BIE15 v Minister for Immigration and Border Protection
[2016] FCCA 2978
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIE15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2978 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a Protection visa – whether there was before the Tribunal a distinct claim which the Tribunal failed to consider – whether the Tribunal acted unreasonably or illogically by drawing adverse inferences about the applicant’s credibility because the applicant did not include in an application for Ministerial intervention a matter on which the applicant had relied in a previous application for a Protection visa – whether Ministerial Guidelines for dealing with requests under s.48B of the Migration Act 1958 (Cth) (Act) were a consideration the Tribunal was required to take into account when assessing the applicant’s claims for protection – whether a certificate purportedly issued under s.438(1)(a) of the Act was invalid – whether the Tribunal acted or proceeded on the certificate – whether the Tribunal was required to give the applicant notice of the certificate and invite the applicant to make submissions about its validity and about whether the Tribunal should exercise its discretion to disclose to the applicant the information covered by the certificate – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2(2), 33(2A) Migration Act 1958 (Cth), ss.5, 5(1), 36(2)(aa), 48A, 48B, 414(1), 418, 418(3), 422B, 424, 424AA, 424A, 424A(1), 424A(3)(a), 424A(3)(b), 424A(3)(ba), 424A(3)(c), 425, 427(1)(c), 430, 438, 438(1), 438(1)(a), 438(1)(b), 438(2), 438(2)(b), 438(3), 438(3)(a), 438(3)(b), 438(4), 440, 440(1) |
| Cases cited: BJD16 & Ors v Minister for Immigration & Anor [2016] FCCA 2537 Jacobsen v Rogers (1995) 182 CLR 572 Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 SZTIF v Minister for Immigration & Anor [2014] FCCA 945 |
| Applicant: | BIE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1920 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 October 2016 |
| Date of Last Submission: | 28 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie of Dobbie and Divine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1920 of 2015
| BIE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(as corrected)
Introduction
The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) Visa (Protection visa).
Background
The applicant is a citizen of Nepal. She first entered Australia on 16 October 2004, and applied for a Protection visa on 12 November 2004.
In her application for a Protection visa (first Protection visa application), the applicant claimed she feared persecution from Maoists and Nepalese authorities.[1] The applicant claimed she and her husband were teachers. A few years before she made her first Protection visa application, Maoists intimidated, harassed, and threatened the applicant and her husband because they refused the Maoists’ demand that they teach Maoist principles in school. Maoists attacked the applicant and her husband in their home, and the Maoists abducted the applicant’s husband. The husband’s whereabouts are not known. The applicant went to the police and authorities for help, but to no avail. The Maoists discovered the applicant went to the police and authorities, after which the applicant received threats of harm to her and to her son. The applicant moved to Kathmandu with her son, where she remained for a year before she departed for Australia.
[1] CB25-27
A delegate of the Minister refused the first Protection visa application, and the Tribunal affirmed the delegate’s decision.
By letter dated 27 August 2008 the applicant, through her legal representative, made a request to the Minister under s.48B of the Migration Act 1958 (Cth) (Act).[2] That request was supported by a statutory declaration made by the applicant.[3] In that statutory declaration, the applicant claimed she arrived lawfully in Australia on 16 October 2004 seeking refugee status because she could not stay in Nepal “due to my turbulent relationship with my husband as well as the Maoists’ threats against my life and liberty”. The applicant claimed she married a person of different caste, she and her husband worked as teachers, and the applicant fell pregnant. Her husband wanted the applicant to terminate the pregnancy, but, after the applicant refused, the applicant’s husband started being violent towards her. After the applicant’s son was born, the applicant’s husband refused to act as a father. The husband treated the applicant inhumanely; he physically and sexually abused the applicant. The applicant claimed she suffered domestic violence at the hands of her husband and her husband’s family. The applicant referred to her having made the first Protection visa application, that her migration agent was Nepalese, and that the applicant did not disclose “this information to the agent because he is Nepalese and it would be a matter of shame for my reputation as a married woman with a son”.[4]
[2] CB60-61
[3] CB67-69
[4] CB68, [11]
The applicant’s request under s.48B of the Act was refused.
On 23 February 2013 the applicant filed a further application for a Protection visa. The applicant was entitled to do that because of the Full Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship.[5] In the application form, the applicant said she feared that Maoists will harm her because of her political opinion against them, and because she supported the Monarchy. The applicant also said “detailed statement to follow”. The detailed statement was provided in the form of a letter dated 23 April 2014 addressed “To Whom It May Concern” (Statement).[6]
[5] [2013] FCAFC 71
[6] CB122-125
The applicant made the following claims in the Statement. In 1993 the applicant married a person of another caste without the approval of her or her husband’s parents. The applicant’s parents expelled her from her family, and her husband’s family did not accept her as a daughter-in-law. The applicant was subjected to verbal abuse by her parents-in-law and her parents. The applicant suffered domestic violence from her husband’s family. The applicant and her husband “moved out of the house and the village” and lived in Myagdi, where they worked as teachers in the same school. In 1994 the applicant gave birth to a son. With the commencement of the People’s War in February 1996, the authorities and the Maoists killed, detained, and tortured many people. The applicant and her husband supported the monarchy. The Maoists demanded the applicant and her husband teach their students “Maoist instructions”, but the applicant and her husband refused. The Maoists consequently abducted the applicant’s husband in September 2003. The applicant reported the abduction to the authorities, but the applicant received no help; the authorities assumed the applicant’s husband voluntarily joined the Maoists. 10 to 12 days after her husband was abducted, the applicant moved to Kathmandu with her son to avoid the Maoists. The applicant did not work, but her brother, who lived in the United Kingdom, helped with the applicant’s living expenses. The applicant left Nepal on 15 October 2004, leaving her son in the care of a friend in Kathmandu.
The applicant made the following additional claims in the Statement. After two years in Australia, the applicant fell in love with a Nepalese friend. The applicant accidentally fell pregnant. The applicant’s friend “deceived and ditched me in early 2007 and went to Nepal after I got pregnant”. And the applicant terminated her pregnancy. The applicant stated:
I am under appalling and traumatic circumstances that I cannot go to Nepal because of fear of being seriously harmed, possibly killed in accusation of infidelity. I know my in-laws and relatives just cannot get it out of their head that I am an infidel and no matter what I say, how I behave, they do not believe me at all. In my Nepalese society, my life as a woman is always at the mercy of male. So much of what I have faced in my life is out of my control. My parents and relatives would see me as an outcast and would ignore me.
In addition, in a passage on which the applicant particularly relies in the proceeding before me, the applicant stated (emphasis added):
My in-laws and relatives will hold me responsible for my husband’s disappearance. This also causes me severe mental anguish. Having stayed here in Australia without a family member for more than 9 years despite of being a married woman with son I would be considered as infidel, so I hold a grave fear that I will be tortured and killed if I am forced to go back to Nepal. Mothers like me have a moral responsibility to look after a child well.
