BWD16 v Minister for Immigration
[2020] FCCA 1837
•7 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWD16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1837 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal failed to consider material or otherwise erred in a manner constituting jurisdictional error – where invalid s.438 certificate – where interpreter failed to translate the reason the Applicant sought a five minute break at the Tribunal hearing – whether fair hearing – whether third party fraud established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 438 |
| Cases cited: Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 |
| Applicant: | BWD16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1903 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 20 August 2018 3 October 2018 6 December 2018 12 December 2019 |
| Date of Last Submission: | 10 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1903 of 2016
| BWD16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 30 June 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia in April 2013. He lodged an application for a protection visa on 24 July 2013. In support of that application he claimed that his parents were staunch Bangladesh Nationalist Party (BNP) political party members in their home village in which most of the villagers were Awami League (AL) supporters. He claimed that “as far as [he] could remember” his father rose to the position of General Secretary in the BNP representing a group of villages including their home village and was involved in organising political meetings, rallies and other BNP related activities.
He claimed that after the AL came to power in Bangladesh in 2009, BNP party activists such as his father were specifically targeted by AL supporters and members and that his father had received several death threats.
The Applicant claimed that on 14 September 2010, 10 to 15 AL supporters and members, some of whom were armed, came to the family home, forced their way in and began beating members of the family. It was claimed that one of the AL supporters killed the Applicant’s father by shooting him at point blank range, that during the altercation three of his brothers were stabbed and that the perpetrator who shot his father fired a bullet into the Applicant’s thigh. He claimed the perpetrators left after destroying household property, that his uncle took him to hospital where he was treated and that his brothers were taken to another hospital. The Applicant claimed that while the family members were at various hospitals the perpetrators returned to the family home and set it alight.
The Applicant claimed that after recovering from the bullet wound he went to live at an aunt’s residence and then lived with another aunt in Dhaka. He claimed his mother attempted to make an official complaint at a nearby police station, but that the police refused to record the complaint or take action against the perpetrators as the case involved ruling party supporters.
The Applicant claimed his mother returned to live in the village in 2011, but that he and his siblings did not do so because they feared they would be killed by AL supporters. He claimed he learnt that AL supporters had gone to his mother’s residence in search of him and his brothers and had verbally and physically assaulted her. He claimed that a few weeks before he fled the country his aunt had learnt that members of the AL had found out about his whereabouts and were planning to harm him. The Applicant claimed that since arriving in Australia he had learnt, through his aunt, that AL supporters had come to her residence in Dhaka in search of him on several occasions. He claimed that AL supporters were pursuing him and his brothers because they had witnessed the killing of his father, that the AL feared that he and his brothers may take action and that he would be seriously harmed and killed by the AL supporters and members who killed his father if he returned to Bangladesh.
On 5 November 2014 a delegate of the First Respondent refused the visa application.
The Tribunal review
The Applicant sought review by the Tribunal. On 5 November 2014 the delegate issued a certificate and notification regarding the disclosure of certain information under s.438 of the Migration Act 1958 (Cth) (the Act). This certificate is discussed further below.
At the time he sought review the Applicant was represented by a named registered migration agent. A week after the application for review was filed, that firm advised the Tribunal that they were no longer acting on behalf of the Applicant as he had sought assistance from another migration agent. The Tribunal wrote to the Applicant advising him of the need to complete a new form if he wished to appoint another person as his authorised recipient or to change his contact details.
The Applicant signed forms appointing a different migration agent as his representative and authorised recipient and withdrawing the appointment of his previous agent.
On 2 February 2016 the Tribunal sent a hearing invitation to the Applicant care of his new representative. On 16 March 2016 the Tribunal sent another letter advising that it had been necessary to postpone the hearing. On 14 April 2016 a fresh hearing invitation was sent to the Applicant through his representative inviting him to a hearing on 4 May 2016.
The Applicant attended the Tribunal hearing on 4 May 2016.
On 11 May 2016 the Tribunal wrote to the Applicant through his representative putting certain information to him for comment under s.424A of the Act (the s.424A letter). The information in question was described as varying evidence as to the nature of his and his family’s association with the BNP which the Applicant had given in his entry interview, his statutory declaration, his interview with the delegate and at the Tribunal hearing. There was said to be conflicting information relevant to the Applicant’s credibility and whether he would be of interest to the AL. The letter advised the Applicant that he should provide a response or seek an extension of time by 25 May 2016.
As discussed further below, there is no evidence that the Tribunal received any response to the s.424A letter.
The Tribunal decision
In its reasons for decision of 30 June 2016 the Tribunal summarised the various claims made by the Applicant in his entry interview, in his written claims for protection, his statutory declaration and interview with the delegate. It recorded his claim that his occupation in Bangladesh was as a voluntary political activist, that his father was deceased, his four brothers were in hiding in Bangladesh, and his three sisters and mother continued to live there. It also referred to the fact that at the Tribunal hearing the Applicant’s background, family, employment history, political involvement with the BNP and claims for protection had been discussed. Aspects of the Applicant’s oral evidence were referred to in the Tribunal’s findings and reasons.
The Tribunal accepted that the Applicant was a citizen of Bangladesh. However it found that his evidence on central aspects of his claims was vague and unsubstantiated, as well as often inconsistent with his earlier evidence. Having considered his various accounts together with country information, the Tribunal did not accept the Applicant’s claims that he was a political activist, that his father was a General Secretary of the BNP and that together with his family he had suffered harm from the AL as a result. It was not satisfied that the Applicant’s claims were credible. The Tribunal gave detailed reasons for these findings.
First, the Tribunal was concerned that the Applicant had given inconsistent information about his family background and association with the BNP. It observed that he had given different information about the employment of his father. He claimed to the Tribunal that his father worked in the family business, but spent most of his time involved in politics. However in his entry interview he had claimed that his father worked for the government in Defence. The Tribunal observed that this inconsistency had been put to the Applicant at the hearing pursuant to s.424AA of the Act and that the Applicant chose to comment immediately. He had claimed that he was not in the correct frame of mind at the time of the entry interview and could not recall his responses. The Tribunal stated that it was “cautious” to put too much weight on the entry interview. However it found that the shifting nature of the Applicant’s evidence led it to question his claims, particularly the amount of time his father was able to devote to his role in the BNP and whether he was General Secretary for a particular area as claimed.
