BES17 v Minister for Immigration

[2018] FCCA 3587

FEDERAL CIRCUIT COURT OF AUSTRALIA

BES17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3587

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China – applicant’s claims treated as true but her fear of harm found to be not well-founded – whether the Tribunal complied with ss.438 and 440 of the Migration Act 1958 (Cth) considered – jurisdictional error established.

Legislation:

Evidence Act 1995 (Cth), s.130

Migration Act 1958 (Cth), ss.36, 357A, 359A, 424A, 424AA, 425, 427, 438, 440

Cases cited:

Minister for Immigration v CQZ15 (2017) 253 FCR 1; [2017] FCAFC 194

Minister for Immigration v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration v Singh [2016] FCAFC 183; (2016) 244 FCR 305

MZAFZ v Minister for Immigration [2016] FCA 1081; (2016) 243 FCR 1

NAFF v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1

SAAP v Minister for Immigration (2005) 228 CLR 294

Applicant: BES17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 834 of 2017

Judgment of: Judge Driver

Hearing date: 21 November 2018

Delivered at: Sydney

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr R Chia, pro bono publico

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Minter Ellison

ORDERS

1. A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 20 February 2017 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 834 of 2017

BES17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 February 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of China who on 30 June 2014 applied for a protection visa on the basis of having been forced in February 2014 to undergo an abortion following a pregnancy screening examination.[1]  The applicant, who was 39 at the time and had a five year old daughter, claimed that she was unaware of the pregnancy when she was taken for the screening examination. She claimed that she wished to have a son.

   [1] Court Book (CB) 29-30

4. The applicant did not attend the delegate’s interview. Consequently, the delegate refused to grant the applicant a visa.[2]  The applicant applied to the Tribunal for review of the delegate’s decision.[3]

   [2] CB 51

   [3] CB 72

5. The applicant attended a hearing before the Tribunal on 9 December 2016.[4] During the hearing, the Tribunal raised with the applicant the various concerns it had with her claims and evidence. It put to her the effect of country information that indicated that China had now adopted a universal two-child policy. It further put to her that it was in possession of information that may be the reason or part of the reason for affirming the decision under review. The information in question was subject to a certificate issued by a delegate of the Minister pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act).[5]  That information was put into evidence in this proceeding.[6]

   [4] CB 98

   [5] CB 71

   [6] Affidavit of Jennifer Louise Strugnell made on 17 May 2018 and exhibit JLS1

6. In purported compliance with the procedure in s.424AA, the Tribunal invited the applicant to comment in relation to the information. Having disclosed information under s.438(3) to the applicant, the Tribunal handed the applicant a notice under s.440 in respect of the information.

Tribunal’s decision

1. On 20 February 2017 the Tribunal affirmed the delegate’s decision.[7]

   [7] CB 110

2. The Tribunal found aspects of the applicant’s claims to lack plausibility, in particular noting the “unusual coincidence” that after approximately five years of trying to conceive, the applicant would be asked to undergo only her second ever pregnancy screening at exactly the time that she had just fallen pregnant.[8] The Tribunal found it unusual in the circumstances that the applicant would come to Australia and leave her husband and daughter behind, in respect of which the applicant was unable to provide to the Tribunal a plausible explanation. The Tribunal found the applicant’s evidence to be “very brief and lacking in circumstantial detail” and it questioned whether she was recalling actual personal experiences.[9]  The Tribunal was also concerned about the applicant’s failure to disclose her application to travel to the United States at a time before the claimed events took place.[10]  However, as the applicant’s responses to the Tribunal’s concerns were “reasonable and broadly consistent with her claimed circumstances” it decided not to place weight on the information and was unable to confidently draw the inferences suggested to the applicant at the hearing.[11]  The Tribunal, despite its misgivings about the applicant’s credit, decided to proceed on the basis that the applicant’s claims were true.[12]

   [8] CB 115 at [37]

   [9] CB 115 at [38]

   [10] CB 115 at [39]