Tribunal’s decision
The Tribunal did not believe the applicant was “being truthful as to having faced the difficulties she claims in Nepal”; and the Tribunal did not find the applicant “to be a credible, truthful and reliable witness as to the reasons she claims she left Myagdi and travelled to Kathmandu and then to Australia”. The Tribunal found the applicant “fabricated claims and concocted evidence to achieve an immigration outcome”.[7] Given the applicant only challenges discrete aspects of the Tribunal’s decision, it is not necessary to set out all the reasons on which the Tribunal relied for finding the applicant lacked credibility. I will deal with the relevant aspects of the Tribunal’s reasons as I consider each of the grounds of application on which the applicant relies.
[7] CB206, [47]
Ground 1
The first ground of application contained in her further amended application is as follows (emphasis added):
The Second Respondent committed jurisdictional error by failing to consider a claim made by the Applicant.
Particulars:
(A)The Tribunal failed to consider a claim made by the Applicant:
(i)The Applicant made the following claim in her statement dated 23 April 2014, given in support of the visa application:
Having stayed here in Australia without a family member for more than 9 years despite of being a married woman with son I would be considered as infidel, so I hold a grave fear that I will be tortured and killed if I am forced to go back to Nepal. Mothers like me have a moral responsibility to look after a child well. (CB124)
(ii)The Tribunal did not consider that claim, thereby committing jurisdictional error.
The applicant relies on the following passage from the Tribunal’s reasons:[8]
[The applicant] claims she would be considered an infidel for living in Australia for nine years as a married woman with a son in Nepal and holds grave fears she will be tortured and killed if forced to return to Nepal.
[8] CB201, [27]
The applicant submits this passage omits the words “without a family member”, being the words I have highlighted in the passage from the Statement I have reproduced in paragraph 10 of these reasons. The applicant submits these words raise a distinct claim which the Tribunal did not consider.
The Minister submits the words “without a family member” were intended to refer to the applicant’s son whom the applicant left in Nepal; and that the applicant’s claim, therefore, referred to the applicant’s claiming that she would be treated as an infidel because she travelled to Australia while leaving her son behind in Nepal. Whether or not, however, that is the true construction of what the applicant claimed is not the relevant question. What is relevant is whether the Tribunal read the applicant’s claim that contained the words “without a family member”; if so, what meaning the Tribunal gave to the applicant’s claim; whether the meaning the Tribunal gave to the applicant’s claim was a meaning that it was reasonably open to it to give; and whether the Tribunal considered the claim.
In determining these questions, it is necessary to refer to that part of the Tribunal’s reasons that describe and deal with the applicant’s claim. I have already set out the Tribunal’s description of the applicant’s claim in paragraph 13 of these reasons. The Tribunal dealt with the claim in the following passage:[9]
Further based on her lack of credibility and lack of evidence in this regard the Tribunal is not satisfied she will be considered an infidel as she has lived in Australia for 11 years as a married woman with a son in Nepal and will be tortured and killed as a result.
[9] CB209, [63]
It is apparent the Tribunal interpreted the applicant as claiming she would be considered an infidel because she has lived in Australia for eleven years as a married woman with a son in Nepal. The effect of the Tribunal’s description of the applicant’s claim is not only one that is, or can reasonably be considered to be, consistent with the effect of the words by which the applicant stated her claim; in my opinion, the effect of the Tribunal’s description is or may reasonably be regarded as equivalent to the effect of the words by which the applicant described her claim, even though the Tribunal did not use the words “without a family member” when describing the applicant’s claim.
The Tribunal’s noting that the applicant claimed she has lived in Australia for 11 years as a married woman with a son in Nepal necessarily implied that which the applicant expressly claimed, namely, that she has lived in Australia during that time “without a family member”. That implication arises from the applicant’s not claiming she has lived in Australia with a family member; and there is nothing to suggest the Tribunal was of the view the applicant claimed she lived in Australia with a family member, or that the Tribunal found or assumed that the applicant lived in Australia with a family member. Further, the applicant did not claim that her fear of being regarded an infidel in Nepal because she was living in Australia without a family member depended on her having lived in Australia without a family member of a particular type, such as a husband, or an uncle, or a sister, or a child. Her claim was that she would be treated as an infidel simply because she has been living in Australia without a family member. That, on a fair reading of the Tribunal’s decision, is the claim the Tribunal considered and rejected.
To the extent the applicant contends the words “without a family member” raised a distinct claim that went beyond a fear of being considered an infidel based only on her having lived in Australia without a family member, the applicant did not articulate in this Court the nature of the claim she contended arose on the material that was before the Tribunal; nor did she identify the material that was before the Tribunal that could reasonably have been considered by the Tribunal as giving rise to any such distinct claim. In my opinion, there is nothing in the Statement, or in the material that was before the Tribunal, that could reasonably have suggested to the Tribunal that the applicant made any claim based on anything more than her living in Australia without a family member.
I am of the opinion, therefore, that the Tribunal did consider the applicant’s claim based on the assertion that she has been living in Australia for eleven years without a family member; and if the applicant contends there was before the Tribunal a claim which was based on something more than the bare fact that she was living in Australia without a family member, such claim was not expressly advanced before the Tribunal, and did not arise, or cannot reasonably be taken to have arisen, on the material that was before the Tribunal. Ground 1, therefore, fails
Ground 2
The second ground is as follows:
The decision of the Second Respondent is unreasonable or illogical or irrational.
Particulars:
(A)The Tribunal’s decision is infected with jurisdictional error because it is unreasonable, illogical or irrational:
(i)The Tribunal stated:
For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to the reasons she claims she left Myagdi and travelled to Kathmandu and then to Australia. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. (CB206 at [47])
(ii)One of the reasons relevant to the Tribunal’s finding stated at [47] above is that she
Further despite claiming she fears return because her and her husband were Monarchists and refused to teach the students about the Maoist instruction, as I raised with her, via the process outlined in s424AA, firstly, she did not indicate her husband was abducted in her statutory declaration for Ministerial intervention made on 27 August 2008 for these reasons, rather claiming she feared return from him as he physically and sexually assaulted her. (CB206 at [46])
(iii)The Ministerial intervention referred to by the Tribunal was the request made by the Applicant, pursuant to s48B of the Act, on 27 August 2008 (CB60-70).
(iv)Subsections 48A(1) and 48B(1) of the Act relevantly provided:
. . . .
(v)The Minister’s Guidelines in relation to s48B relevantly provided:
. . . .
(vi)The Tribunal required the Applicant to make a particular claim under s48B of the Act (namely, that her husband had been abducted by the Maoists) when the Minister’s Guidelines prohibited the consideration of such a claim for the purposes of s48B of the Act, it having been raised in the Applicant’s first Protection visa application (made on 12 November 2004). In those circumstances, and given that the Applicant’s failure to raise that claim went to the Tribunal’s adverse assessment of the Applicant’s credibility and her claims, it is submitted that the Tribunal’s decision was unreasonable, illogical or irrational. As such, the decision is infected with jurisdictional error.
