BNT15 v Minister for Immigration
[2018] FCCA 79
•23 January 2018
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 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 |
| 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 claim based on illegal departure
After noting that illegal departure from Sri Lanka is an offence under s.45 of the IE Act the Tribunal found or noted the following (among other things):
a)Since November 2012 all returnees who left Sri Lanka have been arrested by “the CID” (that is, the Criminal Investigation Department) after being processed back into Sri Lanka, and charged with an offence under the IE Act and bailed.[1]
b)The Department of Foreign Affairs and Trade (DFAT) advised in 2013 that returnees charged with illegal departure from Sri Lanka are held in police custody at the CID Airport Office for up to 24 hours or transferred to Negombo Remand Prison if they arrived on a weekend or public holiday. The persons are then produced before a Magistrates Court and released on bail on their own recognisance with a family member as guarantor. Conditions may be imposed on bail in relation to repeat offenders, and the court may decide not to grant bail is the returnee is considered to be a facilitator or organiser of people smuggling.[2]
c)If he were to return to Sri Lanka the applicant would be held in remand for a short period, from between one day to several days, and possibly up to two weeks; and the applicant’s father, mother, sister, and brothers are present in Sri Lanka to guarantee the applicant’s bail.[3]
[1] CB386, [37]
[2] CB386, [38]
[3] CB387, [43]
The Tribunal then considered whether there is a real risk the applicant will suffer “significant harm” while in remand. Although it accepted that prison conditions in Sri Lanka are poor and do not meet international standards, the Tribunal did not accept that a relatively short period of remand would amount to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant, or would amount to an act that could reasonably be regarded as cruel or inhuman or as an act or omission which is intended to cause extreme humiliation which is unreasonable.[4] After stating that, under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted, the Tribunal noted that country information indicates that the poor prison conditions in Sri Lanka are due to a lack of resources, which the Sri Lankan government appears to have has acknowledged, rather than an intention by the Sri Lankan government to inflict pain and suffering or cause extreme humiliation.[5] The Tribunal further noted that prison conditions arising from mere negligence or lack of resources do not give rise to cruel or inhuman or degrading treatment or punishment under Australian law.[6] The Tribunal rejected the submission made by the applicant’s representative that the failure by the Sri Lankan government to resource adequately the prison system demonstrated an intention to cause pain or suffering or extreme humiliation.[7] The Tribunal concluded:[8]
For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka he faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds, for the reasons set out above, that there are not substantial grounds for believing there is a real risk the applicant will be arbitrarily killed whilst on remand and the death penalty does not arise on the facts.
[4] CB388, [49]
[5] CB388, [50]
[6] CB388, [50]
[7] CB388, [50]
[8] CB388, [51]
Ground 1
As I have already noted, the applicant claims the Tribunal made two jurisdictional errors in rejecting the applicant’s claims based on his having left Sri Lanka illegally. These are contained in grounds 1 and 2 of the further amended application. Counsel for the applicant accepted that if I were to determine the application before the High Court heard an application for special leave to appeal against the orders of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection,[9] ground 1 was bound to fail. In the event, the High Court granted special leave to appeal against the Full Federal Court’s orders, but dismissed the appeal.[10]
[9] [2016] FCAFC 69
[10] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
On 10 October 2017 my chambers received an email from the Minister’s solicitors stating that the High Court had dismissed the appeal in SZTAL. That email was copied to the solicitor for the applicant. Given the concession counsel for the applicant made at the hearing before me on 26 October 2016, and the fact that the applicant has not, after the High Court delivered judgment in SZTAL, sought to relist the matter, it follows that ground 1 of the further amended application fails.
Ground 2
Ground 2 of the further amended application is as follows:
The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Act.
Particulars
a.The Tribunal failed to take into account PAM3: Refugee and humanitarian – Complementary Protection Guidelines.
Before I set out and consider the parties’ submissions, it would be useful to say something about s.499 of the Act, and set out the relevant portions of the Refugee and Humanitarian – Complementary Protection Guidelines (PAM 3).[11]
[11] I here repeat much of what I said in BQL15 v Minister for Immigration [2017] FCCA 1976 at [14]-[22]
Section 499 of the Act and PAM3
Section 499 of the Act relevantly provides as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
. . . .
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A)A person or body must comply with a direction under subsection (1).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
. . . .
The directions that are relevant to the case before me are those contained in Direction No 56 dated 21 June 2013. It is headed “Consideration of Protection Visa applications”. Clause 1 provides that it applies to “a decision-maker performing functions or exercising powers under section 65, 414 or 415” of the Act “when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa”. Clause 2 provides that in “performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account”, among other things, the guidelines contained in PAM3 “to the extent that they are relevant to the decision under consideration”.