   [11] CB 115-116 at [39]

   [12] CB 116 at [40]

3. The Tribunal referred to country information regarding the two-child policy now in operation in China and found that the applicant would now be permitted to have a second child, although she may have to obtain approval to do so.[13]  The Tribunal considered in any event that the prospects of the applicant, in light of her age, falling pregnant again were remote.[14]

   [13] CB 117 at [46]

   [14] CB 116 at [42]

The current proceedings

1. These proceedings began with a show cause application lodged on 21 March 2017.  The applicant now relies upon an amended application filed on 22 August 2018.  There are three grounds in that amended application:

   1.The second respondent (Tribunal) proceeded on the basis of an invalid certificate at Court Book page 71 (Certificate), issued by a delegate of the first respondent purportedly under paragraph 438(1)(a) of the Migration Act 1958 (Act).

   Particulars

   The Certificate did not specify a reason "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".

   It cannot be concluded that invalidity of the Certificate did not affect the conduct of the review.

   2. In the alternative, if the Certificate was not invalid, the Tribunal denied the applicant procedural fairness.

   Particulars

   The Tribunal failed to afford the applicant an opportunity to make submissions on the validity of the Certificate and how its discretions under paragraphs 438(3)(a) and (b) were to be exercised.

   3. Further or in the alternative to 2, the Direction at Court Book page 105 (Direction), purportedly given under section 440 of the Act was invalid.

   Particulars

   The Direction referred to documents on a different file to that referred to in the Certificate.

2. In addition to the court book filed on 21 June 2017, I have before me as evidence the affidavit of Gail Margaret Hargreaves made on 3 August 2018, to which is annexed a transcript of the hearing before the Tribunal on 9 December 2016, and the affidavit of Ms Strugnell made on 17 May 2018, to which was exhibited (in a sealed envelope) the documents the subject of the purported certificate under s.438 of the Migration Act (which is reproduced at CB 71).

3. Both the applicant and the Minister filed pre-hearing submissions in advance of the trial of the matter on 21 November 2018 and made oral submissions through their counsel at the trial.  The Court has been assisted by those submissions and is grateful for the assistance of counsel, in particular the willingness of counsel to appear on a pro bono basis.

Consideration

Applicant’s submissions

1. By her first ground of judicial review, the applicant says that the certificate was invalid and the Tribunal committed jurisdictional error by acting upon it.

2. Section 438 of the Migration Act is entitled “Tribunal's discretion in relation to disclosure of certain information etc” and provides as follows:

   (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)     …

   (2)     …

   (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.

3. In MZAFZ v Minister for Immigration,[15] Beach J held that a purported certificate under s.438 of the Migration Act, equivalent to the certificate in the present case, was invalid and that the Tribunal in that case committed jurisdictional error in acting upon it. In that case, the purported certificate stated that disclosure of information contained in specified folios of the departmental file “would be contrary to public interest because it contains internal working documents”.[16] His Honour held that the words “the basis for a claim by the Crown … in a judicial proceeding that … the information, should not be disclosed” in s.438(1)(a) of the Migration Act was a reference to public interest immunity and that the statement in the purported certificate that the documents were “internal working documents” could, at most, only form part of the basis, and not the basis, for a claim for public interest immunity at common law or under statute.[17]  Notwithstanding the fact that the Tribunal said in its reasons that it “placed no weight” on the documents the subject of the purported certificate,[18] his Honour found that by proceeding or acting on an invalid certificate the Tribunal had, without more, committed jurisdictional error:[19]

   [15] [2016] FCA 1081; (2016) 243 FCR 1

   [16] MZAFZ at [29]

   [17] MZAFZ at [37]

   [18] MZAFZ at [12]

   [19] MZAFZ at [40]-[44]

   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. … 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.

   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.

   But if the Tribunal had realised that the certificate was invalid, it would have had to have undertaken all such steps.

   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 … perhaps as part of ss 425 and 427(1)(c).