The Applicant had also initially claimed that both he and his brothers were members of the BNP and that two of his brothers were BNP General Secretaries. The Tribunal found that the Applicant had given conflicting information as to whether he was a member of the BNP (as he told the delegate) or only a supporter (as he told the Tribunal) and also as to whether his brothers and mother were BNP members or only supporters. The Tribunal recorded that the Applicant had not responded when this information was put to him in writing following the hearing pursuant to s.424A of the Act.
The Tribunal considered that as the Applicant’s claims of political involvement with the BNP were central to his claims to fear harm in Bangladesh, he should be aware of whether he was a member of the BNP and whether his family were members and their roles. It found that this inconsistency undermined the Applicant’s credibility as well as his claimed profile with the BNP and that of his family.
In considering the Applicant’s claim that he was a volunteer political activist in Bangladesh, the Tribunal found that his responses to questions about the BNP did not persuade it that he was speaking from a background of someone with a history of political activism. In addition to the conflicting information about membership of the BNP, it found that the Applicant had offered very little meaningful information as to what his father did in the role of General Secretary, which he was said to have held for some seven or eight years. The Tribunal found that the Applicant had given only generalised responses in this respect and did not have further information about the role of his father, other than that he gave speeches, participated in political activities and was in charge of the local union. He had no idea whether the family supported the BNP financially. The Tribunal expressed doubt about the Applicant’s claim that his father continued to be active as a BNP General Secretary after the 2009 election and hence was targeted by the AL in circumstances where the Applicant was unable to identify any particular activities engaged in by his father. It also found the Applicant’s claim that his father had been creating support for the BNP in his area was inconsistent with his later evidence that after the election his father was unable to take action against oppressive AL conduct as everyone in the village supported the AL and that after the death of his father the family had no assistance, not even from the BNP, as the AL had all the power.
The Tribunal was “troubled” by the Applicant’s evidence as to his role with the BNP as a political activist. His evidence at the hearing was that he stayed with his brothers and followed their instructions. The Tribunal recorded that it had put to the Applicant for comment pursuant to s.424AA of the Act his earlier claims that he had been involved in conflict with the AL, that he went to fight them as they use to beat him and that he carried a black pistol. It considered the Applicant’s explanation that he had no recollection of information he had conveyed during the entry interview in May 2013. The Tribunal also found that although the Applicant was able to describe the BNP flag, his evidence about the party was highly generalised, he was unable to identify policies or coalition parties and was confused as to the BNP candidate in the 2009 election. It had regard to the fact that the Applicant had provided similarly vague and uninformative responses to the delegate and to the absence of documentary evidence to support his claims of family association with the BNP or his father’s membership. The Tribunal observed that the Applicant had claimed at the hearing that he had additional documents that he wished to provide but that the Department would not accept. It had given him an opportunity to identify these documents (which he did not do) and to provide any additional documents after the hearing (which he did not do). Overall, the Tribunal had doubts that the Applicant was active in politics at all in Bangladesh.
The Tribunal also found that the Applicant’s account at the hearing of threats, torture and harassment he claimed that his family experienced from the AL following the 2009 elections was evasive and lacking in detail and that his evidence as to the persistency and severity of the threats his family received was unconvincing.
In addition, the Tribunal found that the Applicant’s oral evidence about a September 2010 attack on his home by the AL was of concern. He had “ignored” the particulars provided in his statutory declaration and had been unable to provide a detailed narrative of the event. The Tribunal detailed inadequacies and inconsistencies in the Applicant’s evidence in this respect and his responses to concerns it had raised with him about inconsistent evidence, including as to whether his father was shot at point blank range or from five metres away and whether the Applicant was shot when he was standing or on the ground. It also had regard to the fact that the Applicant had not repeated his written claims about how his brothers tried to retaliate and that other than claiming the shooter was one of the nameless AL supporters, he did not identify the attackers. The Tribunal was not satisfied that the Applicant’s responses at the hearing “reflected any authentic, first-hand experience of the events he described”.
The Tribunal considered medical evidence which the Applicant said confirmed his gunshot injury to his left thigh. However it was unable to discern any reference to a gunshot wound to the Applicant’s left thigh or anything to support the claim that the Applicant was admitted to a hospital for 10 days (as he claimed) in a medical certificate from a doctor said to be trained in Rheumatology. The Tribunal concluded that the information in this document (which it described) was not consistent with the Applicant’s claimed injuries and that no weight could be placed on it to support his claim that he was shot in the left thigh following an attack on his home on 14 September 2010.
The Tribunal also expressed concern about the reliability of a supporting letter under the name of a local AL politician. The letter stated that the Applicant’s father had fought with criminals and armed persons on 14 September 2010 and had been killed, that his (named) son was shot and other people were wounded. The Tribunal noted that this letter did not accurately record the Applicant’s name. Contrary to the Applicant’s evidence, the letter also stated that he had to flee the country without treatment for this injury. In addition, the letter did not indicate that the September 2010 event occurred at the Applicant’s home or acknowledge that his brothers were injured. The Tribunal also found that the Applicant had been evasive when it sought to clarify how he was known to the author. He had eventually conceded that he had never spoken to the author. It found the statement in the letter about the writer’s knowledge of the Applicant (that he “basically is a cool & good man, he left the resident place by force of local politicians”) difficult to reconcile with the evidence that the writer was a local AL politician. The Tribunal found that if the AL was genuinely looking to kill the Applicant it was implausible that their politician would write him a reference. The Tribunal also had regard to the fact that the Applicant was unable to explain why this person seemed to be aware of the fact that he had left the country, when he claimed that his mother had not told anyone and that the AL was still searching for him in Bangladesh. This raised concerns about the provenance of the document. Against a background of country information indicating that fraudulent documents were readily available in Bangladesh, the features of the letter led the Tribunal to conclude that no weight could be placed on it as support for the Applicant’s claims about a 2010 attack and its political motivation.
