BEG15 v Minister for Immigration & Anor
[2016] FCCA 2778
•4 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEG15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2778 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal erred in considering country information relied upon by the applicant and DFAT reports relied upon by it – whether the Tribunal failed to consider the definition of degrading treatment or punishment in the context of the applicant being placed in remand upon return to Sri Lanka – effect of invalidity of certificate under s.438 Migration Act 1958 (Cth) – denial of procedural fairness – discretionary refusal to grant relief – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(aa), 36(2A), 91R(1)(c), 422B, 425, 430(1), 438, 476, 499 |
| Cases cited: Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46; [2009] FCAFC 123 MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081 MZZZW v Minister for Immigration & Border Protection (2015) 234 FCR 154; [2015] FCAFC 133 |
| Applicant: | BEG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS |
| File Number: | SYG 1784 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Ms L Buchanan, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1784 of 2015
| BEG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia on 11 April 2012. On 5 July 2012 he lodged an application for a protection visa. That application was rejected by a delegate of the Minister for Immigration and the applicant applied to the Refugee Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 2 August 2013 the Tribunal made a decision affirming the delegate’s decision; however, the Tribunal’s decision was set aside pursuant to orders made in this Court on 19 July 2014 and the matter was remitted to the Tribunal. The Tribunal was reconstituted for the purpose of continuing and finalising the review of the delegate’s decision. The applicant attended a hearing conducted by the Tribunal on 28 April 2015 and on 28 May 2015 the Tribunal made a decision to affirm the delegate’s decision.
The applicant now seeks judicial review of the Tribunal’s second decision pursuant to this Court’s jurisdiction under s.476 of the Migration Act1958 (Cth). In order to succeed, he must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow he has failed to do so and the application must be dismissed. Alternatively, I would refuse to grant relief in the exercise of the Court’s discretion.
Background
The applicant’s visa application was based on the following claims.
The applicant claimed that in November 2006 his father was summoned by the Liberation Tigers of Tamil Eelam (LTTE) to go to their camp. However, his father refused. His father also refused a request made two weeks later and in February 2007 five soldiers from the LTTE came, without warning, and took his father. The applicant’s mother then went to the LTTE camp and was told by her husband that he had been told either to surrender one of his two sons to the LTTE or to pay ransom. A ransom was paid and the applicant’s father was released on the same day.
Subsequently, the applicant’s family was ordered to buy goods for the LTTE and did so on approximately 15 occasions.
On 15 March 2012 four armed men entered the jewellery shop where the applicant and his father were working. The applicant realised that these men came from the Karuna Group soldiers, a faction of a pro-government paramilitary group in Sri Lanka. These men demanded money and when the applicant stepped in to defend his father, the men demanded that they pay 500,000 SLR or they would kill him. Before they left the shop one of the soldiers took the applicant’s passport.
One of the men who came in to the shop was a former LTTE member who said that, as they had supported the LTTE in the past, they could afford to support the Karuna Group now.
The applicant immediately planned to leave Sri Lanka and left for Australia on 24 March 2012.
On 30 March 2012 the same four soldiers returned to the shop. When the soldiers were not given the money, they said that they would take the applicant instead. When the applicant’s family told the soldiers that the applicant was not there, they said that they would find him and that the family would never see him again.
The applicant claimed to fear harm upon return to Sri Lanka because of his race (Tamil), his imputed political view (because of his family’s previous financial support of the LTTE), because he failed to comply with the demands of the Karuna Group and because of his membership of a particular social group, failed Tamil asylum seekers who had fled the country illegally.
On 28 August 2012 a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. He was represented in respect of the review application by a firm of migration agents. Those agents made a number of extensive and detailed written submissions in support of the applicant’s claims addressing both the applicant’s personal claims as well as the general circumstances in Sri Lanka relevant to the applicant. In submissions dated 23 May 2013, the agents expanded upon the applicant’s claims by claiming that he feared persecution on account of his membership of particular social group, namely, as a member of a wealthy Tamil businessman’s family.
On 2 August 2013 the Tribunal made a decision to affirm the delegate’s decision. That decision was set aside by a decision of this Court on 19 July 2014. The communication of that decision and the reasons for it to the Tribunal give rise to an issue in these proceedings in light of the decision of the Federal Court in MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081 (“MZAFZ”). It will be necessary to return to that indication in some detail later in these reasons.