The applicant submits it was irrational or unreasonable or illogical for the Tribunal to treat as a matter adverse to the applicant’s credit her not including in the statutory declaration she made in support of her request under s.48B of the Act (Statutory Declaration) that her husband had been abducted, but had instead claimed that her husband had physically and sexually abused the applicant. The applicant submits that, under the Minister’s Guidelines that have been issued for considering requests made under s.48B of the Act, the fact that the applicant had previously claimed her husband had been abducted was not, and could not reasonably have been considered by the Tribunal, to be relevant to the request under s.48B of the Act. That is because the Minister’s Guidelines prohibited the Minister from considering, for the purposes of s.48B of the Act, the claim the applicant had previously made that her husband was abducted, because that claim had already been raised in the applicant’s first protection visa application.
The applicant particularly relies on paragraphs 173.4 and 175 of the Minister’s Guidelines.
a)Paragraph 173.4 applies to three categories of “additional information”. One of those categories is “other new claims provided by the applicant (which may or may not have been known to the applicant during consideration of the previous PV application)”. Paragraph 173.4 provides that purported further applications containing additional information are to be referred to the Minister if the information, among other things, “appears to be credible” and “enhances the applicant’s chances of making a successful claim” and, among other things, was not known to the applicant during the consideration of the previous application.
b)Paragraph 175 of the Minister’s Guidelines applies to claims not previously available to the applicant, and provides that the decision maker should consider, among other things, “whether the new information appears to be credible and enhances the person’s chances of making a successful claim under the Refugees Convention”, and that it would be “expected that such claims would not be inconsistent with claims made in the previous” application for a protection visa.
I do not accept that the Minister’s Guidelines prohibited the applicant from making a request under s.48B of the Act in relation to the previous claims she made which had been rejected. Paragraph 173.3 of the Minister’s Guidelines permits the consideration of a further application or purported application for a protection visa by a person who had a previous application finally determined by the Tribunal. Paragraph 173.3 provides that such applications are to be assessed against “these guidelines”, being the guidelines set out in paragraph 173.4. Given the Minister’s Guidelines do not prohibit consideration of a claim for protection that had been previously determined by the Tribunal, it cannot be said the Tribunal acted irrationally or unreasonably or illogically by making an adverse credibility based on the applicant’s not having done something she was prohibited from doing.
Not only, however, do the Minister’s Guidelines not prohibit consideration of previous claims an applicant made; they require that such claims be considered for the purpose of assessing credibility. Both paragraphs 174 and 175 of the Minister’s Guidelines require the decision maker to consider whether the information “appears to be credible”; and whether or not the claims are credible in part depend on whether they are inconsistent with claims an applicant previously made. That is expressly recognised in paragraph 174.3 of the Minister’s Guidelines, which provides that, where the decision maker considers claims may be credible “and not inconsistent with”, among other things, “claims in previous PV application (unless the person provides a plausible and acceptable explanation as to why the new claims are inconsistent with previous claims made”, a submission may be forwarded to the Minister. It is also expressly recognised in paragraph 175.1 of the Minister’s Guidelines which provides that it “would be expected that such claims would not be inconsistent with claims made in the previous PV application”, although it is noted there may be “cases where the person provides a plausible and acceptable explanation as to why the new claims are inconsistent with the previous claims made”.
Thus, there is nothing in the Minister’s Guidelines that could reasonably have prevented the Tribunal from drawing an adverse inference from the fact that the applicant failed to include in the Statutory Declaration inconsistent information she had provided to the Minister in support of a previous application for a Protection visa. It was reasonably open to the Tribunal to draw adverse inferences about the applicant’s credibility from the fact that, in the Statutory Declaration, she did not disclose she had previously made a claim that was inconsistent with the claims she made in the Statutory Declaration in circumstances where, under the Minister’s Guidelines, a matter the decision maker had to consider when considering the request was whether the applicant had made any inconsistent claim or claims in a previous application and, if so, whether the applicant offered any adequate explanation for the inconsistency.
A second difficulty with the applicant’s submission is that it rests on a number of implicit and unsupported assumptions. It assumes the applicant (or a person advising the applicant) was aware of paragraphs 174 and 175 of the Minister’s Guidelines; it assumes the applicant framed the Statutory Declaration to include only that information that she (or the persons advising her) believed or considered was relevant to the matters the Minister’s Guidelines specified should be considered by the decision maker; and it assumes that the applicant considered that her having claimed in her first Protection visa application that her husband had been abducted was not relevant to her application under s.48B of the Act. There is nothing in the material that was before the Tribunal that could reasonably support any one of these assumptions. On the contrary, the evidence suggests otherwise. The Tribunal, in its reasons for decision, referred to its having raised with the applicant her including in the Statutory Declaration that her husband physically and sexually abused her, rather than stating that her husband had been abducted. The applicant is recorded as saying that she intended to refer, not to her husband, but to the man she said in the Statement she met in Australia. The Tribunal found the applicant’s response “is not correct or consistent with the statutory declaration”.[10] That was a finding that was reasonably open to the Tribunal.
[10] CB206, [46]
The Tribunal did not act unreasonably or irrationally or illogically by relying on the applicant’s not claiming in the Statutory Declaration that her husband had been abducted, but rather claiming that her husband had physically and sexually abused the applicant. Ground 2, therefore, also fails.
Ground 3
The third ground of application is as follows:
The Tribunal failed to take into account a relevant consideration.
Particulars
(A)The Tribunal failed to take into account a relevant consideration:
(i) The particulars at Ground 2 are repeated.
(ii)The Tribunal failed to take into account the Minister’s Guidelines relating to s48B.
The applicant does not articulate any reason why the Tribunal ought to have taken into account the Minister’s Guidelines. There is nothing in the material that was before the Tribunal that could reasonably have suggested to the Tribunal that the applicant had in any way relied on the Minister’s Guidelines in considering what information she should or should not include in the Statutory Declaration, or that the applicant was aware of, or if she was aware of the Ministers Guidelines, she relied in any way on these guidelines when she made the request under s.48B of the Act. As I have already noted, the applicant was given an opportunity to comment on why she did not claim in the Statutory Declaration she provided in support of her request under s.48B of the Act that her husband had been abducted, but had instead claimed her husband had physically and sexually abused her. The applicant did not say she relied on the Minister’s Guidelines, or that she was advised about the Minister’s Guidelines, in determining what information she should or should not include in her statutory declaration. Instead, the applicant said she intended to refer to the person with whom she had a relationship in Australia.
In my opinion, the Minister’s Guidelines were not a relevant consideration; and the Tribunal made no jurisdictional error by not considering those guidelines in determining the applicant was not a witness of credit. Ground 3, therefore, also fails.
Ground 4
This ground claims the Tribunal erred in deciding that it should assess the applicants’ claims only against the complementary criterion provided for by s.36(2)(aa) of the Act. The applicant accepts, however, that this ground cannot be made out in light of the decision of the Full Federal Court in Minister for Immigration and Border Protection v SZVCH.[11] The applicant, nevertheless, formally submitted the Full Federal Court erred.