The Tribunal also had difficulty reconciling the Applicant’s oral evidence that he did not know what the AL did to his house with his claim in his statutory declaration that the house was ransacked and then set alight. It was of the view that the Applicant should be able to recall material elements of his claims, particularly when asked direct questions about what had happened to his own home.
The Tribunal recorded that it had put to the Applicant that if his father had been as influential in the BNP as he claimed, it was curious that the party did not demand some form of action or provide assistance to his mother. It was also concerned that he had been unable to produce any independent evidence of the attack on his home, apart from the letter from the so-called local AL politician, such as court documents or media reports of the incident.
The Applicant’s inability to provide details when recalling specific events, the omissions and inconsistencies in his evidence and the deficiency in his supporting documents caused the Tribunal to doubt his credibility and his claim about an attack on his home in which his father was killed and he and his brothers were injured.
In addition, the Tribunal was of the view that it appeared highly implausible that the AL continued to seek out the Applicant at his home after this incident or that his mother would return alone to a house that had been ransacked and set alight and remain there in circumstances where it was claimed that she was present at the time of the September 2010 incident; that she tried to report the matter to the police; and that she had been subject to continued abuse, assaults and questioning about the whereabouts of the Applicant and his brothers. The Tribunal considered that the mother’s return to the family home and residence there reflected the fact that she did not actually fear harm in the village. It did not accept that she was assaulted or harassed by the perpetrators of the claimed attack or by AL supporters after the Applicant relocated to Dhaka.
The Tribunal also found that the Applicant’s evidence as to his experiences between 2010 and leaving Bangladesh in 2013 was unsatisfactory. It referred to shifts in that evidence and the Applicant’s inability to identify where he had lived, including a village in which he claimed he lived for five months. It was of the view that he could not satisfactorily account for his whereabouts for this three year period. This further caused the Tribunal to doubt the credibility of the Applicant and his claims. It was not satisfied that anything happened to the Applicant during the three years he delayed leaving Bangladesh.
The Tribunal also found it difficult to understand how the AL had discovered the whereabouts of the Applicant in Dhaka shortly before March 2013, in circumstances where it was claimed that there was considerable secrecy surrounding his location and that of his siblings, that he constantly relocated and that he had not been allowed to go outside where he was living. The Tribunal was not satisfied that the AL had pursued the Applicant as a political activist or otherwise or that it had located him in Dhaka. Further, due to inconsistencies in the Applicant’s evidence and overall concerns about his credibility and profile, the Tribunal did not accept the claim that the AL continued to search for the Applicant after his departure from Bangladesh.
The Tribunal also had regard to conflicts in the Applicant’s evidence about the whereabouts of his brothers after the events of September 2010 and whether he had contact with them, which it had put to him at the hearing. Having regard to these inconsistencies, considered with its overall concerns, the Tribunal was not satisfied that the Applicant’s brothers were being pursued by the AL.
The Tribunal concluded that the concerns it had about the Applicant’s evidence were “so significant” that it was not satisfied that he had provided a credible account of his experiences in Bangladesh. It was prepared to accept that he may hold a political opinion favourable to the BNP, that his family supported the BNP and that his father was a member of the BNP. However, due to its concerns about inconsistencies, omissions and a lack of detail as well as the absence of supporting information and its overall concerns about the Applicant’s credibility, the Tribunal was not satisfied that his father was a General Secretary in the BNP. It accepted that the family may have received some taunts, and even threats, by AL supporters in the village, but did not accept that an incident had occurred on 14 September 2010 in which the family was attacked in the home by 10 to 15 armed AL supporters and the Applicant’s father was murdered. It did not accept that the Applicant was beaten and received a gunshot wound or that his brothers were injured.
As it did not accept that the Applicant had witnessed the murder of his father or that he had the profile of a political activist or even the profile of a family member of a political activist, the Tribunal did not accept that the AL had pursued the Applicant for such reason. Nor did it accept that the AL or their supporters had made enquiries of the Applicant’s mother or aunt at any time. It was therefore not satisfied that the AL had continued to search for the Applicant at his home, continued to pursue him to Dhaka in 2013 or that it was fear of harm at the hands of the AL, the Bangladeshi authorities, or anyone else, that motivated the Applicant to leave Bangladesh.
The Tribunal accepted that the Applicant was a supporter of the BNP and that his father was a member. It had regard to country information regarding the position for BNP supporters in Bangladesh. It noted that DFAT assessed that supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. Having considered the Applicant’s claims against this background, the Tribunal concluded that the risk of harm to the Applicant as a BNP supporter with relatives who were members of the BNP was remote were he to return to Bangladesh now or in the reasonably foreseeable future. The Tribunal found that the Applicant did not meet the Refugees Convention criterion.
In considering the complementary protection criterion the Tribunal referred to the fact that it had found that critical aspects of the Applicant’s claims were not credible (as it summarised). It accepted that he may support the BNP, but not that he was of adverse interest to the AL, its members or supporters, or to anyone else in Bangladesh. The Tribunal concluded that having considered the Applicant’s circumstances individually and cumulatively and for the reasons it had set out, it was not satisfied that he met the complementary protection criterion.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
These proceedings
The Applicant sought review of the Tribunal decision by application filed on 20 July 2016. He filed two amended applications.
While the Applicant did not file written submissions in relation to the grounds in the second amended application, he swore an affidavit on 26 March 2018 to which was attached a transcript of the Tribunal hearing and a statutory declaration said to have been completed by the person who prepared the transcript and who explained that he had transcribed the English language conversation.
