BTX15 v Minister for Immigration

[2018] FCCA 1863

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTX15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1863

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) Visa – whether the Tribunal failed to make an obvious inquiry about a critical fact – whether the Tribunal made an irrational or illogical finding – whether the Tribunal failed to consider integer of a claim – reasonableness of relocation – s.438 certificate – whether there was procedural unfairness from failing to disclose reliance on certificate information to applicant – Tribunal failed to make an obvious enquiry – Tribunal did not afford procedural fairness – Tribunal did not fail to consider an integer of a claim – Tribunal did not err in failing to disclose reliance on certificate information – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65, 422B, 438

Cases cited:

BEG15 v Minister for Immigration and BorderProtection [2017] FCAFC 198

Jahangir v Minister for Immigration and Border Protection [2014] FCA 218

Minister for Immigration and Border Protection v BNJ16 [2017] FCAFC 197
Minister for Immigration and Border Protection v CZQ15 [2017] 194
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

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

SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470

SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055

Applicant: BTX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2007 of 2015

Judgment of: Judge McNab

Hearing date: 14 February 2018

Date of Last Submission: 14 February 2018

Delivered at: Melbourne

Delivered on: 11 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Harris

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Mr Hosking

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 20 August 2015.

2. A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicant for review of the delegate of the First Respondent’s decision.

3. The First Respondent pay the Applicant’s costs agreed and fixed in the sum of $12,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2007 of 2015

BTX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an amended application filed on 12 May 2017, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it was then known) (‘the Tribunal’) dated 20 August 2015. That decision affirmed the decision of a delegate of the First Respondent to refuse the Applicant the grant of a Protection (Class XA) Visa (‘Visa’) under s. 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s amended application outlined five grounds of review which are summarised as follows:

   i)the Tribunal fell into jurisdictional error as it failed to make an inquiry about a critical fact in the Applicant’s claim;

   ii)the Tribunal fell into jurisdictional error because the finding that the Applicant would not face a real chance of serious harm or real risk of significant harm on the basis of his work was unreasonable;

   iii)the Tribunal fell into jurisdictional error because as it failed to consider an integer of the Applicant’s claim;

   iv)the Tribunal fell into error by acting on an invalid s.438 certificate (‘Certificate’) and failing to put material covered by the certificate to the Applicant; and

   v)the Tribunal fell into error by failing to disclose to what extent, if any, the Tribunal relied upon information covered by the certificate.

Background

1. The First Respondent has made a useful summary of the background circumstances of this case in the written submissions filed

   
   

   2 February 2018 from [3]–[13], which are replicated exactly below (Court Book references omitted):

   a)The applicant is a citizen of Afghanistan. He arrived in Australia without a visa on 11 August 2012.

   b)On 16 January 2013, the applicant applied for a protection visa. In support of his application, the applicant made a statutory declaration dated 16 December 2012 and a supplementary statutory declaration dated 31 October 2013.

   c)On 11 June 2014, a delegate of the Minister refused to grant the applicant’s application.

   d)On 12 June 2014, the delegate purported to issue a certificate under s.438(1)(a) of the Migration Act 1958 (Cth) (Act) in relation to the documents in folios 110 to 122 and 124 to 128 of Department file CLF2012/256070 (Certificate). The Certificate was folio 148 of that file.

   e)On 18 June 2014, the applicant applied to the then Refugee Review Tribunal (RRT) for review of the delegate’s decision.

   f)

   On 24 July 2014, the applicant’s representative applied to the RRT under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to documents concerning the applicant. On

   
   

   25 July 2014, the RRT transferred part of that application to the Department of Immigration and Border Protection (Department).

   g)On 26 August 2014, an FOI Case Officer in the Department decided to provide to the applicant, among other things, all documents on Department file CLF2012/256070 except the documents in folios 110 to 122 of that file. Accordingly, in August 2014, the applicant received:

   i)the documents in folios 124 to 128 of Department file CLF2012/256070; and

   ii)the Certificate.

   h)On 15 July 2015, the applicant provided a statutory declaration dated 15 July 2015 and a written submission to the RRT.

   i)On 28 July 2015, the applicant appeared before the Tribunal to give evidence and present arguments.

   j)On 29 July 2015, the applicant provided a further written submission to the Tribunal.

   k)On 20 August 2015, the Tribunal decided to affirm the delegate’s decision.

The Tribunal decision

1. The Applicant claimed to have a well-founded fear of persecution in Afghanistan on the basis of his:

   a)Hazara ethnicity;

   b)Shia Muslim beliefs;

   c)being perceived as a supporter of the Afghanistan government foreign forces;

   d)imputed or actual political opinion from his occupation as an English translator working for Inteqal, an Afhgani owned company which provided a number of services including translation;[1] and

   e)previous employment at Inteqal on a project which involved translating US military manuals.