Upon remittal of the matter to the Tribunal, the applicant was again represented by the same migration agents. Those agents submitted further extensive and detailed written submissions in support of the applicant’s claims. In the submissions the agents added further claims to the effect that since the applicant had left Sri Lanka there had been approximately three more visits from the Karuna Group members to the applicant’s family between March 2012 and December 2012. The submissions also included claims that three friends of the applicant had been approached five times each by men making enquiries about the applicant’s whereabouts since the applicant’s departure from Sri Lanka. The agents also submitted that the applicant feared persecution for reasons of the following particular social groups: members of a wealthy Tamil businessman’s family; wealthy Tamil businessmen; and failed Tamil asylum seekers who departed the country illegally.
The Tribunal made its decision on 28 May 2015 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal found that the applicant’s evidence lacked credibility, he changed his evidence, it was inconsistent and that the applicant was making up his account as he went along. It concluded that the applicant had fabricated most of his claims and was not a witness of truth. It gave the reasons for these findings over nine pages before stating:
[65] The tribunal finds the applicant has fabricated most of his claims. The tribunal accepts that during the war his family may have had to pay for goods for the LTTE as a form of tax. However, the tribunal does not accept the applicant or his family were threatened by Karuna or that they demanded money or assaulted them. The tribunal does not accept the applicant’s passport was confiscated by Karuna or that they visited the applicant’s family, neighbours or friends or threatened them or that Karuna or anyone are looking for the applicant. The tribunal does not accept the applicant’s father was summoned to the LTTE camp and refused or that he was detained and had to pay ransom.
The Tribunal then considered the balance of the applicant’s claims. First, it referred to the country reports and information referred to in the submissions made by the applicant’s agents. It accepted that there were reports of harm to returnees to Sri Lanka, but found that the preponderance of evidence of those allegations that could be substantiated, were in respect of persons with different profiles to the applicant. The Tribunal explained that it gave the reports of the Department of Foreign Affairs and Trade (DFAT) more weight than many of the reports relied upon by the applicant. It also noted that it had had regard to information from the UNHCR and the UK Upper Tribunal about risk profiles, treatment of asylum seekers and illegal departees.
Secondly, it considered the situation that might face the applicant upon return to Sri Lanka as a Tamil. Based upon the country information before it, the Tribunal concluded that Tamils do not face a real chance of suffering serious harm solely on account of the ethnicity from the authorities in Sri Lanka and, having considered the applicant’s circumstances, it did not accept that the applicant faced a real chance of harm for reasons of his ethnicity. The Tribunal arrived at the same conclusion in respect of the related claim that the applicant might face harm as a member of particular social group as a young Tamil male, Tamil male, or Tamil from the East or because of any association with his family.
Thirdly, the Tribunal rejected the applicant’s claim connected to the perception of him as wealthy, having an imputed political opinion and as a wealthy Tamil businessman or his membership of a wealthy Tamil businessman’s family. In this respect, the Tribunal noted that it had rejected the applicant’s claims to have been targeted in the past, that on his own evidence the applicant’s family was not wealthy, and that there were many thousands who had travelled and returned from overseas.
Fourthly, the Tribunal rejected the applicant’s claim that he would be harmed because he will be imputed with a pro-LTTE or anti-government political opinion. The Tribunal based this finding on the combination of country information that suggested that anyone who had been suspected of LTTE support was detained and sent to rehabilitation camp at the end of the conflict and the fact that the applicant had not been detained. This supported the Tribunal’s view that the applicant was not of any interest to the authorities or perceived to be of interest now or in the future.
Fifthly, the Tribunal considered the applicant’s claim that he faced harm as a returned failed asylum seeker. Once again, it relied upon country information to find that the authorities’ main focus was on whether a person was suspected of being an ongoing threat to the Sri Lankan regime and that they were aware that many Sri Lankan Tamils travelled abroad as economic migrants. Based upon that information, and its finding that the applicant did not have any profile adverse to the government and that he was not suspected of one, it did not accept that there was a real chance that the applicant would be suspected by the authorities as someone with links or association with the LTTE on return to Sri Lanka. Upon that finding, the Tribunal held that the applicant would not face a real chance of serious harm as a failed asylum seeker.