At the hearing the Applicant initially told the court that he wished to rely on the grounds in his second amended application. However, as discussed below, numerous other issues were raised or arose in these proceedings. The hearing was adjourned on more than one occasion. The Applicant filed further affidavit evidence and submissions in relation to some of the issues not reflected in the pleaded grounds of review, which I have considered. It is convenient to consider first the grounds of review in the second amended application.
Whether failure to consider recent country information
The first ground in the second amended application is as follows:
1. The Administrative Appeals Tribunal (the “Tribunal”) has accepted that the applicant was a supporter of the BNP and his father was a member, ...It is noted that DFAT assess that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations. [at para 33]. The DFAT report do not follow that the political and human rights situation will improve or satisfactory.
Particulars
a) Where political situation in a country is ‘fluid’, political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating of the political situation in Hungary and Poland in recent years.
b) Human Rights Watch World Report 2018 states “Bangladesh security forces-particularly the Detective Branch of the police, Bangladesh Border Guards (BGP), the Directorate General Forces Inspectorate (DGFI), and the Rapid Action Battalion (RAB)-have a long history of enjoying impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extra judicial killings, a pattern that did not abate in 2017. Law enforcement authorities continued to arrest opposition activities and militant suspects, holding them in secret detention for long periods before producing some in court. Several others, according to security forces, were killed in “gunfights,” leading to concerns over extrajudicial killings. At time of writing, scores remained victims of enforced disappearances.
c) In circumstances where the political and security situation in a country is fluid, it is important for the decision maker to consider the situation for the applicant into the reasonably foreseeable future. The delegate's findings do not clearly address the reasonably foreseeable future and did not apply the real chance test as explained in Minister v Wu Shan Liang.
d) Failure to consider these information by the Tribunal in its review is a jurisdictional error.
(errors in original)
When given the opportunity to make oral submissions after this ground was translated for him, the Applicant stated that he had nothing to add and that the problem was that the Tribunal had not believed what he said.
The First Respondent submitted that the choice and weight to be given to country information was a matter for the Tribunal and that it was not required to consider country information which post-dated its decision or claims that were not made or did not arise clearly on the material before it.
This ground appears to contest the Tribunal’s choice and assessment of country information in relation to the risk faced by supporters (or members) of political parties in Bangladesh. The Tribunal accepted that the Applicant was a supporter of the BNP and that his father was a member.
However, as the First Respondent submitted, the choice and weight to be given to country information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29). The Tribunal referred to country information, including what was then recent relevant information from DFAT which noted that supporters or members of political parties in Bangladesh were not assessed as being at risk of arrest or living in fear of violence on a day-to-day basis due to their political affiliations. The Tribunal considered the reasonably foreseeable future and applied the real chance test. It found, in light of cited country information, that the risk of harm to the Applicant as a BNP supporter with relatives who were BNP members was remote were he to return to Bangladesh now or in the reasonably foreseeable future. Such an approach was reasonably open to the Tribunal. It did not make this finding on the basis that the political and human rights situation would improve or was satisfactory (as particular (a) to this ground appears to contend). The Applicant’s disagreement with this assessment seeks impermissible merits review.
In so far as this ground involves a contention that the Tribunal erred in failing to have regard to the “fluid” political situation in Bangladesh as described in a 2018 Human Rights Watch Report, this report (referred to in particular (b)) postdated the 2016 Tribunal decision. The Tribunal did not fall into error in failing to consider a 2018 report or other country information which postdated its decision. The Tribunal had regard to information about the then current political situation in Bangladesh in considering the real chance of harm in the reasonably foreseeable future. It has not been established that the Tribunal failed to have regard to more up-to-date information at the time of its decision.
There is also no evidence that the Applicant made a specific claim as to a future risk of harm in light of the “fluid” political situation in Bangladesh. I am not satisfied that such a claim arose clearly or squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.
Contrary to the contention in particulars (c) and (d) of this ground, the Tribunal was not obliged to review the delegate’s decision, but rather to carry out a de novo review of the Applicant’s protection claims. It did so. The delegate’s decision is not reviewable in these proceedings.
No jurisdictional error has been established on the basis contended for in this ground.
Whether the Tribunal failed to consider political opinion claims
Ground 2 in the second amended application is as follows:
2. In Minister v Rajalingam (1999) 93 FCR 220 Sackville J states at [60], [62], [63] and [67]:
[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. [63] …In the language of s 476(1)(e) of the Migration Act 1958, a failure to do so may constitute: an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
a) The delegate was obliged to take into account the possibility that the applicant was imputed as an BNP supporter or as a person with BNP links before he left Bangaldesh and the applicant’s family has ongoing links with the BNP. If the delegate had taken this possibility into account, it may have affected the delegate’s assessment of whether the applicant faces a real chance of persecution on his return to Bangladesh.
b) The applicant stated that the harm he would face if he were to return to Bangladesh is due to the essential and significant reasons of his real or imputed political opinion as supporter of BNP and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]. The Tribunal failed to consider this which was a jurisdictional error.
(errors in original)
The Applicant had nothing to add to this ground after it was translated for him at the hearing.
The First Respondent submitted that the ground misunderstood the Tribunal’s findings and that no error was made out on the suggested basis.
First, in so far as this ground takes issue with the delegate’s decision, the delegate’s decision is not reviewable in these proceedings.
Secondly, contrary to what appears to be the premise on which this ground is based, the Tribunal accepted that the Applicant had a political opinion favourable to the BNP, that he was a BNP supporter and that his father was a BNP member. As indicated, it considered the risk of harm to the Applicant in the future as a BNP supporter with relatives who were members of the BNP and whether he met the criteria for a protection visa on that basis.
This is not a case in which the Tribunal foreclosed reasonable speculation about the chances of a future hypothetical event occurring. Nor has the Tribunal been shown to have erred in failing to ask “what if I am wrong?” in the sense considered in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719. On the basis of country information the Tribunal found that the risk of future harm to the Applicant, as a BNP supporter whose father was a BNP member, was remote. Otherwise, the Tribunal was not in doubt in relation to its conclusions and was not required to ask “what if I am wrong?”. This ground is not made out.
