BEB16 v Minister for Immigration

[2019] FCCA 1147

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEB16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1147

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether failure to comply with s.424 or s.424A of the Migration Act 1958 (Cth) – whether bias – s.438 certificate.

Legislation:

Migration Act 1958 (Cth), ss.5J(1), 36(2A), 424, 424A, 424AA, 438

Cases cited:

ARG15 v for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109
BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36
BZAIDv Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minster for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMJM v Minister for Immigration and Border Protection (No.2) [2017] FCCA 1260
SZRMQv Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212
VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549
Zarro v Australian Securities Commission (1992) 36 FCR 40

Applicant: BEB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1221 of 2016

Judgment of: Judge Barnes

Hearing date: 21 February 2018

Date for Last Submission: 27 April 2018

Delivered at: Sydney

Delivered on: 2 May 2019

REPRESENTATION

The Applicant: In person

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1221 of 2016

BEB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 May 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Malaysia, arrived in Australia in December 2014 and lodged an application for a protection visa.  In support of this application the Applicant provided a written statement.  He claimed that when he was in middle school his father fell sick and could not work.  He claimed that he had to stop studying and start to work to meet the family expenses.  He claimed that later his father became so sick that he needed to see a doctor and that he (the Applicant) had to borrow a few thousand Malaysian ringgit (RM).  His mother also became unwell.  He claimed the Malaysian government had not provided the family with any help to meet family expenses.  The Applicant claimed that he “did something wrong in [his] work” and was suspended by his employer, that this put the family in a dangerous situation and that he came to Australia to search for “help and refugee” (sic).    

3. By letter of 18 December 2014 the Department notified the Applicant that this application was invalid because he had not submitted claims under the Refugees Convention or complementary protection criterion.   On 15 January 2015 he lodged a further protection visa application.

4. In support of the second protection visa application the Applicant provided the same statement, but added a claim that in July 2014 he had agreed to run a restaurant with another person who then used his personal details to guarantee a loan from a loan shark in the amount of 600,000 RM.  The Applicant claimed that the loan shark came to his house, harassed his family and splashed paint on the wall.  The police did not assist.  He also claimed that one day the loan shark entered the family home, pulled his mother’s hair and fought with the Applicant who accidently hit a “person’s” head with an ashtray.  The Applicant claimed that the loan shark then set fire to the family home so that they did not have a place to live. 

5. The Applicant attended a departmental appointment in February 2015 to provide personal identifiers.  He failed to attend an interview with the delegate in June 2015 or a rescheduled interview in July 2015.  On 9 July 2015 the delegate refused the application.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  On 4 May 2016 the Tribunal affirmed the delegate’s decision.

The Tribunal Decision

1. In its reasons for decision the Tribunal summarised the Applicant’s written claims.  The Tribunal observed that while the protection visa application was on foot the Applicant had an initial interview with the Department in February 2015 about his travel and living arrangements and the process of applying for a protection visa and was recorded as having provided an account of what he feared on return to Malaysia that was consistent with his written claims.  However the Tribunal observed that the Applicant had failed to attend the interview with the delegate who was considering his protection visa application in June 2015 or a rescheduled interview and had made no further contact with the Department to explain his failure to attend.

2. The Tribunal had regard to the fact that at the hearing the Applicant explained that he had attended the February 2015 interview at which his fingerprints were taken, but that because he was running late for the June 2015 interview he assumed he would not be interviewed so he simply went to work.  He had requested a second interview.  The Tribunal did not accept the Applicant’s assertion that he did not receive the second hearing invitation in light of this information.

3. The Tribunal also had regard to the significant lack of detail in the Applicant’s claims in his written statement and in his oral evidence in relation to the restaurant he claimed he agreed to run with another person in July 2014.  He was unable to describe its location, beyond claiming that it was in Malaysia. 

4. The Tribunal also took into account contradictions between the Applicant’s written claim that he was suspended from his employment some time before July 2014 and the information in his protection visa application that he was employed as a croupier from 2013 to “current” (which the Tribunal inferred meant at least until he left Malaysia in December 2014). 

