AZU16 v Minister for Immigration

[2017] FCCA 3016

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3016

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether denial of procedural fairness or other jurisdictional error – certificates under s.438 of the Migration Act – no practical unfairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48A, 424A, 425, 438

Cases cited:

AVO15 v Minister for Immigration and Border Protection [2017] FCA 566

BEG15 v Minister For Immigration & Anor (2016) 315 FLR 196; [2016]

FCCA 2778

BIE15 v Minister for Immigration and Border Protection (2016) 314 FLR 392; [2016] FCCA 2978

CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413;

[2016] FCAFC 146

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZGIZv Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089

Applicant: AZU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1049 of 2016

Judgment of: Judge Barnes

Hearing date: 16 November 2017

Delivered at: Sydney

Delivered on: 16 November 2017

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1049 of 2016

AZU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 1 April 2016.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The background to these proceedings is that the Applicant, a citizen of India, arrived in Australia in 2009 as the holder of a student visa. 

3. He first lodged an application for a protection visa in July 2011 (the 2011 application), at a time at which the only relevant criterion was the Refugees Convention criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act). He claimed to fear harm in India as a result of his homosexuality. He was unsuccessful. He sought review. He was unsuccessful before the Tribunal and in subsequent judicial review proceedings.

4. However, in November 2013 after the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, the Applicant lodged a second protection visa application (the 2013 application). That application relied on the complementary protection criterion in s.36(2)(aa) of the Act. The Applicant claimed to fear harm in India due to his homosexuality.

5. A delegate of the First Respondent refused the application.  The Applicant sought review by the Tribunal.  He raised an additional claim that he did not have and would not be able to obtain an Indian passport because he was known to have been an applicant for protection.  On 3 June 2015 the Tribunal affirmed the decision not to grant the Applicant a protection visa.  The Applicant commenced proceedings in this court seeking review of that Tribunal decision. 

6. On 2 September 2015, Judge Cameron made orders by consent remitting the matter to the Tribunal for redetermination according to law.  In accordance with the usual practice, the Court noted in its orders the concession of the First Respondent that the decision of the Tribunal was affected by jurisdictional error, a point to which I will return.

7. After the matter was remitted to the Tribunal, the Applicant was invited to and attended further hearings before the reconstituted Tribunal on 9 February 2016 and 31 March 2016.  As indicated, on 1 April 2016, the Tribunal affirmed the delegate’s decision.  This is the decision that is the subject of these proceedings. 

8. In its reasons for decision, the Tribunal set out the background, including in relation to the 2011 protection visa application, the 2013 protection visa application and the remittal by this court.  It described the Applicant’s claims as made in his 2013 protection visa application.  In essence, he claimed that he left India because he was gay, that there was no place for homosexuals in Indian society, and that he would be beaten by people who hated homosexuals.  He claimed that people in India had chased him and tried to beat him because they knew he was gay and that the law would not protect him.  In particular, in a statutory declaration of 20 January 2014 the Applicant claimed that in 2007 he was abused and attacked by four men because he was perceived as gay.  He stated that it was only after he came to Australia that he identified as gay.  He elaborated on why he feared harm in India. 

9. In addition, the Tribunal summarised the Applicant’s evidence in his departmental interview of 7 May 2014, at the hearing of 2 June 2015 conducted by the previously constituted Tribunal and at the hearings of 9 February 2016 and 31 March 2016.  The Tribunal recorded that it raised issues with the Applicant at these hearings.  In particular, it had put to the Applicant that it had concerns that he may not be gay and that he may not be in a gay relationship as he claimed. 

10. The Tribunal referred to country information relevant to the treatment of returnees to India and to the Applicant’s claim about not being able to obtain an Indian passport.  

11. The Tribunal considered, but rejected, the Applicant’s credibility in relation to much of his evidence and claims.  For reasons which it gave, it did not accept on the evidence before it that the Applicant was a homosexual or that he had been involved in any homosexual relationships.  It did not accept that he was attacked in India because he is or was suspected of being homosexual.  It found his evidence regarding his claim of homosexuality to be “highly vague and non-persuasive”; that he had shown little interest in homosexuality and that his evidence about his claimed homosexual relationships in Australia was “lacking in any substantive detail”.

12. The Tribunal detailed its concerns with the Applicant’s evidence.  It found that he had given implausible and inconsistent evidence about his lack of awareness of other gay men, gay culture and the situation for gay men in India and had made what the Tribunal saw as an extraordinary and inexplicable initial statement in his first (2011) protection visa application that there were no gay men in India.  It also referred to the Applicant’s contradictory evidence about whether he had stayed at home with his parents in India (said to be the reason for his ignorance of the position for gay men in India), or whether he went out and about in India. 

13. The Tribunal also found it implausible that the Applicant would not have searched through the internet for information about gay men in India while there, as he had said that he did such research about gay men in other countries. 