Whether the Tribunal erred in considering the complementary protection criterion
Ground 3 in the second amended application is as follows:
3. The Tribunal, at paragraphs [36] to [37], makes further findings concerning whether the applicant faces a real risk of suffering “significant harm” which findings address various terms used in
s 36(2A). However, on a fair reading of the Tribunal’s decision:
a) The Tribunal did not properly deal with the significant harm in considering the applicant’s claim for a protection visa on the complementary protection ground.
b) Where the Tribunal fails to deal with a claim expressly articulated by an applicant, this is a jurisdictional error: NABE v Minister (2004) 144 FCR l at [55] to [63].
When given the opportunity to make oral submissions in relation to this ground, the Applicant reiterated his claim that he was a witness to the attack on his father, that the perpetrators had beaten him, that he went into hiding and that people had looked for him. He claimed that this meant that he would be targeted, but that the Tribunal had not considered that he would be targeted if he returned to Bangladesh.
The First Respondent submitted that in considering the complementary protection criterion it was open to the Tribunal to refer to and have regard to its previous findings of fact. There was said to be no legal error apparent in its approach. In so far as the Applicant sought merits review, it was pointed out that this court has no power to review the merits of the Applicant’s claims.
The Tribunal’s findings in relation to the complementary protection criterion were made in light of its anterior findings, including its finding that the Applicant was not of adverse interest to anyone in Bangladesh. The Tribunal stated that it had considered the Applicant’s circumstances individually and cumulatively and was not satisfied, for the reasons it had set out, that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Bangladesh there was a real risk that he would suffer significant harm.
As the First Respondent submitted, it was open to the Tribunal to refer to previous findings of fact which were also dispositive in relation to the complementary protection criterion (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]-[57] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]-[35]). The Tribunal specifically addressed the Applicant’s complementary protection claim by reference to the language of the Act and the relevant anterior findings of fact (in particular, that critical aspects of his claims, which it summarised, were not credible) which had led it to the conclusion that it did not accept those aspects of the Applicant’s claims. It has not been established that the Tribunal did not properly deal with the Applicant’s claim that there was a real risk of significant harm.
Nor has it been established that the Tribunal failed to deal with a claim, whether expressly articulated or arising clearly or squarely on the material before the Tribunal in the sense considered in NABE (No 2). This ground did not identify any particular claim that was not considered by the Tribunal. Rather, the Applicant took issue with the fact that it did not accept his claims. In this respect he seeks impermissible merits review. Ground 3 is not made out.
Whether Tribunal failed to consider a future political activities claim
Ground 4 in the second amended application is as follows:
4. In 2010 the applicant father was an active BNP member who rose to the position of General Secretary of the BNP party ... and he was involved in organising political meetings, rallies and other BNP related activities. [para 12]. Tribunal has accepted that the applicant was a supporter of the BNP and his father was a member, … In the circumstances, an issue for the Tribunal to determine was:
a) whether the applicant would continue to engage in political activities if required to return to Bangladesh and, if so, whether he faced a real risk of persecution or significant harm as a result; or
b) whether the applicant would be dissuaded from re-engaging in political activities if required to return to Bangladesh because of his fear of persecution or significant harm.
c) The Tribunal failed to deal with this aspect of the applicant’s claims, which is a jurisdictional error.
(errors in original)
The Applicant explained that this ground related to whether he would get involved with politics on return to Bangladesh and claimed that in any event he could not return to Bangladesh because if he did, he would be in trouble.
The First Respondent submitted that this ground was based on a false factual premise in that while the Tribunal accepted that the Applicant was a BNP supporter and his father was a BNP member, it did not accept that his father was a General Secretary in the BNP or that the Applicant was a political activist or a family member of a political activist.
As the First Respondent submitted, the Tribunal had no obligation to consider whether the Applicant would “continue” to engage in political activities or be dissuaded from “re-engaging” in political activities in circumstances where it did not accept that he had been a political activist or had been active in politics at all in the past, but only that he may have held a political opinion favourable to the BNP and was a BNP “supporter”. This ground is not made out.
None of the grounds in the second amended application are made out.
Grounds in the first amended application
At the hearing it emerged that the Applicant also wished to raise several other issues, including those raised in his earlier applications. I gave him the opportunity to address the grounds in his first amended application (which included and elaborated on the matters raised in the original application) and also to raise any other concerns he had about the Tribunal decision or procedures.
First, in so far as it was contended in ground 1 of the first amended application that the Tribunal failed to take into account relevant considerations, other than as discussed above in relation to the grounds in the second amended application, the Applicant did not identify any integers of his claims that were not taken into account.
Similarly, the general contention in ground 2 that the Tribunal failed to assess the risk of harm to the Applicant “on the basis of” his claims, was not explained. Neither of these grounds is made out. The Tribunal considered the bases on which the Applicant claimed to fear harm and the integers of his claims. The Applicant’s disagreement with the Tribunal decision seeks impermissible merits review.
The contention in ground 3 of the first amended application (that the Tribunal failed to assess the present situation in Bangladesh) is reflected in ground 1 in the second amended application. On the basis discussed above, it is not made out. The Tribunal had regard to then recent country information about the situation in Bangladesh for BNP supporters and members and addressed the reasonably foreseeable future.
In ground 4 of the first amended application it was asserted that the Tribunal decision was “effected (sic) by the denial of natural justice”. It appears that the Applicant intended to rely on the particulars which appear after all the grounds in the first amended application and are as follows:
AAT unreasonably raised doubt over my claims for political opinion. The Department and the Tribunal misunderstood or misconstrued the facts which was affect the decision.
And for the safety of my life I forced to came Australia by boat. When it became worse, I decided to leave Bangladesh.
I argue that the Department and the AAT asked many irrelevant questions to test the credibility of my evidence.
The Department and the Tribunal found inconsistency because the questions were asked in such a manner for which I was not prepared. Sometimes I was nervous and confused at the time of interview with the Department and the tribunal. I did not understand the question properly.