5. In addition, the Tribunal took into account that the Applicant’s claims that the family house was burnt down in August 2014 and that the family no longer had a place to live were contradicted by the statement in his protection visa application form that he had resided at the same specified address in Malaysia from October 1994 to December 2014 when he left for Australia.

6. The Tribunal had regard to the fact that the Applicant’s oral testimony regarding the circumstances in which his claim was prepared contained an internal inconsistency.  He had first said that his statement of claims in Chinese was drafted by his lawyer, but later in the hearing he claimed that he was referred to a lawyer to find out how he could apply for protection and to obtain a translation of the statement that he had written.

7. The Tribunal also had regard to the fact that in the statement of claims accompanying the invalid claim for protection lodged in December 2014 the Applicant had failed to make any mention of borrowing money from a loan shark for the purposes of opening a restaurant. It recorded that it raised this issue with the Applicant at the hearing in accordance with s.424AA of the Migration Act 1958 (Cth) (the Act) and had put to him that he made no mention in his first application of any confrontation with the loan shark or of a claim that the family house was burnt down.

8. The Tribunal recorded that the Applicant had elected to comment immediately and claimed that the first time he was interviewed by the Department (at the personal identifiers appointment in February 2015) he was only asked simple questions and therefore elected to make only a brief statement in his protection visa application.  The Tribunal pointed out that he would not have been invited to this interview before he submitted the application so that the content of his original statement would have been determined before the interview.

9. The Tribunal reiterated that the Applicant had said that he had a lawyer who had drafted the statement for him in Chinese, that he read it and found no problem with it and that the lawyer then translated it into English.  He could not explain why all the details were not included.  The Tribunal drew the Applicant’s attention to the fact that in his second application for protection there was no indication that any migration agent or lawyer had represented him or that any person had assisted him with translation. 

10. The Tribunal recorded that the Applicant asked for time to prove that his original statement contained all the necessary information.  He suggested that the lawyer in question might give evidence to support him.  The Tribunal allowed the Applicant a week to make further submissions, but pointed out that even if it were to accept that a lawyer or migration agent had assisted him, that person had failed to indicate in the application form the assistance given or the interpretation services provided.  In such circumstances the Tribunal may not accept that such a person was a person of integrity and may give little weight to anything said by that person.

11. The Tribunal observed that the Applicant also asserted that the contradictions between what he said in the application form and what he said in any statement were the fault of the lawyer who allegedly assisted him. 

12. The Applicant did not provide any further evidence or submissions in the period allowed or by the time of the decision.  Nor did he seek any extension of time to make post-hearing submissions.

13. In its conclusion the Tribunal had regard to the fact that the initial statement of claims made no mention of the Applicant borrowing money from a loan shark or of any confrontation with a loan shark and, in particular, made no mention of the family house burning down in August 2014.  Given this, and the contradictions in the Applicant’s evidence about the way his statement of claims was prepared, his place of residence in Malaysia and his employment, the Tribunal concluded that the Applicant’s claims about a restaurant, money borrowed from a loan shark and adverse attention from the loan shark culminating in the burning down of the family home were fabricated after rejection of the original application in an attempt to bolster the claims for protection.  It also found the claim that the Applicant was suspended by his employer because he did something wrong at work was fabricated.

14. The Tribunal acknowledged that claims that the Applicant’s father became ill, that he had to start work to meet family expenses, that he borrowed a few thousand RM and that the family could not get any government assistance remained. The Tribunal saw no reason not to accept these claims, but found that they did not involve any of the reasons mentioned in s.5J(1) of the Act and did not indicate that the Applicant had a well-founded fear of persecution. It was not satisfied that the Applicant met the Refugees Convention criterion.