14. In addition, the Tribunal found, for reasons which it gave, that the Applicant’s evidence about the claimed attack on him in April 2007 was not persuasive.  The Tribunal gave the Applicant the benefit of the doubt and accepted that he was attacked and beaten by a small group of men on an occasion in 2007, but did not accept that this occurred because the Applicant was gay or was suspected of being gay.  It had regard to the Applicant’s inability to provide an explanation for why a group of unknown men would think he was gay and attack him viciously with no provocation or triggering incident.  Insofar as he suggested that perhaps people thought he was gay because of how he looked, it had regard to the fact that he also remarked that there was nothing about his appearance that would cause anyone to make such an assumption.  The Tribunal did not accept the Applicant’s suggestion that remaining unmarried in his thirties or even older would cause people to suspect he was gay.  

15. The Tribunal had regard to the limits on the Applicant’s evidence when asked about his claimed “freedom and confidence” as a gay man in Australia and the fact he had “nothing of substance to say”.

16. In addition, the Tribunal found that while the Applicant claimed he lived with gay housemates in Sydney and engaged in activities with his housemates who were his friends, he also told the Tribunal he was not very involved with them and later stated he was not willing for them to speak to the Tribunal, because he was “shy”.  The Tribunal considered that given the centrality of his claim to be homosexual, the Applicant’s stated reluctance for his housemates to give evidence on his behalf undermined both his claim to genuinely fear harm in India and his claim to be a gay man living with other gay men.

17. The Tribunal considered, but did not accept, the Applicant’s claim to be in a gay relationship with a man called Joe.  It had regard to the Applicant’s vagueness about Joe’s identity and the fact that despite claiming to having been in a relationship for two years, he had stated that he did not know where Joe lived or Joe’s last name.  The Tribunal found no plausible reason for this.  It found the Applicant’s description of the relationship to be “similarly vague, inconsistent and implausible”.  It took into account the fact that the Applicant could offer no explanation why (as the Applicant had stated at the hearing) Joe was not willing to support his protection visa application (by a letter or oral evidence) and showed no interest in the threat of harm to the Applicant, despite the fact that the Applicant had described the relationship as “very good and leading to marriage”.  The Tribunal also had regard to particular aspects of the Applicant’s vagueness in describing his relationship with Joe and Joe’s personality.  It found that there was no indication in the Applicant’s responses to demonstrate any real or particular knowledge of his claimed partner.  It found that the vagueness of the Applicant’s responses in this respect significantly undermined his claim to be in a two-year relationship with a man called Joe.

18. The Tribunal also took into account the Applicant’s hesitancy and confusion in his evidence in relation to his interest in gay culture and the fact that while he stated he was interested in reading books about gay men, he also stated that he had not, in fact, read any books about gay men.  He could not provide any reason for this or for intentionally not reading free gay newspapers.  The Tribunal was of the view that this evidence did not support the Applicant’s claim, but rather, contrary to the Applicant’s initial statement, demonstrated a clear lack of interest in gay life. 

19. The Tribunal gave the Applicant the benefit of doubt insofar as it accepted that he had participated in the Sydney Mardi Gras Parade some two years earlier.  However, having regard to the circumstances in which he did so (because he was asked and because the first Tribunal had remarked on his lack of awareness of the event) and his cursory and vague description of the event, the Tribunal did not accept that the Applicant did so because he was gay or had any interest in or support for the event. 

20. The Tribunal formed the impression that the Applicant had contacted a gay support group in Sydney (members of which had attended the first Tribunal hearing at his request) not because he was gay, but because he thought their presence could strengthen his protection claims.  It had regard to the fact that, on his evidence, apart from seeking help with his visa application, the Applicant showed no other interest in or need of this group and had very little knowledge about their identity. 

21. The Tribunal also had regard to the fact that the Applicant could not explain why he had so little knowledge of or interest in gay men and the situation for gay men in India.  It found that he had no informed knowledge of or interest in the situation for gay men in India, apart from referring to a particular Indian Supreme Court judgment. 

22. For these reasons, the Tribunal considered the Applicant’s evidence directly contradicted and undermined his claim to be homosexual and to have had, and to be in, a homosexual relationship.  In view of these concerns, the Tribunal did not accept the Applicant was homosexual, that he was in or had been involved in any homosexual relationship or that he had been suspected of being or imputed to be homosexual.  Nor did the Tribunal accept that the Applicant was assaulted in India because he was homosexual or suspected of being homosexual.

23. The Tribunal also considered the Applicant’s claim that the Indian Consulate in Sydney would not issue a passport to an Indian national who had refugee status or who had applied for asylum in another country.  It accepted that the Consulate had initially rejected the Applicant’s passport renewal application and had advised him to re-apply with further information regarding his visa status.  It accepted that the Applicant had not been able to renew his passport and that he would be required to give information to the Indian Consulate which may indicate that he had applied for a protection visa in Australia.  It accepted that there was a real chance the Applicant would not be issued with a new passport by the Indian Consulate because he had applied for protection in Australia. 

