in there wanted list.
12. Now my application or Review is refused on 3oth March 2016. Now I am applying a review in federal Circuit Court against the decision made by delegate of Minister for Immigration.
13. I have summited my claims to Tribunal and they refused to grant me refugee status in Australia.
14. I need help and protection in Australia So that I cannot go back to Pakistan and South Africa.
15. So now I request to Court to look in to this matter and give me justice on my claims that I have made to Immigration Department.
The Judicial Review Application is supported by an affidavit sworn by the applicant on 18 April 2016 which is identical terms to the grounds of the Judicial Review Application.
Proceedings in this Court
A Registrar of this Court made procedural orders on 25 May 2016 (“Registrar’s Orders”) including ordering the applicant to file any amended application giving particulars of the grounds of review and any affidavits which the applicant intended to rely upon at the hearing of the matter on or before 20 July 2016, and to file an outline of submissions not less than 42 days before the hearing which was listed for 19 June 2017 in the Registrar’s Orders.
The Court notes that the applicant has not filed any amended application, any affidavits upon which he intends to rely at hearing, or any outline of submissions.
In accordance with the Registrar’s Orders the Minister filed and served a Court Book on 23 June 2016 and filed submissions on 30 May 2017.
The applicant made oral submissions at hearing. The applicant recounted the factual assertions that he made in relation to his claims and said that he was entitled to a Protection Visa: Transcript, pages 2-3. The applicant also asserted that there “was a lot of debate over my claims of residents in Pakistan … where I lived … people I was having problems with … next to me, and they did not believe in my story, and they spent almost half an hour debating. They said that I’m not telling the truth.”: Transcript, page 3.
The Minister’s oral submission at hearing largely reflected the filed written submissions: Transcript, pages 4-5.
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The AAT only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Grounds 1-11
Grounds 1-11 reassert the claims made before the AAT without asserting any jurisdictional error, and recite uncontroversial factual matters. As no jurisdictional error is alleged, and none is apparent from the recitation of claims and factual matters, grounds 1-11 do not establish any jurisdictional error in the AAT Decision.
Ground 12
Ground 12 simply indicates that the Judicial Review Application has been made to this Court following the AAT Decision, and that it purports to be against both the Delegate’s Decision and the AAT Decision. To the extent that ground 12 of the Judicial Review Application complains about the Delegate’s Decision this Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision: Migration Act, s.476(2)(a) and (4). In any event, it is well-established that if the AAT Decision is not flawed, it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J. Subject to what is further said below in relation to ground 12: see [20] below, ground 12 does not therefore establish jurisdictional error in the AAT Decision.
Ground 13
Ground 13 does no more than state a known fact, and does not allege or establish jurisdictional error in the AAT Decision.
Grounds 12, 14 and 15
Ground 14 asserts a need for protection, and that the applicant cannot return to either Pakistan or South Africa. Read together with ground 15 and that part of ground 12 which seeks to apply in respect of the AAT Decision it can be said that there is an application to have this Court review the AAT Decision. No specific jurisdictional error is, however, alleged by the applicant. At hearing the applicant did not identify any legal error, let alone jurisdictional error, in the AAT Decision, save that his assertion in his oral submissions that the AAT thought he was lying: see [14] above, might be interpreted to be a claim of actual or apprehended bias on the part of the AAT. No particulars are provided in relation to any of these claims. Failure to particularise a ground of review is a sufficient basis for the unparticularised ground to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J, citing WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev, upheld in WZATH v Minister for Immigration & Border Protection [2014] FCA 969.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [45] per French, Sackville and Hely JJ (“WAEE”) the Full Court of the Federal Court observed that:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
Another Full Court of the Federal Court in Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [34] per Kenny, Griffiths and Mortimer JJ said that:
[L]awful formation of that state of satisfaction [under s 65 of the Act] (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality …
and further at [62] per Kenny, Griffiths and Mortimer JJ that:
A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.
The immediately preceding quote from MZYTS is reflective of the fact that the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.
