BTE16 v Minister for Immigration

[2019] FCCA 124

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTE16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 124

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – section 438 certificate – effect of material on decision maker – whether there was a failure to afford procedural fairness – prejudicial material – failure to afford procedural fairness – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.438, 476

Cases cited:

Applicant VEAL of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72

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

Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197
CNY17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 159
Kioa v West [1985] HCA 81
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374

First Applicant: BTE16

Second Applicant: BTF16

Third Applicant: BTG16

Fourth Applicant: BTH16

Fifth Applicant: BTI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1483 of 2016

Judgment of: Judge McNab

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Melbourne

Delivered on: 23 January 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Aleksov

Solicitors for the Applicant: Clothier Anderson

Counsel for the Respondents: Ms J. Lucas

Solicitors for the Respondents: DLA Piper

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 27 June 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicants’ costs fixed in accordance with the appropriate scale.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1483 of 2016

BTE16

First Applicant

BTF16

Second Applicant

BTG16

Third Applicant

BTH16

Fourth Applicant

BTI16

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed 13 July 2016, amended on

   
   

   5 October 2018, the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of a delegate of the First Respondent, dated 27June 2016, to refuse the Applicants a grant of Protection (Class XA) Visas (‘Visas’).

Background

1. The Applicants (who are husband and wife and their three children) are citizens of Malaysia who applied for the visas on 23 May 2013. The delegate refused to grant the visas on 16 January 2014.

2. The Applicant husband claimed to fear harm on the basis of his Indian race and membership of a particular social group of individuals who have renounced their gang membership, and further, that his membership of a racial minority will not afford him state protection. The remaining Applicants claim to fear harm on the basis of their membership of the Applicant’s family.

3. On 18 September 2014, a previously constituted Tribunal affirmed the decision to refuse to grant the visas to the Applicants. However, following review of the decision by this Court, the matter was remitted to the Tribunal for reconsideration on the basis that the Tribunal failed to consider the Applicants’ claim to fear harm from Malaysian police arising from an incident which occurred in January 2010.

4. The Applicants appeared before a differently constituted Tribunal on

   
   

   10 November 2015 and 14 June 2016 to give evidence and present arguments.

5. On 22 June 2016, the Secretary notified the Tribunal that s 438 of the Act applied in relation to information relevant to the Applicant’s file and provided the relevant information to the Tribunal.

Tribunal decision

1. In its reasons, the Tribunal made the following observations regarding the material covered by the s 438 notification:[1]

   On 23 June 2016, the Tribunal received information making allegations about the Applicant and the Applicant wife’s activities in Australia. For the following reasons, the Tribunal has given no weight to this information in the making of its findings and decision. The information refers to the Applicants’ alleged activities in Australia and does not relate to or make reference to the Applicant’s claims of harm in Malaysia. Secondly, the Tribunal’s lengthy findings in relation to the Applicants’ credibility and claims set out below are based on concerns raised with the Applicants’ about their evidence at their two hearings, both of which took place before the information referred to in this paragraph was received by the Tribunal.

   [1] [149]

2. At [154], the Tribunal stated in relation to the Applicant’s credibility:

   Tthe Tribunal has carefully considered the credibility of the Applicant but found the majority of the Applicant’s evidence to it over the course of two hearings lasting several hours to be confusing, contradictory, implausible and vague including in relation to who has and wants to cause him harm. [M]any of the Applicant’s responses to the Tribunal’s questioning appeared evasive and did not address the Tribunal’s questions”.

3. Further at [155], the Tribunal stated that it:

   …did not accept that the consistency of certain incidents in the Applicant’s claims outweigh the significant concerns it held regarding the Applicant’s credibility.

4. The Tribunal then set out its major concerns regarding the Applicants’ evidence at length at, ultimately finding that the Applicants do not face a real chance of serious harm for any Convention related ground or significant harm for any other reason.

Grounds of review

1. The Applicant relies on the following grounds of review, raised in the amended application filed on 5 October 2018:

   1.The Administrative Appeals Tribunal failed to afford procedural fairness to the Applicant in failing to inform the Applicants of the existence of a non-disclosure certificate issued under s 438 of the Migration Act 1958.

   2.The Tribunal failed to afford procedural fairness to the Applicants by conducting the hearing of their application for review in a way which gave rise to a reasonable apprehension of bias by way of predetermination to the issues to be decided.

Submissions of the Applicant

1. The aforementioned grounds are particularised by [3] – [4] and [5] – [6] respectively of the Applicants’ submissions:

   Ground 1

   3.There was issued in this case a certificate pursuant to s 438 of the Migration Act 1958 (Cth). The Court should infer that this certificate contained the attachments mentioned on its face, and that these materials were before the Tribunal at the time of decision. As held in Minister for Immigration v Singh (2016) 244 FCR 305 and MZAFZ v Minister for Immigration (2016) 243 FCR 1, the Tribunal was obliged to inform the applicants of the existence of this certificate so that they might have sought to persuade the Tribunal to exercise the power under s 438(3)(b). In failing to do so (see affidavits of [BTE16] and [BTF16] sworn 3 October 2018), the Tribunal failed to afford procedural fairness to the applicants.