24. The Tribunal considered whether the claims it accepted were such as to establish a risk of harm within the complementary protection criterion.  However, on the basis of country information to which it referred, the Tribunal was satisfied that the Applicant would be issued with an “Emergency Certificate” as a travel document he could use to return to India.  The Tribunal acknowledged that being refused an Indian passport in Australia created obstacles for the Applicant, but it did not consider that this amounted to significant harm under the Act. 

25. The Tribunal also accepted that there was a real chance that the Indian authorities knew or would become aware that the Applicant had applied for a protection visa in Australia.  However, it did not consider this would create any problems for the Applicant, apart from being denied a passport in Australia, having regard to the fact that cited DFAT information did not suggest that returnees or failed asylum seekers faced any mistreatment by the Indian authorities.  It also had regard to the fact that the Applicant had stated at the hearing that he would have no problems on return to India if (as the Tribunal found) he was not homosexual.

26. On the information and evidence before it, the Tribunal was not satisfied there was a real risk of significant harm to the Applicant because he was a failed asylum seeker or returning to India as a failed asylum seeker or returning to India on an Emergency Certificate travel document. 

27. The Tribunal found that the Applicant had not raised any other claims to fear harm in India and that none arose on the information before it.  The Tribunal concluded that the Applicant did not meet the complementary protection criterion.  It affirmed the delegate’s decision.

28. The Applicant sought review by application filed on 29 April 2016.  In the application the Applicant asked the Court to order that he was a refugee and to give him refugee status.  He asserted that there was a legal error and that he was in gay relationship with “Jo”.  The “grounds” in the application also referred to an attachment (to which I will return) and stated that on 2 September 2015 the Court “order[ed] that applicant will suffer significant harm if he sent back”, but that the Tribunal did not consider “the court order”.  Also attached to the application was a copy of the consent orders made by Judge Cameron on 2 September 2015 remitting the matter to the Tribunal for reconsideration.  These orders include a notation of the reasons for the First Respondent’s concession that the earlier Tribunal decision of 3 June 2015 was affected by jurisdictional error.

29. Insofar as the Applicant sought an order that he was a refugee, as I endeavoured to explain to him, it is not for this Court to determine whether or not the Applicant is a refugee, but only whether the Tribunal made a jurisdictional error such that the matter should be remitted to it for reconsideration.  Similarly, it is not open to the Court to grant him refugee status in these proceedings. 

30. As to the Applicant’s claim (repeated in oral submissions) that he was in a homosexual relationship, it is not open to the Court to determine in these proceedings whether or not the Applicant is homosexual or in a homosexual relationship.  In this respect he seeks impermissible merits review. 

31. The Applicant acknowledged that he disagreed with the conclusion of the Tribunal.  That does not in itself establish jurisdictional error, although the Applicant’s disagreement with the conclusion of the Tribunal may also be seen as a disagreement with the Tribunal’s rejection of the credibility of many of his claims.  I have borne in mind that credibility findings, and other findings of fact, are not immune from challenge (see CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 and also SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089). However it has not been established that the Tribunal reached its credibility finding without any logical or probative basis or that there has been legal unreasonableness. As discussed further below, there is nothing in the material before the Court to establish any failure by the Tribunal to afford procedural fairness. The Tribunal’s credibility findings were reasonably open to it on the material before it for the reasons which it gave. There was a logical and probative basis for its decision in that respect having regard, in particular, to the Applicant’s oral evidence at the Tribunal hearings. I note that the only evidence before the Court of what occurred in the Tribunal hearings is the Tribunal’s account in its reasons for decision. Despite being given the opportunity in orders made in June 2016, the Applicant did not file any transcript of any Tribunal hearing.

32. The other issue raised under the heading “Grounds of application” refers to the consent remittal.  It misunderstands the concession made and recorded in the consent orders remitting the earlier Tribunal decision for reconsideration. 

33. The Applicant appears to be of the view that Judge Cameron “ordered” or in some way accepted or recognised that he would suffer significant harm if he was sent back to India and that the Tribunal had not considered the court order in this respect.  However, Judge Cameron did not make any findings as to whether the Applicant would suffer significant harm if he were to return to India or otherwise.  The matter was remitted by consent.  The Court did not make any order or issue any direction to the effect suggested by the Applicant.  Rather it remitted the matter for reconsideration on the basis that the previously constituted Tribunal had made a jurisdictional error in its decision of 3 June 2015 in that, in considering whether there was a real risk the Applicant would suffer significant harm in India, it had failed to apply correctly the statutory test in s.36(2B)(a) of the Act as to whether it would be reasonable for the Applicant to relocate in India.  Such a notation does not amount to a finding or direction by the Court that the Applicant will suffer significant harm. 