For the protection of my life and I became serious target by the Police, Awami League gang and their supporters.
The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I am not too educated person.
I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.
I did not collect the AAT interview CD yet. After received the CD, I will provide the transcript of AAT hearing.
(errors in original)
In so far as the particulars repeat aspects of the Applicant’s claims, he seeks impermissible merits review. While he complained about the approach of the Department, the delegate’s decision is not the subject of these proceedings.
It was asserted that the Tribunal “unreasonably raised doubt” in relation to the Applicant’s political opinion claims. The Applicant did not elaborate on any suggested legal unreasonableness. The particulars assert generally a misunderstanding or misconstruction of the facts.
It has not been established that the Tribunal unreasonably raised doubt over the Applicant’s political opinion claims. The Tribunal considered, but did not accept, the Applicant’s claims about his political activism having regard to inconsistencies, the absence of meaningful information, his generalised, vague and uninformed responses about the BNP, its policies and coalition partners and the absence of documentary evidence. The Tribunal also made an adverse credibility finding based on significant inconsistencies and an absence of supporting evidence. However it accepted and considered the Applicant’s claim that he was a supporter of the BNP and that his father was a member.
If it is intended to be suggested that the Tribunal’s credibility findings were not open to it, while credibility findings are not immune from review (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [36]-[38]), this is not a case in which there is evidence to support any claim of legal unreasonableness or other jurisdictional error. The Tribunal’s findings in respect of the Applicant’s political opinion claim were reasonably open to it on the material before it for the reasons it gave.
The test for legal unreasonableness is stringent. It is well-established that if reasonable minds could differ as to the conclusions to be drawn from the evidence, then illogicality, irrationality or unreasonableness will not be established simply because one conclusion has been preferred to another possible conclusion (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[135] per Crennan and Bell JJ). The Applicant’s general assertion is not made out. It cannot be said that no rational or logical decision-maker could arrive at the same conclusion on the evidence before the Tribunal outlined above. Illogical or irrational reasoning, or other legal unreasonableness, is not made out in the Tribunal’s fact finding or in the ultimate conclusion, for which there was an evident and intelligible justification. Nor has the Tribunal’s reasoning been shown to be plainly unjust, arbitrary, capricious or lacking in common sense.
The Applicant also complained that the delegate had not understood his answers. He did not identify any particular aspect of his evidence to the delegate that went to establish jurisdictional error on the part of the Tribunal. Further, while he filed a transcript of the Tribunal hearing, he did not identify any part of the hearing in which the Tribunal asked what he considered were “irrelevant questions” to test his credibility.
The particulars to the first amended application suggest that the Tribunal found inconsistencies because it asked questions in a manner for which the Applicant was “not prepared”. It was contended that sometimes he was nervous and confused and did not understand the questions properly. The Applicant has not pointed to particular Tribunal questions that he did not understand.
In this context, the Applicant also took issue with the Tribunal’s reliance on inconsistencies between his evidence in his entry interview, his claims in support of his protection visa application and his evidence at the Tribunal hearing and also with the failure of the Tribunal to believe him.
However it was open to the Tribunal to have regard to inconsistencies in the Applicant’s evidence. This is not a case in which the Tribunal had regard to omissions from an entry interview in a manner that would raise concerns of the nature considered in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 at [56]-[57]. The Tribunal observed that it was cautious about putting too much weight on the evidence in the entry interview, but found that the shifting nature of the Applicant’s evidence led it to question the claims presented, particularly the amount of time his father was able to devote to his role in the BNP and whether he was the General Secretary of the local union as claimed.
It was reasonably open to the Tribunal to have regard to the shifting nature of the Applicant’s claims in relation to matters such as his father’s employment, the family’s BNP membership and involvement and other inconsistencies in considering his political opinion claim.
Furthermore, as pointed out by the First Respondent, it is apparent from the Tribunal’s reasons for decision and the transcript of the Tribunal hearing that the Tribunal put several of its concerns in this respect to the Applicant. Whether this was done under s.424AA of the Act or otherwise, it alerted the Applicant to issues of concern. The Applicant was given the opportunity to have additional time to comment. He agreed that, as recorded in the transcript, he chose to respond at the time of the hearing. In addition, the Tribunal gave the Applicant the opportunity to provide information and further documentation after the Tribunal hearing. It also put other matters to him in the s.424A letter. Such an approach is not indicative of a failure to raise dispositive issues or to afford the Applicant a meaningful opportunity to give evidence and address issues as required under s.425 of the Act.
If the Applicant intended to suggest either actual or apprehended bias in the conduct of the hearing or otherwise, there is no clear allegation in that respect. Highly specific questioning would not in itself sustain a conclusion of apprehended bias. If the Applicant’s concern is that matters were put to him under s.424AA of the Act, the fact that the Tribunal raised its concerns at the hearing was not indicative of bias, a lack of procedural fairness or unreasonableness. In any event, having regard to the Tribunal hearing as a whole and the use the Tribunal made of the Applicant’s responses, it has not been established that the Tribunal’s mind was so committed to a conclusion already found as to be incapable of alteration (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17) or that the hypothetical properly informed and fair-minded lay observer might (let alone would) reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28). Neither actual nor apprehended bias is made out.
I have considered the transcript of the Tribunal hearing and it does not support any contention that the Applicant was not in a fit state to participate in the Tribunal hearing. There is also no other evidence to support such a contention.
None of the matters raised in the first amended application establish a failure to comply with s.425 of the Act or any other denial of procedural fairness.
Ground 4 in the first amended application is not made out.
The next ground in the first amended application (ground 5) is that the Tribunal made its decision without any verification of the Applicant’s genuine documentary evidence and statement. In particular, issue was taken with the Tribunal’s approach to the letter of support to which it gave no weight. It is apparent that this is a reference to the letter of support the Applicant gave to the Department which was said to have been provided by a local AL politician. The Applicant contended that it was unfortunate that the Tribunal did not recognise that Bangladesh is a third world country and that most people are not well-educated with a high standard of English ability.
