BDZ16 v Minister for Immigration
[2019] FCCA 3400
•27 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDZ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3400 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal breached s.424AA of the MigrationAct 1958 (Cth) – s.438 certificate – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414, 417, 418, 422B, 424AA, 424A, 438, 476 Federal Circuit Court Rules 2001 (Cth), r.13.03C |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 |
| Applicant: | BDZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1209 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 22 October 2019 |
| Date of Last Submission: | 22 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 November 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 16 May 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1209 of 2016
| BDZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 May 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 15 April 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is as follows:
(1)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”);
(2)The affidavit of Mr Sivarama Krishnan Valliappan, solicitor, made on 15 October 2019 with annexures.
Background
The applicant is a citizen of China (CB 106). He arrived in Australia on 20 July 1996 on a visitor visa (CB 237.2). He first applied for a protection visa which was received by the Minister’s department on 13 June 1997 (CB 1–CB 34). A delegate of the Minister refused the applicant’s (first) protection visa application on 5 January 1998 (CB 59–CB 66). The applicant applied for review of this decision to the then Refugee Review Tribunal which affirmed the delegate’s decision on 30 April 1999 (CB 69–CB 81 and see [2] at CB 331).
Following the Full Court judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant made another application for a protection visa which was received by the Minister’s department on 9 September 2013 (CB 94–CB 157 and see CB 158–CB 217). The applicant’s claims to fear harm were contained in a written statement attached to his visa application (CB 186–CB 199).
There is no dispute that the applicant came to Australia on a “fraudulent” Korean passport in 1996. While in Australia in 2009, the applicant was introduced to the Central Baptist Church and commenced attendance at a Bible study group. The applicant claimed to fear harm on return to China on the basis of his Protestant religion, and because he left China illegally in 1996. The delegate refused the grant of the visa on 29 September 2014 (CB 231–CB 246).
The Tribunal
The applicant applied for review to the Tribunal on 21 October 2014 (CB 247–CB 248). The applicant was invited to, and attended, a hearing before the Tribunal on 4 December 2015 (CB 251– CB 260 and CB 272–CB 274). The Tribunal affirmed the delegate’s decision on 15 April 2016 (CB 327–CB 351).
The Minister’s written submissions of 4 May 2018 provide a fair and accurate summary of the Tribunal’s decision. I note the relevant paragraphs as follows ([3]–[9] of the Minister’s written submissions):
“3. On 15 April 2016 the Tribunal affirmed the decision under review: CB 330.
4. The Tribunal was not satisfied that the applicant was a credible witness: [90]; CB 347. The Tribunal took into account the applicant’s evidence that he had suffered from symptoms consistent with depression, anxiety and post-traumatic stress disorder.
5. The Tribunal found inconsistencies between the applicant’s first and second protection visa applications in respect of the applicant’s asserted fear arising from his political opinions: [91]-[94]; CB 347. As a consequence of the material inconsistencies the Tribunal found it was not satisfied that the applicant was ever employed by the PSB: [95]; CB 348. The Tribunal also found material inconsistencies in the applicant’s claims concerning later encounters with the PSB: [96]; CB 348. The Tribunal was unable to reconcile the different accounts given by the applicant as to his employment, residential histories and his claims of conflict with the PSD, detention and hiding: [97]; CB 348. The Tribunal was not satisfied that the applicant’s claims in relation to his political or social views were credible: [98]; CB 348.
6. The Tribunal noted the applicant’s claims relating to his brothers that had arisen in a request for Ministerial intervention: [99]; CB 348. The Tribunal was not satisfied that any risk of harm arose from such claims as they were not put forward by the applicant in connection with his protection visa applications. The Tribunal expressed serious concerns as to the veracity of the applicant’s claim that his wife was sterilised due to contravening family planning policy in the past, and noted that in any event it had been 25 years since the child had been born: [100]; CB 348-349.
7. In relation to the applicant’s claims to be a Christian, the Tribunal was prepared to accept that the applicant was a Christian, notwithstanding its concern that he claimed to have become seriously involved in a church at around the time of his (unsuccessful) Ministerial intervention request in 2009: [102]; CB 349. The Tribunal accepted that the applicant had become a Christian in Australia and that he ‘receives a range of personal benefits from his church attendance and activities’: [103]; CB 349. Nevertheless the Tribunal found that the applicant was not engaged in proselytising or evangelising, and that he did not engage in the practice of his religion in a ‘high profile way’. On that basis it was not satisfied that the applicant would wish to engage in anything other than low profile, private discussions with others about his faith or church if he returned to China. The Tribunal observed that religious policy in Fujian (where the applicant’s hukou is registered) ‘is relatively liberal’: [104]; CB 349. The Tribunal was not satisfied that the applicant would behave in relation to his religious beliefs in a way that would attract public attention, and it noted that instances of harm of house Church participants in Fujian was rare: [104]; CB 350.
8. The Tribunal was not satisfied that the applicant would be exposed to harm as a consequence of having departed China illegally on a false passport: p108]; CB 350. The Tribunal relied upon country information, and noted that any penalties for such a breach would not constitute cruel or inhuman treatment or punishment or other form of significant harm: [109]; CB 350-351. The Tribunal found there to be no more than a remote chance that the applicant would be incarcerated in connection with his illegal departure 19 years earlier: [110]; CB 351.
9. The Tribunal concluded that it was not satisfied that the applicant was owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act: [112]-[113]; CB 351.”