In WAEE the Full Court of the Federal Court said at [46]-[47] per French, Sackville and Hely JJ:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. …
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
It is plain from the detailed setting out of the AAT Decision at [4]-[8] above that the AAT considered the applicant’s claims and the evidence in support of them, and made findings in relation to those claims and rejected them, essentially because of the applicant’s lack of credibility. The AAT’s consideration of the applicant’s claims was comprehensive, and its findings and conclusions, including its adverse view of the applicant’s credibility, were open to it on the evidence. In particular, the Court notes that it was open to the AAT to form an adverse view of the applicant’s credibility given that he had been back to Pakistan five times between 1997 and 2011, including, on the first occasion, for a period of months to complete an educational qualification, and again in 2011 for a period of some months. To return, not only to the country, but to the very city in which the events which led to the applicant claiming to have fled Pakistan in fear of his life, to complete an educational qualification, just three years after those events, and then to return to Pakistan a further four times in the succeeding 11 years, is a factual context in which it is highly likely that the AAT might consider the applicant’s claims of a well-founded fear of persecution to be incredible, irrespective of the reasons for his returning to Pakistan. The credibility findings were open to the AAT on the evidence, and are not ones with which, in the circumstances, this Court ought to interfere: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ. The Court notes that the AAT is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ.
For the above reasons, grounds 12, 14 and 15 do not establish jurisdictional error in the AAT Decision.
Bias
An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”).
In this case the allegation of bias was not made distinctly by the applicant, but rather arises because comments that he made might be interpreted (albeit on a very generous interpretation) as giving rise to a claim of bias: namely his comments that there was extended discussion at the AAT and that the AAT found that he was lying, or perhaps accused him of lying at the AAT hearing. The applicant, however, has not otherwise distinctly or clearly proven that the AAT was either consciously or unconsciously biased, and there is no evidence of what occurred at the AAT hearing by way of a transcript of those proceedings (notwithstanding that the applicant was entitled to file such material pursuant to the Registrar’s Orders), and in the circumstances there is no evidence that:
a)the AAT member had a pre-existing state of mind which disabled her from undertaking, or rendered her unwilling to undertake, any proper assessment of the applicant’s credibility: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, property informed as to the nature of the proceedings, the matters in issue and the conduct of the AAT, might reasonable apprehend that the AAT member may not have brought an impartial mind to the assessment of the applicant’s credibility: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The Court also observes that the very careful and detailed manner in which the AAT has properly dealt with the applicant’s claims weighs significantly against any suggestion of bias in the AAT Decision.
In the circumstances, and insofar as a ground of bias was raised or suggested by what was said in the applicant’s oral submissions, no ground of bias is made out, and therefore there is no jurisdictional error in the AAT Decision on the basis of any such alleged bias.
Merits review
To the extent that the applicant is expressing disagreement with the findings and conclusions of the AAT, he is inviting the Court to engage in merits review which is not the function of this Court upon an application for judicial review of an administrative migration decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
438 Certificate
Section 438 of the Migration Act provides as follows:
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the 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 purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(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.
The Minister, acting properly as a model litigant, drew the Court’s attention to the 438 Certificate regarding the disclosure of certain information under s.438 of the Migration Act: CB 263. The Minister acknowledged that a copy of the 438 Certificate was not provided to the applicant for comment.
In Minister for Immigration & Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”), the Full Court of the Federal Court found that the applicant was denied procedural fairness in that matter in circumstances where a certificate under s.375A of the Migration Act was not provided to the applicant. Section 375A of the Migration Act is the equivalent to s.438 of the Migration Act with respect to applications for visas, other than protection visas. In Singh the Full Court of the Federal Court held that the issuance of a certificate under s.375A(2) of the Migration Act affects a person’s interests, and thereby enlivens an obligation of procedural fairness on the part of the AAT: Singh at [42], [46], [51]-[52] per Kenny, Perram and Mortimer JJ, and went on to observe that whereas the AAT will not ordinarily be required to disclose the contents of a certificate issued under s.375A of the Migration Act, the AAT will be obliged to disclose its existence: Singh at [58] per Kenny, Perram and Mortimer JJ. It follows that the same principles would apply to a certificate under s.438 of the Migration Act, and so to the 438 Certificate in this case. Thus, in MZAFZ v Minister for Immigration & Border Protection [2013] FCA 1081 (“MZAFZ”) a finding was made in respect of a certificate under s.438 of the Migration Act said to relate to documents which contained “internal working documents”, which was found not to be a necessary or sufficient basis for the relevant immunity, thereby invalidating the certificate, and thereby resulting in a jurisdictional error in circumstances where the Tribunal acted upon an invalid certificate under s.438 of the Migration Act: MZAFZ at [37], [38], [44] and [65] per Beach J.