15. The Tribunal considered the complementary protection criterion. It observed that it had rejected the majority of the Applicant’s claims and that those that it had accepted contained nothing to suggest that the Applicant faced significant harm (as defined in s.36(2A) of the Act) in Malaysia. It noted that the Applicant had not claimed that the relatively modest sum of money he had borrowed to pay his father’s medical expenses was borrowed from a loan shark or from anyone else who might threaten him if the money was not repaid and that his written claims made it clear that the money for his parent’s medical expenses was borrowed before money was allegedly borrowed from the loan shark. It also found that any harm which arose from an inability to pay for further medical expenses would not be faced by the Applicant, but by one or both of his parents.

16. In these circumstances, the Tribunal found that it followed that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia there was a real risk the Applicant would suffer significant harm.  It was not satisfied he met the complementary protection criterion.

17. The Tribunal affirmed the decision not to grant the Applicant a protection visa.

The Review Application

1. The Applicant relies on 4 grounds in his application.

2. He did not file written submissions but was given the opportunity to make oral submissions at the hearing and to file post-hearing submissions and a transcript of the Tribunal hearing (discussed below).

3. The first ground in the application is that the Tribunal member “failed to honour the applicant’s undertaking”. It is not clear what this means. The ground goes on to refer to the requirement to put information to an applicant in s.424A(1) of the Act. It appears that it is intended to assert that the Tribunal did not comply with the requirements of s.424A(1)(a), (b) and (c) of the Act.

4. The Applicant had nothing to add to this ground when it was raised with him at the hearing. He did not provide particulars of any information which enlivened the s.424A(1) obligation.

5. As the First Respondent pointed out, it is clear from the Tribunal’s reasons that it put information from this invalid protection visa application to the Applicant for comment at the hearing. It has not been established that there was other information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review within s.424A(1) of the Act. I note that while the Tribunal referred to evidence on the departmental file about the February 2015 personal identifiers appointment and interview, this was not information that contained a rejection, denial or undermining of the Applicant’s claims (cf SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCA 26; (2007) 235 ALR 609 at [17]).

6. After the hearing the Applicant filed what appears to be a transcript of the Tribunal hearing.  As the First Respondent submitted, it is not in proper form as it is not presented by way of an affidavit.  The First Respondent raised no particular issue as to its accuracy, but referred to the fact it was “peppered with” highlighted sentences and brief comments.  It is unclear whether these comments were made by the person who prepared the transcript or whether they are intended to be the Applicant’s submissions.  I have taken them to be submissions, but insofar as they appear to address possible shortcomings in translation or interpretation at the hearing (with general unexplained references to an “omission”, “insertion” or “distortion”) the transcript does not explain any asserted differences between what was said in one language and the interpretation.  In the absence of evidence as to the difference between what was said and the translation, let alone any evidence as to the source of the comments and the expertise of the commentator, these comments do not amount to evidence of mistranslation or inadequate translation to establish that the Applicant was denied a meaningful opportunity to participate in the hearing such that the Tribunal failed to comply with s.425 of the Act (see generally Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 and SZRMQv Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212).

7. The transcript and the comments marked do not establish that the Applicant was denied a fair opportunity to give evidence and present argument at the hearing and it does not support any contention that the Applicant was deprived of a meaningful hearing.  There is no evidence that there were interpreting errors.  It appears from the transcript that the Applicant was able to communicate to the Tribunal about the various inconsistencies in his evidence and in relation to his claims.  I also note that it is well-settled that the standard of interpretation is not one of perfection (and see the summary of principles in BZAIDv Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 at [52] per Edelman J).

8. Moreover, the transcript is not inconsistent with the Tribunal’s account in its reasons for decision of what occurred at the hearing, including the fact that it raised with the Applicant information in accordance with the provisions of s.424AA of the Act. In such circumstances there was no obligation on the Tribunal to put such matters to the Applicant in writing under s.424A (see s.424A(2A) of the Act).