[11] [2016] FCAFC 127
Ground 5
Ground 5 is as follows:
The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness.
Particulars:
(A) The Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness because:
(i)The Tribunal acted on an invalid certificate dated 11 February 2015 purportedly issued pursuant to s438(1)(a) of the Act, thereby following a process contrary to law; and or
(ii)The Tribunal failed to accord the Applicant procedural fairness:
(a)by failing to disclose the existence of the certificate to the Applicant; and or
(b)by failing to give the Applicant the opportunity to make submissions on the validity of the certificate if she so chose; and or
(c)by failing to disclose 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; and or
(d)by failing to give the Applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).
This ground relies on the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection,[12] and arises out of a delegate of the Minister having issued a certificate purportedly pursuant to s.438(1)(a) of the Act in a form that is relevantly indistinguishable from the form of the certificate Beach J in MZAFZ held was invalid. Before I examine this ground, it will be necessary to analyse s.438 of the Act, and to consider the decision in MZAFZ.
[12] [2016] FCA 1081
Section 438 of the Act
The starting point is s.438(1) of the Act. It identifies two classes of documents and information to which s.438 applies. The first are documents or information that are the subject of a certificate described in s.438(1)(a) of the Act. These are documents or information:
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 . . .
As was held by Beach J in MZAFZ, the expression “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” refers to public interest immunity, or to what was formerly referred to as “Crown privilege”.[13] Where it operates, public interest immunity entitles a person to resist compulsory disclosure of information or production of documents in the course of a proceeding before a court or in other circumstances, such as the execution of search warrants or other administrative processes for compelling the production of documents.[14] The immunity is enforced under the common law,[15] and by s.130 of the Evidence Act 1995 (Cth) where that Act applies. The immunity applies to documents or information where the public interest in disclosing the information or producing the documents is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or documents.[16]
[13] [2016] FCA 1081 at [36]
[14] Jacobsen v Rogers (1995) 182 CLR 572 at pages 588-9
[15] See, for example, Sankey v Whitlam (1978) 142 CLR 1 at pages 38-39, and page 58.
[16] That is the formulation given in s.130 of the Evidence Act 1995 (Cth)
The second class of documents or information to which s.438 applies are the documents or information identified in s.438(1)(b) of the Act. These are any document or information if “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”.
It will be seen that s.438(1) of the Act does not impose any obligation on the Tribunal, or prevent the Tribunal from doing anything. The purpose of s.438(1) is to identify documents or information to which the remaining subsections of s.438 apply. The first of these is s.438(2), which is directed to the Secretary of the Department of Immigration and Border Protection. That subsection applies if, in compliance with a requirement of the Act, the Secretary gives to the Tribunal a document or information to which s.438 applies. In those circumstances, s.438(2) requires the Secretary to notify the Tribunal in writing that the section applies in relation to the document or information; and it permits the Secretary to give the Tribunal “any written advice that the Secretary thinks relevant about the significance of the document or information”.
The second subsection of s.438 of the Act that deals with documents or information to which the section applies is s.438(3), which is directed to the Tribunal; and it applies if the Tribunal is given a document or information to which s.438 applies, and is notified by the Secretary that s.438 applies in relation to the documents. In those circumstances, the Tribunal “may” do two things. First, as provided for by s.438(3)(a), the Tribunal “may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information”. Second, and as provided for by s.438(3)(b) of the Act, the Tribunal “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”.
Finally, there is s.438(4) of the Act. It applies if the Tribunal “discloses any matter to the applicant” under s.438(3) of the Act. In those circumstances, the Tribunal “must give a direction under section 440 in relation to the information”. Subsection 440(1) of the Act provides:
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.
Considered alone, “may”, as it appears in s.438(3)(a) of the Act, might suggest the Tribunal has a discretion whether to have regard or not to have regard to documents or information to which s.438 applies. The basis of this suggestion is that the word “may” ordinarily denotes permission. In the words of Jervis CJ, “[t]he word ‘may’ is merely used to confer the authority”.[17] That meaning of “may” is reflected in s.33(2A) of the Acts Interpretation Act 1901 (Cth) (Interpretation Act), which provides that where an Act “provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body”.[18] The application of that definition, however, is subject to a contrary intention.[19]
[17] Macdougall v Paterson (1851) 11 CB 755 at page 766; (1851) 138 ER 672 at page 677 quoted with approval by Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at page 132 in a passage approved by the plurality in Leach v The Queen (2007) 230 CLR 1 at [38]
[18] Sub section 33(2A) applies to Acts that have been assented to after the commencement of s.33(2A).
[19] Acts Interpretation Act 1901 (Cth), s.2(2)
In my opinion, s.438(3)(a) of the Act does not, on its proper construction, confer an authority on the Tribunal it otherwise does not have to consider information to which s.438(1) applies. First, s.438 does not by its terms prohibit the Tribunal from considering the information. Thus, there is no need on that count for the word “may” in s.438(3)(a) to be construed as giving authority to the Tribunal to consider the information covered by a certificate, because the section does not purport to prohibit the Tribunal from considering the information. Second, information provided by the Secretary to the Tribunal pursuant to s.418 of the Act is information the Tribunal is under a duty to consider. As I have concluded elsewhere,[20] s.418, s.424, s.425, and s.430 of the Act, when taken together, contemplate or imply that, when carrying out a review under s.414(1) of the Act, the Tribunal must at the very least “consider” the information that is provided to it or which the Tribunal obtains under s.418, s.424 or s.425 of the Act. That is, it must “view or contemplate attentively . . . examine . . . scrutinise . . . to fix the mind upon . . . [or] to reflect upon” the information.[21] Because it is under a duty to consider information the Secretary provides to the Tribunal under s.418(3) of the Act, there is no occasion to construe “may” in s.438(3)(a) of the Act as giving authority or permission to the Tribunal to consider such information. Thus, s.438(3)(a) of the Act proceeds on the premise that s.438 of the Act does not relieve the Tribunal from its obligation to consider information, including information to which s.438 applies. In my opinion, “may”, as used in s.438(3)(a) of the Act, means that, notwithstanding that information is information to which s.438 applies, the Tribunal can, because it is required to do so, consider that information.
[20] SZTIF v Minister for Immigration & Anor [2014] FCCA 945 at [26]
[21] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [71]-[72] (Heerey, Goldberg and Weinberg JJ)
Paragraph (b) of s.438(3) of the Act also requires attention. It deals with disclosure by the Tribunal to the applicant of information to which s.438 of the Act applies. The “information” to which s.438 applies falls within paragraph (b) of the definition of “non-disclosable information” in s.5 of the Act, which provides:
non-disclosable information means information or matter:
. . . .
(b)whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings.