In SZMJM v Minister for Immigration & Anor (No 2) [2017] FCCA 1260 (“SZMJM (No 2)”) a minute concerning possible referral of the applicant’s case to the Minister for a decision as to whether to exercise the discretion under s.48B of the Migration Act (which deals with the exercise by the Minister personally of a power to determine that the prohibition in s.48A of the Migration Act on a further application for a protection visa after a protection visa has been refused or cancelled may be lifted) ought to be exercised, set out a number of matters both known to the applicant and before the AAT in other documents not the subject of a certificate under s.438 of the Migration Act, those matters being:
a)the applicant's personal details and then a chronology of what are described as ‘key immigration events’;
b)a summary of the claims made by the applicant in his application made in 2007;
c)a decision of the Refugee Review Tribunal in respect of the applicant's first protection visa application;
d)a reference to a decision of this Court remitting the matter to the Refugee Review Tribunal;
e)the review by the Refugee Review Tribunal after the matter was remitted; and
f)a summary of the claims made in the protection visa application lodged on 4 October 2012.
SZMJM (No 2) at [20]-[21] per Judge Smith.
The minute contained an assessment of the request for intervention by the Minister, which included statements that there was no credible evidence to support certain of the applicant’s claims and that those claims were unsubstantiated, and that in the view of the author of the minute there was no credible new information to enhance the applicant’s chances of making a successful protection visa application, an assessment agreed with by the author’s supervisor: SZMJM (No 2) at [22]-[24] per Judge Smith. In SZMJM (No 2) this Court having set out the matters referred to immediately above then concluded as follows at [25] per Judge Smith:
Even though the Tribunal's duty was to assess the material before it for itself, and make its own findings of fact, given that the assessment in the minute was made in respect of the same claims to be determined by the Tribunal, it is not possible to say that it could have made no difference to the Tribunal's decision. For that reason, the applicant ought to have been given the opportunity to address the Tribunal on the validity of the certificate and whether, even if the certificate were valid, the Tribunal should exercise the power under either or both sub-ss 438(3)(a) or (b). The Tribunal's failure to do so constituted jurisdictional error.
In AVO15 v Minister for Immigration & Border Protection [2017] FCA 566 (“AVO15”) the Federal Court found that the jurisdictional error found in Singh and MZAFZ had no practical application in a case where no substantive issue arises from non-disclosure. In particular, it was found in relation to two Departmental internal working documents that the AAT in that matter "plainly had no regard to them and, on any view, they can have been of no, or only passing contextual relevance to the application": AVO15 at [87] per Barker J. The Federal Court further also found that even if this constituted a technical breach, the applicant had not suffered any practical injustice: AVO15 at [91] per Barker J.
The 438 Certificate is said to apply to folios 104-109 of the Department file, those folios containing “information relating to an internal working document and business affairs”: CB 263 (“438 Documents”).
The 438 Documents appear at CB 222-226, and relate to a Departmental submission to the Minister in respect of possible Ministerial intervention under s.91Q of the Migration Act and the Minister's statement to Parliament that he exercised his power under s.91Q on 8 March 2013 allowing a protection visa application to be made by the applicant: see CB 227 and [3(g)] above.