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. At paragraph 99 of the Tribunal Decision stated: “The Tribunal has noted that the applicant referred in his 2009 Ministerial intervention request to the deaths of his two brothers, due to persecution. The applicant has not raised this claim in the context of his protection visa application, nor has he indicated that there may be any risk to him as a consequence of his brother’s experiences. As a consequence, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering harm in China arising from his relationship to his brothers”
2. The sub section 422B(3) of the Migration Act, 1958 prescribes the Tribunal must act in a way that is fair and just, which I do not believe that the Tribunal failed to comply with as far as my review application is concern.
3. The reason being the Tribunal drew an inference unfavourable to my credibility and my claims in its decision because I did not include my brother’s tragic death in my refugee claims; furthermore, the tribunal was not satisfied I’d be subjected of significant harm arising from my brother’s death. However, the Tribunal did not, under s 424AA of the Act, put on its concern relating to my brother’s death in the course of the Tribunal hearing, nor did it offer me an opportunity to provide reasonable explanation as to why I failed to have my brother’s death included in my refugee claims.
4. Acknowledging that the sub section 424 (1) of the Act explicitly stipulates in conducting the review, the Tribunal may get any information that it considers relevant; but the section 424AA of the Act requires the Tribunal to orally inform me why the particular information that it considers would be a part of the reason, for affirming the decision that is under review, and invite to comment on be it orally or in writing. Apparently, the Tribunal did not act in accordance with s424AA of the migration Act, and in turn, violated 424B (3) of the Act.”
[Errors in the original.]
Before the Court
The parties first appeared before a Registrar of the Court on 7 July 2016, and various orders were made by consent, including that the applicant have the opportunity to file any amended application and further evidence by way of affidavit. The applicant filed no further documents in this regard.
The parties again appeared before a Registrar of the Court on 17 November 2016, and various orders were made including that the matter be set down for final hearing on 11 May 2018, and that the parties file written submissions before the hearing. The applicant filed no written submissions. The Minister filed written submissions on 4 May 2018.
At the final hearing on 11 May 2018, there was no appearance by, or on behalf of the applicant. I dismissed the matter for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant filed an Application in a Case on 30 May 2018, requesting that the matter be re-instated. On 21 September 2018 the Minister consented to an order that the orders made on 11 May 2018 be vacated. At subsequent directions the matter was set down for final hearing on 22 October 2019.
At the final hearing, the applicant appeared in person with the assistance of an interpreter in the Mandarin language, and the Minister was represented by counsel.
The applicant gave a lengthy account of his historical personal circumstances in China, including his military background, subsequent difficulties in gaining employment, his disregard for the one child policy, his “wandering around” in China, and his desire to live in a “free” Western society.
The applicant made no attempt to link any of this to the Tribunal’s decision, or to explain how this account could reveal jurisdictional error in the Tribunal’s decision.
It was clear that the applicant had little understanding of the nature of these proceedings. I sought to explain to the applicant that to succeed in his application, the Court would need, at least, to find legal error (jurisdictional error) in the Tribunal’s decision.
In this light, I directed the applicant to the grounds of his application to the Court. The applicant stated he had nothing to add to what had been written in the grounds.
Consideration
Although there are four paragraphs to the applicant’s stated grounds of the application, it cannot be said that there are four separate and recognisable assertions of jurisdictional error. Rather, the assertions of legal error appear to be as follows.
Section 422B of the Act requires the Tribunal to act in a way that is fair and just. The Tribunal did not act in this fashion when, with reference to [99] of its decision record, it drew an adverse inference about his credibility because he did not include the matter of his brothers’ tragic deaths in his refugee application.
The ground contends that the Tribunal did not put this omission to him at the hearing pursuant to s.424AA of the Act, or offer him an opportunity to explain why he did not refer to it in his “refugee” application.
Paragraph 99 of the Tribunal’s decision is in the following terms:
“99. The Tribunal has noted that the applicant referred in his 2009 Ministerial intervention request to the deaths of his two brothers due to persecution. The applicant has not raised this claim in the context of his protection visa application, nor has he indicated that there may be any risk to him as a consequence of his brother's experiences. As a consequence, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering harm in China arising from his relationship to his brothers.”
The applicant’s complaint does not reveal jurisdictional error in the Tribunal’s decision.
One, the Tribunal certainly made an adverse finding as to the applicant’s credibility. It found (in the paragraph immediately preceding [99]) that the “… applicant’s credibility is so damaged…” that the Tribunal could not be “… satisfied that the applicant’s claims in relation to his political or social views are credible or that he has expressed such views publicly in the past in China in any forum.”.
However, it is clear that what is set out subsequently at [99] was not a part of the reasoning that informed the adverse credibility finding. Those reasons are set out comprehensively at [90]–[98], and with reference to what the applicant relevantly gave in evidence at the Tribunal hearing (see at [52]–[66] of the Tribunal’s decision record).
What the Tribunal referred to at [99] was a “claim” made by the applicant in a request to the Minister in 2009 to intervene, and grant him a visa.
Two, the relevant obligation on the Tribunal is to consider all claims expressly made or clearly arising as to why an applicant says he cannot return to his home country (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263).