The introduction to PAM3 states that “[t]hese Guidelines are designed to provide advice and assistance to Department of Immigration and Border Protection (DIBP) decision makers on the law relevant to the assessment of whether Australia owes protection obligations to applicants under the complementary protection provisions of the” Act. The introduction further states “[t]hese provisions allow consideration of Australia’s non-refoulement obligations under the” International Covenant on Civil and Political Rights (ICCPR), the Second Optional Protocol to the International Covenant on Civil and Political Rights (Second Optional Protocol), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
PAM3 is divided into sections.[12] One is headed “What is complementary protection”. That section identifies Australia’s non-refoulement obligations under Article 3 of the CAT, Articles 6 and 7 of the ICCPR, Article 33 of the Refugees Convention, and the Second Optional Protocol in relation to persons who will have the death penalty carried out on them, and sets out the background to and statutory framework of the complementary protection provisions of the Act. PAM3 also identifies the questions a decision maker should ask when assessing a claim under the complementary protection provisions of the Act, noting that, when assessing such claims, decision makers “will be considering a number of issues, which are explained in greater detail in the subsequent parts of these Guidelines”.[13] One of the questions identified in PAM3 is whether “the feared harm” would constitute “significant harm (s36(2A) of the Act)”.[14] After identifying the questions a decision maker should ask, PAM3 states:[15]
These Guidelines provide assistance on how to consider these issues. There is no legal requirement to consider these issues in any particular order, and there is no need to consider all of the issues once it becomes apparent that the applicant has not met a necessary criterion (for example, if the decision maker finds that the claimed harm does not amount to ‘significant harm’).
[12] A copy of PAM3 is annexed to the affidavit of Mr F Varess made on 1 February 2016
[13] PAM3, [7]
[14] PAM3, [7]
[15] PAM3, [7]
Another section of PAM3 is headed “Significant harm”.[16] It notes that “significant harm” is defined in s.5(1) of the Act to mean harm of a kind mentioned in s.36(2A) of the Act, and it then sets out what s.36(2A) defines as “significant harm”. PAM3 further states:[17]
The terms ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are defined in s5(1) of the Act. The definitions derive from, and require decision makers to turn their minds to, international jurisprudence.
The definitions have been provided to assist decision makers to determine whether a particular type of claimed harm amounts to significant harm. They are also intended to confine significant harm to acts which could engage a non-refoulement obligation.
[16] That is the heading to the section comprising [11] – [14]
[17] PAM3, [14]
PAM3 then considers each of these terms and the definitions given to them by the Act. That includes the meaning of the expression “pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature” contained in s.5 of the Act. Of particular relevance to the submissions made by the parties is the following passage from PAM3:[18]
[18] PAM3, [22], and [23]
Decision makers should interpret this part of the definition by reference to the international jurisprudence on the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR. For further guidance on this, see Is the act or omission inconsistent with Article 7 of the ICCPR.
. . . .
To meet the definition of cruel or inhuman treatment or punishment, an act or omission must be intended to inflict either severe pain or suffering or some level of pain or suffering depending on which limb of the definition the decision maker considers appropriate. An act or omission that is not intended to cause pain or suffering but inadvertently did so would not fall within the definition.
In certain circumstances it may be appropriate to infer an intention to inflict pain or suffering if it is evident that pain or suffering was or may be knowingly inflicted.
Also of relevance to the applicant’s case is the discussion of “lawful sanctions that are not inconsistent with Article 7 of the” ICCPR,[19] which forms part of the definition of “degrading treatment of punishment” given in s.5(1) of the Act. In that discussion PAM3 considers “Imprisonment/Prison conditions” where the following is noted:[20]
Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.
[19] Article 7 provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”
[20] PAM3, [29]
After noting that a minimum level of severity is necessary to breach Article 7 of the ICCPR, and that the assessment of this minimum depends “on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim”, PAM3 gives examples of conditions which have been held to constitute breaches of Article 7 of the ICCPR. One of these is “extremely cramped or unsanitary conditions”[21].
[21] PAM3, [29]
Parties’ submissions
Counsel for the applicant submits that, although the Tribunal acknowledged it was required to take into account the guidelines contained in PAM3 to the extent they are relevant to the decision under review,[22] it did not consider those parts of PAM3 that deal with imprisonment. Counsel for the applicant relies on two matters. First, the Tribunal did not expressly refer to any of the parts of PAM3 that deal with imprisonment. Second the Tribunal made findings that triggered the obligation to consider the applicability of those parts of PAM3, but the Tribunal failed to consider those parts. Counsel relied on the reasoning and decision of Judge Driver in SZUQZ v Minister for Immigration and Border Protection.[23] In particular, counsel relied on the following passage from his Honour’s judgment (emphasis added by counsel for the applicant):[24]
The Tribunal, however, cannot simply avoid that determination by silence. Neither, in this case can that determination be inferred. The Guidelines in this case were no less relevant than they were in SZTCV, where they were expressly considered. In this case they were not considered at all. The factual findings made by the Tribunal rendered the Guidelines at least potentially relevant and some engagement with the question of their relevance was necessary for the Tribunal to complete the review. The conclusion I draw is that the Tribunal failed to consider the potential relevance of the Guidelines which, if relevant, were mandatory, and hence the Tribunal overlooked a relevant consideration.