   4.A copy of the material under the certificate was provided to the applicant for the purpose of these proceedings, and is exhibited to the affidavit of Ms Catherine Farrell. That material contained allegations of serious fraudulent activity (which is denied by the applicants), and which capable of having affected the Tribunal’s consideration of questions relating to the applicants’ credibility as witnesses. Accordingly, it cannot be said that the failure to inform the applicant of the existence of the certificate could not have affected the outcome of the review.

   Ground 2

   5.As held by the majority in AMA16 v Minister for Immigration (2017) 254 FCR 534, where there is material before a decision that is prejudicial but irrelevant, and where the individual concerned is not aware of the existence of that material, there will arise an apprehension of bias on the basis of “the fourth category” of apprehended bias identified by Deane J in Webb v The Queen (1994) 181 CLR 41, 74.

   6.If, contrary to the applicant’s submissions in relation to ground 1, it is held that the certificate material was not relevant and therefore could not have affected the outcome of the review, the highly prejudicial nature of the certificate material means that the situation fits squarely within the “fourth category” of apprehended bias and the situation is relevantly indistinguishable from the circumstances in AMA16.

Submissions of the First Respondent

1. In relation to ground one, the First Respondent submits that a failure to disclose the existence of a s 438 certificate (‘certificate’) does not inevitably result in jurisdictional error: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 [30]. Whether jurisdictional error arises as a result of a failure to disclose a certificate is to be determined by reference to the particular circumstances and consequences resulting in each case.[2]

   [2] Submissions of the First Respondent [11] – [14].

2. It is said that in this case, since the certificate covering the material is valid and no objection as to validity had been raised, the Tribunal has not prima facie erred in failing to notify the Applicants of the certificate.[3] Further, the Tribunal recorded that it gave no weight to the material covered by the certificate.[4] The First Respondent submits that the findings of the Tribunal were open on the other evidence before it, without reference to the certificate material, and no error can be demonstrated in failing to notify the Applicants.[5]

   [3] Ibid [16].

   [4] Ibid [17] – [18]

   [5] Ibid [18] – [19].

3. The First Respondent submits, in the alternative, that if is found that there was some error in failing to disclose the existence of the certificate to the Applicants, the Applicants were nonetheless not denied the opportunity of a successful outcome and ground one cannot be made out.[6]

   [6] Ibid.

4. In relation to ground two, the First Respondent says that this case can be distinguished from Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 on its facts and the statutory context. AMA16 was decided within the IAA scheme, while this matter concerns a decision before the Tribunal. The First Respondent also seeks to rely on CNY17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 159, which stands for the principle that the mere existence of irrelevant material cannot give rise to apprehended bias; in order to find apprehended bias, there must regard to all the facts of the case and the nature of the material, as it appears to the reasonable lay observer.[7]

   [7] CNY17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 159 [161] – [162].

5. The First Respondent further submits, citing O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374 [44], that the Applicant has not given evidence of any act, comment or conduct of the Tribunal that could found an apprehension of partiality. It is said that a ‘mere concern that exposure to potentially prejudicial material in the course of the review might affect the final outcome’[8] is insufficient to make out a finding of apprehended bias.

   [8] First Respondent’s submissions 10 [32].

Evidence relied on by the Applicant

1. The Applicant relied on the following documents:

   a)Affidavit of BTF16 affirmed 3 October2018;

   b)Affidavit of BTE16 affirmed 3 October 2018; and

   c)Affidavit of Catherine Jane Farrell affirmed 5 October 2018, which exhibits the s 438 certificate and the material referred to in it.

2. The material covered by the s 438 certificate refers to information provided to the Department on 13 May 2016 and 14 June 2016. This material included an email stating:

   Dear Colleagues,

   We have been working towards finalising a number of Malaysian PV applications and have noticed a significant trend. There is one pharmacy in particular that we see certifying identity documents. The details of the pharmacy are as follows:

   [redacted]…

   When [redacted] searched on CSP it comes back with 294 clients while [redacted] comes up with 200 clients. In all that’s 494 clients that are registered to those 2 addresses alone with almost if not all who have Spencer Street Pharmacy certifying their identity documents.

   While Spencer Street Pharmacy tends to be certifying documents from Malaysian applicants listed at the above two addresses, we have now started to see this expanding to Malaysian applicants who have listed various addresses in Springvale South and Clayton. Of interest is that a recent Italian application [redacted] was submitted with the Spencer Street Pharmacy having certified his documents as well as listing [redacted] as his residential address.