The relevant statutory obligation on the Tribunal arising from s.414 of the Act, is to review the delegate’s decision. An applicant can certainly raise additional claims to fear harm before the Tribunal, and these must be considered by the Tribunal. Therefore, the two sources of claims to fear harm arise from what occurred before the delegate, whose decision is the subject of the review, and what is put before the Tribunal.
What the applicant put in his Ministerial intervention request was neither a part of his claims before the delegate, that is a part of his application for the visa, nor was it put before the Tribunal as part of the review. The applicant made no claim in the application for the protection visa (either in the first, or the second, “current”, application), or in the process for review that he feared harm on return as a result of the death of his two brothers.
The Tribunal was under no obligation therefore, to consider the matter of the applicant’s brothers. Why the Tribunal addressed this matter at [99] is not clear. The Minister suggests that it may have been an exercise in an abundance of caution.
Whatever the reason, no error is revealed in its having done so. On a plain reading of the Tribunal’s analysis the reference to the applicant’s brothers was not the reason, or a part of the reason, for affirming the delegate’s decision. This played no part (including in informing the adverse credibility conclusion) to the outcome of the Tribunal’s decision.
Three, as the Minister submits, even if some adverse inference (to the applicant) had been drawn by the Tribunal in this regard, no breach of s.424A (as is implicit in the applicant’s ground with reference to s.424AA) is revealed because this section was not enlivened. The Tribunal’s subjective appraisals, its thought processes, determination, identification “…of gaps, defects or lack of detail or specificity in evidence or to conclusion arrived at by the tribunal in weighing up the evidence by reference to those gaps” are not information for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123).
The applicant’s argument arising from the “grounds” of the application is not made out.
Section 438 Certificate
The Minister filed written submissions in this matter on 4 May 2018 (as set out above, the applicant’s case had been dismissed for non-attendance, and was subsequently reinstated). In those submissions the Minister, fairly, noted that a delegate of the Minister on 27 October 2014 issued a certificate pursuant to s.438(1)(a) of the Act relating to certain folios that were contained on the relevant departmental file. The folios are before the Court as annexures to the affidavit of Mr Valliappan.
Mr Valliapan’s evidence provides a comprehensive outline to the documents. Most were the subject of a Freedom of Information (FOI) request made by the applicant, which in part related to the documents referred to in the certificate. There are four annexures to the affidavit:
A. A copy of the certificate.
B. Copies of many of the folios which were the subject of the certificate.
C. A copy of the relevant FOI decision letter, dated 5 June 2012.
D. Copies of the documents released under the FOI request.
There is no dispute from the Minister that the certificate was invalid. However, the Minister filed subsequent written submissions (on 15 October 2019) which also take into account the relevant direction given by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”) which was not available at the time of his first written submissions. This was further explained in oral submissions before the Court.
The Minister’s submissions provide further explanation as to the nature of these documents, and whether the applicant had knowledge of them.
On 7 May 2012, the Minister’s Department received a FOI request from the applicant seeking “…documents in relation to my protection visa application and ministerial request…”. On 5 June 2012 a delegate of the Minister wrote to the applicant, advising that that delegate had decided to “partially release” the requested documents, and that some of the documents that were released had been redacted (see pages 58 and 63 of Mr Valliapan’s affidavit (“the affidavit”).
The evidence of Mr Valliapan reveals the large number of documents which were covered by the applicant’s FOI request. There are four categories of documents. One, the documents released in full to the applicant. Two, the documents not released. Three, documents that were released but redacted. Four, documents not covered by the FOI request, but which were referred to in the certificate.
Some of these documents, referred to above were the subject of the s.438 certificate, others were not. The only documents relevant to the current consideration are those documents which are referred to in the s.438 certificate, and in respect of which the certifier sought to invalidly, restrict disclosure.
As set out above, since the s.438 certificate was issued, the High Court has handed down SZMTA. This case provides direction to the Court on how to approach certificate matters. The Minister’s supplementary submissions draw attention to [48] of SZMTA, which is in the following terms:
“48. In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.”
The Minister submitted, that the Full Federal Court in MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [66] found that the determination as to whether the Tribunal fell into jurisdictional error in relation to a s.438 certificate was dependent on “…how the Tribunal in fact acted in relation to the notified document or information”.
In regard to the documents that the applicant received due to the FOI request, which were the subject of the s.438 certificate, the Minister submitted that the applicant “did not suffer any practical injustice” due to the invalid certificate in relation to those documents.
Concerning the documents that were not released to the applicant, or were released but redacted, the Minister submitted that it should be inferred that as the Tribunal did not mention these folios in its decision record, it did not take them into account. If regard was not had to the documents, it can be reasonably inferred that such documents could not have affected the outcome of the Tribunal’s decision, and that even if the certificate had not been issued it would not have realistically affected the outcome of the matter.
The Minister also made submissions in relation to the documents which were the subject of the s.438 certificate that were not given to the applicant, or were given but partially redacted pursuant to the FOI request. These submission have been relevantly noted below.
The following folios from the Minister’s department’s file were the subject of the s.438 certificate:
Folio 1. See page 6 of the affidavit.
A.As set out above the applicant arrived in Australia using an alias and a false Korean passport. This folio is a print out of records held by the Minister’s department of the applicant’s travel movements using this passport.
B.This document was given to the applicant pursuant to the FOI request. It was released in full.