Sixthly, the Tribunal considered the effect of the applicant’s illegal departure from Sri Lanka. It accepted that he had departed Sri Lanka illegally and that he would be questioned at the airport to establish his identity, charged under the Immigrants and Emigrants Act for illegal departure and bought before a court to apply for bail. Given the applicant had been working in Australia, he would be bailed on his family’s surety. The Tribunal did not accept that the applicant would be harshly treated in this process. The longest that the applicant would be held on remand was two weeks and that the chance of torture or mistreatment during this time was remote. Eventually, the applicant would return to court to face the charges but there was no real chance of a custodial sentence.
The Tribunal found that any treatment of the applicant for his illegal departure would not be any different on account of his ethnicity, race or political opinion. For that reason, that treatment would not amount to systematic and discriminatory conduct as required by sub-s.91R(1)(c) of the Act. In any event, the Tribunal found that none of the treatment would amount to serious harm.
The Tribunal then stated that, having considered the applicant’s claims individually and cumulatively, it was not satisfied that he faced a real chance of serious harm upon return to Sri Lanka due to his race, political opinion, or membership of a particular social group.
Next, the Tribunal considered whether the applicant satisfied the complementary protection criterion in sub-s.36(2)(aa) of the Act. In respect of the applicant’s illegal departure, the Tribunal found that the possible treatment of the applicant would not constitute significant harm within the meaning of that term in s.36(2A) of the Act. It noted in particular, that it had had regard to the cramped, uncomfortable and unsanitary prison conditions. However, the Tribunal did not accept that spending up to two weeks in such conditions amounted to “significant harm” and that, in any event, did not accept that that treatment was intentional as required by the law. Otherwise, the Tribunal applied its earlier findings to find that the applicant did not satisfy the complementary protection criterion.
For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
Ground one
There are two grounds in the application. The first ground is that the Tribunal erred in making a choice between the country information relied upon by the applicant, and DFAT reports relied upon by the Tribunal, instead of assessing whether the fear held by the applicant was well-founded in light of the available country information. The particulars to the ground refer to the following part of [69] of the Tribunal’s reasons:
…
The tribunal is satisfied that the DFAT reports are compiled with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. Further, the DFAT reports refer to and acknowledges [sic] official and unofficial channels and the UNHCR risk profiles and other independent information and sources.
This ground is rejected for two reasons. First, at a factual level, the Tribunal did not arrive at its decision simply on the basis of a choice between its own information and the information relied on by the applicant. Rather, it considered and assessed all the information, gave more weight to certain information and then made findings in respect of each of the applicant’s claims based on that information. As [69] of its reasons reveals, the Tribunal gave reasons why it preferred certain information to other information. Further, even though it did give greater weight to the DFAT reports, it did not simply set the other information to one side. For example, the first part of [69] of the Tribunal’s reasons shows that it accepted a large part of some of the information provided by the applicant’s agent. Similarly, at [72], [73], [80] (footnote 8), [84] (footnote 10), [86] (footnotes 13 and 15) and [87] (footnote 16), the Tribunal referred to information gleaned from sources other than the DFAT reports.
Secondly, and in any event, as a general proposition, the Tribunal does not fall into error when it makes a choice between competing information. It is well-established that the choice of, and weight to be given to, such information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46; [2009] FCAFC 123 at [45]; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63] (Lander J); MZZZW v Minister for Immigration & Border Protection (2015) 234 FCR 154; [2015] FCAFC 133 at [19]. As already explained, the choice made here was made after an examination of all of the material and for cogent reasons. In light of that, the Tribunal did not fall into jurisdictional error.
In his written submissions the applicant makes two further points in respect of the first ground: first, that by relying on post-hearing material, the Tribunal breached s.425 of the Act; and secondly, that the Tribunal “should have asked itself the question whether the fear entertained by the Applicant is genuine or supported by evidence and not whether the DFAT report corroborates the fears of the Applicant.” Neither point has any merit.