1. It emerged in the hearing that part of the Applicant’s concern in this respect was the fact that the previous Tribunal had accepted for the purposes of the decision that the Applicant was homosexual.  It was on this basis that it had gone on to consider whether there was a real risk that the Applicant would suffer significant harm, and in that context had considered relocation.  Insofar as the Applicant intended to submit that because the previously constituted Tribunal had accepted in its decision of 3 June 2015 that he was homosexual, the later Tribunal was obliged to reach the same conclusion, that is not the case.  The Tribunal reconsideration was a reconsideration de novo.  The differently constituted Tribunal was not bound by the findings of the earlier decision-maker.  Moreover, as set out above, in its decision of 1 April 2016 the Tribunal had regard not only to the Applicant’s evidence to the previously constituted Tribunal, but also to the evidence that he gave when he appeared before it on two occasions in 2016 and to implausibilities, inconsistencies and other difficulties with his evidence that emerged in those Tribunal hearings.

2. The concerns raised by the Applicant in this respect do not establish that the Tribunal fell into jurisdictional error.  Nor do these concerns establish that the Tribunal failed to have regard to an integer of the Applicant’s claims or to a critical aspect of his evidence, insofar as that might be implicit in such a contention.  Rather, the Tribunal had regard to the evidence given by the Applicant to the previously constituted Tribunal in the context of the more recent evidence.

3. As indicated, the Applicant raised a claim at the hearing of 2 June 2015 before the previously constituted Tribunal that the Indian Consulate passport office would recognise that he had lodged a protection visa application and that he would not be issued with a further Indian passport.  The Tribunal as reconstituted considered whether the Applicant faced a risk of significant harm within the complementary protection criterion on that basis. 

4. No jurisdictional error is established on the bases contended for in the grounds in the application.

5. Attachment 1 to the application (the Attachment) has 12 paragraphs.  I gave the Applicant the opportunity at the hearing to elaborate on the matters in that statement and also to raise any other concerns that he had about the Tribunal decision and procedures.

6. He claimed he had a recent photograph of himself with his partner Joe which, he said, showed that he had a gay relationship with Joe.  However such photograph is not relevant or admissible as it does not go to show that the Tribunal made a jurisdictional error.  The Applicant conceded that this was a recent photograph and that it was not before the Tribunal.  It appears that the Applicant has produced the photograph in the context of misunderstanding the role of this court and in an endeavour to obtain impermissible merits review.

7. In the Attachment the Applicant recited that he was seeking review.  He asserted that the decision was not in accordance with procedural fairness and was “[n]ot to fact”. Other paragraphs in the Attachment may be seen as elaborating on the claimed lack of procedural fairness. For example, in paragraph 5 the Applicant referred to the fact that in the Tribunal decision of 3 June 2015 it was accepted that he was homosexual. However, the different view taken by the Tribunal as reconstituted does not establish a denial of procedural fairness. The Tribunal recorded that at the hearings it specifically raised concerns with the Applicant, including that it may find that he may not be gay and that he may not be in a gay relationship. It gave him the opportunity to comment. The Applicant was thus put on notice of this issue as a dispositive issue which (as the First Respondent accepted) the Tribunal was obliged to do, having regard to s.425 of the Act understood in light of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. There is nothing in the material before the Court to indicate that the Tribunal failed in any way to comply with its obligations under s.425 of the Act.

8. Insofar as it is also asserted in paragraph 2 of the Attachment that the decision was “[n]ot to fact” it appears that this may be intended to take issue with the Tribunal’s conclusion.  Such a claim is reiterated in paragraph 8 of the Attachment, which takes issue with the fact that the Tribunal did not accept that the Applicant was in a gay relationship with “Jo”.  The Applicant claimed he was in such a relationship and referred to a photograph taken on his birthday in November 2015.  This was said to be the photograph he produced today.  It was not before the Tribunal.  As indicated, the Applicant’s claims in this respect seek impermissible merits review.

9. More generally, the Tribunal’s credibility findings, in particular its finding in relation to the Applicant’s central claim of homosexuality, were reasonably open to it on the material before it for the reasons which it gave and have not been shown to be affected by jurisdictional error. 

10. In paragraph 3 of the Attachment, the Applicant claimed that because he was gay he would be prosecuted and would suffer violence, be attacked again and experience cruel punishment if he was sent back to India.  This claim seeks merits review, as does paragraph 4, which refers to the law in relation to homosexuality in India.

11. In paragraph 6 the Applicant takes issue with the fact that in describing the background to his application the Tribunal observed that following the Full Court decision in SZGIZ, the Applicant was considered not to be prevented by s.48A of the Act from lodging another protection visa application on the basis of the complementary protection criterion and that he had subsequently applied again on 13 November 2013. The Applicant asserted that he did not apply himself, but that the Department told him to apply, so he did so, and that the application was valid.

