BHE15 v Minister for Immigration and Border Protection
[2019] FCA 1357
•27 August 2019
FEDERAL COURT OF AUSTRALIA
BHE15 v Minister for Immigration and Border Protection [2019] FCA 1357
Appeal from: BHE15 v Minister for Immigration and Border Protection [2016] FCCA 1914 File number: NSD 1345 of 2016 Judge: STEWART J Date of judgment: 27 August 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing application for judicial review of decision of Refugee Review Tribunal not to grant protection visa – where Minister issued a certificate under s 438 of the Migration Act 1958 (Cth) that disclosure of certain information to the appellant against the public interest – where Tribunal did not disclose the existence of the certificate to appellant – whether non-disclosure of s 438 certificate gave rise to procedural unfairness – whether non-disclosure gave rise to jurisdictional error – whether the Tribunal erred in having regard to inconsistencies in the applicant’s evidence given at the hearing before a previous differently constituted Tribunal –– no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 424A, 438 Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Date of hearing: 20 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Counsel for the First Respondent: T Liu Solicitor for the First Respondent Clayton Utz Counsel for the Second Appellant: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1345 of 2016 BETWEEN: BHE15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWART J
DATE OF ORDER:
27 AUGUST 2019
THE COURT ORDERS THAT:
1.The notice of appeal filed on 16 August 2016 is dismissed.
2.The applicant pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
Introduction
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC) reported as BHE15 v Minister for Immigration and Border Protection [2016] FCCA 1914. The FCC on 26 July 2016 dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal on 9 June 2015. The Tribunal’s decision was to affirm a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.
The hearing of the appeal in this Court was delayed pending the decision of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599.
Background
The appellant is a citizen of Bangladesh who claims to fear harm due to his political affiliation. He applied for a protection visa in November 2012.
On 2 July 2013, the delegate refused to grant the appellant a protection visa. The appellant applied for merits review of the delegate’s decision to the Tribunal.
Initially, on 3 June 2014 the Tribunal affirmed the delegate’s decision. However, the appellant applied for judicial review and the matter was remitted to the Tribunal by the FCC by consent on 15 October 2014 on the basis that the Tribunal had failed to consider three references provided by the appellant.
On 9 June 2015, a differently constituted Tribunal affirmed the delegate’s decision.
The Tribunal’s decision
The Tribunal’s reasons set out, in summary, the details of the appellant’s original application for a protection visa, the details of the appellant’s hearing before the first Tribunal, the details of documents submitted by the appellant to the first Tribunal, and the details of the appellant’s hearing before the second Tribunal.
The Tribunal recorded that the appellant claims to fear harm in Bangladesh on the basis of his political opinion as a member and supporter of the Bangladesh National Party (BNP) at the hands of members or supporters of the Awami League and the authorities, in particular the police and the Rapid Action Battalion. He claimed to fear that in those circumstances, he will suffer significant harm such that he meets the criteria for protection under either Australia’s obligations under the Refugees Convention or complementary protection arrangements.
The Tribunal stated that it had “strong doubts as to the credibility” of the appellant’s claims to fear harm in Bangladesh. The Tribunal then set out reasons for those doubts. They include that there are inconsistencies in the appellant’s evidence about his alleged political activities in Bangladesh which cast strong doubt on his claim to have been a BNP activist and leader, and much of his evidence about the incidents of harm he claims to have suffered in Bangladesh appears unlikely. In each case, the Tribunal analysed the appellant’s evidence in detail so as to justify the conclusions that it reached.
The FCC
The appellant asserted three grounds of review before the FCC, namely:
(1)The Tribunal erred in law in not disclosing information obtained from the previous Tribunal proceeding in breach of s 424A of the Migration Act 1958 (Cth);
(2)The Tribunal incorrectly applied country information to determine ‘bogus’ documents; and
(3)The Tribunal used bad faith in the appellant’s case.
The primary judge understood the first ground to assert that the inconsistencies arising from the appellant’s evidence at the hearings before the first Tribunal and the second Tribunal relied on by the second Tribunal was information that should have been given to him for comment pursuant to s 424A of the Act. In that regard, s 424A of the Act provides that subject to certain exceptions the Tribunal must give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.
The primary judge dismissed this ground with reference to a number of authorities, including Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9], [50] and [77], on the basis that inconsistencies that arise from information provided by an appellant at subsequent Tribunal hearings does not constitute information that enlivens any obligation under s 424A of the Act.
With regard to ground 2, the appellant asserted that in rejecting two letters from BNP leaders in Australia that he had submitted to the second Tribunal, the second Tribunal referred to country information that indicated that ‘bogus’ documents were readily available in Bangladesh. He asserted that it was not open to the second Tribunal to use such country information in respect of the letters that were authored by two people in Australia.
The primary judge dismissed this ground on the basis that the second Tribunal did not rely on the identified country information in respect of the two letters that the appellant provided from people in Australia; the second Tribunal separately determined on the evidence and material before it, and for the reasons given by it, that it could not place weight on the content of either of the letters originating in Australia. On that basis, ground 2 was rejected.
With regard to ground 3, the appellant asserted that the Tribunal summarily rejected all claims made by him, and that a thorough examination of the Tribunal proceeding would establish bad faith on the part of the Tribunal. The primary judge analysed the Tribunal’s reasons and rejected ground 3, concluding that the second Tribunal’s findings were open to it on the evidence and material before it, including its adverse credibility findings.
The appeal
The appellant was unrepresented in the appeal. His grounds of appeal are in the following terms:
1.The Honourable Federal Circuit Court erred in failing to find that the second respondent failed to afford procedural fairness to the appellant.
2.The Honourable Federal Circuit Court erred in failing to find that the second respondent failed to afford the appellant natural justice.