   In my view, for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error …

4. The certificate in the present case was relevantly the same as that in MZAFZ in that it simply stated that the documents contained information “relating to an internal working document and business affairs”. This could not be the basis for a claim for public interest immunity at common law or under s.130 of the Evidence Act 1995 (Cth) and could only, at most, be part of the basis for such a claim.  The certificate was therefore invalid.

5. It is to a significant extent for the Tribunal to determine what steps the statutory duty to review requires it to take in any particular case.[20]  However, we do not know how the Tribunal in the present case would have conducted the review if not on the basis that the certificate was valid.  As in MZAFZ, there is no evidence in the present case that consideration was given to whether disclosure of information ought to be made in accordance with s.425 or s.427(1)(c) of the Migration Act. Further, though the Tribunal purported to give information and an invitation to comment at the hearing under s.424AA, we do not know the extent to which the particulars, and the “reasonable practicability” of the explanation, given by the Tribunal at the hearing were affected by the presumption that a valid certificate under s.438 had been issued and there existed prima facie a public interest in non-disclosure.  As the Full Federal Court stated in Minister for Immigration v Singh,[21] even in circumstances where particulars of information are given, the fact remains that the extent of an applicant’s participation in the review is circumscribed by the existence of the certificate, which has the immediate effect of diminishing an applicant’s entitlement to participate fully in the review process.

   [20] See for instance NAFF v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1 at [26]-[27], [30]-[32]

   [21] [2016] FCAFC 183; (2016) 244 FCR 305. The Full Federal Court in Singh was considering ss.359A and 357A of the Migration Act, which are comparable to ss.424A and 438 of the Migration Act

6. The applicant contends that, by proceeding or acting on the invalid certificate, the Tribunal committed jurisdictional error.

7. That the Tribunal in the present case ultimately “decided to proceed on the basis that the applicant’s claims are true” and relied in part upon the country information to conclude that she did not meet the criteria set out in s.36 of the Migration Act does not disentitle her to constitutional writ relief. Both Singh and MZAFZ are cases where relief was granted notwithstanding the fact that the information the subject of the purported certificates under s.438 of the Migration Act was not relevant or not given any weight in the Tribunals’ decisions.

8. By her third ground of judicial review, the applicant says that the direction issued by the Tribunal was invalid and that the invalidity of the direction, alone or in combination with the matters identified in Grounds 1 and 2, amounted to jurisdictional error.

9. Section 438(4) of the Migration Act provides that, if the Tribunal discloses any matter to the applicant under s.438(3), the Tribunal must give a direction under s.440 in relation to the information.

10. Section 440 of the Migration Act is entitled “Tribunal may restrict publication or disclosure of certain matters” and provides for the Tribunal to give a written direction in relation to the publication or disclosure of information before it:

    (1)   If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:

    (a)     any evidence given before the Tribunal; or

    (b)     any information given to the Tribunal; or

    (c)      the contents of any document produced to the Tribunal;

    should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.

    (2)     …

    (3)   A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.

    Penalty:  Imprisonment for 2 years.

11. In the present case, the direction is said to have been invalid because it did not in terms refer to the relevant information.  The direction did not refer to the documents in Exhibit JLS1 to the affidavit of Ms Strugnell but, instead, to folios 65-66 of “DIBP file 1506856”.[22] As such, it cannot have been a direction given “in relation to the information” the subject of the certificate for the purposes of s.438(4) of the Migration Act.