C.The fact that the applicant arrived in Australia using an alias, and a false Korean passport was not at issue before the Tribunal. The Tribunal did not refer to this document in its decision record. Nor did the Tribunal rely on the applicant’s conduct in this regard in making an adverse credibility finding. Nor was it a matter of contention, or reflected adversely in its analysis and conclusion. The information in this folio was not material to the Tribunal’s decision. It did not affect the outcome.
Folio 26. See page 7 of the affidavit.
A.This document is correspondence from the Minister’s department in Melbourne to the Australian Embassy in Seoul. It is a request for information about the alias used by the applicant who by the time of this correspondence had applied for protection using his real name.
B.This document was given to the applicant pursuant to the FOI request. It was released in full.
C.The applicant’s identity was not at issue before the Tribunal. Nor was the applicant’s use of an alias to travel to Australia. The Tribunal made no reference to this document in its decision record. The request and the information contained in the correspondence were not material to the Tribunal’s analysis and findings, or the outcome.
Folios 28-29. See pages 14-15 of the affidavit.
A.This document is a report prepared by an Immigration Inspector. The report concerns the refusal of entry into Australia of two persons (referred to as PAX 1 and PAX 2) travelling on Korean passports. The passport of PAX 2 had been photo substituted. PAX 1 admitted to being a paid travel companion, who was accompanying two individuals to Australia. One of these individuals had cleared immigration, in context prior to PAX 1 and PAX 2 being interviewed by the inspector. The report indicates that PAX 1 had previously travelled to Australia with two other individuals, who had Korean passports. These other individuals entered Australia on visas which were consecutively issued with the visas of PAX 2, and the other travel companion. One of these individuals, was the applicant. Given the difference between the date he entered Australia and the date in the Inspector’s report for the entry of the other two people, the applicant did not travel to Australia with the subject of the Immigration Inspector’s report on the same date. The report refers to the cancellation of the applicant’s visa which was issued to the alias used by the applicant, and as it related to the fake Korean passport he used to travel to Australia.
B.This document was given to the applicant pursuant to the FOI request. It was substantially redacted. See pages 176-177 of the affidavit.
C.The Minister submitted that the redactions concern the individuals who were the subject of the Immigration Inspector’s report. The Minister submitted that the “redactions could not realistically have affected the outcome of the review.” The Minister, submitted that it should be inferred that the Tribunal did not have regard to the documents or the redactions.
D.The applicant’s use of the alias, and fake passport to travel to Australia were not at issue before the Tribunal. The inspector’s report, referred to the cancellation of the visa used by the applicant to travel to Australia. That visa, and its cancellation was not a part of the analysis, and findings made by the Tribunal in affirming the delegate’s decision. Nor was the information relating to the other two people. This information was not material to the outcome of the review.
Folios 30 and 31. See pages 12-13 of the affidavit.
A.These documents are pages 1 and 2 of the Immigration Inspector’s report (as set out above). These pages discuss a fake Korean passport of another individual. The applicant is not named on these pages of the document.
B.These folios were not given to the applicant pursuant to the FOI request.
C.The Minister submitted that the two pages in this document could not have “realistically” affected the outcome of the review, and that it should be inferred that the Tribunal did not have regard to these folios.
D.The applicant’s use of the alias, and fake passport to travel to Australia were not at issue before the Tribunal. The inspector’s report, referred to the cancellation of the visa used by the applicant to travel to Australia. That visa, and its cancellation was not a part of the analysis, and findings made by the Tribunal in affirming the delegate’s decision. The applicant was not named in these folios. These folios were not referred to by the Tribunal and did not affect the outcome of the review. Nor was the information relating to the other two people. This information was not material to the outcome of the review.
Folio 32. See page 11 of the affidavit.
[The copy of the page annexed to the affidavit at page 11 is not marked folio “32”. However given the reference in the document to the attached report at folio 28-31, in sequence, and in context, this is folio 32 in the Minister’s departmental file.]
A.This document is a copy of a facsimile communication between the Minister’s department in Melbourne and the Australian Embassy in Seoul. The document notes that two individuals, had been refused entry into Australia. The applicant is not named.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The information in the document was not about the applicant. This information was not material to the Tribunal’s decision. It did not affect the outcome of the review.
Folio 33. See page 10 of the affidavit.
A.This document is a copy of a facsimile communication between the Australian Embassy in Seoul and the Onshore Refugee Program in the Minister’s department in Melbourne, responding to the correspondence in folio 26 and folio 34. The document confirms that the applicant was issued a tourism visa under his alias. The Embassy did not have any information pertaining to the applicant under his real name. The Embassy attached documents that it had received from Melbourne airport, concerning two Korean passports that had been photo substituted by citizens of the People’s Republic of China.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The applicant’s use of the alias and fake passport to travel to Australia, and that he was issued, under his alias, a tourism (visit) visa to enter Australia, were not at issue before the Tribunal. Further, this information was not material to the Tribunal’s decision. It did not affect the outcome of the review.
Folio 34. See page 9 of the affidavit.
A.This document is a copy of the correspondence between the Onshore Refugee Program in the Minister’s department in Melbourne, and the Australian Embassy in Seoul, requesting visa documentation in relation to the applicant’s alias. This correspondence also appears at folio 26. The primary difference between the two documents, is that this document appears to contain additional handwriting, requesting that someone “attend to” the letter.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The applicant’s identity was not at issue before the Tribunal. Nor was the applicant’s use of an alias to travel to Australia. The Tribunal made no reference to this document in its decision record. The request, and the information contained in the correspondence was not material to the Tribunal’s analysis and findings, or the outcome of the review.
