BNY16 v Minister for Immigration
[2020] FCCA 6
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNY16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 6 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant disbelieved in part and other fears found not to be well-founded – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46, 424A, 425, 438 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 |
| Applicant: | BNY16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1601 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 14 February, 5 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2020 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Saunders of DLA Piper |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 23 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1601 of 2016
| BNY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter has been before the Court for three and a half years. The delay has been the unfortunate consequence of very significant health issues which have confronted the applicant and necessitated numerous adjournments. Ultimately, I invited the parties to consider whether they would consent to me dealing with the matter on the papers, without an oral hearing. The applicant indicated a preference for an oral hearing and, although substantial additional medical assessments were provided by email the day before the trial (on 5 December 2019), the applicant confirmed at the trial that he was well enough to attend the hearing.
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 May 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 11 February 2019.
The applicant is a male citizen of Malaysia, who arrived in Australia on a subclass 976 (Electronic Travel Authority) visa on 6 October 2012.[1] He subsequently applied for and was granted two other (subclass 676 (Visitor)) visas. The applicant left Australia in 2013 and returned in July 2015 on a subclass 601 (Electronic Travel Authority) visa. The applicant applied for a protection (class XA) visa on 2 October 2015.[2]
[1] Court Book (CB) 78.
[2] CB 1-35.
The applicant's claims relate to former business associates in Malaysia:
a)in 2003, the two business men he worked for obtained a credit card, loans and a house in his name without permission. The applicant reported this to the police in 2005;[3]
b)after the applicant reported the incident to the police, the men began to chase him. The applicant was forced to move to another province because they were threatening to kill him and destroy his wife and children in Pakistan;[4]
c)in 2011, the applicant left Malaysia for Pakistan to attend his mother-in-law's funeral, and whilst he was there he was threatened in a marketplace.[5] The applicant returned to Malaysia to report the men and stated that he knew that the police and bank people were involved. The applicant claimed that all the evidence in support of this was stolen from his house. The applicant submitted a 2011 police report showing that his house had been robbed;
d)the applicant left for Australia in 2012, and returned to Malaysia in 2013;[6]
e)in 2014 the applicant was declared bankrupt; and
f)in 2015 the applicant received further threats.[7] In that same year he left for Australia and applied for protection.
[3] CB 155.
[4] CB 155.
[5] CB 156.
[6] CB 78.
[7] CB 156.
The delegate refused the applicant's visa on 25 July 2016.[8]
[8] CB 78-92.
The applicant applied for review of the delegate's decision on 15 February 2016.[9]
[9] CB 98-104.
In a response to the hearing invitation letter, the Asylum Seekers Centre noted that the applicant had a "mental illness", without providing any further particulars or evidence.[10] The applicant appeared before the Tribunal on 26 May 2016 to give evidence and present arguments.
[10] CB 153 at [11].
On 30 May 2016 the Tribunal affirmed the decision of the delegate.[11]
[11] CB 151-162.
The decision of the Tribunal
Whilst the Tribunal accepted that the applicant had been the victim of two crimes, being fraudulent use of his credit card and theft, at [24] it rejected that the two men would have been able to secure loans and properties in the applicant's name.
The Tribunal did not accept, at [24], in regards to the applicant's purported bankruptcy, that the applicant would be unable to establish during bankruptcy procedures that any loans or debts held in his name had not been accumulated by him.
The Tribunal ultimately found at [22] and [26] that the applicant's claims to be illiterate and uneducated were not credible, and that the applicant misrepresented his circumstances in an attempt to fabricate claims for protection.
The current proceedings
These proceedings began with a show cause application filed on 23 June 2016. The applicant continues to rely upon that application. There are three grounds in it:
Grounds of application
1. The Tribunal constructively failed to exercise its jurisdiction;
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.
2.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
3. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Malaysia.
The application is supported by a short affidavit filed with it, which I received as a submission.
I have before me as evidence the court book filed on 15 August 2016 and the affidavit of Aaron Michael Day made on 28 July 2017. Mr Day deposes as to the issuing of a non disclosure certificate by the Minister’s Department. The purported certificate is annexed to the affidavit. Exhibited to the affidavit in a sealed envelope was the document purportedly covered by the certificate.
I invited oral submissions from the applicant at the trial. He told me that his application had been prepared with the assistance of another person and he was not in a position to address the grounds in it. He told me he anticipated that he would be allocated a lawyer by the Court but I explained that the provision of pro bono legal assistance is the exception rather than the rule. I do not consider that this case warranted the provision of pro bono legal assistance. I told the applicant that, given that he was self represented and was still grappling with serious medical issues, I would consider for myself whether any legal error by the Tribunal was identifiable from the material.
Consideration
On the basis of the available material, no argument of jurisdictional error is apparent to me, apart from the grounds advanced by the applicant and the issue of the non disclosure certificate. Unfortunately for the applicant, the grounds that he advances do not establish any jurisdictional error. In that regard, I agree with the Minister’s submissions.
Ground 1
This ground takes issue with the Tribunal assessing the applicant's credibility before examining the substance of the evidence before it. This is essentially an argument based on Re Minister for Immigration; Ex parte Applicant S20/2002.[12]
[12] [2003] HCA 30 at [49]
This construction plainly mischaracterises the decision of the Tribunal. The Tribunal examined the documents before it in full, and did not dismiss those documents; rather, it found that the documents did not support the applicant's claims.
This is not a case such as SZLGP v Minister for Immigration[13] where the Tribunal erred because it made credibility findings by reference to "a false factual premise with respect to a critical document”.[14] The Tribunal's findings with respect to the documents before it were open on the material and cannot be said to lack an evident and intelligible justification. This ground cannot be made out.