    [22] “1506856” was the Tribunal’s file number

12. In the applicant’s submission, the Migration Act provided that the Tribunal “must” give a “written direction”,[23] and the invalidity of the direction was accordingly capable of amounting to jurisdictional error. However, to the extent that it is relevant, the applicant makes the further observation that the Tribunal’s attempt to explain the direction to the applicant at the hearing did not make good its deficiency. The Tribunal did not identify the correct file number for the documents comprised in Exhibit JLS1. In fact the Tribunal said that the direction related, not to the relevant information, but to the particulars it was going to give under s.424AA of the Migration Act. The Tribunal said it was going to give the applicant a “piece of paper which says that the information which I am about to put to you must not be published or otherwise disclosed …” and then identified the information in terms of the particulars:[24]

    Now the information … is that the Department of Immigration did a search in a database that matches your fingerprints to fingerprints that may have been taken by other countries.  And the searched revealed a match with an application that you appeared to have made to travel to the United States in March 2013.  Now it indicates that you were fingerprinted by the United States representative in Shanghai.

    [23] Sections 438(4) and 440(1) of the Migration Act

    [24] Transcript at page 8, line 25

13. The applicant submits that it was for the Tribunal, in conducting the review, to determine how it would exercise its discretion under s.438(3)(b) in a manner “according to substantial justice and the merits of the case” and, at the same time, fulfil its obligation to “give information and invitation” under s.424A of the Migration Act. At least in the present case, the public interest in not disclosing the information contained in Exhibit JLS1 and the obligation to give clear particulars of information under s.424A needed to be addressed simultaneously. The inference said to necessarily arise from the direction is that the Tribunal intended to disclose to the applicant the source of the information the subject of the certificate and, in particular, the precise location of the documents in Exhibit JLS1 in the Minister’s Department’s files. It may be surmised that disclosing the folio and departmental file number would have assisted the applicant in responding to the invitation given orally under s.424AA or her being afforded procedural fairness in respect of the certificate.[25]  However, in the result, such intentions are said to have been thwarted by the error in the direction, which meant that the correct file number was not disclosed and a valid direction not given.  We do not know that the error did not deprive the applicant of a favourable outcome, however we do know that the error meant that no valid direction was given and the review “followed a procedure contrary to law”.

    [25] For discussion of what the applicant may have done, see Singh at [43]-[45]

1. The applicant also made submissions on an asserted denial of procedural fairness in the event that the Court should conclude that the certificate in issue was not invalid. 

Minister’s submissions

1. In the first and second grounds the applicant contends that the Tribunal made an error of the kind identified in MZAFZ, irrespective of whether the s.438 certificate issued in the present matter was valid, or invalid.

2. The Minister contends that this matter is plainly distinguishable from MZAFZ. First, on the assumption that the certificate was invalidly issued, it is not the case that the Court here must assume that the Tribunal acted on the certificate “in some unspecified” way.[26] The Court in the present case has the benefit of the documents that were the subject of the s.438 certificate. The Court also has the benefit (contrary to the circumstances in MZAFZ) of transparent consideration by the Tribunal of the contents of the information the subject of the certificate. It is therefore said not to be apparent in the present case how 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”.[27]

   [26] cf MZAFZ at [40]

   [27] MZAFZ at [40]

3. Secondly, the Minister contends that it cannot be said, as was the case in MZAFZ, that it is not apparent whether the Tribunal turned its mind to its potential disclosure obligations under s.424A(1); the Tribunal engaged in the relevant disclosure.[28]

   [28] CB 114-115 at [33], cf MZAFZ at [41]

4. Thirdly, the Minister submits that it is unnecessary for the Court to speculate as to whether the Tribunal might have considered the documents the subject of the certificate to have supported the applicant’s protection claims.[29]  That is because the Court can view for itself the information the Tribunal had, and it can assess for itself the consideration the Tribunal plainly gave the documents when it disclosed the substance of the information to the applicant during the hearing.[30] The Tribunal, based upon the applicant’s consistent responses to its invitation to comment under s.424AA, found in respect of the proposed travel to the United States that it was “unable to confidently draw the inferences suggested to the applicant at the hearing” and it gave no weight to the information.[31]  It proceeded on the basis that the applicant’s claims were true.[32]  On the basis that the Minister accepts the certificate was invalidly issued,[33] in his submission, no jurisdictional error arose.