The significance of this is that information covered by a certificate made under s.438(1)(a) of the Act, being information that falls within paragraph (b) of the definition of “non-disclosable information” in s.5(1) of the Act, is excluded by s.424A(3)(c) from the operation of s.424A of the Act. That does not mean, however, the Tribunal does not have a discretion to disclose such information to an applicant. Even without s.438, the Tribunal would have had the discretion to disclose “non-disclosable information” to an applicant, if it considered it appropriate. Under s.438 of the Act, however, the Tribunal’s discretion to disclose “non-disclosable information” is subject to two conditions. One is that the Tribunal may consider any advice the Secretary may have given under s.438(2)(b) of the Act in relation to such information; and the other is that, if the Tribunal does disclose the information, it must give a direction under s.440 of the Act.
Thus, on the proper construction of s.438 of the Act, the granting of a certificate under s.438(1)(a) of the Act affects, or potentially affects, the Tribunal’s exercise of its power of review in two ways. First, if the Secretary has given advice under s.438(2) of the Act, the Tribunal may consider that advice when considering whether to disclose to an applicant information covered by the certificate. Second, the granting of the certificate renders the information covered by the certificate “non-disclosable information” within the meaning of s.5 of the Act, which means that if that information is information the Tribunal considers would be the reason or a part of the reason for affirming the decision under review, the Tribunal would not be required by s.424A of the Act to give to the applicant particulars of the information.
It follows, therefore, that an invalid certificate may potentially affect the validity of the Tribunal’s decision in two ways. First, where the Secretary has given an advice under s.438(2) of the Act, the Tribunal may have considered that advice and, as a result, decided not to exercise its discretion in favour of providing the applicant with information covered by the certificate. Second, an invalid certificate may exclude from s.424A of the Act information the Tribunal considers would be the reason or a part of the reason for affirming the decision under review, when the Tribunal might otherwise have been required under s.424A(1) of the Act to give particulars of such information. In these circumstances, however, an invalid certificate will have this effect only if the information does not fall within s.424A(3)(a), (b), or (ba) of the Act. That is so because information that falls within those paragraphs is also excluded from the operation of s.424A of the Act. The granting of a certificate that would cover information that falls within s.424A(3)(a), (b), or (ba) would not remove from the operation of s.424A information that would otherwise be subject to s.424A of the Act. Further, even if the invalid certificate were to cover information that only falls within s.424A(3)(c) of the Act, the invalid certificate will not affect the Tribunal’s decision if the Tribunal, in the exercise of its discretion, gives particulars of the information in the manner required by s.424A(1) of the Act.
The decision in MZAFZ
In MZAFZ, a certificate was issued, purportedly pursuant to s.438(1)(a) of the Act, in the following form:[22]
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 77-85 & 87-88 attached to file number CLF2013/87392. The disclosure of this information would be contrary to the public interest because it contains internal working documents.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provision of subsection 438(3) and (4) of the Migration Act 1958.
[22] [2016] FCA 1081 at [29]
Beach J found the certificate was invalid because the ground on which the certificate stated disclosure of the information would be contrary to the public interest could not form the basis of a claim for public interest immunity; and it could not form the basis of such a claim because to claim that documents constitute “internal working documents” of a government department is not a necessary or sufficient basis for claiming public interest immunity.[23] His Honour found that the invalidity of the certificate led the Tribunal to make two jurisdictional errors. First, his Honour found the Tribunal “proceeded or acted on an invalid certificate”, and the Tribunal, therefore, did not follow a “process according to law”.[24] Second, the Tribunal denied the applicant procedural fairness.
[23] [2016] FCA 1081 at [37]
[24] [2016] FCA 1081 at [44]
Beach J’s conclusion in relation to the first jurisdictional error is premised on the following matters.
a)The Tribunal acted or proceeded on the invalid certificate that had been issued. His Honour does not identify, however, the manner in which the Tribunal did act or proceed on the invalid certificate. His Honour only said that, in the absence of evidence to the contrary, he was “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”.[25]
b)Second, by acting on the invalid certificate, it was open to infer the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s.424AA or s.424A of the Act. In that regard, his Honour said he could not confidently say whether the Tribunal properly read the documents the subject of the invalid certificate, or determined whether the documents did not contain information that would be the reason or part of the reason for affirming the decision under review, and then decided that no disclosure was required under s.424AA or s.424A of the Act.[26] His Honour said that if the Tribunal had realised the certificate was invalid, it would have had to have undertaken all these steps.[27]
c)Third, if the Tribunal realised 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 the documents supported the applicant’s visa application, and whether disclosure should have been made to the applicant “as part of” s.425 and s.427(1)(c) of the Act.[28]
[25] [2016] FCA 1081 at [40]
[26] [2016] FCA 1081 at [41]
[27] [2016] FCA 1081 at [42]
[28] [2016] FCA 1081 at [43]
Beach J’s conclusion on the second jurisdictional error is based on the following premises:
a)Procedural fairness required that the Tribunal ought to have:
i)disclosed the existence of the certificate to the applicant;
ii)given the applicant the opportunity to make submissions on the validity of the certificate, if the applicant so chose;
iii)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”; and
iv)given the applicant an opportunity to seek a favourable exercise of the discretion under s.438(3)(b) of the Act.[29]
b)Section 422B of the Act did not exclude the obligations of the Tribunal to afford the procedural fairness referred to in (a).[30]
[29] [2016] FCA 1081 at [50]
[30] [2016] FCA 1081 at [60]
Observations on MZAFZ
There are a number of observations that may be made about his Honour’s conclusion that the Tribunal made a jurisdictional error by relying or proceeding on an invalid certificate. First, his Honour’s conclusion is based on a finding of fact, namely, the Tribunal acted or proceeded on an invalid certificate purportedly made under s.438 of the Act. It follows, therefore, that if the Tribunal makes a decision without relying or proceeding on an invalid certificate, the Tribunal will not make a jurisdictional error to the effect of the first jurisdictional error his Honour found in MZAFZ only because an invalid certificate has been given under s.438 of the Act.
Second, although his Honour found the Tribunal acted on an invalid certificate, his Honour did not make any finding about how the Tribunal relied or proceeded on the invalid certificate. His Honour assumed the Tribunal did so in some unspecified way. It appears, however, that his Honour made this assumption because his Honour assumed the Tribunal interpreted, or may have interpreted the certificate as relieving it from the obligation of having to consider the information covered by the certificate. It appears, therefore, that his Honour found that the Tribunal relied or proceeded, or may have relied or proceeded, on the invalid certificate by not considering the information that was covered by the certificate. That is apparent in those aspects of his Honour’s reasons I identified in paragraphs 49(b) and (c) above.
Third, his Honour found the Tribunal relied or proceeded on the invalid certificate without his Honour having considered the information that was covered by the invalid certificate in that case. Such information, however, is potentially relevant to determining whether, in any particular case, the Tribunal did rely on an invalid certificate in the sense Beach J found the Tribunal did rely, or may have relied, on the invalid certificate. If, for example, the information covered by a certificate could not conceivably be relevant to the claims made before the Tribunal, the Tribunal’s not referring to them in its reasons for decision might be better explained by the Tribunal’s having considered the documents but deciding they are irrelevant, rather than by the Tribunal’s not having considered them at all. If that is the explanation, then it may be open to find that the Tribunal did not, in fact, rely or proceed on an invalid certificate by not considering the documents or information covered by the invalid certificate, but it instead did consider the documents and information covered by the invalid certificate, but found them to be irrelevant.