The Tribunal made the following findings in relation to this document (at paragraph 24 of its reasons):
The Tribunal also had regard to the copy of a supporting letter submitted by the applicant written by [named], Chairman, [named] Union dated 15 May 2013. The letter claims to certify that the applicant’s father, [named], fought with some criminals and armed persons on 14 September 2010. At that fight [the Applicant’s father] has been dead and his small son [the Applicant] wounded by bullet in his leg, and more peoples wounded in the fighting, but [the Applicant] fleeing the country without treatment. The Tribunal had concerns about the reliability of this document. Firstly the author did not correctly record the name of the applicant, and it stated that he was required to flee the country without treatment, when it was the applicant’s evidence that he remained in the country until March 2013 and had sought medical treatment. The description of the event does not set out that it was an attack at the applicant’s home or acknowledge that other sons of [the Applicant’s father] were injured. Secondly the applicant was evasive when the Tribunal sought to clarify how he was known to the author. He claimed to know him from his locality and that he was a candidate in the last elections, and an Awami League official. With further questioning the applicant eventually conceded that he had never spoken to the Chairman personally. Thirdly the Tribunal has difficulty reconciling the statement by the Chairman that the applicant “basically is a cool & good man, he left the resident place by force of local politicians” with the applicant’s evidence that the Chairman was a local Awami League politician. As was put to the applicant at the hearing, if the Awami League was genuinely looking to kill him it was implausible that their politician would write him a reference. The applicant was unable to explain why the Chairperson in the letter seemed to be aware of the fact that the applicant had left the country, when he claimed that his mother had not told anyone of his whereabouts and he had claimed that the Awami League was still searching for him at his home and at his aunts in Dhaka. All of these raise concerns about the provenance of the document. The applicant explained that his mother had requested that the Chairman write the letter and that as she was not literate she did not realise that the Chairman had made a mistake. The Tribunal is not satisfied that the explanation provided by the applicant could satisfactorily allay these concerns. Finally, against the background of country information indicating that false or fraudulent documents are readily available in Bangladesh, these features of the letter lead the Tribunal conclude that no weight can be placed it as support for the applicant claims of about the attack on his home on 14 September 2010 or their political motivation.
(footnotes omitted, errors in original)
The Tribunal considered the weight to be given to the letter. It was reasonably open to the Tribunal to have regard to the concerns expressed in this paragraph of its reasons about the reliability of the document, particularly the plausibility of the claim that someone from the opposing AL (whose supporters were said to have murdered the Applicant’s father and injured the Applicant) would write the Applicant a reference.
Furthermore, at the Tribunal hearing the Tribunal raised with the Applicant its concerns in relation to the veracity of this letter in some detail (transcript pages 42 to 44) and gave him the opportunity to respond. It has not been established that the Tribunal fell into jurisdictional error in the manner in which it considered this evidence.
In so far as the Applicant’s complaint in ground 5 of the first amended application involved a suggestion that the Tribunal should have made inquiries, there is nothing in the material before the court to indicate that there was a critical fact, the existence of which was easily ascertained, about which the Tribunal should have made inquiries in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 or that the Applicant asked the Tribunal to make any such inquiry. This ground is not made out.
Ground 6 in the first amended application contends that the Tribunal decision was “identical or similar or based” on the departmental decision and that this was a complete violation of the merits review procedure of the Tribunal.
When given the opportunity to elaborate on this claim, the Applicant took issue with the fact that the delegate and the Tribunal had asked him questions and he had answered, but they had not believed him. He claimed that this looked like “the same procedure”.
Such a contention does not establish jurisdictional error, whether expressed in terms of apprehended bias, actual bias or a failure by the Tribunal to carry out its task. The Tribunal did not simply repeat or adopt the findings of the delegate. It differed from the delegate’s approach and conclusion in important respects. For example, while the delegate accepted that the Applicant’s father was both a member and General Secretary of the local area in the BNP, the Tribunal rejected the claim that his father was the General Secretary of the area. Further, while the delegate accepted aspects of the Applicant’s claims about an event of 14 September 2010, the Tribunal did not accept that the incident had occurred. The Tribunal engaged in the necessary de novo review. The fact that it raised issues of concern at the hearing about the Applicant’s technical claims and came to the same ultimate conclusion as the delegate is not indicative of jurisdictional error. This ground is not made out.
In grounds 7 and 8 it is asserted generally that the Tribunal did not assess the complementary protection criterion. This contention was reflected in ground 3 of the second amended application discussed above. For the same reasons, such contention is not made out. The Tribunal considered the complementary protection criterion. It was open to it to have regard to relevant anterior findings in addressing that criterion. These grounds are not made out.
The Applicant has not adduced probative evidence to make good any suggestion of fraud on the Tribunal. This ground is not made out.
Section 438 certificate issue
In initial pre-hearing submissions the First Respondent addressed the fact that a certificate and notification regarding the disclosure of certain information was issued under s.438 of the Act by a delegate of the First Respondent on 5 November 2014.
The notification certified that s.438(1)(a) of the Act applied to the information in five specified folios in the departmental file and that the disclosure of this information would be “contrary to the public interest” because these folios “contains (sic) information relating to an internal working document and business affairs”. The documents the subject of the certificate were reproduced in the Courtbook. The First Respondent contended that the certificate was invalid but, as discussed below, submitted that no jurisdictional error was established.
Subsequently the Applicant filed written submissions of 28 November 2019 addressing the s.438 certificate. It was submitted that procedural fairness required the Tribunal to disclose the existence of the s.438 certificate to him to give him the opportunity to make submissions on the validity of the certificate; to disclose at least whether the information covered by the certificate was favourable or unfavourable or neutral and the extent to which the Tribunal was going to take it into account; and to give the Applicant an opportunity to seek the favourable exercise of s.438(3)(b) of the Act. The submission cited MZAFZ v Minister for Immigration and Border Protection (2016) 243 CLR 1; [2016] FCA 1081.