   [29] cf MZAFZ at [42]

   [30] CB 114-115 at [33]

   [31] CB 116 at [39]

   [32] CB 116 at [40]

   [33] MZAFZ at [36]-[37]

5. Further, the Minister submits that even if the certificate was validly issued in the present case, the Tribunal disclosed the existence of the s.438 certificate to the applicant, and the applicant therefore had an opportunity to challenge the validity of the certificate if she so chose. The relevance of the information was explained to the applicant, and the substance of its contents were disclosed. Accordingly, no procedural unfairness arose. The Court may have regard to the contents of Exhibit JLS1 to determine that the applicant was not denied practical injustice in the present case.[34] The applicant has not explained in what way she suffered a denial of procedural fairness as a consequence of the issue of the s.438 certificate in circumstances where the Tribunal disclosed the existence of the certificate and the substance of its contents to the applicant and engaged in disclosure procedures pursuant to s.424AA of the Migration Act.

   [34] Minister for Immigration v CQZ15 (2017) 253 FCR 1; [2017] FCAFC 194; Minister for Immigration v WZARH (2015) 256 CLR 326; [2015] HCA 40

Ground 3

1. The applicant separately contends that the issue of the s.440 direction issued by the Tribunal had the effect of causing jurisdictional error in the Tribunal’s decision. The applicant cannot point to any authority in support of this contention. The Minister submits that it should not readily be accepted that, even assuming the s.440 notice[35] was invalid or deficient in some respect, that the consequence would be to invalidate the Tribunal’s decision.

   [35] CB 105

2. The issue of the s.440 direction arose consequentially upon the disclosure of some matter contained in the documents or information referred to in the s.438 certificate.[36] That is to say, the prohibition on publishing or disclosing of the relevant information affected by the issue of the s.440 direction arises following disclosure of the relevant information to an applicant. To the extent the applicant here suggests that disclosure of parts of the information referred to in the s.438 certificate was thwarted by the s.440 direction, this is said to mistake the purpose and effect of the s.440 direction, and its timing.

   [36] Section 438(3) and s.438(4)

3. The Minister submits that the only consequence of the invalidity of a s.440 direction would be that the direction itself was never given, and that therefore the applicant might act with impunity if she disclosed or published the information disclosed to her by the Tribunal. The Minister submits however that a mistaken reference in the s.440 direction itself is not sufficient for the direction to be rendered null. Critically, the validity of the direction cannot have, and did not, impact on the conduct of the review.

Resolution

1. The Minister conceded at the trial of this matter that the certificate in issue is invalid.  That is plain on the face of the certificate reproduced at CB 71, given that the only justification for the certificate was the purported impact on the public interest because the documents in issue related to an internal working document and business affairs of the Minister’s Department.

2. That is not to say, however, that a valid certificate under s.438 could not have been issued. The confidential exhibit contains an important note that, if information had been provided by the US Department of State and contains US visa application data, the Minister’s Department is not permitted to disclose the specific information or the source to a visa applicant or detainee. There is also mention of a process for seeking consent to disclosure from the US authorities. It would seem to follow that, if information is provided to the Australian authorities by the US authorities subject to an obligation of confidence, that obligation could support the issuing of a certificate. That was not, however, the basis upon which the certificate in question was issued.

3. I find that the certificate is invalid.

4. The Minister also conceded at the trial that the Tribunal acted upon the invalid certificate as if it were valid.  That is plain from the transcript of the Tribunal hearing.

