BER16 v Minister for Immigration
[2018] FCCA 1452
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BER16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1452 |
| Catchwords: MIGRATION – Review of Administrative Appeal Tribunal (AAT) decision – visa – protection visa refusal – where certificate issued under s.438 of the Act was not disclosed to the Applicant at Tribunal hearing – whether the AAT filed to take into account a relevant consideration – no error established. |
| Legislation: Migration Act 1958 (Cth), ss.65, 351, 438, 476 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 556 |
| Applicant: | BER16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1258 of 2016 |
| Judgment of: | Judge Baird |
| Hearing date: | 23 May 2018 |
| Date of Last Submission: | 23 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1258 of 2016
| BER16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(ex tempore revised from transcript)
This is an application pursuant to s.476 of the Migration Act 1958 (Cth), for judicial review of a decision of the Administrative Appeals Tribunal dated 15 April 2016, in which the Tribunal affirmed a decision of a Delegate of the First Respondent to refuse to grant the Applicant a protection (Class XA) Visa under s.65 the Act.
Procedural Background
The Applicant is a citizen of Nepal. He arrived in Australia on 3 July 2007 on a student subclass 573 visa. He has held a number of visas thereafter. On 1 April 2014, the Applicant applied for the current Visa. He appeared at an interview before the Delegate and, upon the Delegation’s decision being adverse, on 17 December 2014, he applied to the Tribunal for review.
The Applicant provided a passport for identification to the Tribunal but did not provide any further documentary material, or written submissions. He appeared at a hearing before the Tribunal on 13 April 2016. On 15 April 2016, the Tribunal affirmed the Delegate’s decision. On 20 May 2016 the Applicant filed the application for judicial review in this Court, within time.
The Applicant’s claims and circumstances
The Applicant’s claims in his protection Visa application and accompanying statement were that he and his family had a background of involvement in the pro-monarchy political party, the Rastriya Prajatantra Party (RPP), and supported the king. He claimed that he was an active royalist and an active member of the RPP prior to leaving Nepal. He claims he was humiliated by the demise of the king’s power and that he received many threats which forced him to go into hiding for several months.
He claimed to fear being targeted by the society and alliance political parties if he returned to Nepal. He further feared he would be considered a failure by his family, friends and relatives because of his inability to gain permanent residency in Australia. He also claimed that his concern was how to return empty handed and establish the professional life in a fully traditional environment. He said in his accompanying statement in his application for Visa that (without alteration):
I forgot all the used to situation manner in seven years along with my environment and another situation of life. So, my life is so difficult in this situation right now I am so scared to return back in that situation because of my nature of life and recognition of the status.
In his visa interview with the Delegate (as recited by the Tribunal member, who listened to a recording of that interview: see Tribunal decision at [18], [23]), the Applicant claimed to fear that he would be unable to find work in Nepal, and would be excluded from social activities due to his political leanings, and that those in power “could become physically violent” if he tried to force his way into such activities.
At the hearing before the Tribunal, and again at the hearing today, the Applicant gave evidence that his wife was a permanent resident in Canada. Today he advised the Court that his wife was a citizen of Canada. Before the Tribunal, the Applicant gave evidence that he wished to join his wife in Canada, but it would be difficult for the Applicant to apply for a visa from Nepal. Before the Tribunal, he claimed that his family and wife had begun to “harass and torture” him over his failure to obtain permanent residency in Australia, and, as a result, he had begun to feel depressed.
Tribunal decision
In its reasons for decision, the Tribunal stated that the issues arising on the review before the Tribunal are whether the Applicant has a well‑founded fear of persecution in Nepal for one or more of the five reasons set out in the Refugee Convention, and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that the Applicant will suffer significant harm.
The Tribunal determined that it was not satisfied that the Applicant has a well-founded fear of persecution in Nepal, and was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. It concluded that the Applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
Having concluded that the Applicant does not meet the refugee criterion, the Tribunal then considered the alternative criterion for complementary protection in s.36(2)(aa) of the Act. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. The Tribunal was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the complementary protections provisions of the Act.