   [1] Court Book 319 [45].

2. He also claimed to have a well-founded fear of harm on the basis that he would be returning to Afghanistan as a failed asylum seeker.

3. The Tribunal did not accept that the Applicant faced a real risk of harm if he returned to Kabul in relation to any of the aforementioned bases. It found that his ethnicity, religion and return as a failed asylum seeker to Afghanistan would not be the basis of a well-founded fear of persecution if he resided in Kabul.[2] It did not accept his claims of having been kidnapped by the Taliban in an incident in 2012.[3]

   [2] Ibid 322 [71]; 328 – 329 [99] – [104].

   [3] Ibid 320 [58].

4. It also found that his employment as an English translator had not been of the nature that would make him a target of the Taliban.[4] The Tribunal accepted that the Applicant had worked for translation services company, Inteqal, which contracted with the National Afghanistan Army. While the Applicant claimed that he had translated military manuals for the Afghanistan Army in his role at the translation company before leaving Afghanistan, the Tribunal was not satisfied of this claim.[5]

   [4] Ibid 327 [91].

   [5] Ibid 318 – 319 [42] – [45].

5. The Tribunal did not consider that the Applicant would face a real chance of serious harm or real risk of significant harm or if he returned to Kabul and therefore found that he did not satisfy the criteria necessary for a visa under ss.36(2)(a) or 36(2)(aa) of the Act.

Ground one – denial of procedural fairness and/or breach of obligations under s.425 of the Act

1. The Tribunal did not accept the Applicant’s assertion that he had a well-founded fear of harm on the basis of having been employed by Inteqal. The Tribunal accepted that persons employed by the government or whom were employed in roles where they had direct contact with foreigners were at risk.[6] However, it held that Inteqal was a small private company, rather than a government body. Further, the Tribunal rejected the Applicant’s claims that his role with Inteqal had involved translating military manuals.[7] Because of the Tribunal’s findings in relation to the nature of the employment of the Applicant, it found that he had only indirect contact with foreigners.[8]

   [6] Ibid 327 [92].

   [7] Ibid 319 [45].

   [8] Ibid 327 [93].

2. At the Tribunal hearing, the Applicant insisted that he had worked at Inteqal on military related translations and suggested that the Tribunal should contact his former supervisor at Inteqal to verify his employment claims.[9] The Tribunal declined to do, stating that:

   …ultimately the exact nature of the translation work which the Applicant did until May 2012 is not determinative of the issues the Tribunal needs to decide. Furthermore, the Applicant claims that the Taliban detained him…and found that he worked for foreigners…not that they knew that he translated weapons manuals.[10]

   [9] Ibid 318 [42].

   [10] Ibid 319 [45].

3. At [93] the Tribunal held that it did not:

   …accept that the Applicant did any translation work in relation to military equipment and furthermore he has never claimed to have worked as an interpreter in direct (emphasis original) contact with foreign military personnel’. His association with “foreigners” was indirect.[11]

   [11] Ibid 327.

4. At [45] the Tribunal made a finding that ‘the Applicant did work for Inteqal but the work was not related to military equipment of any kind’.[12] However, it is difficult to apprehend how the Tribunal made the finding that the Applicant only had an indirect association with foreigners in his employment, when the Tribunal did not make any finding about the exact nature of the Applicant’s work for Inteqal. The level of direct contact the Applicant had with foreigners was critical to his claim to fear harm on the basis of his former employment.

   [12] Ibid 319.

5. The Applicant submits that the Tribunal erred in failing to contact the Applicant’s former employer at Inteqal to confirm the nature of the work he undertook and this denied the Applicant procedural fairness. The Applicant relied on Minister for Immigration and Citizenship v SZIAI,[13] submitting that this case was an instance where contacting the Applicant’s former supervisor was an obvious enquiry about a critical fact which was easily ascertainable.[14]

   [13] [2009] HCA 39

   [14] Ibid [25] – [26].

6. The first element is whether the enquiry would be obvious. As the Tribunal accepted that employees of companies who had direct contact with foreigners were at risk of being targeted by insurgents, it was necessary in the circumstances to determine the level of contact with foreigners involved in the Applicant’s employment at Inteqal. The Applicant had directed the Tribunal to call his former supervisor, whose contact details he provided to verify his claims regarding the nature of his work. An enquiry isn’t obvious merely because it is requested by an Applicant,[15] but because ‘there is insufficient information or material before a decision maker and where, in the absence of such information or material, the making of a decision might constitute jurisdictional error’.[16] There was insufficient information before the Tribunal regarding the nature of the Applicant’s work to establish that he had only indirect contact with foreigners. Calling the Applicant’s former supervisor may have yielded new or clarifying information that was not already before the Tribunal, so contacting his former supervisor is an obvious inquiry where the question of the level of contact that the Applicant had with foreigners was critical to the Tribunal’s finding, as I find below.