[13] [2009] FCA 14
[14] at [38]
The documents submitted by the applicant are listed by the Tribunal in its reasons at [10]. At [14] and [21] the Tribunal expressly considered those documents. It is apparent from what the Tribunal states at [24] of its decision that the Tribunal essentially accepted the applicant’s documents at face value but was not satisfied that the documents supported the applicant’s claims to have a well-founded fear of serious or significant harm in Malaysia.
Ground 2
This ground asserts that the Tribunal failed to put adverse information to the applicant, and failed to issue a letter pursuant to s.424A.
The ground does not identify the adverse information to which it refers and I accept that there is nothing in the Tribunal's decision to indicate that it relied on any information within the meaning of s.424A. The country information relied upon by the Tribunal was not information within the meaning of s.424A.
This ground has no merit.
Ground 3
This ground alleges the Tribunal misconstrued the definition of significant harm under s.36(2A).
There is no evidence in the decision record to suggest that the Tribunal made an error in law, nor do the particulars clarify how the Tribunal may have misconstrued the relevant test. This ground cannot be sustained.
Section 438 certificate
Neither does any jurisdictional error result from the non disclosure certificate issued to the Tribunal or the manner in which the Tribunal dealt with it.
On 18 February 2016, a non-disclosure certificate was issued pursuant to s.438 of the Migration Act.[15] As noted above, the certificate has been annexed to the affidavit of Mr Day. The document the subject of the certificate was placed in a sealed envelope, in accordance with the suggestion of Kenny, Perram and Mortimer JJ in Minister for Immigration v Singh[16] at 319 [67]. Having regard to the content of the document covered by the certificate, the Minister concedes that the certificate is invalid.
[15] affidavit of Mr Day, affirmed on 28 July 2017, Annexure A
[16] (2016) 244 FCR 305
The Minister also concedes that there is no suggestion that the certificate or the document subject to the certificate were disclosed to the applicant prior to these proceedings.
The Full Federal Court considered the application of Singh and MZAFZ v Minister for Immigration[17] in three judgments decided on the same day BEG15 v Minister for Immigration[18]; Minister for Immigration v BJN16[19] and CQZ15 v Minister for Immigration.[20]
[17] (2016) 243 FCR 1
[18] [2017] FCAFC 198
[19] [2017] FCAFC 197
[20] [2017] FCAFC 194. The Minister, in his outline of submissions filed on 11 February 2019, notes that special leave has been granted in BEG15 and CQZ15 and these matters were heard on 10 September 2018 and judgment was handed down on 13 February 2019.
In BEG15, the Court set out at [30] and adopted two paragraphs from its conclusion in BJN16 as follows[21]:
63 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.
[21] The Minister notes that in BEG15 at [30] the Full Federal Court refers to these paragraphs as being [62] and [69] whereas they appear at [63] and [70] in the published reasons in BJN16. Nothing is said to follow from this
…
70 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 Minister has issued a certificate and that the documents identified in the certificate had been provided to it.
In BEG15, neither the existence of the certificate nor the documents the subject of it were disclosed to the applicant. Nor were they referred to in the Tribunal’s reasons. Nonetheless, the Full Federal Court noted that the primary judge had examined them and concluded that the documents did not contain any material that was prejudicial to BEG15’s interests, that the Tribunal had not acted on the material and that, in the circumstances, he would have in any event exercised his discretion to refuse relief.[22]
[22] at [32]
The Full Federal Court found that those findings and conclusions were open to the primary judge and held that neither the invalidity of the certificate nor the failure by the Tribunal to provide the applicant with a copy of it or of the documents gave rise to any practical injustice.[23]
[23] at [33]
The decision of Barker J in AVO15 v Minister for Immigration[24] was referred to with approval by the Full Federal Court in BJN16 at [75]. The Full Federal Court noted that each case involving a s.438 certificate is to be determined on its own facts. The Full Federal Court also accepted the proposition that where the information covered by the certificate was of the most anodyne nature, it will usually be the case that the decision-maker will not fall into jurisdictional error in failing to disclose those documents to the applicant.
[24] [2017] FCA 566
Applying that reasoning to the facts of the case before the Court, the information covered by the certificate was of the most anodyne nature that there was no jurisdictional error resulting from the Tribunal’s failure to disclose the document to the applicant.
The document covered by the certificate was an identification test relating to the provision of personal identifiers of the applicant to satisfy s.46 of the Migration Act. This document is wholly irrelevant to the issue before the Tribunal, being whether the applicant was owed protection obligations and as such no obligations arose under ss.424A or 425 of the Migration Act. Accordingly, by not drawing the certificates or the document to the attention of the applicant, it cannot be said that the Tribunal followed a procedure that was not in accordance with law or that it denied the applicant procedural fairness.[25]
[25] AVO15 at [90]
In Minister for Immigration v SZMTA[26] the High Court reinforced the above authority. The High Court held that the fact of a notification to the Tribunal that s.438 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for review. However, the High Court also held that a breach by the Tribunal of that obligation would result in jurisdictional error if, and only if the breach is material, in the sense that the breach deprives the applicant of the possibility of a successful outcome. By majority, the High Court also held that an invalid notification will result in jurisdictional error if, and only if, the notification is material.
[26] [2019] HCA 3
Although, in the present case, it is clear that the purported certificate is invalid and the Tribunal erred by not disclosing it to the applicant, it cannot be said that the document purportedly covered by the certificate could have been relevant to the Tribunal’s decision or have affected the applicant’s ability to advance his case. Accordingly, the Tribunal’s breach was not material and does not go to jurisdiction.
Conclusion
I conclude that the applicant is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 February 2020
0
7
2