9. Insofar as ground 1 involves an assertion that the Tribunal should have invited the Applicant to comment on its adverse credibility findings, it is well-established that the Tribunal is not required to give an applicant running commentary on its thought processes. Such information is not information for the purposes of s.424A of the Act. In SZBYR at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ cited Finn and Stone JJ in VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 observing that “information”:

   … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…

10. The plurality went on to remark in SZBYR at [18]:

    … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…

11. Ground 1 is not made out.

12. Ground 2 is that the Tribunal failed to comply with s.424 of the Act and that “the invitation” was not given in accordance with ss.424(3)(a) and 424B of the Act and did not specify the way in which additional information may be given or the period within which it may be given.

13. In oral submissions the Applicant appeared to express concern about a failure to understand how he could provide further information to the Tribunal after the hearing.  However he then suggested that he did not have any concern about how the Tribunal gave him an opportunity to provide information, but that he was concerned that the Tribunal had pre-judged his case.  This issue is discussed below.  

14. This is not a case in which the Tribunal exercised its power to invite the Applicant to give additional information under s.424(2) of the Act. At the hearing it invited the Applicant to comment on or respond to information put to him under s.424AA of the Act, but this did not enliven the obligations under to s.424 of the Act. The Applicant asked to be given time to prove that his original statement contained all the information. He was given the opportunity to make further submissions. It was not necessary for the Tribunal to comply with s.424 in that context (and, in any event, I note that if this was to be regarded as an invitation within s.424, it was given orally so that the requirements of s.424(3) did not apply). Further, it is apparent from the transcript that the Tribunal specified the way in which such information may be given to it (by email to the email address to which the Applicant had replied to the hearing invitation or by post or by personally delivering documents).

1. Insofar as there is intended to be an assertion that the Tribunal itself ought to have obtained information regarding the Applicant’s claim that his lawyer failed to adequately translate his statement in support of his protection visa application, the Tribunal is not under a general duty to inquire.  It has not been established that in the circumstances of this case there was a critical fact the existence of which was easily ascertained such as to enliven a duty to make inquiries in the sense considered in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. The Applicant did not identify the lawyer who was said to have acted for or assisted him. He was given the opportunity to put on further evidence to substantiate his assertion that the lawyer had acted negligently or inaccurately in translating his first statement, but he did not do so.

2. Ground 2 is not made out.

3. Ground 3 is an assertion that the Tribunal failed to “consider” properly the test whether the Applicant would suffer serious harm “as per s.91R(2)(a)” of the Act if he was returned to Malaysia. 

4. As the First Respondent submitted, ground 3 rises no higher than an invitation to the court to undertake impermissible merits review.  The Applicant did not address it in submissions. 

5. It is apparent from the Tribunal’s reasons that it considered the Applicant’s claims of past harm in Malaysia, but rejected them on the basis of its credibility concerns. I bear in mind that credibility findings are not immune from review, but there is nothing in the circumstances of this case to indicate any jurisdictional error of the nature discussed in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496. As described above, the Tribunal took into account various concerns it had about the Applicant’s evidence, in particular the vagueness of his claims and inconsistencies in his evidence. These concerns led it to conclude that he was not a credible witness and had fabricated most of his claims for protection. Such an approach was reasonably open to the Tribunal on the material before it for the reasons it gave. The Tribunal raised concerns with the Applicant at the hearing and there is nothing to indicate illogicality or legal unreasonableness in its approach.

6. Insofar as this ground refers to s.91R(2)(a) of the Act, the visa application was made after s.91R was removed from the Act (by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)). Hence, the Tribunal did not err in not applying s.91R of the Act.

7. Ground 3 is not made out.

8. Ground 4 is that “Due to the failures, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claims” (errors in original).

9. The Applicant had nothing to say in relation to ground 4. 

10. The Tribunal applied the applicable tests in relation to the Refugees Convention criterion and also in relation to the complementary protection criterion. In particular, it considered whether those of the Applicant’s claims that it accepted involved a Convention reason or met the complementary protection criterion. No error is established on this basis.