The Tribunal set out the statutory framework for the grant of a protection visa at [5]-[9]. It then set out the Applicant’s claims and evidence as advanced, both before the Delegate, and the Tribunal. In so doing, the Tribunal referred to the claims made in the Visa application. The Tribunal reported the Applicant’s statement that he left Nepal to further his studies and to save his life. According to his statement, the Applicant came to Australia in 2007 to further his studies. The Applicant has completed a Master of Accounting and a Master of Business Administration.
The Applicant then tried for more than four years to obtain a target score in the IELTS English language exam. The Tribunal recorded at [13] that the Applicant invested all of his physical, mental and financial energy on settling in Australia, but was unsuccessful because of his IELTS score. The Tribunal further recorded at [33] that the Applicant estimated that he sat the exam on approximately 40 occasions. Before me today the Applicant confirmed that the number 40 was correct.
At [14] of its decision, the Tribunal recorded that the Applicant stated that after spending almost seven years, at that time, trying to make a life in Australia, the Applicant had ignored his family, friends and relatives. The Applicant was stressed and felt ashamed and afraid about his career and future life. The Applicant stated that it would be hard to adjust to life in Nepal, and was not sure whether his society and family would accept him in a positive or negative way. The Applicant stated that before coming to Australia, he was involved in student politics while studying commerce at a government college. I have already referred to the Applicant’s claims in his protection visa application of the Applicant and his family’s involvement in the RPP and that they supported the king.
The Tribunal recorded (at [15]) that the Applicant was a victim of the situation of political violence at that time, and that life was a struggle because of the political instability at the time that the king was in power, and that there was significant political violence as rival political parties attempted to establish democracy. After some time, democracy was established, and the Applicant felt humiliated by the demise of the king’s power. He stated that he was targeted by society and alliance political parties.
The Tribunal set out the evidence the Applicant gave at the interview with the Delegate. The Tribunal then turned to the review application. At [30], the Tribunal summarised the Applicant’s immigration history by reference to the Delegate’s decision:
The Applicant arrived in Australia in July 2007 as the holder of a subclass 573 student visa. The Applicant was granted further student visas in late July 2007 and March 2010. In April 2011, he applied for a Skilled - Graduate subclass 485 visa. That application was refused and the Applicant sought review of that decision by the Migration Review Tribunal (MRT) in June 2012. The Applicant departed Australia in December 2012 and returned in March 2013. In May 2013, the MRT affirmed the decision to refuse to grant him a subclass 485 visa. The Applicant subsequently made a request to the Minister to intervene and substitute for the decision of the MRT a more favourable decision pursuant to s.351 of the Act. In February 2014, the Minister decided not to consider the Applicant's case. The present application was made shortly thereafter.
At the Tribunal hearing, the Applicant confirmed that his wife continued to reside in Canada as a permanent resident. The Applicant said he hoped to reunite with his wife, but had been told he was unable to apply for a Canadian visa because of his Australian immigration status. The Applicant’s evidence to the Tribunal was that he last saw his wife three years earlier, but they remain in contact. In response to the Tribunal’s question about why the Applicant had applied for a protection visa, the Applicant told the Tribunal he had been involved in politics as a student in Nepal, that he had already completed a master’s degree in Nepal and wanted to further his studies, but the political situation made this difficult. The Applicant told the Tribunal that politics was an entrenched part of student life.
The Applicant denied having held any particular office or position within the RPP. The Applicant stated that he had not followed Nepalese politics whilst in Australia, and at [35] of the Tribunal’s decision, the Tribunal recorded that the Applicant also told the Tribunal that he would not get involved in politics now should he be forced to return to Nepal. At [36], the Tribunal recorded that it put to the Applicant that the political environment in Nepal had changed significantly since the Applicant’s departure in 2007. Nepal had become a republic in 2008, and there had been elections and a new constitution settled since that time. The country information before the Tribunal indicated generally that the political environment was now more stable, and incidents of violence had decreased. The Tribunal asked the Applicant whether he had any ongoing fears about returning to Nepal in light of his past political activities. The Applicant said he was unsure about this. Some members of the RPP were still afraid, and the situation was still quite uncertain.