Folio 35. See page 8 of the affidavit.
A.This is a document from July 1997, in which the applicant is referred to by his alias. This document also contains handwritten notes regarding the need to clarify the applicant’s identity. The applicant’s Chinese and Korean passports are referred to.
B.This document was released to the applicant pursuant to the FOI request. It was released in full
C.This document does not contain information that was at issue before the Tribunal. This document was not referred to by the Tribunal. The information in this document was not material to the outcome of the review.
Folio 66. See page 17 of the affidavit.
A.This folio is a “Primary Decision Finalisation Checklist” from “Onshore Refugees Melbourne” in the Minister’s department. This folio, in context refers to the delegate’s decision, concerning the applicant’s first application for a protection visa. The folio notes that the applicant entered Australia under an alias, and false nationality, and that his true name and nationality have been accepted.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The applicant’s identity was not at issue before the Tribunal. Nor was the applicant’s use of an alias or false nationality to travel to Australia. The Tribunal made no reference to this document in its decision record. The information contained in this document was not material to the outcome of the review.
Folio 67. See page 16 of the affidavit.
A.This folio concerns the applicant’s first protection visa application. It is a letter written on behalf of the Deputy Registrar of the then Refugee Review Tribunal in Melbourne, (sent by facsimile), to the Secretary of the Minister’s Department in Canberra. It is dated 29 January 1998. The folio advised that the Tribunal received an application for review, concerning the refusal to grant a protection visa. The document requests that written arguments and documents referred to in s.418(2) and (3) of the Act be sent to the Tribunal.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The Tribunal did refer to the fact that the applicant had been refused a protection visa by the Minister’s department, which was affirmed by the then Refugee Review Tribunal, (at that earlier time). This information was included in the Tribunal’s decision record under the heading “APPLICATION FOR REVIEW”. However, in context, and on a fair reading, it was included for background purposes. Further, this folio primarily concerned the request for documents from the department by the then Tribunal. The Tribunal did not refer to this document in its decision record. Nor was it material to the decision. It did not affect the outcome of the review.
Folio 77. See page 21 of the affidavit.
A.This is a document dated 3 May 1999. It records that the applicant’s protection visa application was refused by the then Refugee Review Tribunal in April 1999, and that the case did not satisfy the requirements for the Minister to exercise discretion under s.417(1) of the Act.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The information referred to by the Tribunal, concerning the applicant’s request for Ministerial intervention did not form a part of the Tribunal’s analysis or its ultimate decision. This document was not material to the outcome of the review.
Folio 78. See page 20 of the affidavit.
A.This document is a checklist coversheet of a referral of a file by the department’s Compliance unit to the then Refugee Review Tribunal. The applicant is referred to by his alias.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The Tribunal made reference in general terms to the applicant’s non-compliance with visa conditions. For example, see at [47] of the decision record. The non-compliance was not at issue before the Tribunal. Nor was it material to the decision. This document was not referred to by the Tribunal. It did not affect the outcome of the review.
Folios 79 and 80. See pages 18-19 of the affidavit.
A.These folios appear to be screenshots of a document in the Minister’s department’s database. The document records part of the applicant’s immigration history and visa status. The highlighted information in the screenshots includes: that the then Refugee Review Tribunal affirmed the delegates’ decision in 1999, and that the applicant made a request for Ministerial intervention which appeared to have still been active in 2000. I note that the highlighted information in folio 79, is largely illegible, although, the “Milestone” for the entry is recorded as “Withdrawn”.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The information referred to by the Tribunal, concerning the applicant’s first request for Ministerial intervention was mentioned under the heading “Previous protection visa application”, However, it did not form a part of the Tribunal’s ultimate decision. Although, referred to by the Tribunal, the applicant being in Australia unlawfully was not an issue before the Tribunal. These folios were not material to the Tribunal’s decision.
Folio 84. See page 22 of the affidavit.
A.This document appears to be a departmental document that records that the applicant made a request for Ministerial intervention in his case. The document is dated June 2009. This document addressed the applicant’s request for Ministerial intervention, which was referred to by the Tribunal.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial intervention request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49] of the Tribunal’s decision, is mentioned for background purposes. Although, the Tribunal referred to the applicant’s 2009 Ministerial intervention request at [71] and [102] of its decision record, in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, this document, at most, indicates that this was a repeat request made in 2009. In any event I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102], nor s.36(2)(aa), see also [113] of the Tribunal’s decision.
Folio 91. See page 23 of the affidavit.
A.This document is titled “NSW Minister Intervention New Request”. The document appears to record certain procedural steps taken by the Minister’s department in addressing the applicant’s Ministerial intervention request. The document notes that this is a repeat request.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial intervention request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49] of the Tribunal’s decision, is mentioned for background purposes. Although, the Tribunal referred to the applicant’s 2009 Ministerial intervention request at [71] and [102] of the Tribunal’s decision, in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, this document, at most, indicates that this was a repeat request made in context, in 2009. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102], nor s.36(2)(aa), see [113] of the Tribunal’s decision.
Folio 99. See page 43 of the affidavit.
A.This document is a summary of the applicant’s Ministerial intervention request under s.417 of the Act. The date recorded at the bottom of the page is 21 December 1999.
B.This document was given to the applicant pursuant to the FOI request. It was substantially redacted. See page 100 of the affidavit.