It is not clear what the applicant means by “post hearing material” in the first point of ground one. However, what is important is that the applicant has not established that he was unaware of the issues on the review, and so did not have the opportunity to give evidence and make submissions about them. As already noted, his agents made detailed and extensive submissions about all of the matters which were ultimately important to the Tribunal’s decision, including country information and the applicant’s credibility.
The second point is rejected because the Tribunal did not ask the question which the applicant asserts it did.
Ground two
The second ground is that the Tribunal erred in failing to consider the definition of degrading treatment or punishment in the context of being placed in remand in conditions which are cramped, uncomfortable and unsanitary for up to a fortnight. The ground is particularised by reference to [110] and [111] of the Tribunal’s reasons:
[110]The tribunal has also accepted that the applicant may be remanded in conditions which are cramped, uncomfortable and unsanitary, but the tribunal does not accept that spending up to a fortnight in such conditions amounts to 'significant harm' as defined in subsection 36(2A) of the Migration Act or that he faces a real risk of suffering significant harm.
[111]Further and in any event, the tribunal does not accept that such treatment is intentional as is required by the law in Australia. The tribunal does not accept on the evidence before it that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the tribunal accept that overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.
The ground is addressed to part of the Tribunal’s reasons dealing with the criterion in sub-s.36(2)(aa) of the Act. This section of the Act requires, relevantly, that the applicant face a real risk of “significant harm” on return to Sri Lanka. The first asserted error is that the Tribunal “made an irrelevant consider [sic] as to whether spending up to a fortnight in such conditions amounts to significant harm”. It is difficult to understand what that means, and it was not explained in the applicant’s submissions or orally at the hearing. If it means that the Tribunal was wrong to consider whether spending two weeks in prison might amount to “significant harm”, it is wrong. The terms of sub-s.36(2)(aa) required the Tribunal to determine whether any “significant harm” might come to the applicant. The Tribunal addressed that question in two steps: first, what might happen to the applicant; and secondly, did that amount to “significant harm”. That was not only a correct, but an entirely orthodox approach.
The second asserted error, as outlined in the application is that the Tribunal asked itself the wrong question. The argument is that the Tribunal:
asked itself the wrong question as to whether pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ when the intentional infliction is the deliberate placing of the applicant in the poor prison conditions as a result of the Sri Lankan Parliament strengthening procedures under the Immigrants and Emigrant Act in November 2012.
The words “significant harm” are relatively defined in s.36(2A) of the Act so that a non-citizen will suffer such harm if:
…
(c)the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Each of these types of “significant harm” is further defined in s.5(1) of the Act as follows:
“cruel or inhuman treatment or punishment” means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
“degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
“torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant [i.e. the International Covenant on Civil and Political Rights]
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
(Emphasis in original)
A common feature of each definition is that the harm be intentionally inflicted or caused. In SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 at [59], Kenny and Nicholas JJ accepted the Minister’s submission that the natural and ordinary meaning of “intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct” (emphasis added). The Tribunal’s approach, evident in [111] of its reasons, is consistent with that decision. The applicant’s argument therefore fails.
In his written submissions the applicant also argues that the Tribunal failed to comply with Ministerial Direction No. 56. If that were correct, it would have breached the obligation imposed by s.499 of the Act and so fallen into jurisdictional error. However, the applicant did not identify any particulars of the breach. Further, in its reasons the Tribunal expressly acknowledged the obligations imposed by the Ministerial Direction. In light of that, I am not satisfied that the Tribunal failed to comply with that obligation.
Application of decision in MZAFZ
In addition to the matters raised by the applicant, the Minister raised the possible application of the decision of the Federal Court in MZAFZ. That case concerned a certificate that was purportedly issued pursuant to s.438 of the Act. That section provides:
(1) This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
In MZAFZ at [36] his Honour Beach J construed the phrase “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” to be a reference to public interest immunity, also known as Crown privilege.