The Tribunal asked the Applicant whether he had experienced any particular problems in the past because of his political activities. The Applicant responded that there was now democracy in Nepal, and if he went back, there would be no work opportunities. This was the main reason he did not want to go back, but sometimes there might be violence between political parties, and there may be some risk to his life. The Tribunal put to the Applicant that the political situation appeared to have stabilised and was much less violent than it was at the time the Applicant departed Nepal. The Applicant had given evidence that he had not maintained any interest in politics, and would not involve himself in politics if he went back to Nepal.
The Applicant said his main concerns now were employment opportunities, and generalised violence. In these circumstances, the Tribunal stated it was not clear that there was a real chance of the Applicant being persecuted, or a real risk of the Applicant suffering harm amounting to significant harm. The Tribunal engaged with the Applicant’s circumstances regarding his wife, and the difficulties for him to apply for a visa to Canada from Nepal.
At [38], the Applicant told the Tribunal that he had spent eight years in Australia, and the situation would be completely different in Nepal. He might also have some security problems. His family and society have started to torture him over his failure to secure permanent residence and settle down with his wife, and he had begun to feel depressed. I have already referred to the Applicant’s statements that his wife had begun to harass and torture him because of his failure to secure permanent residence. The Tribunal noted that the Applicant had returned to Nepal in late 2012 and remained there until early 2013 and asked him whether he had experienced any particular problems whilst in Nepal at that time. The Applicant told the Tribunal he had returned to Nepal due to his father’s ill health, and remained there to complete the funeral rights. After two months, the Applicant and his wife were married in court. The Applicant said he had been very emotional, and had not gone anywhere, and spent all his time with his family members. In that situation, the Applicant had no trouble.
At [41] of its decision, the Tribunal asked the Applicant whether there might be any political problems for him now if he were to go back to Nepal:
The Applicant said he was not sure about these things because it had already been nine years but he would have various problems if he were to go back to Nepal including lack of employment opportunities and humiliation from society. Other political parties were in power now and people might remember him and prevent him from being involved in social or community activities and there could be some violence. It would also be difficult for him to reunite with his wife. There had been violence between members of political parties in the past and for this reason he was unsure whether there would still be some risk to him now.
Commencing at [42] of its reasons, the Tribunal set out its findings. The Tribunal accepted that the Applicant had provided generally truthful evidence regarding his personal circumstances. The Tribunal was prepared to accept that the Applicant had been involved in politics as a student in Nepal, up until his departure in June 2007. The Tribunal accepted that the Applicant was a supporter, and an ordinary member, of the RPP, and was involved in attending rallies or protests, and that the political environment at the time was particularly unstable. Further, as a monarchist, the Applicant may have felt threatened or unsafe, and at times may have felt compelled to remain at home.
The Tribunal accepted the circumstances contributed to the Applicant’s decision to leave Nepal. However, the Tribunal was not satisfied that there is a real chance or risk of the Applicant suffering serious or significant harm were he to return to Nepal (at the time of the decision), or in the immediately foreseeable future.
At the Tribunal hearing, the Applicant did not claim to have been the specific target of any political violence in the past, and expressed uncertainty when asked whether he felt there was a real chance or risk of him suffering from politically motivated violence in the future. The Tribunal noted that the political environment in Nepal had changed significantly in the period in which the Applicant has been in Australia. At [44], the Tribunal referred to those changes. Having considered the Applicant’s particular circumstances against the country information available to the Tribunal, the Tribunal was not satisfied there was anything other than a remote chance or risk, of the Applicant suffering serious or significant harm as a consequence of his past political activities, or in the context of any general political conflict or general violence in his home area. The Tribunal noted that the Applicant’s delay in applying for protection in Australia, and his willingness to return to Nepal in late 2012, are consistent with this conclusion.
The Tribunal was prepared to accept that there is a real chance or risk of exclusion from community activities in his village, by his village development committee, and by those presently holding political power as a consequence of his past political affiliations (at [46]). However, the Tribunal was not satisfied that this constitutes serious harm or any other form of significant harm as defined for the purposes of s.36(2)(a) of the Act, and the Tribunal was not satisfied that there is a real chance or risk of this occurring. The Tribunal accepted that the general economic conditions in Nepal may be less favourable than those available to the Applicant in Australia.