   [15] SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 [49].

   [16] Jahangir v Minister for Immigration and Border Protection [2014] FCA 218 [56].

7. The second element is whether the information went to a critical or relevant fact. The nature of the Applicant’s work and whether this involved having direct contact with foreigners was a critical fact relating to his claim to fear harm. At [92] of their decision,[17] the Tribunal states that the country information indicates that interpreters working with foreign personnel are targeted by insurgents. At [93] the Tribunal makes a finding that since the Applicant did not work in direct contact with military or foreign personnel he is not at risk of being targeted for this reason.[18] It is clear that the level of contact he has with foreign military personnel could be determinative of a finding in his favour and is therefore a critical fact.

   [17] Court Book 327.

   [18] Ibid.

8. The final element is whether the information about the nature of his work and his level of direct contact with foreign military personnel was easily ascertainable or readily available. Making the telephone call to confirm the information given by the Applicant would be a simple step, especially as the Applicant had identified the person to be called and provided their contact details.[19]

   [19] cf Jahangir v Minister for Immigration and Border Protection [2014] FCA 218 [56].

9. In my view, this is one of the albeit rare instances where there was a duty upon the Tribunal to make a further enquiry that arose from the particular circumstances of the case. Once the Tribunal had accepted the country information that persons whom had direct contact with foreign military personnel were subject to targeted attacks, it was incumbent upon it to establish whether the Applicant’s work with Inteqal involved such contact.

10. I find that this ground has been made out.

Ground two – legal unreasonableness

1. The second ground relied upon by the Applicant is that the decision of the Tribunal was so unreasonable that it was not open to it. A decision maker will be found to have engaged in legal unreasonableness where they form a conclusion to which ‘no rational or logical decision maker could arrive on the same evidence’[20]: The Tribunal assumed, based on its conclusion that the Applicant did not work on translating military manuals, that he had no direct contact with foreign military forces. The Tribunal accepted he worked for Inteqal and found it was a company that often contracted for Afghani government and foreign military forces.[21] The Applicant submits that it did not follow that the Applicant did not or could not have direct contact with foreign military forces in the course of his employment. The Respondent submits that the country information relied on by the Tribunal was to the effect that interpreters in contact with foreign military personnel were at higher risk of harm and that the Applicant has never claimed to have direct contact with foreign military personnel.[22] It is put that the challenge to this finding is an exercise in impermissible merits review. The Respondent also referred to a finding of the Tribunal at [96][23] that the Applicant’s connections to the Afghan government and to the international community were limited and tenuous and that his roles in the private sector would lead the Taliban to impute that the Applicant is pro-Afghan government.

   [20] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 [130] per Crennan and Bell JJ

   [21] Court Book 318 [40].

   [22] Court Book  327 [92] – [93].

   [23] Ibid 327.

2. In my view, the Tribunal may have gone beyond the view expressed in the country information to impose a requirement that translators must have direct contact with military personnel in orders to be at risk, however that does not render the decision to be so unreasonable such that no rational decision maker could reach the same decision.

3. The decision on its face is not unreasonable, however it could be said that the errors arising from the failure to make enquiries of the type of work activities performed by the Applicant has affected this aspect of the Tribunal’s decision. This ground is closely linked to the ground in relation to a failure to make enquiries and in my view better dealt with in considering the decision on that rather than as on the basis of unreasonableness.

4. I find that this ground has not been made out.

Ground three – failure to consider an integer of a claim

1. The Applicant’s third ground of appeal alleges that the Tribunal had failed to consider an integer of the Applicant’s claim – whether relocation to Kabul was reasonable in all the circumstances. The Applicant submitted that the Tribunal had erred in limiting itself to considering whether the Applicant would be able to live and work in Kabul without needing to leave the city for the reason of his employment. The Applicant submitted that the Tribunal had failed to consider whether it was reasonable for the Applicant to live in Kabul given that the Applicant could need to travel to Ghazni in future on matters unrelated to his employment. The main basis of this is because the Applicant owns land in Ghazni and he stated that prior to leaving Afghanistan he would occasionally return for family events and other similar matters.

2. The First Respondent submitted that the Tribunal did not confine itself to only considering the reasonableness of the Applicant living and working in Kabul. It was further submitted that even if the Tribunal had confined itself to these matters, this was appropriate given the Applicant indicated he may have to return to Ghazni for employment purposes.