The certificate which had been issued in MZAFZ explained the basis that disclosure of certain parts of the Department’s file would be against the public interest, was because they contained “internal working documents.” Beach J held, at [37], that that had never been either a necessary or sufficient basis for public interest immunity, whether at common law or under statute. His Honour then said:
[37]… The certificate in the present case manifests imprecision and overreach. At best, it only disclosed one of a set of conditions (not fully specified in the present case) that together might have been sufficient to disclose a “reason … that could form the basis for a claim …”. At best, it only disclosed a reason that could form part of the basis for a claim, not the basis. It did not meet the statutory prescription of s 438(1)(a). It did not communicate to the Tribunal or indeed any reader any reason which met the description “could form the basis…”. The description was not unimportant. It permitted the prima facie concealment from the applicant of documents or information. It triggered the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information could be dealt with. It potentially impacted on procedural fairness questions as narrowed by the s 438(3) boundaries.
(Emphasis in original)
Beach J then turned to the question of what consequences flowed from this conclusion. His Honour concluded that the Tribunal had proceeded or acted on the invalid certificate and that this was not a process according to law and of itself contained a jurisdictional error: [44]. There were three steps critical to this conclusion. Firstly, his Honour stated:
[40]First, if the Tribunal acted on the invalid certificate it followed a procedure contrary to law. In the absence of evidence to the contrary, I am entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents the subject thereof in its possession. So much can be implied from the Tribunal’s reasons at [19] (see my later discussion at [47] and [48]). Relatedly, the purported issue of an invalid certificate by the delegate of the Minister infected the process or procedure adopted by the Tribunal in relation to such documents.
At [47] and [48] of the judgment, Beach J infers that the Tribunal had regard to the documents covered by the certificate because it had said, at [19] of its reasons, that it had the Department’s file relating to the applicants and had also “had regard to the material referred to in the delegate’s decision”. His Honour supported that reasoning by reference to sub-s.430(1)(d) of the Act which requires the Tribunal, in its statement of reasons, to refer to the evidence or any other material on which its material findings of fact were based. His Honour then noted that how the Tribunal “had regard in relation to the documents covered by the certificate is opaque.” I infer from that, that the documents were not expressly referred to by the Tribunal in its statement of reasons.
The second step in his Honour’s reasoning was as follows:
[41]Second and relatedly, in acting on the invalid certificate, it is open to infer that the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s 424AA or s 424A. I cannot confidently say that the Tribunal:
(a)properly read the documents the subject of the invalid certificate;
(b)determined that the documents did not contain information that would be a reason, or part of a reason, for affirming the decision under review; and
(c)then decided that no disclosure was required under s 424AA or s 424A.
[42]But if the Tribunal had realised that the certificate was invalid, it would have had to have undertaken all such steps.
The final step in his Honour’s reasoning was:
[43]Third, if the Tribunal had realised that the certificate was invalid, it would have, in contrast to the conditions triggering s 424AA or s 424A, also had to consider (but apparently may not have) whether:
(a)the documents supported the applicant’s visa application;
(b)disclosure should be made to the applicant (assuming, for the moment, that s 422B was no bar to or excluded such a requirement), perhaps as part of ss 425 and 427(1)(c).
(Emphasis in original)
At [45] to [57] Beach J considered the possibility that the certificate was valid. At [46] his Honour noted that it was unclear how, or whether the Tribunal considered the potential operation of s.438(3). His Honour hypothesised that, because the information was not revealed to the applicant, that the information was neutral or positive to the applicant’s interests. As will become apparent, it is unnecessary to hypothesise in this case: the information was before the Court and it was, in my view, neutral to the applicant in the sense that it had no bearing on any findings of fact to be made by it.
Beach J found that the Tribunal had had regard to the information and that there was a denial of procedural fairness. His Honour explained:
[50]Procedural fairness required that the Tribunal ought to have (but did not in the present case):
(a)disclosed the existence of the certificate to the applicant; on this aspect, I do not propose to follow what was said in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [29] per Dowsett J who was in any event discussing s 375A and was influenced by the strictures thereof that did not contain an equivalent to s 438(3) (his Honour was not discussing s 376);
(b)given the applicant the opportunity to make submissions on the validity of the certificate if she so chose; of course there is an air of unreality to affording such an opportunity to a self-represented litigant who requires an interpreter, but that does not deny the existence of any such requirement;
(c)disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant;
(d)given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).