11. Ground 4 is not made out.

Bias Claim

1. As indicated, at the hearing the Applicant submitted that the Tribunal had pre-judged his case. He claimed that at the Tribunal hearing it had asked him misleading questions. The Applicant was afforded an opportunity to file an affidavit containing a transcript (in directions made by a registrar). He claimed he had not received the CD of the audio recording of the Tribunal hearing sent to him by the Minister’s solicitor in response to his request. The Minister’s solicitor sent him a fresh copy of the audio file. He was given leave to file a transcript of the hearing. He filed the unverified transcript referred to above, but no written submissions (apart from the brief and uninformative comments on the transcript).

2. Despite the form of the transcript I have considered whether it in any way supports the Applicant’s allegation of bias (whether actual or apprehended). 

3. However there is nothing in the transcript to indicate that the Tribunal’s questions were anything other than entirely orthodox. There is nothing to disclose pre-judgment such as to amount to actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J. The fact that the Tribunal raised issues of concern with the Applicant reflected the need for it to comply with s.425 of the Act and to put dispositive issues to the Applicant. These matters are not indicative of a mind committed to a conclusion already formed such as to be incapable of alteration regardless of the evidence or argument presented (Jia Legeng at [72]).

4. For the sake of completeness, I also note that the transcript is not such as to support any allegation of apprehended bias seen from the perspective of the appropriately informed fair-minded lay observer in the sense considered in Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [28].

5. The Applicant has not pointed to any specific aspects of concern revealed by the transcript. The “comments” do not assist in that respect. The manner in which the Tribunal raised with the Applicant issues of concern (and put information to him in accordance with s.424AA of the Act and gave him an opportunity to comment) does not disclose any pre-judgement or support a conclusion that a hypothetical fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct of the hearing, might or would reasonably apprehend that the Tribunal’s conclusions were reached with a mind not open to persuasion (see Re H at [28]). Neither actual nor apprehended bias is made out.

Section 438 Certificate

1. In submissions, the solicitor for the Minister drew the court’s attention to a notification by the Department to the Tribunal regarding the disclosure of certain information under s.438 of the Act.

2. The Tribunal was notified on 14 July 2015 “that paragraph 438(1)(a) and 438(1)(b) of the Migration Act 1958 applies to the information in [3 specified] folios in [the Applicant’s departmental file]”.  The notification continued: “[t]hese folios contain documents relating to business affairs, in relation to investigations conducted by the department; and information affecting the personal privacy of other individuals”.  It stated that the Tribunal’s use and disclosure of this information was subject to s.438(3) and (4) of the Act.

3. It is not in dispute that neither the existence of this certificate or any of the documents the subject of the certificate was disclosed to the Applicant.

4. Section 438(1) of the Act is as follows:

   (1) This section applies to a document or information if:

   (a) the Minister has certified, in writing, that the disclosure any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

   (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

5. The First Respondent made submissions about the s.438 certificate. The Applicant did not address this issue.

6. The documents covered by the s.438 certificate are before the court. The first is an internal departmental email relating to an impending investigation about possible unregistered assistance to protection visa applicants who were Malaysian nationals. It noted a “spike” in applications with some similarities and proposed action to obtain relevant information.  The other document is a summary of interviews with three protection visa applicants who are Malaysian, apparently conducted on 25 February 2015.  One of the applicants is the Applicant.  The “interview” is clearly a reference to the personal identifiers appointment that the Applicant attended on 25 February 2015. 

7. As the First Respondent submitted, investigations conducted by a government department may be the subject of a claim of public interest immunity (see Zarro v Australian Securities Commission (1992) 36 FCR 40 at 46) and the identifying details given by the two other Malaysian protection visa applicants can be taken to have been given in confidence to the Department. However the notification itself is unclear and inadequate as to the basis on which s.438(1) is said to apply to the internal email and the records of interview.

8. Whether the certificate was valid (as the Minister suggested) or not, what is of significance in the present circumstances is that the existence of a certificate under s.438 of the Act triggers a procedural fairness obligation to disclose its existence to the Applicant and to give the Applicant an opportunity to make submissions. However the Tribunal’s failure to do so does not necessarily amount to a jurisdictional error (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36). After judgment was reserved appeals to the High Court from these decisions were dismissed in Minster for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599.