The substantive part of the 438 Documents for present purposes appears at CB 222-223, that being the substantive part of the Departmental submission to the Minister, which:
a)sets out that the matter being referred is one for consideration under s.91Q of the Migration Act, and refers to s.91M providing that a non-citizen should seek protection from a third country where they can do so, and that the applicant is a citizen of both South Africa and Pakistan and is therefore prevented by s.91N of the Migration Act from making a valid Protection Visa application, but that s.91Q of the Migration Act allows the Minister to intervene if the Minister considers that it is in the public interest to do so: CB 222;
b)sets out the applicant’s protection claims, and notes details of the applicant’s personal circumstances, including his being a South African citizen who conducted a business in South Africa and who entered South Africa on a tourist visa, was married to a South African citizen but later divorced, and that a person named as a partner on his tourist visa application to enter Australia was granted a tourist visa but did not travel to Australia: CB 223; and
c)under the heading “Preferred option” the Departmental submission indicates that:
i)the Department considers intervention under s.91Q of the Migration Act as appropriate, noting that the applicant’s departure or removal may be in breach of Australia’s international obligations, and that the applicant has made protection claims against both Pakistan and South Africa, and for that reason the Department considers it appropriate to allow him the opportunity to have his claims and supporting information thoroughly tested through a formal process: CB 223; and
ii)if intervention under s.91Q of the Migration Act occurs that the applicant will be allowed to lodge a valid Protection Visa application, and that the usual channels of review would then apply, including merits review by what is now the AAT, and that if merits review before the AAT were unsuccessful Ministerial intervention could still be enlivened under s.417 of the Migration Act: CB 223.
The Minister submits that:
a)the disclosure of the 438 Certificate or the 438 Documents themselves could not have made any difference to the outcome of the review;
b)the circumstances of this matter are clearly distinguishable from Singh and MZAFZ, and relying on AVO15 says that the 438 Documents could not have had any bearing on the AAT Decision or conduct of its review and the failure to disclose does not constitute a breach of procedural fairness; and
c)even if the Court were to find that MZAFZ and Singh are not relevantly distinguishable, that the Court should nevertheless refuse relief in the exercise of its discretion on the basis that, in view of the nature of the 438 Documents, disclosure of the 438 Certificate and the 438 Documents could not have made any difference to the outcome of the review: Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 60 ALJR 662; (1986) 67 ALR 21; CLR at 145-147 per Mason, Wilson, Brennan, Deane and Dawson JJ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; BEG15 v Minister for Immigration & Anor [2016] FCCA 2778; (2016) 315 FLR 196 at [68] per Judge Smith.
SZMJM (No 2) is plainly distinguishable: in that case there was an assessment by those making a submission to the Minister with respect to intervention by the Minister as to the credibility of the evidence, the substantiation of the claims, and whether there was credible new information which might affect the chances of a successful protection visa application. In those circumstances it is plain, as this Court found in SZMJM (No 2) that the applicant ought to have been made aware of the certificate issued under s.438 of the Migration Act. There is nothing of that kind in the 438 Documents in this case.
Singh and MZAFZ do not assist the applicant: that is because in this case the 438 Documents and the 438 Certificate would, even if wholly disclosed, not have assisted the applicant in any way. There is nothing in the content of those documents which does anything other than indicate the Minister’s options with respect to lifting the bar on a protection visa application by the applicant, thereby giving the applicant the capacity to undertake the process which has now been undertaken by way of the Delegate’s Decision, AAT Decision and this Judicial Review Application. Nothing in the 438 Documents would have either assisted or retarded the applicant’s Protection Visa application. Ultimately, the 438 Documents were neither relevant nor potentially relevant to the applicant’s case. The 438 Documents in this case, like those in AVO15, would, if disclosed, have been of no more than passing contextual relevance to the Protection Visa application, and even if a technical breach of s.438 of the Migration Act, were not a breach which results in the applicant suffering any practical injustice: AVO15 at [87] and [91] per Barker J.
In the circumstances, no jurisdictional error arises in relation to the 438 Certificate issue.
Conclusion and orders
For the reasons set out above, the Court is of the view that the Judicial Review Application does not establish any jurisdictional error in the AAT Decision. It follows that the Judicial Review Application should be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 June 2017
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