[51]Putting to one side for the moment s 422B, given that the Tribunal ex hypothesi would have relevant documents covered by the certificate, for the applicant not even to have knowledge of the existence of the certificate is antithetical to her interests. Only with knowledge of the certificate would she then be able to:
(a)challenge its validity;
(b)enquire of the Tribunal how it was going to use the material; and
(c)seek an exercise of power under s 438(3)(b).
[52]To deny her knowledge of the existence of the certificate would effectively preclude her from taking any one or more of steps [51] (a) to (c). Moreover, the fact that s 438 does not itself contain an express statutory obligation to disclose the certificate does not foreclose any procedural fairness requirement, subject of course to the operation of s 422B.
[53]Further, if the applicant was told of the existence of the certificate, it would be a denial of procedural fairness for the applicant not to be given the opportunity to take steps [51] (a) to (c) (cf NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473 at [35] to [43] per Moore J). The applicant may be seen as a beneficiary of any exercise of power under s 438(3)(b). It is counter-intuitive to suggest that as such a beneficiary she should be denied the opportunity to take any one or more of steps [51] (a) to (c).
Finally, Beach J considered whether s.422B affected either of the bases upon which he had found jurisdictional error.
Section 422B provides:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
His Honour considered what matters s.438 dealt with and preferred the narrower view. The narrower view is that they relate simply to the narrowing of an otherwise procedural fairness obligation such that for documents covered by a sub-s.438(1)(a) certificate, they may be taken into account by the Tribunal without the applicant having access to them, subject to any exercise of power under sub-s.438(3)(b). For that reason, his Honour concluded at [60] that s.422B(2) would not exclude any obligation to give an applicant procedural fairness by:
(a)disclosing the existence of the certificate;
(b)affording the applicant an opportunity to make submissions on the validity of the certificate;
(c)affording the applicant an opportunity to at least make submissions on the Tribunal’s approach under s 438(3)(a);
(d)affording the applicant an opportunity to at least seek a favourable exercise of power under s 438(3)(b), although perhaps this last element may be debated.
His Honour concluded:
[65]In summary, in my view, s 422B(2) only has the narrower operation and would not exclude the requirements set out in [60]. It follows that if the s 438(1)(a) certificate is valid, there has been a denial of procedural fairness and accordingly a jurisdictional error is established. Alternatively, if the s 438(1)(a) certificate is invalid, in addition to the denial of procedural fairness, there is also a jurisdictional error established as a consequence of the Tribunal not following a procedure according to law as I have previously discussed.
The issue for determination is whether the Tribunal has fallen into the same errors identified by Beach J in MZAFZ. That was a decision of the Federal Court on appeal from a judgment of this Court. Accordingly, it is not my concern to determine whether or not MZAFZ was, or was not, wrongly decided. It is this Court’s duty simply to follow that judgment insofar as it is not distinguishable. Indeed, although the Minister formally submitted that MZAFZ was wrong, he did not suggest that I should, or could, consider that question. Rather, he submitted that this case was distinguishable. That was essentially because the information was before this Court and showed that there was no unfairness in anything done, or not done by the Tribunal. It is necessary, then, to consider the facts of this case before determining whether the decision in MZAFZ is applicable.
First I should say something about how the issue arose. The application for review was filed on 26 June 2015. It is usual in cases such as this, where judicial review of a decision made under the Act is sought, that orders are made that the solicitors for the Minister prepare, file and serve a bundle of documents[2] that include documents that were before the decision-maker that are relevant to the issues on the review. It is often the case, as in other litigation, that the issues before the Court shift and change before hearing. This is sometimes the result of closer examination of the papers by an applicant’s advisers and sometimes the result of the publication of new judgments.
[2] Variously called “Relevant Documents” or “Court Book”.
In this case, the Minister’s solicitors prepared, filed and served a bundle of relevant documents on 15 July 2015, before any Court order was made. Those documents did not include any certificate purportedly given under s.438. Nor did they include any documents to which any such certificate related. However, there was, until the publication of MZAFZ, no authority that suggested that any such certificate or the documents to which it related might be an issue in the proceedings. Judgment in MZAFZ was handed down on 7 September 2016. On 6 October 2016 the Minister filed an affidavit to which were annexed both a certificate purporting to have been made under s.438 as well as the documents to which the certificate related.