The Applicant submitted that proceeding on an invalid certificate had the effect that the Tribunal did not properly undertake the review task required of it by the Act and of itself amounted to jurisdictional error (see MZAFZ at [44]). It was submitted that the failure to disclose the existence of the certificate to the Applicant amounted to a denial of procedural fairness (see MZAFZ at [50] and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 at [3]). The Applicant contended that there would have been utility in disclosing the certificate from his point of view (see CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [100]), although he did not explain this contention. It was submitted that the court should examine the facts of the case and determine the practical injustice the Applicant had suffered as the result of the non-disclosure of the certificate.
As indicated, the First Respondent accepted that the certificate was, on its face, invalid because it had not disclosed a proper basis for certification that the disclosure of the information was contrary to the public interest. However it was submitted that there was no jurisdictional error because the breach could not have given rise to any practical injustice to the Applicant, having regard to the nature of the information the subject of the certificate.
It was pointed out that the folios which are the subject of the notification consisted of copies of emails between the Red Cross in Tasmania and the Department about what should be covered under “care plans”, whether accommodation costs would be covered, a notification to the Department of a new address for the Applicant in New South Wales and correspondence about approval of a bond and rent advance payment to the Applicant under the Asylum Seekers Assistance Scheme. The First Respondent submitted that none of the documents the subject of the certificate had any relevance to any issue before the Tribunal. It was pointed out that the Applicant had been unable to identify what, if any, submission he could have made in relation to the certificate or the documents had the existence of the certificate been disclosed.
The First Respondent initially referred to BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36; [2017] FCAFC 198; Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1; [2017] FCAFC 194 and AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [87]-[91]. It was also submitted that even if the technical invalidity of the certificate amounted to error, it could not be seen as a jurisdictional error in circumstances where any such error would not be material in the sense considered in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.
Subsequently, the First Respondent pointed out that since its earlier submissions, the High Court had handed down its decisions in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3 (SZMTA).
In SZMTA, the High Court addressed the issue of what constituted jurisdictional error in connection with invalidity and/or non-disclosure of a s.438 certificate to an applicant. Bell, Gageler and Keane JJ rejected the proposition that an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification was excluded by s.422B(2) of the Act (at [37]). However, as the First Respondent pointed out, while their Honours concluded (at [38]) that non-disclosure of the fact of notification constituted, without more, a breach of the Tribunal’s implied obligation of procedural fairness, it was also held that:
… For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.
(footnotes omitted)
It was submitted that the Applicant had not established that the non-disclosure of the certificate had given rise to such a practical injustice. The First Respondent reiterated that the documents subject to the certificate could not have had any material impact on the issues on the review as they lacked any connection to the Applicant’s protection claims. In these circumstances it was contended that there was no denial of any opportunity for the Applicant to make submissions material to the decision and, in particular, that he was not denied an opportunity to make submissions on any matter that would have “realistically” made a “difference” to the outcome of the Tribunal decision, so that no jurisdictional error arose.
As the First Respondent submitted, jurisdictional error has not been established. It is not in dispute that the s.438 certificate was invalid. There is no suggestion that the existence of the certificate was disclosed to the Applicant. In these circumstances, the remarks of Bell, Gageler and Keane JJ in relation to an incorrect, and therefore invalid, notification are in point, as well as the remarks referred to above about non-disclosure of the fact of notification.
Their Honours found (at [44]) that:
… The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
(footnotes omitted)
Relevantly, as their Honours stated at [45]:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
The first document the subject of the s.438 certificate is a copy of an email of 9 July 2013 to a departmental officer from a Red Cross caseworker in relation to three clients (including the Applicant) staying at a hostel in Tasmania. The caseworker asked whether care plans should be resubmitted to request cover for an extension of their stay (on the basis of exceptional circumstances) to allow them to see a lawyer on scheduled dates. The reply of 9 July 2013 to this email from a departmental Senior Case Manager addressed the requirement of exceptional circumstances and recorded the understanding that these “clients” would be covering the costs of their extended stay. An email from the Red Cross of 15 August 2013 addressed a request for approval of payment of the costs of a bond and rent advance and a tenancy agreement for the Applicant. An email of 16 August 2013 from the Department recorded approval of a bond and rent in advance loan to the Applicant under the Asylum Seeker Assistance Scheme. An email of 21 August 2013 from the IAAAS Community Detention Co-ordinator advised the Department of the Applicant’s new address in New South Wales.
None of these documents had any relevance to any issue before the Tribunal. The Applicant has been unable to identify what, if any, submission he could have made in relation to the certificate or the information the subject of the certificate had he been informed of the notification. None is apparent. The Applicant, who bears the onus (see SZMTA at [41]), has not established that the failure to notify him of the certificate or the fact it was an incorrect and invalid notification gave rise to a “practical injustice” resulting in the denial of an opportunity to make submissions that were material to the Tribunal decision (SZMTA at [38]).
Indeed, it can be inferred (having regard to the nature of the information the subject of the notification) that the Tribunal left the information in question out of account in reaching its decision. Objectively evaluated, the information in the folios referred to in the certificate was of “such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result” (SZMTA at [48]).
Having regard to the nature and content of the documents the subject of the invalid certificate, it has not been established that any breach of procedural fairness or the fact of the invalid notification in any way gave rise to a practical injustice, whether in denying an opportunity to the Applicant to make submissions or otherwise. The information in the documents the subject of the certificate could not have had any material impact on the issues on the review as it lacked any connection to the Applicant’s claims. Neither the invalid notification or the failure to inform the Applicant could have affected the outcome of the review. The Applicant was not denied an opportunity to make submissions on any matter that could “realistically” have made any “difference” to the outcome of the Tribunal decision. Materiality of the breach in the sense considered in SZMTA at [45]-[48] has not been established. Hence no jurisdictional error has been established in this respect.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 7 July 2020
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