BNT15 v Minister for Immigration - [2018] FCCA 79

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNT15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 79

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered directions issued under s.499 of the Migration Act 1958 (Cth) (Act) – whether Tribunal made jurisdictional error by not disclosing to applicant certificate issued purportedly pursuant to s.438 of the Act – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2A) , 438, 499

Cases cited:

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

BQL15 v Minister for Immigration [2017] FCCA 1976

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
SZTMD v Minister for Immigration and Protection [2015] FCA 150

Applicant:

BNT15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1739 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

26 October 2016

Date of Last Submission:

26 October 2016

Delivered at:

Sydney

Delivered on:

23 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Mostafa

Solicitors for the Applicant:

Fragomen

Counsel for the First Respondent:

Mr M J Smith

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 1739 of 2015

BNT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a national of Sri Lanka, applies for judicial review of a decision made by the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant relied on a number of claims for seeking a Protection visa. The only claim that is relevant to the application before me is that based on the applicant’s having left Sri Lanka illegally with the consequence that, if he were to be returned to Sri Lanka, he would be charged under the Immigrants and Emigrants Act 1945 (Sri Lanka) (IE Act) and placed on remand pending the granting of bail. The applicant claims the Tribunal made two jurisdictional errors in rejecting this part of his claims.
The applicant also claims the Tribunal made a jurisdictional error because the Tribunal did not disclose to the applicant a certificate that was issued purportedly pursuant to s.438 of the Migration Act 1958 (Cth) (Act). I will deal with this claim after I consider the Tribunal’s reasons for rejecting the applicant’s claim based on his having departed Sri Lanka illegally.

Tribunal’s reasons in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 79
Decision Date: 23 January 2018

CaseChat Overview and Summary

This matter concerned an application before Judge Manousaridis in the Federal Court of Australia. The applicant, BNT15, challenged a decision made by the Minister for Immigration. The core of the dispute revolved around the use of a certificate issued under section 438 of the relevant Act by the Tribunal, and whether its non-disclosure to the applicant constituted a jurisdictional error or a denial of procedural fairness.

The legal issues before the court were whether the Tribunal's reliance on an invalid section 438 certificate amounted to a jurisdictional error, and whether the Tribunal's failure to disclose the existence of such a certificate, or the documents to which it related, invariably denied the applicant procedural fairness. The court was also required to consider whether material contained within documents covered by a section 438 certificate could be relevant in judicial review proceedings, even if the certificate was not disclosed to the applicant.

The court referred to recent judgments of the Full Federal Court, which indicated that the non-disclosure of a section 438 certificate does not automatically constitute a jurisdictional error or a denial of procedural fairness. The Full Federal Court held that it is necessary to examine the specific circumstances of each case and the consequences of the omission for the applicant. The relevance of the documents covered by the certificate was identified as a key factor in determining whether the applicant was deprived of a chance of a successful outcome before the Tribunal, and thus whether procedural fairness was denied. This assessment of relevance was pertinent to both the question of procedural fairness and the exercise of the court's discretion to grant relief, irrespective of the validity of the certificate itself.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

After I heard this matter the Full Federal Court delivered three judgments which are relevant to the issues raised by the competing submissions.[37] They in large part support the Minister’s submissions. For present purposes, it will be sufficient if I refer to the following passage from the Full Federal Court’s judgment in BEG15 v Minister for Immigration and Border Protection:[38]In Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, a decision published today, the Full Court, as presently constituted, reviewed MZAFZ and Singh and other related authorities. Having done so we rejected submissions that these authorities supported rigid and unqualified propositions of the kind advanced by BEG15 on this appeal. In particular we found nothing to support the view that it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant. We concluded (at [62]) that:It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.[37] Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198[38] [2017] FCAFC 198 at [30]We also said (at [69]) that:We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Secretary has issued a certificate and that the documents identified in the certificate had been provided to it.We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court’s discretion to grant relief. This was so whether or not the certificate was invalid. Whether or not the 438 certificate is invalid, the Tribunal did not deny the applicant procedural fairness only because it did not disclose to the applicant the existence of the 438 certificate or the documents covered by the 438 certificate. The question is whether, given the contents of the documents covered by the 438 certificate, it can be said that the Tribunal’s failure to disclose to the applicant the 438 certificate or the documents covered by 438 certificate deprived the applicant of a chance of a successful outcome on the review. That, in turns, depends on the relevance or potential relevance of the documents covered by the 438 certificate.