C.The Minister submitted that the redactions to folio 99 were in relation to “summaries of s.417 requests” not concerning the applicant, and that the redactions could not have “realistically” affected the outcome of the Tribunal’s decision.
D.The reference to the Ministerial intervention at [49], is mentioned for background purposes. This document was not material to the outcome of the review.
Folio 100. See page 42 of the affidavit.
A.This document is a case note made by an officer in the Minister’s department. It appears to be a case law assessment.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The Tribunal did not refer to this document in its decision record. Nor was it material to the decision. It did not affect the outcome of the review.
Folios 101-102. See pages 39-41 of the affidavit.
[Page 40 of the affidavit has no folio number.]
A.These folios appear to be “notes” recorded by an officer in the Minister’s department from an interview the applicant attended on 10 June 2009. The notes indicate that the applicant’s Ministerial intervention request was at the “initiated stage”. The notes also indicate that the officer asked the applicant why he remained unlawfully in Australia since 2001. The outcome of the interview is that the applicant was granted a bridging visa until 10 September 2009.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial intervention request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention request at [49] of the Tribunal’s decision, is mentioned for background purposes. Although, referred to by the Tribunal, the applicant being in Australia unlawfully was not an issue before the Tribunal. Although, the Tribunal refers to the applicant’s 2009 Ministerial intervention request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, this document, at most, indicates that this was a repeat request at the “initiated” stage made, in context, in 2009. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a) at [102], nor s.36(2)(aa), see also [113] of the Tribunal’s decision.
Folio 103. See page 38 of the affidavit.
A.This document contains two sets of case notes created by an officer in the Minister’s department, dated 15 June 2009 and 1 July 2009. The case note from 15 June 2009, records that the New South Wales Police Liaison Unit was advised that the applicant had used a fraudulent identification under his alias, to open bank, RTA, and utility, accounts, and gain club memberships. The case note dated 1 July 2009 concerns the identification documents provided by the applicant to assist the department in verifying the applicant’s identity. The document also addressed the applicant’s attempt to obtain a travel document from the Chinese Consulate, the applicant stated he had been denied the travel document because the Consulate could not verify his identity.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.This document was not referred to by the Tribunal. The applicant’s identity, and his initial claimed difficulty in obtaining a travel document from the Chinese Consulate were not issues before the Tribunal, nor were they material to the decision.
Folio 104. See page 37 of the affidavit.
A.This document is email correspondence dated 29 July 2009, between officers in the New South Wales office of the Minister’s department. The document contains a request to review the applicant’s file to “look into” the applicant’s identity claims. The document reveals that the applicant provided an original identity card in his true name, which had been confirmed as being counterfeit.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.This document was not referred to by the Tribunal. The applicant’s identity, and his possession of counterfeit identity documents were not issues before the Tribunal, nor were they material to the decision.
Folios 105-106. See pages 35-36 of the affidavit.
[Page 36 is a copy of the same page as at page 93 of the affidavit. The folio number is obscured, at page 36, and partially obscured at page 93. However in context it is folio 105.]
A.This document is a case note prepared by an officer in the Minister’s department, dated 10 September 2009 recording notes from an interview with the applicant. The officer recorded that the applicant was told that the outcome concerning his request for Ministerial intervention was still pending. The officer informed the applicant that his Chinese identity card could not be returned to him because it was counterfeit. The applicant maintained that it was genuine. The officer also recorded that the applicant wished to “contest all the additional information he has provided to MIU about his 2 brothers’ death[s] and the situation in China [are] all real and the truth.” The outcome of the interview was that the applicant was granted a bridging visa valid until 10 December 2009.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The applicant’s identity was not at issue before the Tribunal. As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial intervention request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49] of this judgment, is mentioned for background purposes.
D.Although, the Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, this document, at most, indicates, that as of 10 September 2009 the applicant’s request for Ministerial intervention was “still pending”. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102] of the Tribunal’s decision, nor s.36(2)(aa), see [113] of the Tribunal’s decision. As to the reference to his brothers see [19]-[32] above in this judgment. This information was not material to the outcome of the Tribunal’s decision for the reasons set out in this judgment above.
Folio 107. See page 34 of the affidavit.
A.This document appears to be a signature block, that appears at the end of emails, for a case officer in the New South Wales community Ministerial Intervention Unit in the Minister’s Department. It contains the contact information of this case officer.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.This document was not referred to by the Tribunal. Nor was it material to the outcome of the review.
Folio 108. As referred to in the Certificate.
A.The certificate refers to, amongst other folios, folios “99-118”. That bundle of documents is reproduced at pages 24 to 43 of the affidavit. Commencing at page 24 of the affidavit, folio 118 is reproduced. While folio 99 is reproduced at folio 43. The folios are reproduced in the affidavit in the sequence in which they can be found on the department’s file. In that sequence folio 107 (page 34 of the affidavit) is followed by folio 109 (page 33 of the affidavit). There is no folio 108. The folio numbered as 109, and the folio numbered as 107 appear to be the one document.
B.The omission of “108” in the numbering in the department’s folio was not material to the outcome of the Tribunal’s decision.
Folios 109-111. See pages 31-33 of the affidavit.