12. It may well be that the Department informed the Applicant that he could apply, but it is clear from the material in the Courtbook that he made such an application.  The application was accepted as valid.  This paragraph does not establish any jurisdictional error.

13. Paragraph 7 in the Attachment refers to page 10 of the Tribunal decision.  It does not identify a particular asserted error but suggests that at the hearing the Tribunal asked the Applicant why he went to the city when he was in India and that he told the Tribunal that he probably went “every day afternoon time drive motorbike or car myself”, that he “didn’t tell with friends” as he “didn’t have any friends there”, that he always went by “myself alone or with my parents” and that he “just sit myself in the corner and go back home”. 

14. It appears this paragraph takes issue with part of the Tribunal’s description of the Applicant’s evidence, including, relevantly: 

    In April 2007 the applicant was travelling on his motorbike to the city.  He lived in a small town and would go to the city in the afternoons and return about 7 or 8.  His family had a house in the city.  He would go there and have his dinner outside in the hotels with a couple of friends.  When he is home with his parents he cannot drink beer or whisky.  If they catch him drinking they stop giving him money.  So he would go to the city and buy beer or whisky and drink and then use a mouth freshener before he went home to his parents.  He loves beer so much. 

15. The Applicant appears to be contending that the Tribunal misunderstood, or perhaps did not record as fulsomely as it might have done, his evidence at the Tribunal hearing in relation to his activities in India.

16. In the absence of a transcript there is no evidentiary basis for any contention that the Tribunal failed to consider a claim, misunderstood the Applicant’s evidence at hearing in a matter constituting jurisdictional error or that the assertions made by the Applicant otherwise go to demonstrate a jurisdictional error.  I also note that, even if there was some minor misunderstanding, that would only result in jurisdictional error if it caused the Tribunal to fail to consider a claim or an integer of a claim in the sense considered in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51.

17. In any event there is no clear particularisation or indication in the Applicant’s statement of any such misunderstanding and the Tribunal’s account of what occurred in the Tribunal hearing does not establish any such misunderstanding.  This contention does not establish or raise a concern as to the existence of a jurisdictional error.

18. Paragraph 9 of the Attachment refers to the fact the Applicant does not have an Indian passport.  He suggested that it was within the definition of refugee “if anybody not getting his passport due to his race, religion or gender”.  I note first that the Refugees Convention criterion was not the subject of the Tribunal decision in issue in these proceedings.  The Tribunal (correctly) considered only the complementary protection criterion.  In that context it considered and accepted the Applicant’s claims in relation to his potential inability to obtain an Indian passport and that the authorities may know or become aware that he had applied for a protection visa in Australia.  It addressed the issue of whether any of these circumstances were such as to expose the Applicant to a real risk of significant harm.  For reasons which it gave, which were reasonably open to it on the material before it (in particular, the independent country information to which it referred), the Tribunal was not so satisfied.  Such an approach is not indicative of jurisdictional error.

19. In paragraph 10 the Applicant claimed he was a refugee, that if he was sent back the police would arrest him and lock him up, and that he had no family in India to help him.  He made these claims on the basis that he would be subject to 10 years imprisonment as a homosexual.  In this respect the Applicant again seeks impermissible merits review. 

20. In paragraph 11, the Applicant took issue with the fact that in the course of the Tribunal hearing, the Tribunal was said to have asked him about matters such as his music interests, joining a community and about contacting his housemates, rather than having regard to the court order made on 2 September 2015. 

21. According to the Tribunal reasons, in response to the Applicant’s claimed interest in gay culture in Australia, it asked him about aspects of that culture.  However there is nothing in the Tribunal’s account of what occurred in the hearing that is indicative of jurisdictional error. 

22. Otherwise this paragraph also reflects the Applicant’s misunderstanding of the effect of the court order.  The Tribunal understood that the matter had been remitted for reconsideration.  The error identified in the note to the consent orders was not a matter that had to be addressed in or was relevant to this Tribunal decision, as the Tribunal rejected the underlying factual basis for the Applicant’s claims so that the issue of relocation did not arise. 

23. Finally, the Attachment seeks an order that there is a legal error.  However, there is nothing in the Applicant’s oral or written submissions that establishes jurisdictional error. 

24. In addition to responding to the issues raised by the Applicant, the First Respondent brought to the Court’s attention two certificates under s.438 of the Act in relation to this matter. Section 438 is as follows:

    Tribunal's discretion in relation to disclosure of certain information etc.

    (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.

25. There is no suggestion that the existence of the certificates or the material covered by either of the certificates was brought to the Applicant’s attention by the Tribunal. 