The Applicant has the support of his mother, three brothers, and a sister in Nepal. He is well educated, having obtained master’s degrees in both Nepal and Australia. He is no longer involved in politics. In these circumstances, the Tribunal said (at [47]), that it was not satisfied that any difficulties the Applicant might face in finding employment in Nepal, would lead to financial hardship amounting to serious harm or persecution, or involve significant harm as defined.
The range of other concerns expressed by the Applicant about return to Nepal included feelings of depression, shame, or humiliation arising from his failure to obtain permanent residency in Australia, low level harassment from his family and friends over his failure to settle down and reunite with his wife, difficulties in his personal relationship with his wife stemming from the above factors, delays and practical difficulties in applying for a Canadian visa, and difficulties readjusting to Nepalese society as a consequence of his extended absence.
The Tribunal accepted that these concerns are genuinely held by the Applicant, and was prepared to accept that there is a real chance or risk of them being realised. However, the Tribunal was not satisfied on the evidence that any such difficulties involve persecution, or meet the definition of significant harm.
Ground of review
The Applicant set out one ground of review in his application as follows (without alteration):
(1)Considering my actual situation
The Applicant also specified some grounds of application for extension of time (although an extension of time was not sought), as follows (without alteration):
(1) Confussed
(2) Mental pressure
In his supporting affidavit filed with the application, the Applicant stated two matters (without alteration):
(1)To consider my mental situation
(2)To consider my relation with wife and family
The proceeding before this Court
The Applicant appeared before the Court today without the benefit of an interpreter. When I asked the Applicant whether he wished to have an interpreter, the Applicant indicated that he did not.
At the commencement of the hearing, I explained to the Applicant the role of the Court, and that it is not for this Court to interfere with a decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I informed the Applicant that it is not for the Court to reconsider his claims afresh, and that the issue before the Court is whether or not there are legal problems with the Tribunal’s decision. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
I explained to the Applicant that the consequences that would flow to him if a costs order was made against him. The Applicant confirmed that he wished to continue with the Application for judicial review. The Applicant confirmed he did not have any further documents to present to the Court this morning in support of his application.
I confirmed with the Applicant this morning that he had received and had read the First Respondent’s written submissions. The solicitor for the First Respondent assisted by ensuring that the Applicant was referred to particular pages throughout the hearing. The Court provided an additional copy of the Court Book to him.
Clarification of ground of review
I confirmed with the Applicant that he relied on the purported ground set out in the application. I also asked him to clarify what he meant by “his actual situation”. He said in sum, as follows:
(a) when he came to Australia he spent about seven years;
(b)the actual situation in Nepal is not good;
(c)he had participated in political parties;
(d)there is violence and he was involved in that situation;
(e)then he came to Australia. He got a degree here at that time; and
(f)he could not return to Nepal as he was involved in the political situation which made harm.
He explained:
That means, you know, when I came in Australia, I spend around six or seven years. I do not get anything, and my actual situation in Nepal is, actual situation in our country is not good … I do participate in the political parties, and there is, at that time, there is some violence in the political situation, and I’m involved in that situation, and after that I came here, and I spend almost six or seven years at that time, and I got nothing. Only I got degree over here … [a]nd at that time I can’t return back to our country, because I’m involved in the political situation, and that may be significant harm for me. That’s the reason I write down that my actual situation is that.
When asked as whether the situation is the situation he put before the Tribunal, and could he point to anything wrong with the decision, the Applicant indicated he could not point to anything wrong, but he could “… apply for the power of the Federal Court for a significant decision …” Later, during submissions, he reiterated that he was concerned with all of the situation, and said that he applied to this Court for a significant situation, and asked the Court to consider his situation, and for a beneficial situation for his life. He also said that he was confused about his life. He didn’t get any status and he was confused about how to stay and how to return back to his country.
I observed that it appeared he was asking for a review on the merits. I again asked the Applicant whether he was disagreeing with the decision of the Tribunal, to which he did not indicate that he was. I asked whether he just wanted me to reconsider his claims, and he said that he just wanted this Court to reconsider his claims. I have, however, endeavoured to ascertain the ground of review is that the Applicant raises. Giving a beneficial interpretation to his grounds, it may be that the Applicant contends that the Tribunal failed to consider his claims regarding his mental state, or his relationship with his wife and family, or his actual situation. I have considered the purported ground of review accordingly.