3. An examination of [59]–[63][24] of the Tribunal’s decision indicates that the Tribunal considered the reasonableness of the Applicant living and working in Kabul. At [35][25] the Tribunal concluded that Kabul was the Applicant’s home area on the basis that he had lived there since the age of 12, his immediate family members reside there and that is where he was educated and where he works and lives. It also noted that he travelled infrequently to his place of birth, Ghazni. Further, the Tribunal considered that the Applicant would not have to leave Kabul for employment reasons, given that he was a translator/teacher and that he was more likely to find work in Kabul than in rural Afghanistan.[26]

   [24] Ibid 320 – 321.

   [25] Ibid 317.

   [26] Ibid 321 [61]

4. The Tribunal has considered whether the Applicant may be able to return to Kabul and remain safe there and made a finding that the nature of his work was such that he would not be required to relocate from Kabul.

5. This ground has not been made out.

Grounds four and five - certificates

1. The Applicant’s fourth ground of appeal is that the Tribunal denied him procedural fairness by proceeding on the basis of an invalid Certificate under s.438 of the Act. The Applicant’s fifth ground of appeal is that the Tribunal denied him procedural fairness by failing to disclose to what extent, if any, the Tribunal relied on information covered by the Certificate. As these grounds significantly overlap, they will be examined together.

2. The First Respondent concedes that the Certificate in this case is invalid, but submits that the Tribunal did not rely on the Certificate to make its decision. In order to allow the Court to make an assessment on whether the material covered by the Certificate was used, the First Respondent adduced the material covered by the Certificate according to the correct procedure described in Minister for Immigration and Border Protection v Singh.[27]

   [27] [2016] FCAFC 183 [67].

1. If the Tribunal has relied on information that was covered by an invalid Certificate that wasn’t put to the Applicant, then it may have fallen into jurisdictional error: MZAFZ v Minister for Immigration and Border Protection.[28] However, whether acting on an invalid Certificate will amount to a jurisdictional error depends on the particular facts of each case.[29] In this case, the Certificate covered material that made adverse comment on the credibility of certain claims of the Applicant. However, when these matters came before the Tribunal, the Tribunal found these claims credible and there is no basis for inferring that the Tribunal relied on the information covered by the Certificate.[30]

   [28] [2016] FCA 1081 [44].

   [29] BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; Minister for Immigration and Border Protection v BNJ16 [2017] FCAFC 197.

   [30] BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 [24]; Minister for Immigration and Border Protection v CZQ15 [2017] 194 [81].

2. The certificates covered documents which contained negative credibility inferences on the identity of the Applicant and his claims regarding his education and employment. However, the Tribunal later accepted all the Applicant’s claims in relation to his identity and education and accepted that the Applicant was formerly employed by an English tutoring company, Star Education Society, and Inteqal. The claim regarding the nature of the Applicant’s translating work for Inteqal, which was not accepted by the Tribunal, was not touched on in the documents covered by the Certificate.

3. The Applicant submitted that the decision in SZMTA v Minister for Immigration and Border Protection[31] should be followed. In that case White J stated that ‘the effect of jurisdictional error … is not to be determined by reference only to whether the appellant had the opportunity to make submissions about the matters in the identified documents which were adverse to him’.[32] However, as noted by the Court in CQZ15 v Minister for Immigration and Border Protection[33] (‘CQZ15’), each case turns on its own facts.[34] The issue in CQZ15 was that the Tribunal member may not have considered documents that were beneficial to the applicant because of an invalid certificate being issued. Here, all of the documents covered by the Certificate would be construed as adverse to the Applicant as they make a number of negative credibility inferences. Therefore, the issue that arose in CQZ15 doesn’t arise here and this case may be distinguished.

   [31] [2017] FCA 1055

   [32] [60].

   [33] [2017] FCAFC 194.

   [34] Ibid [84] – [85].

4. The Tribunal is not required to disclose to the Applicant the extent of its reliance on documents covered by a Certificate.[35] Due to the operation of s.422B of the Act, the natural justice obligations of the Tribunal are limited to:

   a.disclosing the existence of the certificate;

   b.affording the applicant an opportunity to make submissions on the validity of the certificate;

   c.affording the applicant an opportunity to at least make submissions on the Tribunal’s approach under s.438(3)(a); and

   d.affording the applicant an opportunity to at least seek a favourable exercise of power under s.438(3)(b)…[36]

   [35] Migration Act 1958 (Cth) s.422B.

   [36] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 [60].

5. The Applicant submits that these natural justice obligations include the Tribunal have to disclose the extent it relies on the material and whether the material is adverse, neutral or favourable to the Applicant. The Applicant relied on the above statement of Beach J to support this submission. However, upon reviewing this material, the statement of Beach J does not appear to support the proposition being put forward by the Applicant.

6. Grounds four and five have not been made out.

Conclusion

1. As ground one has been made out by the Applicant, the request for judicial review must be granted. The decision of the Tribunal dated is quashed and is to be remitted to the Tribunal to be remade according to law.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  11 July 2018