26. The certificates are referred to in affidavits affirmed by Jennifer Louise Strugnell on 18 October 2017 and 3 November 2017.  The first of these affidavits relates to a certificate issued on 14 September 2015 in relation to certain documents in the Department’s file in relation to the Applicant’s 2013 visa application (the 2013 file).  The second affidavit relates to a certificate issued on the same date in relation to material in the departmental file in relation to the Applicant’s first protection visa application (the 2011 file), although it also covers documents which relate to the second protection visa application and are in the 2013 file. 

27. In accordance with the approach suggested by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183, the solicitor for the First Respondent filed affidavits annexing the respective s.438 certificates, but the other exhibits (copies of the documents the subject of the s.438 certificates) were provided to the Court at the start of the hearing in two sealed envelopes.

28. The First Respondent indicated that there was no claim for privilege or public interest immunity in respect of any of the documents and saw no reason I should not inspect the documents.  There were about 70 pages of documents of various kinds.  I make no criticism of the solicitors for the First Respondent in observing that the numbering adopted by the Department was such that those documents were neither in chronological nor reverse chronological order.  Some “folio” numbers related to more than one page.  

29. In those circumstances and having regard to the fact that the Applicant is self-represented, I considered it appropriate to adjourn the hearing so that I had a proper opportunity to peruse these documents for myself to ensure that there was nothing that raised a concern of the nature considered in Singh or in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081 or that should be further addressed in submissions for the First Respondent.

30. Having now considered all those documents and having regard to the detailed submissions from the First Respondent, I am satisfied, for reasons that follow, that there was no denial of procedural fairness arising from any failure by the Tribunal either to disclose material in the documents the subject of either of the certificates or the fact of either of these certificates to the Applicant.  

31. Both certificates were dated 14 September 2015, which was after the 2015 remittal by Judge Cameron.  For convenience I will follow the approach of the Minister’s submissions in considering first the documents the subject of the certificate attached to the affidavit affirmed on 18 October 2017 although it refers to the more recent departmental file, that is the 2013 file in relation to the 2013 protection visa application. 

32. The certificate in relation to the 2013 file certified that s.438(1)(a) of the Act applied to the information at folios 32 to 33, 79 and 99-108 on the basis that disclosure would be contrary to the public interest because these folios “contain information relating to an internal working document and business affairs”. 

33. As described in submissions for the First Respondent, the document at folio 32 is a document entitled “Protection Visa Application VALIDITY CHECK”.  It is a partially completed validity checklist in relation to the Applicant’s post–SZGIZ 2013 visa application.  It is accompanied by a blank associated bridging visa form which is not separately numbered.  There is no reference to the previous protection visa application and no view expressed in relation to the validity of the application in the part of the form providing space for the issues to be addressed. 

34. Folio 33 is a document entitled “IDENTIFICATION TEST: PROTECTION VISA APPLICANTS”.  It is a two-page completed printed checklist dated 14 January 2014 in relation to the Applicant’s provision of personal identifiers. 

35. Folio 79 is a departmental document dated 6 June 2014 described as a “DISCLOSURE DECISION CHECKLIST (TO BE COMPLETED AT THE TIME OF MAKING THE RRT REVIEWABLE DECISION)”. It addresses the issues of whether there are any s.437 or s.438 “related documents/information on the file/papers”. Interestingly, there is no indication in that document that at that stage the Department considered that there were any such documents. Despite this, a s.438 certificate relying on s.438(1)(a) of the Act was issued on 14 September 2015 relating, in part, to documents that pre-dated 6 June 2014.

36. Folio 99 is a copy of a two-page letter from the Tribunal to the Secretary of the Department enclosing a copy of the Tribunal’s reasons for decision of 3 June 2015 and the Applicant’s contact information as provided to the Tribunal.  Those reasons were, of course, also provided to the Applicant. 

37. Folio 100 is a two-page document entitled “MATTER DETAILS SUMMARY”.  It appears to be an internal file note from departmental records recording the outcome of the judicial review proceeding in relation to the previous Tribunal’s decision of 3 June 2015.  It records the basis on which the Minister conceded jurisdictional error as recorded in consent orders of Judge Cameron, although there is an (incorrect) reference in the form to proceedings in 2015 in a Magistrates Court. 

38. Folio 101 is a single page containing a copy of an internal email of 3 September 2015 between officers of the Department regarding the appropriateness of compliance action following the 2015 judicial review application.  I note that this document and some following documents are headed “Sensitive: Legal”.  However, as indicated, the First Respondent made it clear in written submissions and his solicitor confirmed today that he made no claim for privilege or, indeed, public interest immunity in respect of any of the documents the subject of either certificate.

39. Folio 102 is a little hard to understand.  It appears to be the end of an email from a departmental legal officer.  It does not follow on from folio 101.  It appears that it may be the third and last page of an email of 24 August 2015 at folio 103 which is an email between officers of the Department regarding the basis for conceding the judicial review application before this Court in 2015.  Again, while marked “Sensitive: Legal”, there is no claim for privilege. 