A number of observations may also be made about the second jurisdictional error Beach J found the Tribunal made. First, it is apparent that his Honour found that the Tribunal’s duty to accord procedural fairness arose from the Tribunal’s having received a certificate that was purportedly given under s.438 of the Act; and the duty arose because the certificate covered information that “had relevance to the applicant’s visa application, whether favourable, unfavourable or neutral”.[31] This implies that if a certificate that is issued under s.438 of the Act covers documents that cannot reasonably be considered to be relevant to an applicant’s claims, the Tribunal, on his Honour’s approach, would be under no obligation to give the applicant notice of the existence of the certificate, and invite the applicant to make submissions about whether the information covered by the certificate should be disclosed to the applicant.
[31] [2016] FCA 1081 at [55]
It is true that in MZAFZ his Honour found that the documents covered by the certificate were relevant in some way, and that his Honour so found because his Honour was of the view that the certificate would otherwise not have been necessary, and the documents would otherwise not have been before the Tribunal. That finding, however, is one of fact. I do not read this part of his Honour’s judgment as laying down a principle that there is a rebuttable or irrebuttable presumption of fact that documents covered by a certificate under s.438 of the Act that have been provided to the Tribunal are relevant to the application for review that is before the Tribunal. And I do not read his Honour as having laid down a rule that documents covered by a certificate purportedly made under s.438(1) of the Act are not admissible to prove their relevance to the application for review that is before the Tribunal. And there are good reasons for there not being any such principles.
First, s.418(3) of the Act casts on the Secretary an obligation to provide any document or part of a document that “is considered by the Secretary to be relevant”. The immediate inference that is available to be drawn from the fact that the Secretary has provided documents to the Tribunal under s.418(3), therefore, is that the Secretary considered those documents to be relevant. Second, it is for the Tribunal, not the Secretary, to determine whether documents the Secretary provides to the Tribunal under s.418 of the Act are relevant to the review before the Tribunal. The only relevance of the Secretary’s opinion about which documents are relevant is that it is the criterion by which the Secretary is required to identify the documents the Secretary must give to the Tribunal for the purpose of the Tribunal conducting its review. Third, to the extent it is relevant to a ground on which judicial review is sought, it is for the Court, and not for the Secretary, to determine whether it was reasonably open to the Tribunal to consider whether documents on which the Tribunal relied or did not rely were relevant or irrelevant.
The second observation that may be made about the second jurisdictional error his Honour found the Tribunal made relates to his Honour’s conclusion that it was the relevance of the information covered by the invalid certificate to the applicant’s claims that gave rise to the duty to accord procedural fairness. That finding appears to be premised on the view that an applicant has some entitlement to the Tribunal’s disclosing to the applicant information that is relevant to the applicant’s claims. With respect, if that reflects his Honour’s view, it may be inconsistent with Division 4 of Part 7 of the Act. The only right to disclosure of information that is expressly given to an applicant by Division 4 of Part 7 is the right provided for by s.424A of the Act; and that right applies, not to information that is relevant to the applicant’s claims, but to information the Tribunal considers would be the reason or part of the reason for affirming the decision under review.
The possible inconsistency with Division 4 of Part 7 of what appears to be his Honour’s view about the need to disclose relevant information may be illustrated this way. If there is before the Tribunal information that is relevant to the applicant’s claims, but the Tribunal does not consider the information would be the reason or part of the reason for affirming the decision under review, the Tribunal would be under no obligation to provide particulars of that information to the applicant. Nor would the Tribunal be obliged to inform the applicant that the Tribunal has information that is relevant to the applicant’s claims, and invite the applicant to make submissions about whether the Tribunal should disclose the information to the applicant. If, however, a certificate has been issued under s.438 of the Act, and that certificate covers information that is relevant to the applicant’s claims, but is not information the Tribunal considers would be the reason or part of the reason for affirming the decision under review, then, on Beach J’s approach, the Tribunal would be required to inform the applicant of the existence of such certificate, and afford the applicant an opportunity to make submissions about the validity of the certificate, and about the Tribunal’s exercising its discretion whether to disclose the documents covered by the certificate.
This analysis, if correct, suggests that the only circumstance in which the Tribunal could come under a duty to disclose the existence of a certificate, and invite the applicant to make submissions about the validity of the certificate, and whether the Tribunal should exercise its discretion under s.438(3)(b) to disclose information covered by the certificate, is where the certificate covers information the Tribunal considers would be the reason, or part of the reason for affirming the decision under review, and the information covered by the certificate is not information that is otherwise excluded from the operation of s.424A by s.424A(3)(a), (b), and (ba) of the Act.
The third, and final, observation relates to Beach J’s view that the Tribunal is obliged to give the applicant an opportunity to make submissions on the validity of a certificate that is issued under s.438 of the Act. That view assumes the Tribunal has the power to determine whether a certificate purportedly issued under s.438 of the Act is invalid. It might be that whether or not the Tribunal has the power to determine the validity of a certificate will depend on the grounds on which it is said the certificate is invalid. If, for example, it is invalid because the decision to make the certificate is infected by jurisdictional error, it might be that the Tribunal may be entitled to proceed as if the certificate has no legal effect. But it is not readily apparent that the Tribunal would have the jurisdiction to do even that. Further, if the Tribunal did have jurisdiction, it presumably would be obliged to afford procedural fairness to the Minister before the Tribunal can determine whether the making of the certificate was infected by jurisdictional error, and hence, has no legal effect.
The certificate issued in this case and the documents covered by the certificate
Having considered the decision and reasoning in MZAFZ, it is now necessary to identify the certificate that was issued by the Tribunal in the case before me, and identify the documents and information covered by that certificate.
The certificate that was issued in the case before me is as follows:[32]
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios . . . of file number . . . . The disclosure of this information would be contrary to the public interest because:
In my view, this information should not be disclosed to the applicant or the applicant’s representative because folios . . . contain information relating to an internal working document and business affairs.