Consideration
I have already referred to the Tribunal’s consideration of the Applicant’s claims. It is evident from the paragraphs of the Tribunal decision to which I have already referred (e.g. at [38] of its decision), that the Tribunal did consider the Applicant’s actual situation, and considered the Applicant’s evidence that he wished to move to Canada to be with his wife, and that it would be difficult for him to apply for a Canadian visa from Nepal, and that he may develop mental problems if had to stay in Nepal. At [39] of its decision the Tribunal also considered the Applicant’s evidence that he had started to feel depressed because his wife and family had begun to harass and torture him over his failure to secure permanent residency in Australia, and that he had begun to contact them less because he did not want to hear what they had to say about his personal situation. The Tribunal first accepted these concerns at [48].
I find that the Tribunal thereby did consider the Applicant’s claims, and I find that the Tribunal made findings that were reasonably open to it on the evidence, and that those findings were dispositive of the Applicant’s claims as they arose and were developed in the course of review.
As I’ve noted, the “actual situation” to which the Applicant refers, has been clarified in this Court as an application to reconsider the claims made by the Applicant. Although the Applicant has not expressed it in those words in this Court, the matters raised in the application and his affidavit (which I have already identified at [29]), do no more than indicate a disagreement with the Tribunal’s factual findings and conclusion, and seek impermissible merits review. The Applicant has not identified to me any disagreement with the Tribunal’s findings, despite my invitation to him several times this morning to put anything more to me. It is not the role of this Court to undertake merits review, and indeed, the Court cannot do so: Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259. I conclude that the ground of judicial review propounded by the Applicant is not made out. The Applicant has not established jurisdictional error.
Section 438 Certificate
I turn now to a matter raised by the solicitor for the First Respondent, the issue of a certificate issued pursuant to s.438 of the Act. I gave leave to the First Respondent to read an affidavit of Ms Aitken, a solicitor, and I admitted into evidence a copy of the certificate and the documents referred to in the certificate. I have had regard to those documents. I note that one page has redacted some names, but it is clear from that document and that page that what has been redacted are names of persons unrelated to the Applicant’s case. I note that in any event, that document was dated before the Applicant’s application for the Visa.
The First Respondent made no claim for privilege over the documents, and did not seek any orders for confidentiality over the documents. The Applicant was provided with a copy of the affidavit and the documents, and he has had an opportunity to consider them. The s.438 certificate claims, on its face, that the enclosed material is subject to the certificate “because it contains information relating to the internal business of the department”. On its face, the certificate is in the same form as the certificate before Beach J in the Federal Court in the matter of MZAFZ v Minister For Immigration & Anor [2016] FCA 1081.
There is no evidence before the Court to suggest that the Tribunal disclosed the certificate to the Applicant, or that it invited him to comment on the certificate, nor does the Tribunal’s decision record address the s.438 certificate. The documents referred to in the certificate, in each case, predate the Applicant’s application for the Visa. The first is an immigration history and a request summary, and is directed to the key issue of the refusal of the Applicant of an earlier subclass 485 visa because the Applicant then did not meet the English language requirements. It summarises the Applicant’s visa application history, and contains information concerning the Applicant’s wife’s residency in Canada as a permanent resident, and that his mother and four siblings reside in Nepal. The document otherwise indicates that the Applicant intends to join his wife in Canada if his request is unsuccessful. I note that that indication of intention was also made to the Tribunal. The next document is a memorandum which appears to have been prepared for consideration of the Applicant’s request for Ministerial intervention under s.351 of the Act.