   There are a number of different pharmacists who certify the identity documents (all from the same pharmacy). Given the volume of applications (494+) and the number of documents required to be certified I’m surprised the pharmacy continues to certify the documents unless they are complicit in the process. Alternatively facilitators may have stamps made up and are merely forging the certification of documents. Either way the process is alarming as its identity documents that are being certified. If the Pharmacy is complicit in the process they may not be adequately sighting the original documents in order to certify the copy and if a facilitator is certifying the documents then the certification is worthless…

   Regards…

   Refugee and Humanitarian Management Division

   Visa and Citizenship Services

   Department of Immigration and Border Protection

3. Another email covered by the certificate stated:

   …I have followed up with [author of previous email] re the information provided below.

   [redacted] and [redacted] are addresses that are commonly linked to MALS nationals lodging PV (and therefore LAWFUL on BVs and likely refusals or awaiting DIBP/Tribunal outcomes).

   A common name that has been mentioned by community informants indicated an individual named “Joe” is acting as an unregistered agent to facilitate these applications.

   This has also been provided by Danny who indicated a recent PV applicant (Italian national) was interviewed and mentioned Joe and Maria as charging $500 to assist with application preparation and lodgement.

   The individuals that appear to be linked to this cohort are as follows:

   [BTE16]

   WA010 holder – PV AAT pending…

   …suspect the N aka “Joe” is her husband [BTF16] WC030 holder on the PV application…

4. The affidavits of the Applicant each state that they have been shown the documents referred to in the certificate and deny that they are onshore facilitators, that they have links to agencies offshore to bring people to Australia or that they provide immigration advice or assistance to anyone.

Consideration

Ground one

1. Section 438(3) of the Act provides a discretion to the Tribunal to have regard to the contents of information provided under s 438(1) and disclose any matter contained in a document or information to the Applicant. In the present case, is accepted by the parties that the certificate under s 438(1) was valid. In BEG15 v Minister for Immigration & Border Protection [2017] FCAFC 198 (‘BEG15’), the Full Court of the Federal Court found that a failure by the Tribunal to provide an applicant with a copy of the certificate or the documents referred to in it will not necessarily give rise to any practical injustice on the part of the Applicant. It will also not automatically give rise to a jurisdictional error; it is necessary to consider all the circumstances and the consequences for the Applicant in determining whether the failure to disclose would result in a denial of procedural fairness.[9] One consideration is the nature of the material or information, another is whether the Tribunal acted on the material.

   [9] See Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 [63].

2. In BEG15, the Full Court concluded at [33] that the primary judge had not erred in finding that the material referred to in the certificate did not contain any material that was prejudicial to the applicant and that the Tribunal had not acted on that material. The Full Court noted at [17] that the primary judge had held that the information could not have provided a logical basis for any of the Tribunal’s findings.

3. In the present case, the Tribunal has, at [149] of its decision, expressly disavowed any reliance on the material in considering the Applicant’s claims and that the adverse findings in relation to credibility were based on the concerns about the Applicant’s evidence before the Tribunal and not on the information provided with the certificate.

4. However, as is apparent from Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 (‘VEAL’), a statement made by the Tribunal that it gave no weight in reaching its decision to a particular document or its contents does not, of itself, demonstrate that there was no obligation to reveal the relevant information to the Applicant and give the Applicant an opportunity to respond to it before the Tribunal concluded its review. The High Court found that: ‘deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness’ [18].

5. In my view the information contained in the material provided under the certificate is information which is credible, relevant and significant, as that expression is used in VEAL and Kioa v West [1985] HCA 81. As stated by the full Court in VEAL at [17]:

   “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision‑maker before making the decision. And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision‑maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

6. In the present case, the information in relation to the adult Applicants involves serious allegations of fraudulent conduct and involvement in a large-scale migration fraud. It makes specific reference to how the fraud is conducted and the alleged involvement of those Applicants. It is not information of a general kind on matters that have no bearing on the determination of the application before the Tribunal. In circumstances where credibility of the Applicants is central to the determination of their claims, material of the kind set out or attached to this certificate is such that the Applicants were denied procedural fairness in not being able to respond to the material prior to the Tribunal making its decision. As noted above, the disavowal of any reliance on that material does not address the Tribunal’s obligation to give the Applicant procedural fairness.

7. I accept the reasons of the Tribunal that discuss credibility are extensive and relate to at least five different claims. I also appreciate that the material in the certificate goes only to credibility and the character of the First Applicant and the Second Applicant. However, given that such serious allegations are raised and credibility is a central concern in evaluating the claims of the Applicants, the information is relevant to the matters before the Tribunal.

Ground two

1. In light of the findings in relation to ground one, it is not necessary for the Court to make a finding in relation to ground two.

Conclusion

1. For these reasons, a jurisdictional error has arisen by reason of the Tribunal’s failure to disclose to the Applicants the material referred to in the certificates and give them an opportunity respond prior to the decision being made. Accordingly, orders will be made and writs issued.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  23 January 2019