A.These folios are correspondence between two officers in the New South Wales office of the Minister’s department, dated 19 October 2009. The correspondence concerns the applicant’s identity, and his having obtained a travel document. There is also a reference to the applicant’s request for Ministerial intervention.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.The applicant’s identity, and the complications in the applicant obtaining a travel document were not issues before the Tribunal. Nor were they material to the decision. As stated above at [19]-[32] the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
D.Although, the Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, these documents, at most, indicates that in October 2009, the applicant’s request for Ministerial intervention was yet to be finalised. In any event, I note, that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102] of the Tribunal’s decision, nor s.36(2)(aa), see [113] of the Tribunal’s decision.
Folios 112-115. See pages 27-30 of the affidavit.
A.This document is stated to be a “NIVA Referral Pro-Forma”. It is an internal departmental working document concerning verification of the applicant’s identity. The document notes that the applicant arrived in Australia using a “bogus” passport. The document notes that the applicant’s Chinese identification card is counterfeit, and the applicant has also been living in Australia under his alias, and had opened various accounts in that name. The document indicates that the applicant was having difficulty in obtaining a travel document from the Chinese Consulate, and that the applicant said the Consulate were having trouble in verifying the applicant’s identity. Further, at the time the document was produced the applicant had an ongoing, repeat, Ministerial intervention request.
B.This document was given to the applicant under his FOI request. It was released in full.
C.The Tribunal referred to the applicant’s difficulties in receiving a passport from the Chinese Consulate. However, these folios were not of any consequence to the applicant’s claims. Further, the applicant’s identity was not an issue before the Tribunal. As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
D.Although, the Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, these documents, at most, indicates that in October 2009, the applicant’s request for Ministerial intervention was yet to be finalised. In any event I note, that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102], nor s.36(2)(aa), see [113] of the Tribunal’s decision.
Folios 116-118. See pages 24-26.
A.These folios are correspondence between two officers in the New South Wales office of the Minister’s department, and correspondence to “NIVA”, (National Identity Verification and Advice) in context, attaching the document at folios 112-115. The correspondence also outlines the claims the applicant included in his Ministerial intervention request. I note that one claim included is in relation to the deaths of his two brothers.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
D.Although, the Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, these documents, at most indicates, that as a part of his request for Ministerial intervention, under the heading “New claims” he included that “[h]e goes to church to worship God when he has time and has relied on God in the hard times he’s had since arriving in Australia” and that his two eldest brothers were persecuted to death. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102], nor s.36(2)(aa), see [113] of the Tribunal’s decision.
Folio 120. See page 48 of the affidavit.
A.This document appears to be a page upon which the Minister could make comments concerning an individual’s request for Ministerial intervention, after reading the relevant case background. This document concerns another individual. The applicant is not mentioned.
B.This document was released to the applicant pursuant to the FOI request. It was partially redacted. See also page 79 of the affidavit.
C.The Minister submitted that the only redaction to folio 120, is “some text at the top of the document”, and that such redactions “could not realistically have affected the outcome of the review”. I agree.
D.This document was not referred to by the Tribunal. Nor was the information in the document material to the Tribunal’s decision.
Folio 121. See page 47 of the affidavit.
A.This document is a submission to the Minister, concerning different Ministerial intervention requests. This appears to be the cover page of the submission, outlining the purpose of the document and its attachments. The applicant is named.
B.This document was given to the applicant under his FOI request. Contrary to the table that appears at page 63 it was partially redacted. See page 78 of the affidavit.
C.The Minister submitted that the redaction was “inconsequential” in regard to the applicant’s claims, and could not have “realistically” affected the outcome of the Tribunal’s decision.
D.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
E.Although, the Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, this document, at most, indicates that the applicant claimed to have integrated into the Australian community, and his request for Ministerial intervention was being assessed in 2009. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102], nor s.36(2)(aa), see [113] of the Tribunal’s decision.
Folio 122. See page 46 of the affidavit.
A.This document records the action the Minister had decided to take in relation to another persons request for Ministerial intervention. The document was signed on 19 January 2010. This document concerns another person. The applicant is not named.
B.This document was not released to the applicant pursuant to his FOI request.
C.The Minister submits that this document could not have “realistically” affected the outcome of the matter before the Tribunal. I agree, given that it had no relevance to the applicant’s claims.
D.This document was not referred to by the Tribunal. This document was not material to the Tribunal’s decision.
See page 45 of the affidavit.
A.At page 45 of the affidavit there is a similar document to that at folio 122. It also refers to the outcome of a Ministerial request for intervention in relation to another person.
B.This document has no departmental folio number. The certificate, is only said to relate to the folios identified in the certificate. Therefore, it is not relevant to the current consideration.
C.It is unclear whether this document was given to the applicant under FOI. In any event, it plainly does not relate to the applicant, and therefore, would not have affected the outcome of the Tribunal’s decision.
Folio 123. See page 44 of the affidavit.
A.This folio contains a response by the Minister to the applicant’s requests for Ministerial intervention. The folio was signed on 19 January 2010. The folio concerns the action the Minister has decided to take in relation to the applicant’s request for Ministerial intervention. The document indicates that the Minister decided not to intervene in the applicant’s case.
B.This document was given to the applicant under his FOI request.
C.This document was not material to the Tribunal’s decision. As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
D.Although, the Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, these folios, at most, indicate that the Minister decided not to intervene in the applicant’s case on 19 January 2010. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102] of the Tribunal’s decision, nor s.36(2)(aa), see [113] of the Tribunal’s decision.
32.Folios 125-127. See pages 52-56 of the affidavit.
[Pages 55 and 53 of the affidavit do not have folio numbers.]