5. The hearing commenced with the member making her standard introductory comments and asking the applicant to provide details of her family members and work history in China.[37] 

   [37] Transcript at pages 1-4

6. The member then asked the applicant about why she left China and about her claims for protection.  The Tribunal asked the applicant if she had any problems in China prior to 2014, to which the applicant responded that her “life was quite good”;[38] and the Tribunal asked the applicant if she had ever applied to travel to any other country and the applicant replied “Yeah, I went to Singapore and Malaysia” and not anywhere else.[39]  The Tribunal then put to the applicant “country information and changes in the policy in China [to the effect that] a two-child policy was introduced in January 2016, and as of … April 2016 … implemented in a number of provinces including Hubei”.[40]

   [38] Transcript at page 6, line 20

   [39] Transcript at page 6, line 22

   [40] Transcript at page 7

7. Relevant to the applicant’s grounds of judicial review, the member then proceeded to put to the applicant “information” purportedly in compliance with s.424AA of the Migration Act:[41]

   Tribunal Member:     

   [41] Transcript at page 8, line 10 and following

   Now, I would also just like to discuss with you some information from the Department file that I think would be the reason or part of the reason for affirming the decision to refuse to grant you the protection visa. … Ok, so the information that I would like to discuss with you is covered by a certificate which says that I can only disclose it to you if you are directed not to disclose that information further except as is required for this application.  So, I am going to give you this piece of paper which says that the information which I am about to put to you must not be published or otherwise disclosed except for the purposes of as is required in relation to this application.  Ok now a breach of this direction is an offence and the penalty is imprisonment of up to 2 years so it is important that you abide by this direction.  So, I am just going to pass that over to you now.  Now the information that I would like to put to you is that the Department of Immigration did a search in a database that matches your fingerprints to fingerprints that may have been taken by other countries.  And the searched revealed a match with an application that you appeared to have made to travel to the United States in March 2013.  Now it indicates that you were fingerprinted by the United States representative in Shanghai

   Interpreter:  

   I didn’t go to the United States

   Tribunal Member:

   The reason that I think that this information is relevant to my information is because it indicates that you made an application to go the United States in 2013 about a year before you were forced to undergo an abortion. 

   Interpreter:  

   Yes

   Tribunal Member:

   Ok, sorry I will just finish this and give you time to respond.  Your evidence has suggested that before 2014 you didn’t have any problems in China and you hadn’t thought about leaving.  I also asked you if you had ever applied to travel to any other country and you mentioned Singapore and Malaysia but you didn’t mention the United States.  … If I rely on this information I may find that the information you have provided to me today about your previous applications to travel out of China is misleading.  The information also casts doubt over your claims insofar as you have appeared to have applied to leave China and go to the United States a year before you had any problems according to your evidence.  If I happen to make those findings I may as a consequence not be satisfied that you meet the criteria for a protection visa.  Ok, so is everything I have said to you clear and would you like to comment on or respond to that information and I will just let you know that if you need additional time you can ask me for more time.  Ok, so is there anything you would like to say now?

   Interpreter:  

   It was during that time I was invited by a female friend to travel to work in the [United] States since my daughter is old enough.  She was approved but I was not approved.  So, during this stage I, my thinking is I wanted to have a tour and it was rejected and I was very disappointed at the government.

   Tribunal Member:

   Do you need any additional time to comment on all of the [indecipherable] information.

   Interpreter:  

   Respond to what?

   Tribunal Member:

   Just the information about your application to the United States.

   Interpreter:  

   At that time I was planning to work with my friend and I had no idea that it would be denied.

8. The “piece of paper” referred to by the Tribunal and handed to the applicant (direction) states:[42]

   Being satisfied that it is in the public interest, the Tribunal, pursuant to s.440(1) of the Migration Act 1958, directs that the evidence and information at folios 65-66 of DIBP file 1506856, must not be published or otherwise disclosed except for the purposes of, or as required in connection with, the present review application.

   [42] CB 105

9. The “certificate” referred to by the Tribunal was a certificate, purportedly issued under s.438 of the Migration Act which states:[43]

   [43] CB 71

   CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s 438 OF THE MIGRATION ACT 1958

   I certify that paragraph 438(l)(a) of the Migration Act 1958 applies to the information in folios inclusive of file number CLF2014/91695

   The disclosure of this information would be contrary to the public interest because:

   (a) folios 65-66 inclusive contain information relating to an internal working document and business affairs.

   The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.

10. “Folios 65-66” of the departmental file “CLF2014/91695” have been reproduced in Exhibit JLS1 to the affidavit of Ms Strugnell.