1. Folio 104 consists of two pages of interdepartmental emails in relation to the 2015 judicial review proceedings, again marked “Sensitive: Legal”. 

2. Folio 105 is a copy of the orders made by Judge Cameron on 2 September 2015, including the notation.

3. Folio 106 is a copy of an earlier email of 26 August 2015, again headed “Sensitive: Legal”, from the Department to its solicitors in relation to the basis for the Minister’s concession to be recorded in the then proposed consent orders. 

4. Folio 107 is headed “RECONSIDERATION ORDERED”.  It is addressed to the Refugee Review Tribunal (sic) from an officer in the Department and refers to the Applicant’s 2015 judicial review application.  It states that on 3 September 2015, the Federal Magistrates Court (sic) ordered that this matter be reconsidered.  I note that the Refugee Review Tribunal merged into the Administrative Appeals Tribunal (the AAT) from 1 July 2015 and the Federal Magistrates Court of Australia was renamed the Federal Circuit Court of Australia in 2013. 

5. The final document, folio 108, is also headed “RECONSIDERATION ORDERED” and is a referral of the Applicant’s matter to the AAT “Refugee Review Division” for reconsideration.

6. The second certificate, which is annexed to Ms Strugnell’s affidavit of 3 November 2017, relates to the 2011 file in relation to the Applicant’s first protection visa application, although, somewhat confusingly, the documents the subject of this certificate also include documents that are identical to the documents at folio 99 to 108 on the 2013 file in relation to the 2013 protection visa application that are also the subject of the certificate annexed to Ms Strugnell’s affidavit of 18 October 2017.

7. This certificate, which is also dated 14 September 2015, was not issued until the Applicant’s protection visa application was remitted to the Tribunal for reconsideration on 2 September 2015. It certifies that s.438(1)(a) of the Act applies to the information at folios 38, 39, 41, 66, 84, 111, 112, 117, 134-150 and 153-162 of the 2011 file and that disclosure of this information would be contrary to the public interest because those folios “contain information relating to an internal working document and business affairs”. 

8. Folio 38 of the 2011 file is an internal email of 27 July 2011 between officers of the Department asking for assessment of the Applicant for a bridging visa. 

9. Folio 39 is a document headed “IDENTIFICATION TEST: PROTECTION VISA APPLICANTS” relating to the Applicant and an authorised officer’s declaration in this respect dated 4 August 2011. 

10. Folio 41 is a printed form entitled “Protection Visa Application VALIDITY CHECK” and is a completed form dated 5 August 2011 in relation to the validity of the first protection visa application and an associated bridging visa assessment completed in 2011.

11. Folio 66 is a computer screenshot entitled “Event Decision Detail”, which appears to record a June 2011 outcome of an application by the Applicant to the Migration Review Tribunal in respect of a refusal of a student visa. 

12. Folio 84 is a “DISCLOSURE DECISION CHECKLIST” dated 23 September 2011 from the 2011 file. It is another completed checklist relating to whether to issue a s.438 certificate. It indicates that there were not any s.437 or s.438 related documents/information on the file as at 23 September 2011. Despite this, the certificate issued in 2015 relates in part to earlier documents as described above.

13. The next document, folio 111, is a two-page letter from the Refugee Review Tribunal to the Secretary of the Department enclosing a copy of the Tribunal’s statement of reasons of 13 March 2012.  That was the decision of the Tribunal in relation to the Applicant’s first protection visa application. 

14. Folios 112, 117 and 134-150 are documents that relate to an application for Ministerial intervention pursuant to s.417 of the Act made by the Applicant on 2 May 2012.  They record the request for intervention and include checklists and assessments by relevant officials.  Reasons for the approach taken are recorded in minutes, including in what are described as “IN-CONFIDENCE” documents.

15. Folios 153 to 162 are copies of some documents also on the 2013 file and the subject of the other certificate. 

16. In written submissions, the First Respondent accepted that, for the reasons set out by Beach J in MZAFZ, both certificates were likely to be invalid, apparently on the basis that the statements that the folios the subject of each certificate contained “information relating to an internal working document and business affairs” was not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed (as specified in s.438(1)(a) which was the only part of s.438 referred to in each certificate) (see MZAFZ at [36]-[39]).

17. In oral submissions there was some discussion of the possibility that a certificate might be valid in part, having regard in particular to information being given “in confidence”, although I note that neither certificate referred to s.438(1)(b) of the Act.

18. In the present case it is not necessary to make a finding in that respect.  As discussed below, whether or not either certificate is valid, there is no jurisdictional error because there is no denial of procedural fairness in any failure by the Tribunal to disclose to the Applicant any of the documents the subject of either of the certificates or, indeed, the existence of either or both of the certificates themselves.  There is no practical injustice in that respect, having regard to the nature of the documents and their lack of relevance to the review. 