[22] CB378, [8]
[23] [2015] FCCA 1552
[24] 2015] FCCA 1552 at [54]
Counsel for the Minister, on the other hand, submits the Tribunal was obliged to take into account the contents of PAM3 only “to the extent that they are relevant to the decision under consideration”;[25] and the inference to be drawn from the fact the Tribunal did not refer to that part of PAM3 that suggested that it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was knowingly inflicted is not that the Tribunal did not consider PAM3; the inference that is to be drawn is that the Tribunal did not consider this part of PAM3 to be relevant.
[25] First Respondent’s Submissions, [20] quoting from the judgment of Perram J in SZTMD v Minister for Immigration and Protection [2015] FCA 150 at [20]
Did the Tribunal fail to consider PAM3?
I am not satisfied the Tribunal did not consider PAM3, including those parts of PAM3 which the applicant submits the Tribunal did not consider. First, although the Tribunal expressly referred to PAM3 in general terms at the beginning of its reasons, it expressly referred to what it understood Australian law required when considering whether the prison conditions the Tribunal found the applicant would face on his return to Sri Lanka would constitute cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal said Australian law required that cruel or inhuman treatment or punishment to be intentionally inflicted to cause pain or suffering, and that the degrading treatment or punishment must be intended to cause extreme humiliation. The Tribunal’s reference to its understanding of Australian law is consistent with the contents of PAM3; and the Tribunal’s having expressed that understanding is a basis not only for not accepting the applicant’s submission that the Tribunal did not consider PAM3, but also for inferring that the Tribunal obtained its understanding of Australian law, at least in part, from PAM3, and, for that reason, considered PAM3.
Second, the Tribunal considered that evidence which, given the contents of PAM3, was relevant for the Tribunal to consider when determining whether the poor prison conditions the Tribunal accepted the applicant would face on his return to Sri Lanka would amount to intentionally inflicted pain or suffering or would amount to intentionally inflicted extreme humiliation. The evidence the Tribunal considered was country information which the Tribunal found showed that poor prison conditions in Sri Lanka were due to a lack of resources which the Sri Lankan government appears to have acknowledged and which it is taking steps to improve, rather than an intention by the Sri Lankan government to inflict pain and suffering or to cause extreme humiliation. That the Tribunal considered such evidence is a basis for inferring the Tribunal did consider PAM3.
Third, the Tribunal in effect considered whether the poor prison conditions in Sri Lanka formed a basis for inferring an intention to cause pain or suffering or extreme humiliation. That is so because the applicant’s representative at the Tribunal hearing submitted that the failure by the Sri Lankan government to resource adequately the prison system demonstrated an intention to cause pain or suffering or extreme humiliation. The Tribunal referred to this submission and rejected it because it did not “accept that this is correct in the context of government acknowledgment of the problems and a stated intention to address them”.[26]
[26] CB388, [50]
Ground 2 of the further amended application, therefore fails.
Grounds 3 and 4
Grounds 3 and 4 of the further amended application are as follows:
3.The Tribunal erred in acting on a certificate purportedly issued under s 438 of the Act; such certificate being invalid.
Particulars
a.On 9 April 2014, a delegate of the Minister purported to issue a certificate to the Tribunal under s 438 of the Act (Purported Certificate).
b.The Purported Certificate was invalid for failure to comply with s 438(1)(a) of the Act.
c.The Tribunal acted on the Purported Certificate.
4.In the alternative to ground 3 above, the Tribunal erred denying the applicant procedural fairness.
Particulars
a.On the assumption that the Purported Certificate was valid, the Tribunal denied the applicant procedural fairness by failing to:
i. disclose the existence of the certificate to the applicant;
ii. give the applicant the opportunity to make submissions on the validity of the certificate;
iii. disclose to what extent, if any, the Tribunal was going to take into account information covered by the certificate and whether the information was favourable, unfavourable or neutral to the applicant;
iv. give the applicant an opportunity to seek a favourable exercise of discretion under s438(3)(b).
There is no question that a certificate was issued purportedly pursuant to s.438 of the Act (438 certificate); and that the certificate is substantially in the same terms as that considered by Beach J in MZAFZ v Minister for Immigration and Border Protection which his Honour held was invalid.[27] Unlike MZAFZ, however, the documents that are covered by the 438 certificate are in evidence;[28] and it is necessary to describe them.