[32] Affidavit of C A Hillary, annexure “A”
There is in evidence the documents identified by the certificate. The documents are as follows:
a)A document titled “Decision Check Sheet”. This is a pro forma document that appears to have been completed at around 8 December 2004. It discloses whether the applicant was interviewed, the priority that should be given (standard) to the case, place of decision (Sydney), country of reference (Nepal), decision information (not well founded), and “Notification posted” (“8/12/2004”).
b)An internal email sent on 5 May 2005 requesting that the file be sent as quickly as possible “as it is required for a litigation case at the Federal Court”. The email also states “current location on TRIM”.
c)An internal email sent on 19 May 2005 requesting that the file be sent as quickly as possible “as it is required for a litigation case at the Federal Court”. The email also states “current location on TRIM”.
d)An internal email sent on 7 June 2005 requesting that the file be sent as quickly as possible “as it is required for a litigation case at the Federal Court”. The email also states “current location on TRIM”.
e)A pro forma document titled “NSW MIU Processing Checklist” dated 8 May 2008. As its title suggests, the document contains a number of printed matters inviting the person completing it to tick the appropriate box, and offer any comments. Only section 2 “Case officer checks” has been completed.
f)File note recording the Department having received a request under s.417 and s.48B of the Act on 12 May 2008. The file note records the conclusion of the author that the request to the Minister for intervention under s.48B of the Act did not meet the Minister’s section 48B guidelines. It sets out the claims made by the applicant, and makes a number of observations about the claims. These include the applicant’s not having provided evidence she is a member of a political group that is anti-Maoist. The document describes the claims the applicant made in her first Protection visa application; summarises the decision the Tribunal made on 10 March 2005, noting that the Tribunal found the applicant had fabricated her claims concerning the Maoists demands made of the applicant and her husband and her husband’s subsequent abduction and, consequently, any fear of persecution resulting from these matters; refers to recent country information that Maoists won elections in April 2008 and that, while there has been an escalation of violence in some regions, there is no evidence such violence has targeted any particular groups or individuals; and concludes the applicant did not provide additional information “which concerns either changed country circumstances in Nepal, or credible new Convention related claims, such that her chance of making a successful Protection visa application are enhanced”.
g)A document titled “Decision record” recording the decision made by Departmental officials signed on 20 and 23 May 2008 that the applicant’s application under s.48B “is considered NOT to meet the guidelines”.
h)Document titled “Schedule SYDNEY” and dated 13 May 2008 which appears to be a draft of a schedule dated 29 May 2008 which came to be submitted to the Minister in connection with the applicant’s request for Ministerial intervention under s.417 of the Act. The document set out the applicant’s migration history, the claims for protection the applicant made in the first Protection visa application, the Tribunal’s findings on that application, a summary of the applicant’s request, the “family composition” of the applicant, and other information relevant to the Minister’s consideration, these being the circumstances relating to the applicant not being unique or exceptional, the applicant’s being able to follow normal offshore procedures to apply to migrate to Australia, and there being no issues which engaged Australia’s obligations under international conventions relating to torture or the rights of the child, or the International Covenant on Civil and Political Rights.
i)A schedule dated 29 May 2008 containing additional information to the earlier draft, and containing text under the heading “CONSIDERATION UNDER SECTION 417 OF THE MIGRATION ACT 1958”, recording the decision of the Minister that he does not wish further requests for the exercise of his public interest power in “these cases” to be brought to the Minister’s “attention unless such further requests provide additional information that, in the opinion of the assessing officer, when considered in combination with information known previously, brings these cases within the guidelines for the identification of cases where I may consider it to be in the public interest to intervene to substitute a more favourable decision”.
j)A document signed by the Minister on 30 July 2008 recording the decision of the Minister declining to consider the exercise of the power under s.417 of the Act.
k)Memorandum to the Minister containing two “received” stamps one bearing the date 13 June 2008, and another the date 8 August 2008, attaching schedule summarising requests for Ministerial intervention made by the applicant for decision by the Minister.
l)Three copies of what appear to be screen shots from the data base the Department maintain.
m)A document dated 6 September 2008 and titled “S48B ASSESSMENT (MINISTERIAL INTERVENTION REQUEST)”. It records that the applicant’s request did not meet “S48A/Request for Ministerial Intervention under S48B guidelines” because the additional information on which the applicant relied, namely, domestic violence perpetrated by the applicant’s husband when she lived in Nepal, and her fear of being seriously harmed or killed by her husband or relatives if she returns to Nepal, had not been provided earlier, and the applicant had provided no plausible and compelling reason why that information had not been provided earlier. The document referred to country information about domestic violence in Nepal. It noted domestic violence being a serious problem in Nepal, with no law currently specifically outlawing it. It also referred, however, to a police directive to treat domestic violence as a serious offence that should be prosecuted, and that specially trained female police officers are based in 20 of Nepal’s 75 districts to handle the issue. The note also referred to support services being available for domestic violence victims.
n)A pro forma document titled “PURPORTED FURTHER APPLICATION FOR A PROTECTIN VISA SUBJECT TO S48A/REQUEST FOR MINISTERIAL INTERVENTION UNDER SECTION S48B”. It contains two sections. One is prepared by a Departmental officer that constitutes a request to another Departmental officer to consider the applicant’s request under s.48A and s.48B against the Minister’s guidelines. That part of the document is dated 3 September 2008. Two Departmental officers from the Ministerial Interventions Unit have completed the second part of the document. It is a pro forma, which contains a cross in a box next to the printed words “The purported further application/request is considered NOT to meet the guidelines”. Next to these printed words are the hand written words “see attached assessment”. That is a reference to the following document.
o)A file note titled “[f]ile note on request for section 48B intervention”. After referring to a delegate having assessed on 6 September 2008 that the applicant’s case did not meet the Minister’s guidelines, the file note refers to the author having considered the change in circumstances in Nepal after the first Protection visa application was refused. The author found there have been changes of circumstances in Nepal, but was of the opinion the applicant would not be adversely affected by those changes should the applicant return to Nepal, and that the new information did not enhance the applicant’s chance of making a successful claim.
Submissions
The applicant submits the certificate issued in this case is materially indistinguishable from the certificate in MZAFZ and, therefore, is invalid. The applicant also submits that this by itself infected the Tribunal’s decision with jurisdictional error. Further, the applicant submits that although it was irrelevant, on the basis of the reasoning in MZAFZ, to consider whether information covered by an invalid certificate was favourable, unfavourable, or neutral to the applicant’s case, some of the information covered by the certificate issued in the case before me was adverse to the applicant. That information was a conclusion relating to country information about domestic violence contained in the document to which I have referred in paragraph 63(m) of these reasons.
The Minister does not submit the certificate was valid. The Minister submits, however, the certificate played no role in the manner in which the Tribunal exercised its power and, for that reason, the certificate could not have resulted in the Tribunal’s decision being infected with jurisdictional error. The basis on which the Minister submits the certificate did not affect the Tribunal’s exercise of power is that the Tribunal did not consider the information that was covered by the certificate to be material. The Minister, in turn, bases that submission on the fact that the Tribunal does not, in its reasons, refer to any of the information covered by the certificate.
The Minister relied on the decision of Judge Street in BJD16 & Ors v Minister for Immigration & Anor,[33] although, at the time counsel for the Minister made this submission, his Honour had not yet published his reasons. Those reasons are available to me. In my opinion, however, BJD16 is distinguishable. It appears the certificate in BJD16 was issued for reasons of privacy and, for that reason, the certificate may well have been valid. In any event, his Honour found that the information covered by the certificate was “clearly irrelevant and could not have in any way advanced or detracted from the assessment of the claims and evidence of the applicant”.[34]
[33] [2016] FCCA 2537
[34] [2016] FCCA 2537 at [20]
Consequences of invalid certificate
That the Tribunal in the case before me may not have considered the documents covered by the certificate to be material does not by itself distinguish the case from MZAFZ. As I have already noted, Beach J found the Tribunal’s decision in MZAFZ was affected by two jurisdictional errors. The first is that the Tribunal acted or proceeded on an invalid certificate that was purportedly made under s.438 of the Act. As I have also already noted, the manner in which his Honour appears to have held the Tribunal relied, or may have relied, on the invalid certificate is that it did not consider, or it may have not have considered the information that was covered by the certificate. That the Tribunal in the case before me did not, as the Minister submits, consider the information covered by the certificate to be material is capable of being explained as being the result of the Tribunal’s not having considered the information covered by the certificate. If that is the inference that should be drawn, then the Tribunal will have made a jurisdictional error similar to the first of the two jurisdictional errors Beach J found the Tribunal made in MZAFZ.