In written submissions filed prior to the hearing, the Minister addressed the possible application of MZAFZ even though the applicant had not raised it. At the hearing, the solicitor appearing for the Minister sought leave to read the affidavit to which the certificate and documents were annexed. I granted that leave and the documents became part of the evidence. The applicant did not object to that course, but encouraged me to take it and to consider the documents. I considered that, even though Beach J refused an application to tender the documents the subject of the certificate in MZAFZ (see [55]), the documents were relevant, at least to the question of what opportunity might have been lost by the Tribunal’s failure to notify the applicant of the existence of the certificate if not also to the question of whether discretion ought to be refused in the exercise of the Court’s discretion.
The certificate in this case was dated 27 November 2014 and referred to folios 142-144 of file number CLF2012/1****1. The file in question was that held by the Department in relation to the applicant’s application for a protection visa. The evidence was that this certificate was held on that file and was given to the Tribunal for the purpose of its review along with folios 142-144. The certificate stated that disclosure of the information in those folios would be contrary to the public interest because “… folios 142-144 contain information relating to an internal working document and business affairs.”
The Minister conceded that, on the authority of MZAFZ, the certificate went beyond the proper scope of s.438 and was invalid.
However, the Minister submitted that there was no evidence as to whether the documents themselves, or the existence of the certificate, had been disclosed to the applicant. It was also submitted that there was also no evidence in this case to infer that the Tribunal acted on the certificate. It was also submitted that the documents the subject of the certificate in this case did not contain any information relevant to the outcome of the applicant's claims and his visa application process: cf MZAFZ at [47], [55]. In such circumstances, the Minister argued, no issue of procedural fairness arose (whether circumscribed by the provisions of the Act or not).
The documents that were the subject of the certificate consisted of three notifications about proceedings brought by the applicant in this Court in respect of the Tribunal’s first decision. The first, dated 19 November 2014 relevantly stated:
IssuesApplication for an order to show cause pursuant to s.476 of the Migration Act and for review of a decision by the RRT, affirming the decision to refuse grant of a protection visa to the applicant, a national of Sri Lanka. The applicant seeks an order quashing the decision, directing a re-hearing by the RRT according to law and preventing action being taken to give effect to the challenged decision.
StatusReview of the decision record revealed a probable error of law. Following receipt of confirmatory advice from Counsel, consent orders were made on 19/11/2014 remitting the matter to the Refugee Review Tribunal for reconsideration. The Minister to pay the applicant's costs fixed in the amount of $5,900.
The second was dated 20 November 2014 with a time of 11.59am. It was marked “Sensitive: Legal”. The relevant parts of it were:
Background
The applicant claimed to fear persecution in Sri Lanka from the Liberation Tigers of Tamil Eelam (LTTE). He claimed that the LTTE targeted his father where they had detained, physically harmed and demanded money from him. The applicant also claimed that he would be imputed with LTTE beliefs and that he would be detained upon return as a failed asylum seeker. In light of inconsistent evidence the Tribunal did not accept the applicant’s claims, and relied on independent country information to find that he would not be harmed upon return as a failed asylum seeker. It also took into account PAM3 Guidelines in accordance with Ministerial Direction No 56 (Direction 56) to the extent that they were relevant to the decision.
At the time of the Tribunal's decision (2 August 2013), the Complementary Protection Guidelines (CP Guidelines) erroneously referred to s 36(2)(aa) as requiring a balance of probabilities test, despite the decision in MIAC v SZQRB [2013] FCAFC 33 (made on 20 March 2013) making it clear that it is a real chance test. The Tribunal noted at CB 243 [19] that it was required to take into account the CP Guidelines.
The Tribunal made reference to specific items of country information, including from DFAT, but did not make any express reference to the DFAT Country Information Report on Sri Lanka. It can be inferred that the Tribunal failed to comply with Direction 56 as it failed to take into account country information assessments available to the Tribunal prepared by DFAT where they were relevant to the decision.
