BDY16 v Minister for Immigration
[2018] FCCA 1121
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDY16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1121 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for protection visa – claim that decision of Administrative Appeals Tribunal was affected by jurisdictional error due to Applicant’s adverse health condition at Tribunal hearing and actual bias – no evidence of either – no jurisdictional error – Tribunal properly considered all claims and not affected by any form of bias – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 438 Migration Regulations 1994 (Cth) |
| Cases cited: Ashraf v Minister for Immigration Border Protection [2018] FCAFC 50 |
| Applicant: | BDY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1202 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 22 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr J. Pinder |
| Solicitors for the Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 13 May 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1202 of 2016
| BDY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of China aged 49 years, having been born on 26 November 1968.
By Application filed in this Court on 13 May 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 18 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 16 June 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived in Australia on 31 January 2014 as part of a tour group on a Subclass 600 Visitor visa which was granted to him on 22 January 2014 in China. The Applicant quit the tour group on arrival in Australia and lodged his Protection visa application the subject of this proceeding on 10 February 2014, on which day he was granted an associated Bridging visa A.
Claims for Protection
In his Protection visa application, which included a Personal Statement dated 6 February 2014, the Applicant made the following claims:
a)He was born in Chengdu City, China.
b)He had received eight years of education in China and started working as a part-time construction worker after he had graduated from middle school and he married in May 1994. His wife and he had a son born in March 1996. He worked as a construction worker in China between 1984 and January 2014.
c)Prior to September 2010 the Applicant could not find a stable job, drank a lot and fought a lot with his wife.
d)In September 2010 he first learnt of Jesus Christ and he started to attend Christian family gatherings and to believe in Christianity.
e)There is no religious freedom in China and he and his family were persecuted as they attended “underground gatherings”. The only Christian congregation permitted in China is the “Three-Self Patriotic Church”, which is controlled by the Chinese government and “never faithful to God”.
f)In 2011 his mother had a heart attack from which she recovered, and which recovery he attributed to Christianity.
g)His wife and family began practising Christianity, and in April 2012 they attended a gathering of Christians at the family home of his friend Ming Chen, which was not permitted. Police came and arrested them and Ming Chen was detained for one month and fined RMB10,000 and the rest of the attendees, including the Applicant, were fined RMB5,000 and detained overnight.
h)In February 2013 he started hosting Christian events in secret in his home. This was discovered by the police and in his absence they came and removed the Christian materials from his home and charged and detained his wife and fellow Christians. His wife was detained for three months and only released after the payment of RMB15,000.
i)He sought to escape China via a tour group visiting Singapore and Malaysia in 2013, but was prevented from seeking asylum by the tour manager. He then found an agent and came to Australia on 31 January 2014. His wife remains in China, and asks for him not to return there.
j)He will definitely be arrested if he goes back to China which is a one-party dictatorship, with no democracy and no freedom of religion or speech.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended an interview with the Delegate on 12 June 2014.
In the result the Delegate did not accept that the Applicant was a currently practising Christian or had ever been a practising Christian or a member of a house church in China. The Delegate found that the Applicant’s evidence at the interview had the manner of a rehearsed speech or of reading from a script. The Delegate found that the Applicant was not a credible witness, and concluded that the Applicant’s claims were fabricated for the purpose of pursuing a refugee claim in Australia.
Having rejected the Applicant’s claims in their entirety, the Delegate was not satisfied that Australia had protection obligations to him under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) and refused to grant to the Applicant a Protection visa.
Decision of Tribunal
The Applicant applied to the Tribunal on 14 July 2014 for merits review of the Delegate’s decision. He appeared before the Tribunal on 7 April 2016 to give evidence and present arguments. The Applicant had the assistance of an interpreter in the Mandarin and English languages. At the hearing the Applicant confirmed that he was seeking protection in Australia on the basis of his claim to have been a member of a house church in China, that he feared harm if he returned to China on that basis, and that he did not make any new claims in terms of additional claims for protection in Australia.
From [10] – [44] of its Decision Record the Tribunal recorded the Applicant’s claims and evidence given prior to and at the Tribunal hearing. Then from [45] – [56] the Tribunal recorded its consideration of those claims and evidence.