19. Moreover, even if either or both of the certificates were invalid and a jurisdictional error were to be seen as arising merely from that invalidity such that there was a technical breach, in the absence of a denial of procedural fairness, I would refuse relief.  There would be no utility in granting relief because disclosure of the certificates and/or information covered by the certificates could not have made any difference to the outcome of the review (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [91] and BEG15 v Minister For Immigration & Anor (2016) 315 FLR 196; [2016] FCCA 2778 per Judge Smith at [68]).

20. I am reinforced in these conclusions by the fact that, as the First Respondent submitted, when regard is had to the nature and content of the documents the subject of the certificates there is no basis to find that the Tribunal acted on either of the certificates or any of the information therein in any way.  This is consistent with the absence of any reference to any such documents or information in the Tribunal’s reasons.  It is clear that the content of these documents could not have had an impact on the outcome of the review.  In this particular case an inference can be drawn that the Tribunal did not consider any such documents to be material to the review in the sense considered in BIE15 v Minister for Immigration and Border Protection (2016) 314 FLR 392; [2016] FCCA 2978.

21. As outlined above, the documents related to the validity of the two protection visa applications; internal reviews by the Department not relevant to the claims or issues arising before the Tribunal; a record of an unrelated application to the Tribunal; notification of the earlier Tribunal decisions; and the consent remittal.  The documents relating to the request for Ministerial intervention were also separate to the Tribunal’s review and the evidence in relation to the Applicant’s claims referred to in some of those documents was clearly before the Tribunal in the form of the written claims that the Applicant made in support of his protection visa applications and the oral evidence he gave at the various Tribunal hearings as referred to and as relied on in the Tribunal’s reasons for decision. 

22. The documents relating to the 2015 judicial review proceeding and in relation to the outcome of that proceeding were also of no relevance, notwithstanding the Applicant’s misunderstanding in that respect.  After remittal the Tribunal engaged in a fresh consideration of the application for review of the delegate’s decision not to grant the Applicant a protection visa on complementary protection grounds.  The fact that in 2015 the Department conceded that the Tribunal decision of 3 June 2015 involved a jurisdictional error in the manner in which the Tribunal considered relocation is not such as to have any relevance to or impact on the outcome of the Tribunal’s reconsideration.  It did not turn on relocation.  In any event, such information was not negative to the Applicant’s interests.

23. In MZAFZ (where the information covered by the s.438 certificate was not in evidence) Beach J hypothesised that the documents covered by the certificate may contain information that was neutral or positive to the applicant’s interests. In this case the certificates and documents are in evidence. I am satisfied that the documents the subject of the certificates could not logically have had any bearing on the Tribunal’s consideration of the Applicant’s claims. There is no basis to infer that the Tribunal considered that the content of any of these documents would be the reason or part of the reason for affirming the decision under review for the purposes of s.424A of the Act or that they contained information that raised issues arising in relation to the decision under review that had to be put to the Applicant pursuant to its obligations under s.425 of the Act.

24. In these circumstances, there is no basis upon which a failure to disclose any of the documents to the Applicant can be seen to have constituted a denial of procedural fairness. That is so even if the certificates are invalid. In considering a s.438 certificate in AVO15, Barker J was of the view that the jurisdictional error found in Singh and MZAFZ had no practical application in a case where no substantive issue arose from the non-disclosure.  His Honour was of the view in that case that the appeallant had not suffered any practical injustice.  The same may be said in this case.   As in AVO15, it can be inferred that the Tribunal in this case had no regard to the documents the subject of the certificates, which, on any view, can have been of no or only passing contextual relevance to the application.  Even if there was a technical breach, the Applicant lost no opportunity to advance his case or otherwise suffered any detriment by reason of such breach.  As Barker J pointed out in AVO15 at [91], in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Gageler and Gordon JJ at [57] made the point that the concern of procedural fairness is to “avoid practical injustice” (as explained by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]), and there is no denial of procedural fairness where no practical injustice has been shown.

25. As indicated, even if there is a technical jurisdictional error arising from the Tribunal’s failure to disclose the certificates or any of the affected documents, I am satisfied that relief should be refused, having regard to the absence of any practical unfairness and the fact that knowledge of the existence of either of the certificates could not have made or make any difference to the outcome of the review (whether one takes a backward looking or forward looking view in relation to the exercise of the discretion to refuse relief (see BEG15)).  The Applicant has not lost any opportunity to advance his case or been shown to have suffered any detriment.  Whether or not the certificates were valid, no practical injustice is apparent.  There would be no utility in granting the relief sought in these circumstances. 

26. In these circumstances, the application should be dismissed.

27. The Applicant has been unsuccessful.  He should meet the Minister’s costs.  The amount sought is less than the amount provided for in the Schedule to the Federal Circuit Court Rules 2001 (Cth). It is appropriate and reasonable in light of the nature of this and other similar matters.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 6 December 2017