The second jurisdictional error Beach J concluded the Tribunal in MZAFZ made is that it failed to give the applicant notice of the existence of the certificate, and a consequent opportunity to make submissions about a number of matters. As I have already noted, the basis of his Honour’s so finding was the assumption that the documents and information covered by the certificate were relevant to the applicant’s claims. Thus, that the Tribunal in the case before me did not consider the information covered by the certificate to be material does not necessarily mean the information was not capable of being viewed as relevant and hence, on the approach taken by Beach J in MZAFZ, have triggered an obligation by the Tribunal to give the applicant notice of the existence of the certificate, and invite the applicant to make submissions in relation to its validity, and in relation to the Tribunal exercising its discretion to disclose to the applicant the information covered by the certificate.
Whether the Tribunal in the case before me, therefore, made one or both of the jurisdictional errors Beach J found the Tribunal made in MZAFZ turns on two questions. The first is whether I am satisfied the Tribunal relied on the invalid certificate in the sense Beach J appears to have held or assumed the Tribunal in MZAFZ relied on the invalid certificate, namely, by not considering or possibly not considering the information covered by the certificate. The second is whether the information covered by the certificate was relevant such as to have triggered an obligation by the Tribunal to give the applicant notice of the certificate. As will become apparent, these two questions are related.
Whether or not the Tribunal in the case before me relied on the certificate in the sense Beach J found the Tribunal relied on the invalid certificate in MZAFZ depends, in part, on whether the Tribunal proceeded on the basis that it considered itself under a duty to consider all information that was provided to it by the Secretary pursuant to s.418 of the Act, including the documents and information covered by the certificate. There is nothing the Tribunal said in its reasons for decision that suggests it was of the view that it could ignore, if it chose, the information. Can any inference about whether the Tribunal considered itself not to be bound to consider the information covered by the certificate be drawn from what the Tribunal otherwise did, or did not do?
The first matter to note is that the Tribunal in its reasons did not refer to the information covered by the certificate. That by itself, however, is neutral; the Tribunal’s not referring to the information covered by the certificate is consistent with the Tribunal having considered the information, but then concluding the information was irrelevant, and is also consistent with the Tribunal having proceeded on the basis that it did not have to consider the information. Which of these two possibilities is more likely requires me to consider the content of the information covered by the certificate.
In my opinion, although the documents covered by the certificate did relate to the applicant, they contained no information that could reasonably have been considered by the Tribunal to be relevant to the applicant’s claims.
a)First, almost all of the information summarised claims the applicant made in the first Protection visa application and in her request under s.48B and s.417 of the Act. From the Tribunal’s reasons, it appears that that information was available to the Tribunal through more direct means, namely, the material the applicant submitted in support of her first Protection visa application and in support of her requests under s.48B and s.417 of the Act. In other words, the summaries of past claims and decisions of the Tribunal added nothing to the material that it is reasonable to infer was available to the Tribunal in any event.
b)Second, the conclusions and decisions Departmental officers made, and the Minister’s decision not to intervene either under s.48B or s.417 of the Act, that are recorded in the documents covered by the certificate, have no conceivable logical bearing to the issues the Tribunal was required to determine on the applicant’s application for protection. The decisions related to the Minister’s exercise of power conferred by s.48B and s.417 of the Act. Further, the claims on which the applicant relied for her requests under s.48B and s.417 were substantially different from the claims she made in support of the application that was before the Tribunal. And the decisions themselves did not make any findings about the applicant’s credibility. The decisions were made in relation to matters relevant to s.48B and s.417 of the Act, which were not relevant to the matters the Tribunal had to consider on the review of the delegate’s decision rejecting the applicant’s second application for a Protection visa. It is true the Tribunal relied on the applicant’s having failed to include in the Statutory Declaration she submitted in support of her request under s.48B and s.417 of the Act a claim she had made in her first application for a Protection visa. But the Tribunal relied on the Statutory Declaration itself to draw the adverse inference; there is nothing to suggest the Tribunal relied on any of the documents covered by the invalid certificate in drawing any adverse inference against the applicant.
c)Third, although, as Mr Dobbie, who represented the applicant, submitted, one of the documents covered by the certificate referred to country information about domestic violence in Nepal, that information could not reasonably have been considered relevant to the claims that were before the Tribunal. The Tribunal did not accept the applicant was a witness of credit and the Tribunal did not, therefore, think it necessary to consider any country information based on the assumed truth of the applicant’s factual claims the Tribunal rejected as false. In any event, the country information related to circumstances that existed in 2008, not 2015, when the Tribunal gave its decision on the application for review.
Given the content of these documents, I am not satisfied the Tribunal proceeded on the review of the applicant’s claims on the basis that it was not required to consider the information covered by the certificate. The more probable inference is that the Tribunal was aware of the documents, but decided they were not relevant to the issues it had to determine. Thus, the Tribunal did not act or proceed on the certificate in the manner it appears Beach J held the Tribunal in MZAFZ acted or proceeded on the invalid certificate in that case.
Further, there is no suggestion the Secretary gave an advice under s.418 of the Act about the information covered by the certificate that was given in the case before me. The Tribunal’s exercise of its powers when reviewing the applicant’s case, therefore, cannot, on that score, be said to have been influenced by the certificate.
Finally, there is nothing to suggest the Tribunal considered any of the information covered by the certificate would be the reason or part of the reason for affirming the decision under review. It cannot be said, therefore, that the Tribunal’s decision was affected by the certificate excluding information that would otherwise have attracted the obligations imposed by s.424A(1) of the Act.
For these reasons, I am satisfied the Tribunal in the case before me did not make the first of the two jurisdictional errors Beach J found the Tribunal in MZAFZ made.
Given that I have found the Tribunal could not reasonably have regarded the information covered by the certificate given in the case before me to have been relevant to the review of the applicant’s claims it was conducting, the circumstances that led Beach J in MZAFZ to find the Tribunal in that case was required to give notice of the certificate are not present in the case before me. That is, the Tribunal in the case before me was not obliged to give the applicant notice of the existence of the certificate because the information contained in the certificate could not reasonably have been considered to be relevant to the claims the applicant made.
For these reasons, ground 5 also fails.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 17 November 2016
Corrections
These reasons have been amended to reflect the correct pseudonym of the applicant.
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