Included in its findings were that:
a)the Applicant had told the Tribunal that he had only attended two house church meetings in China whereas in his Protection visa application he had suggested attending more than two and he had told the Delegate that he had attended around 10 house church meetings (see [42], [47] and [49] of the Decision Record);
b)the Applicant told the Tribunal that he was not really interested in reading the Bible (see [26] and [47] of the Decision Record);
c)the Applicant told the Tribunal that he did not know the differences between being a Protestant and a Catholic in terms of Christianity, whereas the Tribunal regarded those differences as significant in terms of unregistered religious organisations in China (see [48] and [53] of the Decision Record);
d)the Applicant told the Tribunal that he did not know what baptism was and struggled to provide any explanation for the religious significance of Christmas and Easter to Christians (see [48] and [53] of the Decision Record);
e)the Applicant, in his evidence to the Tribunal, did not indicate that he had any interest in Christianity other than to claim that he was a Christian and the Tribunal assessed that he had no real interest in Christianity and displayed no real knowledge of Christianity in terms of basic and fundamental Christian beliefs (see [53] of the Decision Record); and
f)the Applicant did not have any difficulties travelling in and out of China when he went to Malaysia and Singapore or when he came to Australia and this suggested that the Applicant was not of any interest to the Chinese authorities and was inconsistent with the Applicant’s suggestion that he would be a person of interest to the Chinese authorities (see [50] of the Decision Record).
At [37] – [40] of its Decision Record the Tribunal considered country information relevant to the practice of religion in China which indicated that China permitted friends and family to hold small informal prayer gatherings without official registration and that there were between 70 – 100 million members of unregistered Protestant Christian organizations in China.
At [52] of its Decision Record the Tribunal expressed its view that, after considering the totality of the Applicant’s claims and evidence and having had regard to aspects of his evidence that were vague and inconsistent, it did not accept that he was a credible or truthful witness.
Accordingly, at [55] of its Decision Record the Tribunal recorded that having considered the totality of the Applicant’s claims and evidence both individually and cumulatively it did not accept that he faced a real chance of serious harm if he returned to China, either now or in the reasonably foreseeable future, on the basis of his claim that he was a Christian who practised in a house church. Further, at [56] of its Decision Record the Tribunal recorded that it did not consider that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, he faced a real risk of significant harm and at [60] it affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are as follows:
1.The applicant's health at the time of the Tribunal hearing or at any other time was such as to constitute a ground for review of the decision. It should have noted in this respect that the applicant's state of health to the attention of the Tribunal in hearing and also drew attention to the hardships of life in the detention threaten. These conditions, the effect of detention on the applicant's family and his frail health provided some explanation for discrepancies, particularly because of an impact on his ability to concentrate. These matters establish grounds for review of the Tribunal decision. The applicant's description of his condition should have be considered and dealt with by the Tribunal. The Tribunal was entitled to consider the applicant's explanation on that basis and it is clear that the Tribunal failed to consider these factors provided an explanation for the discrepancies in the various accounts given by the applicant.
2. The Tribunal was bound to enquire into the reasons behind the making of the threats in order to determine the applicant's claim properly, The Tribunal was obliged to act as an "inquisitor" and thus was bound to explore the applicant's claim that the applicant was a member of the underground Christian in China. His association with the underground Church was the main reason for his fear of persecution. In Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 536-537 where Gleeson CJ and McHugh J note that: "once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred on him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue ... " The overarching principle thereby established imports the fundamental requirement that the Tribunal deal with cases individually on their merits and not on the basis of any pre-judgement about the merits of application, nor on the basis of any immutable general rule or policy. This fundamental requirement is an essential requirement of the Migration Act and a breach of it will vitiate a decision notwithstanding the privative clause. Accordingly, the decision of the Tribunal discloses pre-judgement the applicant is entitled to prerogative relief on the basis of a breach of an essential requirement of the Migration Act, in addition to the principal ground of actual bias establishing a lack of bona fides in the decision.
3. The Tribunal failed to apply all or any of the tests which a Tribunal could reasonably be expected to apply when examining a person's credibility. Such argument takes issue with the Tribunal's conclusion as to the knowing involvement of the applicant in the application for a protection visa based on his signature of the protection visa application form. It was suggested that any attack on the applicant's credibility was misconceived as, given the applicant's poor English, the Tribunal ought to have considered whether he really understood what was being submitted on his behalf in the protection visa application made at a prior time.
At the hearing in this Court the Applicant did not make any substantive submissions in support of these Grounds.
Consideration
Ground 1
This Ground appears to contend that the Applicant’s health at the Tribunal hearing on 12 June 2014 was of jurisdictional significance and that his health was drawn to the attention of the Tribunal at the time of the hearing. I assume that the Applicant means to contend that his health was adversely affected.
It is of course the case that s.425 of the Act relevantly provides that, in conducting a review of a decision of the Minister, “the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Further, the invitation given under s.425 must be real and meaningful and not merely formalistic: see Minister for Immigrationand Multicultural and Indigenous Affairs vSCAR (2003) 128 FCR 553.