[27] [2016] FCA 1081
[28] The documents are annexure “DE-2” to the affidavit of Mr D Eberl
The first is a document titled “CLIENT INFORMATION”.[29] The document contains information that identifies the applicant, a brief explanation of the applicant’s claims for protection, and a checklist in relation to steps and documents taken or submitted in connection with the applicant’s application for a Protection visa. The second document is an internal memorandum from one section the Department of Immigration and Border Protection (Department) (identified as “DIAC LSAdmin/IMMI/AU”) to another section of the Department (identified “sNSW Compliance IMU/IMMI/AU”. It refers to an earlier Tribunal’s decision having been set aside by this Court, noting that “[c]ompliance action” in relation to the applicant “may not be appropriate” and that the matter “will now be referred to the [Tribunal] for reconsideration”.[30] The third document is also an internal Departmental memorandum from a legal officer to another officer noting that, although the sender of the memorandum empathised with the addressee’s position, the Department would proceed to withdraw “from the matter”.[31] That appears to be a reference to an application for judicial review the applicant filed against a previous decision of the Tribunal. The fourth document is a memorandum to the Tribunal stating that on 20 March 2014 this Court ordered that the matter be reconsidered.[32] The fifth, and final document, is one titled “MATTER DETAILS SUMMARY”.[33] This document contains a short summary of the outcome of the decision of this Court to set aside an earlier decision of the Tribunal.
[29] Affidavit of Mr D Eberl, pages 6-8
[30] Affidavit of Mr D Eberl, page 9
[31] Affidavit of Mr D Eberl, page 10
[32] Affidavit of Mr D Eberl, page 11
[33] Affidavit of Mr D Eberl, page 12
The applicant submitted the 438 certificate is invalid for the reasons Beach J in MZAFZ held the certificate in that case to be invalid. The applicant further submitted that the Tribunal before me acted on the 438 certificate. In that regard, the applicant submitted that whether or not the Tribunal acted on the certificate is not to be answered by looking at whether the Tribunal acted on the documents covered by the 438 certificate.[34] In the alternative, the applicant submitted the Tribunal denied the applicant procedural fairness by not disclosing the 438 certificate to him. The applicant relied on the decision and reasoning of Beach J in MZAFZ.
[34] Applicant’s Submissions on Proposed Grounds 3 and 4, [17]
The Minister, on the other hand, submitted that Beach J in MZAFZ did not conclude that a failure to disclose a s.438 certificate per se amounts to a denial of procedural fairness; and that, whether or not the Tribunal “acted on” documents covered by s.438 of the Act is a question of fact for the Court to determine on the material that is before it.[35] The Minister further submitted that the documents covered by the 438 certificate were not relevant to any issue raised on the applicant’s review; and the Tribunal’s not disclosing the 438 certificate or the documents covered by the 438 certificate did not deprive the applicant of the possibility of a successful outcome.[36]
[35] First Respondent’s Outline of Submissions, [31], [32]
[36] First Respondent’s Outline of Submissions, [34], [35]
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.
From my description of the documents covered by the 438 certificate it should be apparent that the documents cannot reasonably be considered to have been relevant or potentially relevant to any issue arising on the applicant’s application for review to the Tribunal. All but the first of the five documents are communications concerning the applicant’s application for judicial review to this Court of a previous decision made by the Tribunal; and the first of the five documents contains information concerning the nature of the applicant’s claims for protection and the procedural steps that have been taken in the processing of that Protection visa application.
The applicant’s response to the Minister’s submission that the documents were irrelevant was to submit that the relevant question was whether the Tribunal relied on the certificate, not on whether the documents covered by the certificate were relevant.[39] Given the Full Federal Court’s judgments to which I have referred, however, the applicant’s submission cannot be accepted. The only relevance to the validity of a Tribunal’s decision of a certificate having been issued or purportedly issued under s.438 of the Act is whether its issue has led to the applicant being denied procedural fairness. Where the existence of a certificate has not been disclosed to an applicant, whether or not that will result in an applicant being denied procedural fairness will turn, at least in most cases, on whether the contents of the documents covered by the certificate or purported certificate are such that, by not being disclosed, the applicant will have been deprived of a chance of succeeding in his or her application for review. The applicant has not submitted that, because the Tribunal did not disclose the 438 certificate or the documents covered by the 438 certificate, he was deprived of a chance of a successful outcome in his application for review.
[39] Applicant’s Submissions on Proposed Grounds 3 and 4, [17], [18], [28]
For these reasons, grounds 3 and 4 of the further amended application fail.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 23 January 2018
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