By reason of the lack of evidence before the Court to suggest that the Tribunal disclosed the certificate to the Applicant, and that the decision record doesn’t address the requirements of s.438, this certificate appears to raise issues addressed by the Full Court of the Federal Court in Minister For Immigration v Singh & Anor [2016] FCAFC 183; (2016) 244 FCR 305, and the decision of Beach J in MZAFZ. The First Respondent in the present case submits that the matter before the Court is distinguishable from both those decisions. The Full Court’s decision in Singh does not stand for the proposition that every certificate issued pursuant to s.438 must be disclosed to the Applicant, and I note the decision of Judge Manousaridis of this Court in CKG15 v the Minister For Immigration & Anor [2017] FCCA 938; (2017) 321 FLR 189, [99]. In any event, the Full Court of the Federal Court in the Minister For Immigration v BJN16 [2017] FCAFC 197, concluded at [62] that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s.438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
In the present case, as I have said, I have had regard to the material covered by the certificate. I note in particular, that the certificate contains information that in large part, if not all, was provided in the Applicant’s immigration history as set out in the Delegate’s decision. The information was provided to the Tribunal by the Applicant as part of the review. In relation to information regarding his wife and his family, it was all information provided by the Applicant to the Delegate, or was discussed by the Applicant during the hearing before the Tribunal. That includes information that is summarised by the Tribunal at [18]-[24] of the Tribunal’s decision. I note that the summary of the Applicant’s immigration history as set out at [30] of the Tribunal’s decision, also records the Applicant’s request to the Minister to intervene, and that in February 2014 the Minister decided not to consider the Applicant’s case.
In these circumstances, I find that the material covered by the certificate lacks any connection to the Applicant’s claims for the present Visa, and was, in that sense, of no, or only passing, contextual relevance to the Tribunal’s review. It is open to the Court to infer that the documents were either not considered by the Tribunal, or were not considered by the Tribunal to be relevant to its consideration of the Applicant’s claims. As in CKG15, the Tribunal’s decision record in the present matter does not suggest that the Tribunal acted on the certificate. The material does not take the Applicant’s claims further than was taken by the Applicant himself. There is nothing contrary to the claims the Applicant makes, nor does the material raise anything adverse. In these circumstances the Court infers that the Tribunal did not consider the documents to be relevant to its consideration of the Applicant’s claims. I conclude that the Tribunal did not fall into the error as identified by Beach J in MZAFZ.
Unlike Singh, I have before me the documents which were the subject of the non-disclosure certificate. This has enabled the Court to consider the documents, and determine whether any practical injustice resulted from the certificate not having been disclosed, such that a denial of procedural fairness could be made out. I find that it is apparent from the documents covered by the certificate, that they could not have had any material impact on the Tribunal’s consideration of the issues in the review. They do not advance, undermine, or adversely impact on the Applicant’s presentation of his case in the review, The Applicant did not lose any opportunity to advance his case or suffer any practical injustice.
I find that there is no denial of procedural fairness in this case resulting from any omission to disclose the existence of the certificate. If however, there may have been some technical breach of the Tribunal’s obligations, I am in a position to exercise the Court’s discretion as his Honour Barker J did in AVO15 v Minister for Immigration [2017] FCA 556:
[91]To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified.
As I have found that none of the documents covered by the certificate, by inference or otherwise, are referred to in the Tribunal’s decision, and cannot, on my assessment, have been of any relevance to the decision making of the Tribunal, the jurisdictional error principles and outcomes disclosed in MZAFZ and Singh, have no practical application in this case. Following the decision in AVO15 at [91], I do not identify any practical injustice on any view. In these circumstances, I am prepared to exercise the Court’s discretion, and refuse relief in the exercise of that discretion.
The First Respondent referred me to BEG15 v Minister for Immigration & Anor [2017] FCAFC 198, in which the Full Court upheld the decision of Judge Smith of this Court in BEG15 v Minister for Immigration [2016] FCCA 278. At present, the Full Court’s decision is on appeal before the High Court (special leave to appeal was granted 10 May 2018). In the absence of a decision by the High Court, the Full Court’s decision remains correct, and in the present circumstances, on the material before me today, is binding on me. It is preferable in the circumstances where the Applicant has expressed confusion about his situation that this matter be finalised.
In sum, on the s.438 certificate matter, no practical injustice is apparent. Whether or not the certificate is valid, there is no utility in granting the relief sought in the circumstances. I conclude that no jurisdictional error is demonstrated by the Tribunal’s non-disclosure of the certificate.
The application should be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 12 June 2018
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