However, this Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error for the following reasons:
a)there is no evidence that the Applicant ever asserted to the Tribunal that he suffered at the hearing from any adverse health problems. The Applicant has not tendered a transcript of the Tribunal hearing, although he consented to an order in this Court on 10 June 2016 which put the obligation to do so on him in the event that he regarded the transcript as relevant to his Grounds. The only reference to any problem asserted by the Applicant at the hearing was as to his claim to have “a poor memory”, which the Tribunal recorded and dealt with at [52] of its Decision Record in the following terms:
[52]The Tribunal after considering the totality of the applicant’s claims and his evidence and having had regard to aspects of his evidence that were vague and inconsistent does not accept that the applicant is a credible or truthful witness in relation to his claims. The Tribunal does not accept that its assessment of the applicant’s credibility is because he claims to have a poor memory and by inference sought to explain vague and inconsistent aspects of his evidence on that basis. The Tribunal’s assessment of the applicant’s credibility is based on its assessment of the totality of his evidence in the context of his claims. The Tribunal after considering the totality of the evidence and the applicant’s claims and having regard to relevant and available country information that has been referred to does not accept the credibility of the applicant’s claim that he is at risk of harm if he returned to China on the basis that he practised in a house church and that he is a Christian.
(emphasis added)
b)the Applicant has not tendered in this proceeding any medical evidence to the effect that a health condition at the date of the Tribunal hearing adversely affected his ability to meaningfully participate in that hearing. His own affidavit sworn on 8 May 2016 and read in this proceeding does not give any evidence to the effect that he suffered from an adverse health condition at the time of the Tribunal hearing;
c)the Applicant has not identified the nature of any adverse health problem which he was suffering at the time of the Tribunal hearing, nor how and in what way any such health condition denied him a real and meaningful opportunity to participate in the Tribunal hearing and to have his evidence fairly assessed by the Tribunal; and
d)the Decision Record of the Tribunal on its face indicates that the Applicant meaningfully participated in the Tribunal hearing and largely and substantially responded to the questions asked of him and otherwise responsively dealt with the matters raised by the Tribunal.
In short, there is no evidence before this Court which would lead to a conclusion that any adverse health condition deprived the Applicant of the opportunity to give evidence and make arguments and submissions on his own behalf in a meaningful way. There is no justification for a finding that the Applicant was not fit to represent himself at the Tribunal hearing or that the Tribunal’s review function was stultified or frustrated.
Accordingly, Ground 1 fails to establish jurisdictional error.
Ground 2
Ground 2 appears to have two prongs, namely that:
a)the Tribunal “was bound to enquire into the reasons behind the making of the threats in order to determine the applicant's claim properly”, and to “explore the applicant's claim that the applicant was a member of the underground Christian in China” [sic]; and
b)the Tribunal’s decision was affected by pre-judgment and actual bias.
Bound to Enquire and Explore
The first thing to be said about this Ground is that in my view the Tribunal discharged its obligation to review the Delegate’s decision by engaging with and exploring the Applicant’s claims at the Tribunal hearing. The Decision Record of the Tribunal appears to be a comprehensive and reasoned statement and evaluation of those claims. The Tribunal’s findings were responsive to the claims actually made by the Applicant.
Second, the “threats” referred to in this Ground are presumably those claimed to have been made by the Chinese government of persecution and significant harm in relation to the practice of the Christian religion by the Applicant in China. However, the Tribunal properly considered country information in relation to the attitude of the Chinese government to the practice of the Christian religion and in particular to house churches and the claims of the Applicant to be an adherent of the Christian religion, which claims it rejected.
Third, in any event the Tribunal did not have an obligation to make enquiries in the circumstances of this case. The Tribunal’s inquisitorial role does not extend to making an applicant’s case for him or her. The Tribunal does not have to actively assist an applicant in putting his or her case or to carry out an enquiry in order to identify what that case might be. The relevant law in this respect has recently been summarised by the Full Court of the Federal of Australia comprised of Tracey, Mortimer and Moshinsky JJ in Ashraf v Minister for Immigration Border Protection [2018] FCAFC 50 at [56] in the following terms:
[56] … The authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her: Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] and cases there cited. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted (at [20]) that “[t]he failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it”. Their Honours said (at [21]) that the observations of Wilcox J in Prasad may support such a proposition. After noting, at [23], that the proposition that may emerge from Prasad had not been the subject of full consideration by the High Court, and referring to observations that had been made in certain cases, their Honours said (at [25]):
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
(Footnote omitted.)
The Applicant has failed to identify in connection with this Ground any critical fact which the Tribunal failed to enquire about. Further, I am myself unable to discern any critical fact which the Tribunal failed to enquire about.
Actual Bias
Actual or apprehended bias are matters which go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker, such as the Tribunal, may result in jurisdictional error justifying an order that the decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.
Actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72] as follows:
[72]The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:
[97] The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test for actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 (Michael Wilson & Partners) at 437 – 438 [33] per Gummow ACJ, Hayne, Crennan and Bell JJ.
In my opinion there is no basis for any claim by the Applicant that he has suffered from actual bias.
First, the face of the Tribunal’s Decision Record does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias, on the part of the Tribunal member: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
Second, there is otherwise nothing in the evidence which lends any support at all to a finding that the Tribunal member favoured or was partial to the Minister or prejudged the merits review application.
Accordingly, the allegation of actual bias and prejudgment fails.
For completeness I record that there could not be any reasonable apprehension of bias in connection with the Tribunal’s decision. The test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 – 345 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners at [32]. There is nothing in the circumstances of this case which could give rise to an apprehension of bias.
This Ground also fails to establish that the decision of the Tribunal was affected by jurisdictional error.
Ground 3
Ground 3 also appears to have two prongs, namely that:
a)the Tribunal “failed to apply all or any of the tests which a Tribunal could reasonably be expected to apply when examining a person's credibility”; and
b)a complaint that the Tribunal concluded that the Applicant was guilty of knowing involvement in some wrongdoing in connection with his Protection visa application for which he was not responsible.
Credibility
The first problem with this Ground is that “the tests” to be applied “when examining a person’s credibility” are not identified. Further, the assessment of credibility is a matter for the Tribunal to determine as a question of fact and it is often said that credibility is a matter “par excellence” for the Tribunal. Of course, that does not mean that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146. Nevertheless, in this case I do not consider that the Tribunal’s findings suffer from illogically or irrationality or legal unreasonableness. They appear to be legally reasonable and do not constitute a blanket, reflex or exaggerated adverse credit finding but rather reflect a proper examination of the Applicant’s claims: AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 at 145 [11].
Knowing Involvement in Relation to Protection Visa Application
This part of Ground 3 seems to lack any real sense or meaning. There is no issue in this case of claims having been made on behalf of the Applicant by some third party of which he was unaware. There is nothing in the Decision Record of the Tribunal giving rise to such an issue. There is no evidence led by the Applicant in support of this issue. The substantive claims made by the Applicant at the Tribunal hearing were consistent with the claims made by him in his Protection visa application (including the Personal Statement) and before the Delegate.
Ground 3 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
A Final Matter
The Minister as a model litigant disclosed that a delegate of the Minister had issued a certificate dated 27 July 2015 purportedly pursuant to s.438 of the Act, addressed to the District Registrar of the Tribunal (s.438 Certificate). The s.438 Certificate states that it applies to information in folios 35, 36, 37, 65 and 70 in file number CLF2014/21727, which file is applicable to the Applicant. Those folios are as follows:
a)folio 35 is a document titled ‘tax invoice/receipt’, and is an invoice/receipt recording payment by the Applicant to the Department of the Minister of a filing fee for the Protection visa application;
b)folio 36 is a document titled ‘Protection Visa Application Validity Check’, and is a completed checklist by the Department of the Minister following a validity check of the Protection visa application;
c)folio 37 is a document titled ‘Identification Test: Protection Visa Applicants’, and is a completed checklist by the Department of the Minister following an identity check of the Applicant;
d)folio 65 is a document titled 'Outcome notification', and is internal Departmental correspondence advising of the outcome of the first judicial review application (this is a reference to an earlier decision dated 15 April 2015 of the Refugee Review Tribunal which was set aside by consent by the Federal Circuit Court of Australia and remitted for further hearing by the Tribunal and which led to the decision of the Tribunal here under review); and
e)folio 70 is a document titled ‘Matter Detail Summary’, and is an internal Departmental file note recoding the outcome of the first judicial review application.
The Minister concedes that the s.438 Certificate is invalid on its face for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. However, the Minister further submitted that the non-disclosure by the Tribunal to the Applicant of the existence of the s.438 Certificate (which was the case) did not give rise to a denial of procedural fairness constituting jurisdictional error.
I agree with the Minister’s submission. In my view the s.438 Certificate is invalid but no relevant non-disclosure has occasioned procedural unfairness to the Applicant. The Tribunal did not mention or rely upon the s.438 Certificate and did not act upon or have regard to any of the folios which were subject to the s.438 Certificate in reaching its decision. They were entirely irrelevant and immaterial to the Tribunal’s review of the Delegate’s decision and neither the existence of the s.438 Certificate or the documents subject to it could have had any conceivable impact on the outcome of the review and there was no practical unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.
Conclusion
Accordingly, the Application filed in this Court on 13 May 2016 must be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 11 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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