11. The Minister does not concede that the purported direction under s.440 of the Migration Act is invalid. That is said to be because there is no obligation on the Tribunal to give reasons for the issuing of a direction and it cannot be assumed that the only reason for the issuing of the direction was the invalid certificate. I do not accept that submission. It is clear enough from the transcript that the Tribunal considered that because of the certificate it was compelled to issue the direction. There is no indication of any other consideration being given by the Tribunal to issuing the direction and neither is there any intelligible justification for the direction, apart from the certificate.

12. I conclude that the direction is also invalid.

13. Much of the submissions made by the parties centred upon whether any practical unfairness flowed from the issuing on the invalid certificate, the Tribunal treating the certificate as valid and the issuing of the purported direction.  In the present case, the documents purportedly covered by the certificate were highly relevant to the applicant’s claims for protection and the Tribunal’s consideration of them.

14. The Tribunal said at [37]-[38] that it had “some difficulty accepting the applicant’s claims as credible” and aspects of her evidence “lack plausibility”, noting that, after attempting for five years, the applicant claimed to have fallen pregnant at the exact time of the pregnancy screening and also that, at a time when she was wanting to have a second child, she had left her husband and daughter to come to Australia.  The Tribunal also found the applicant’s evidence to be lacking in detail and that her “general demeanour” was not genuine.

15. The Tribunal continued:[44]

    The Tribunal also remains somewhat troubled by the applicant’s failure to disclose, when asked, her application to travel to the United States. The Tribunal has some concern that this information suggests that the applicant was seeking to depart China for a western country before the claimed events took place. The applicant's explanation when responding to the information put to her under s.424AA was, however, reasonable and broadly consistent with her claimed circumstances. As such, the Tribunal has decided not to place weight on the information and is unable to confidently draw the inferences suggested to the applicant at the hearing.

    [44] CB 115 at [39]

16. The Tribunal said that, notwithstanding its concerns, it was “unable to find with confidence that the applicant was not forced to undergo an abortion by family planning officers” and “decided to proceed on the basis that the applicant’s claims are true”.[45]  However, the Tribunal held that if the applicant were to again fall pregnant it would not be a breach of China’s family planning policy.  It referred to country information from the United States Congressional-Executive Commission on China and Canadian Immigration and Review Board to the effect that a “two-child policy” had been introduced in China and found that “the applicant would now be permitted to have a second child although she may have to obtain approval to do so”.[46]

    [45] CB 116 at [40]

    [46] CB 116-117 at [43]-[46]

17. There is no doubt in my mind that the information contained in the documents the subject of the purported certificate required disclosure to the applicant under s.424A (or s.424AA). The Tribunal at the hearing, purported to go through a process of oral disclosure under s.424AA.

18. It is well accepted that any breach of s.424A is a jurisdictional error.[47] A breach of s.424AA has the same consequence, albeit indirectly, because if s.424AA is not met, then s.424A must be. The unusual question in this case is whether a jurisdictional error necessarily flows from the intrusion into that obligatory process of disclosure, of an invalid certificate treated as valid and an invalid direction. In my view, it does. The invalid certificate circumscribed the Tribunal’s obligation of disclosure once the Tribunal treated it as valid. Moreover, the invalid direction purported to circumscribe what the applicant could do with the information provided. Even though the direction was inoperative, it is fair to assume that that the applicant considered she was bound by it. In my view, if the obligation of disclosure under s.424A (or s.424AA) is impacted by the intrusion of an invalid certificate treated as valid and an invalid direction, the process of disclosure is contaminated and a conclusion of jurisdictional error should result.

    [47] SAAP v Minister for Immigration (2005) 228 CLR 294 at [77] per McHugh J, at [173] per Kirby J, and at [208] per Hayne J

Conclusion

1. The applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error.  She should relieve the relief she seeks.

2. I will hear the parties as to costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  21 December 2018