9. As the Minister submitted, the non-disclosure in this case is not such as to have deprived the Applicant of the possibility of a successful outcome. The issue before the Tribunal was whether the Applicant would be harmed in Malaysia by a loan shark, as he claimed. The Tribunal was not satisfied that his claims in that respect were credible, having regard to the significant lack of detail in his claims for protection, inconsistencies between his oral evidence and the written statement of claims and also differences between the first (invalid) and second applications for protection in relation to the claimed basis for the Applicant’s fear.

10. The Tribunal did refer to an aspect of the information covered by the s.438 certificate, in observing that the record of interview in relation to the Applicant’s travel and living arrangements and the process of applying for protection stated that his account of what he feared upon return to Malaysia was consistent with his written claims. It is apparent that this is a reference to the summary of the Applicant’s interview in February 2015 which recorded, without elaboration, that his account of what he feared upon return to Malaysia was consistent with the information in the application. However this information was in no way adverse to the Applicant.

11. The February 2015 interview summary also referred to the fact that the Applicant was vague about the details of the lawyer he claimed assisted him in connection with his protection visa application. It is apparent from the Tribunal’s reasons that this was not relevant to its assessment of the Applicant’s claims and his credibility. The discussion of this issue in the Tribunal hearing related to the Applicant’s claim that his lawyer was at fault insofar as details were not included first statement. He sought the opportunity (which he was given) to contact the lawyer after the hearing and to provide further submissions in that respect. He did not do so.  However the Tribunal did not take the Applicant’s claims about his lawyer into account in making the adverse credibility finding.

12. It is also apparent that the Tribunal’s observation that there was no indication in the Applicant’s protection visa application that a migration agent or lawyer had assisted him or that any person had assisted him with translation was made on the basis of the content of the application form, rather than the content of any documents covered by s.438 certificate.

13. The internal departmental email did not contain any discussion about the Applicant’s claims for protection or any reasons for disbelieving his evidence in that respect.  On its face it does not appear to relate specifically to the Applicant and the two others who attended biometric interviews in February 2015, but rather to an earlier cohort of applicants. 

14. Insofar as the email makes reference to an observation of some “trends” in protection visa applications by Malaysians, such matters were not relevant to the credibility of the Applicant’s claims for protection.  There is no evaluative statement in this material suggesting in any way that the Applicant’s claims to fear harm should be disbelieved (see SZMJM v Minister for Immigration and Border Protection (No.2) [2017] FCCA 1260).

15. Finally, the interview summaries for the two other Malaysians who attended a biometric interview in February 2015 were also irrelevant to the issues under consideration before the Tribunal.  They do not contain any discussion relating to or reflecting the Applicant’s claims.  The Tribunal did not consider any similarities or differences between the Applicant’s claims and claims made by any other Malaysian nationals in assessing his credibility.  The summaries of the interviews do not suggest that the claims were made on the same or a similar basis. 

16. As the documents covered by the s.438 certificate were not relevant to the issues before the Tribunal, there was no practical unfairness to the Applicant by reason of the Tribunal’s failure to disclosure the existence of the s.438 certificate or the material to which it applied. Although the s.438 certificate triggered an obligation of procedural fairness (now see SZMTA), breach of the obligation of procedural fairness constitutes jurisdictional error only if the breach is material. In this case the non-disclosure could not realistically have resulted in a different decision. In these circumstances I am not satisfied that the Tribunal’s approach to the s.438 certificate and the documents covered by that certificate involved a jurisdictional error.

17. As no jurisdictional error has been established on any of the bases contended for by the Applicant or in relation to the s.438 certificate, the application must be dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  2 May 2019

CORRECTIONS:

1. Coversheet: Page 1, Cases Cited, delete “CQZ15 v Minister for Immigration and Border Protection [2017] FCCA 130” and insert “Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1”.

2. Reasons for Judgment: Page 13, Paragraph 60, line 6, delete “CQZ15 v Minister for Immigration and Border Protection [2017] FCCA 130” and insert “Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1”.