3.The Honourable Federal Circuit Court erred in failing to find that the second respondent failed to disclose information to the appellant under s 424A of the Migration Act 1958.
In the appeal proceeding, the Minister filed and served an affidavit by their solicitor which exhibits some documents. The first is dated 22 October 2014, i.e. between the decisions of the first Tribunal and the second Tribunal, and is directed to the Tribunal by a delegate of the Minister. It is stated to be a certificate in terms of s 438(1)(b) of the Act. It refers to particular information and states that this information should not be disclosed to the appellant or the appellant’s representative because it contains information relating to an internal working document and business affairs and its disclosure would be contrary to the public interest.
The other exhibited documents are the documents said to be covered by the certificate. I will return to their nature shortly.
Appeal grounds 1 and 2: procedural fairness and natural justice
It is convenient to deal with appeal grounds 1 and 2 together since they substantially overlap.
I asked the appellant to explain, or identify, in what respect he says that the Tribunal failed to afford him procedural fairness or natural justice. He was unable to assist. He did, however, confirm on being prompted by me that I should consider a complaint that he was not notified of the existence of the s 438 certificate or the documents covered by the certificate before the Tribunal, and that that constituted a breach of the Tribunal’s procedural fairness or natural justice obligations towards him. The appellant did not assert any other natural justice breach, such as bias.
The effect of s 438 of the Act is that if the Minister has certified, in writing, that the disclosure of any matter contained in an identified document, or the disclosure of identified information, would be, relevantly, contrary to the public interest and the Secretary notifies the Tribunal thereof, the Tribunal may have regard to any matter contained in the document or the information and may, if the Tribunal thinks it appropriate to do so, disclose any matter contained in the document, or the information, to the visa applicant.
The decision of the High Court in SZMTA (particularly at [2], [27], [29], [38] and [45] per Bell, Gageler and Keane JJ), establishes that a Tribunal’s failure to disclose to the visa applicant that it has been notified by the Secretary of a s 438 certificate constitutes a breach of the Tribunal’s obligation of procedural fairness. However, this constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal, and thereby deprives the applicant of the possibility of a successful outcome, i.e. if it could realistically have resulted in a different outcome.
Where the certificate that is notified to the Tribunal is invalid, that constitutes a breach of the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review: SZMTA at [44]. Such a breach will amount to jurisdictional error if it deprived the applicant of the possibility of a successful outcome in the sense that there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account: SZMTA at [3] and [48].
The question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof; like any ordinary question of fact, it is to be determined by inferences drawn from the evidence adduced on the application: SZMTA at [46].
The appellant confirmed that he had previously received the affidavit and the attached s 438 certificate and documents. I offered him the opportunity to further consider the documents while the Court stood down for a period of time and to then make submissions to me on whether, if he had had the documents before the Tribunal made its decision, he might have said something to the Tribunal that could have caused the Tribunal to reach a different decision. The appellant, however, declined that opportunity and said that the documents said to be covered by the s 438 certificate did not deal with the reasons why he claimed to not be able to safely return to Bangladesh.
The first document covered by the certificate is a chain of emails between 8 and 14 October 2014. The emails are between officers of the Department of Immigration and Border Protection concerning whether or not the Minister should concede the first review to the FCC, i.e. the review of the first Tribunal’s decision. They also concerned the appropriate orders that should be made by consent in the FCC.
These emails are entirely irrelevant to the second Tribunal’s reasons. Disclosure of them to the appellant could not possibly have led to a different conclusion by the second Tribunal. Also, if the Tribunal had taken them into account that could not possibly have led to a different decision.
The next document is headed “Matter Details Summary” and is dated 15 October 2014. It appears to record formal matters with regard to the first review to the FCC. It contains nothing of substance with regard to the appellant’s application for a protection visa. Like the first document, disclosure of it to the appellant before the second Tribunal’s decision could not have had any influence on the outcome of that decision, and if the second Tribunal had taken into account that also could not possibly have led to a different outcome.
The final document is an email from an officer of the Department to another officer of the Department dated 16 October 2014. It records that the decision of the first Tribunal was set aside in the FCC and that the matter will be referred to the Tribunal for reconsideration. Similarly, it is a formal document that is not relevant in any way to the second Tribunal’s reasons. Disclosure of it to the appellant prior to the decision of the second Tribunal, or consideration of it by the second Tribunal, could not possibly have resulted in a different outcome.
In the circumstances, grounds 1 and 2 of the appeal must fail.
Appeal ground 3: s 424A of the Migration Act 1958.
The appellant confirmed to me that his complaint in relation to this provision is the same complaint that he raised in the FCC, namely that the Tribunal used information obtained from the previous Tribunal proceeding to affirm the decision under review without disclosing that information to the appellant.
For the reasons given by the primary judge, this ground must also fail – SZGUR determines this point against the appellant.
In the circumstances, appeal ground 3 must also fail.
Conclusion
The appellant submitted before me that he faced real problems in returning to Bangladesh, and explained that he would not have remained in Australia for seven years with his family in Bangladesh if he could safely return there. He submitted that his case is genuine and that everything that he told the Tribunal is the truth. He said that the Tribunal did not listen to him, that others in a similar position to him have been given protection, and that the Tribunal did not consider his case properly. He asked me to review his case.
I explained to the appellant that it is not the role of the Court to decide the merits of his case, but rather to check that the Tribunal acted within the requirements that the law imposes on it. As indicated, I have reviewed the record including the reasons of the Tribunal and the judgment of the FCC. I can find no jurisdictional error by the Tribunal and no appealable error by the FCC.
For the above reasons, I conclude that the appeal must be dismissed with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart. Associate:
Dated: 27 August 2019
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