Reasons for withdrawal
We have withdrawn from this matter on the basis that the Tribunal failed to apply the correct test for complementary protection (the real chance test). We also note that the Tribunal failed to consider the most recent DFAT Country Information Report on Sri Lanka and therefore failed to comply with Direction 56, though we did not withdraw on this basis. The matter was therefore affected by jurisdictional error.
The third part was also dated 20 November 2014 but bearing a time of 12.02pm. It relevantly stated:
As the decision was set aside, Compliance action in respect of the relevant persons named in the above list may not be appropriate. The matter will now be referred to the Refugee Review Tribunal for reconsideration. The litigation case officer who has carriage of this matter is Adam Cunynghame who can be contacted on P: (02) [number] should further details be required.
Action required
Please note
On 12 April 2013, the Attorney-General announced the renaming of the Federal Magistrates Court (FMC) as the Federal Circuit Court (FCC). Accordingly, references to the FMC or the FCC are interchangeable.
With one exception, the applicant would have known all of this information. It was, after all, his court application that had been successful. The exception was the Departmental view that the Tribunal had not considered the most recent DFAT Report. That was not relevant to the task of the Tribunal upon remittal to it, except to the extent that it was put on notice that it was required to take into account the latest DFAT Report, or risk falling into jurisdictional error. That, however, was nothing new or surprising as it was a requirement of Direction 56.
In my view, there was nothing in this material that was either adverse to the applicant, relevant, or significant to the decision to be made to the Tribunal’s decision (cf. Kioa v West (1985) 159 CLR 550 at 628‑629 (Brennan J); [1985] HCA 81; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [16]-[17]; [2005] HCA 72; Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 at [27] (Rares and Jagot JJ); [2012] FCAFC 45). In light of that, it could not readily be said that the applicant was denied any opportunity that might have affected the outcome of his application for review: see Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]; [2003] HCA 6; Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [43] (Kiefel, Bell and Keane JJ); [56]-[57] (Gageler and Gordon JJ); Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29. Further, as there was nothing adverse to the applicant in the information, there was no information that could have fallen within s.424A of the Act.
The next issue is whether the Tribunal “acted on” the certificate (see MZAFZ at [40], [47], [48]). I am not satisfied that it did. First, unlike the Tribunal in that case, the Tribunal here did not state, even by implication, that it had had regard to the whole of the Department’s file. Secondly, having regard to the material findings of fact set out in the Tribunal’s reasons (see sub-s.430(1)(c)), and the absence of any reference to the information subject to the certificate, I infer that it did not base any of its findings on that material. Thirdly, and in any event, that information could not have provided a logical basis for any of those findings. Given the cogency of the Tribunal’s reasons in general, I would not lightly infer that it acted on an illogical or unreasonable basis in response to the material referred to in the certificate.
In light of that conclusion, the first error identified in MZAFZ (at [44]) does not arise on the facts of this case.
The second error in MZAFZ was a denial of procedural fairness. This error was found on the alternative assumption that the certificate complied with s.438 of the Act. The certificate in this case was to the same effect as that in MZAFZ and so, applying that case, the certificate was invalid and it is unnecessary to consider whether the alternative error arose. If I were wrong about that, I am unable to distinguish MZAFZ and so would have to conclude that there was a denial of procedural fairness. Importantly, even though Beach J did not have the relevant information before him, he proceeded on the hypothesis that it was neutral or positive. Even though that would ordinarily be inconsistent with a finding of procedural fairness, his Honour concluded that there was an opportunity that was denied the applicant and so found jurisdictional error. However, even if there were such an error, I would refuse relief in the exercise of my discretion.
I cannot see how knowledge of the existence of the certificate could make, or could have made, any difference to the outcome of the review (that is, on either a backward or forward looking view of the exercise of discretion: see Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151; [1996] FCA 807). At the highest and looking back, the applicant would have asked the Tribunal to consider whether to disclose the information under sub-s.438(3)(b), the Tribunal might have disclosed the information, and the applicant might then have had the opportunity to suggest to the Tribunal that it should not make the mistakes that the previously constituted Tribunal had made. It did not make those mistakes. The same reasoning applies if one looks to what a newly constituted Tribunal would do. There would simply be no utility in granting the relief sought.
Conclusion
For those reasons the application is dismissed.
I certify that the preceding sixty-nine 69) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 4 November 2016
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