A.In context, this document appears to be the case background and case details referred to in folio 121, and relevant to folio 123. The document outlines the applicant’s migration background in relation to the applicant’s request for Ministerial intervention. The applicant’s claim concerning the death of his brothers is mentioned under the heading “New claims”. The document notes that the applicant was unlawfully in Australia for a number of years. The document also contains a section for the Minister to indicate his desired action in response to the request. However, nothing is indicated. The document also contains the applicant’s alias. In context, this document relates to the applicant’s 2009 request for Ministerial intervention.
B.This document was released to the applicant pursuant to the FOI request. It was released in full.
C.Although, referred to in the decision record, the applicant being in Australia unlawfully was not an issue before the Tribunal. It was not material to the outcome of the review.
D.The Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity. These documents, at most, indicate, in context that the outcome of the applicant’s 2009 request for Ministerial intervention was still pending in December of 2009. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102] of the Tribunal’s decision, nor s.36(2)(aa), see [113] of the Tribunal’s decision.
Folio 128. See page 51 of the affidavit.
A.The document is headed “ORD Melbourne – Processing Checklist”. The applicant is referred to by his alias. The document indicates that the applicant was not “lawful”.
B.Although the subject of the certificate, the Minister submits this document was not released to the applicant pursuant to the FOI request.
C.The Minister submitted that this document “could not realistically have affected the outcome of the review”. I agree.
D.The applicant’s identity or his legal status was not at issue before the Tribunal. This document was not referred to by the Tribunal, nor was it material to the outcome.
Folio 129. See page 50 of the affidavit.
A.This document is headed “NSW MIU Initial Assessment Checklist for Guidelines Met Cases”. In context, it relates to the applicant’s request for Ministerial intervention. The document indicates that the applicant was “Lawful” at the time of assessment, that the applicant has integrated into the community, and that the applicant arrived in Australia on a Korean passport, under an alias.
B.Although the subject of the certificate, the Minister submits this document was not released to the applicant pursuant to the FOI request.
C.The Minister submitted that this document could not have “realistically” affected the outcome of the review.
D.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
E.Although, the Tribunal referred to the applicant’s 2009 request for Ministerial intervention at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity, this document, at most, indicates that the applicant made a request for Ministerial intervention. In any event I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a) at [102] of the Tribunal’s decision, nor s.36(2)(aa), see [113] of the Tribunal’s decision. The applicant’s identity, and that he entered Australia on a fraudulent passport were not at issue before the Tribunal.
Folio 130. See page 49 of the affidavit.
A.This document is headed “Department of Immigration and Citizenship NSW MIU Processing Checklist”. In context, this document relates to the applicant’s request for Ministerial intervention. The document indicates, that the applicant arrived on a fraudulent document/that there were identity issues, and that the concerns about the applicant’s identity had been “referred” to “Compliance/DEU”.
B.Although the subject of the certificate, the Minister submits this document was not released to the applicant pursuant to the FOI request.
C.The Minister submitted that this document could not have “realistically” affected the outcome of the review.
D.As stated above at [19]-[32] of this judgment the information referred to by the Tribunal, concerning the applicant’s Ministerial request did not form a part of the Tribunal’s ultimate decision. Further, the reference to the Ministerial intervention at [49], is mentioned for background purposes.
E.The Tribunal referred to the applicant’s 2009 request at [71] and [102] of its decision record in relation to the applicant’s credibility, and his claims concerning his religious (church) activity. This document, in context, at most, indicates that the applicant made a request for Ministerial intervention. In any event, I note that the Tribunal ultimately, did not disregard the applicant’s church attendance in making an assessment under s.36(2)(a), at [102] of the Tribunal’s decision, nor s.36(2)(aa), see [113] of the Tribunal’s decision. The applicant’s identity, and that he entered Australia on a fraudulent passport were not at issue before the Tribunal.
The following therefore emerges.
One, although the Tribunal did not disclose the s.438 certificate to the applicant, no practical injustice arose. I note for completeness, that if the applicant had been given the opportunity to make submissions on the folios covered by the certificate, there is no realistic possibility that the outcome of the Tribunal’s decision would have been different. As none of the folios subject to the certificate were “material” to the outcome of the Tribunal’s decision.
Two, I agree with the Minister that (subject to [50] below) the information given to the applicant in response to his FOI application means that no practical injustice arises such that the applicant was subsequently denied procedural fairness before the Tribunal. The applicant was plainly in possession of this information well before the Tribunal hearing, and was able to make submissions and give evidence about it.
This includes the information given to the applicant in the documents not containing any redaction, and the information given in the other documents which was information other than the redacted parts.
Three, as set out above in relation to all this information, including the documents not released to the applicant and those parts redacted, there is nothing to indicate that this information was material to the outcome, or if disclosed to the applicant by the Tribunal, could have led to a different outcome.
Four, the Minister submitted that the documents which were the subject of the s.438 certificate, but not the FOI request, were not “referred to by the Tribunal” and “could not realistically have affected the outcome of the review.” For the reasons set out above, I agree.
Five, on the evidence before the Court there was no realistic possibility of a different outcome if the Tribunal had taken any of the folios to which the certificate relates into account.
Conclusion
None of the grounds of the application to the Court reveal jurisdictional error in the Tribunal’s decision. Nor can I otherwise see that jurisdictional error is revealed. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 27 November 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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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