BXM16 v Minister for Immigration and Border Protection

Case [2019] FCA 1845

FEDERAL COURT OF AUSTRALIA

BXM16 v Minister for Immigration and Border Protection [2019] FCA 1845

Appeal from: BXM16 v Minister for Immigration and Border Protection [2018] FCCA 2531
File number: VID 1193 of 2018
Judge: WHEELAHAN J
Date of judgment: 13 November 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court – failure of Tribunal to disclose material covered by invalid s 438 certificate – whether jurisdictional error – whether breach of procedural fairness – relevance of materiality of breach – appeal dismissed.
Legislation:

Federal Court of Australia Act 1977 (Cth) s 24(1)(d)

Migration Act 1958 (Cth) s 476

Cases cited:

Allesch v Maunz (2000) 203 CLR 172

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; 253 FCR 36

Craig v South Australia [1995] HCA 58; 184 CLR 163

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 331 ALR 550

Western Australia v Ward (2002) 213 CLR 1

Date of hearing: 8 November 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 44
Counsel for the Appellant: Dr P Bender
Counsel for the Respondents: Mr C McDermott
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 1193 of 2018
BETWEEN:

BXM16

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

WHEELAHAN J

DATE OF ORDER:

13 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $7,241.00.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

  1. This is an appeal from a decision of the Federal Circuit Court, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

  2. The principal ground on which the appellant alleged that the decision of the Tribunal was affected by jurisdictional error was that the Tribunal had regard to a certificate that had been issued under s 438 of the Migration Act that was invalid, and which the Tribunal did not disclose to the appellant, thereby giving rise to a want of procedural fairness. For reasons to which I shall refer, the primary judge was not satisfied that there was any denial of procedural fairness. In the alternative, the primary judge would have refused relief on discretionary grounds.

  3. The appellant relies upon substantially the same grounds before this Court in submitting that the primary judge was in error in failing to find that there was a denial of procedural fairness and therefore jurisdictional error.

    Background

  4. The appellant is a citizen of Malaysia of Tamil ethnicity who arrived in Australia in…

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BXM16 v Minister for Immigration and Border Protection [2019] FCA 1845
Case
[2019] FCA 1845
Decision Date

CaseChat Overview and Summary

The case of BXM16 v Minister for Immigration and Border Protection involved an appeal by the appellant, a Malaysian citizen of Tamil ethnicity, against a decision of the Federal Circuit Court to dismiss her appeal against the refusal of her application for a protection visa. The appellant had claimed that she had left Malaysia due to threats from her boyfriend's father, who was part of a Malay gang, and that she feared being killed if she returned. The Tribunal had affirmed the decision to refuse the visa, finding that the appellant had not provided credible evidence of her claims.

The legal issues before the court were whether the Tribunal had made a jurisdictional error by failing to disclose material covered by an invalid section 438 certificate, and whether this failure constituted a breach of procedural fairness that was material to the outcome of the case. The appellant argued that the undisclosed material could have affected the Tribunal's credibility findings and ultimately the decision. The court considered whether the failure to disclose the material was a jurisdictional error and, if so, whether the materiality of the breach should preclude the court from exercising its discretion to refuse relief.

The court found that the Tribunal's failure to disclose the material did not amount to a jurisdictional error, as the principles governing such errors in the context of inferior courts differed from those applicable to administrative decisions. The court emphasised that while errors in identifying or formulating issues or questions can lead to jurisdictional error, a failure to take into account a relevant matter or reliance on an irrelevant matter does not ordinarily constitute jurisdictional error. The court also noted that the appellant had not demonstrated that the undisclosed material was material to the outcome of the case, as the Tribunal had already expressed significant doubts about the credibility of her claims.

Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The court concluded that the Tribunal's decision was correct and that there was no basis for the appellant to receive relief on appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs fixed in the sum of $7,241.00.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appellant relies upon substantially the same grounds before this Court in submitting that the primary judge was in error in failing to find that there was a denial of procedural fairness and therefore jurisdictional error.Background The appellant is a citizen of Malaysia of Tamil ethnicity who arrived in Australia in August 2013 as a tourist holding an Electronic Travel Authority. On 24 October 2013, the Department received an application by the appellant for a protection visa. In substance, the appellant’s claim for protection was that she had fallen in love with a Malaysian man, to whom I shall refer as “Mr F”. The appellant described the man in her visa application as her “boyfriend”. The appellant claimed that she and Mr F were of a different race and religion: she was a Hindi Tamil, and he was Malay and Islamic. The appellant claimed that Mr F’s father was very rich and influential, and that upon finding out about her relationship with his son, he organised a man from a Malay gang known as “Gang 31” to harm and kill the appellant. The appellant claimed that she left Malaysia because she was not safe there as a consequence of the gang, and that she feared being killed by gangsters if she returned. In her application, the appellant foreshadowed that she would provide a photograph, a letter from neighbours, and an “email copy from my boyfriend”. The appellant was interviewed by a delegate of the Minister on 29 May 2014. In the interview, the appellant claimed that she and Mr F were still in a relationship, however she stated that they had not spoken in the period since her arrival in Australia, which at that time was ten months. The Department also received a number of documents in support of the appellant’s application. Those documents included –(1)an email, apparently from the appellant, dated 5 June 2014;(2)copies of photographs;(3)a handwritten letter under the appellant’s name dated 1 June 2014, which stated that she had provided photographs of her boyfriend;(4)a letter dated 22 May 2014 that purported to be from the appellant’s father; and(5)a letter that was also dated 22 May 2014 that purported to be signed by 16 residents of an apartment building in Malaysia that alleged that the appellant had been threatened by her boyfriend’s father, and which stated (inter alia) –The incident happened on 1st August 2013. On that day, the gangsters and [the father] attacked [the appellant] and her family members. The residents try to help [the appellant] from the gangsters. And also [the appellant] tried to suicide and we all save her from she killed herself. With the help of the residents she have been sent to Australia.We are the witnesses for what happened to her is true and we will support her always. The department can contact the apartment’s secretary [redacted] at anytime I need further enquires regarding [the appellant] at the number [redacted]. Thank you. On 30 June 2014, 1 July 2014, and 17 July 2014 the Department received “dob‑in” information in relation to the appellant. The substance of that information was set out in the delegate’s reasons for refusing the application for a protection visa –On the 30 June 2014 (f: 87 & 88), the 1 July 2014 (f: 89 & 90-94), and the 17 July 2014 (f: 98), the department received dob‑in information, both verbally and in writing stating:•Photographs as provided by the applicant to the department had been altered and were not sent in the original form which they were taken;•Photographs of applicant and her male friend were taken at the informant’s house;•The male appearing in the photograph is the informant’s husband’s friend and car mechanic;•The applicant’s two brother’s and mother have travelled to Australia in the past and lodged applications for Protection visas;•Despite currently working as a cleaner, the applicant is in receipt of Red Cross payments

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 16 December 2015, the Tribunal conducted a hearing at which the appellant gave evidence and presented arguments with the assistance of a Tamil interpreter. Amongst other things, the Tribunal asked the appellant if she had any contact with her boyfriend since August 2013, and the appellant stated that she had not. Further, the appellant denied sending the letter of 1 June 2014 referred to at [6] above, denied that she digitally altered photographs, denied that she knew how to use a computer, denied that the image in the photographs was of Mr F, claimed that she did not know the person who was in the photographs, and claimed that she did not know who had sent them to the Department.The Tribunal’s decision On 24 June 2016, the Tribunal affirmed the decision under review. In relation to the applications for intervention orders, the Tribunal stated at [28]-[30] of its reasons that it had looked at those documents, and had indicated to the appellant that they raised some concerns. In relation to the documents that the Department had received, the Tribunal stated at [92] –The Tribunal had difficulty in accepting the applicant’s explanation in relation to the documents provided to the Department under cover of a letter bearing her name. Taking into consideration the evidence provided by the applicant at the hearing, including her evidence that her relationship with her cousin and her husband had broken down and as well as the contents of the applications for the intervention orders, the Tribunal considers it is plausible that in light of the applicant’s limited English and her apparent inability to use a computer as well as the timing of the provision of this information to the Department, her cousin and/or her husband were assisting her with her application for a protection visa and forwarded these documents to the Department on her behalf. However, the applicant’s evidence is that the documents provided to the Department were not genuine. The Tribunal considers that the documents were provided by the applicant with the assistance of her cousin and/or her husband and does not accept the applicant’s evidence that she did not know who or why these had been provided to the Department. The Tribunal bases this conclusion on the sequence of events, that is the interview with the Department, the applicant’s request to her mother to provide additional documents to support her application, the provision of the additional documents to the Department after the interview which included a letter with the applicant’s signature, the subsequent breakdown of the relationship with the applicant’s cousin and her husband and the contents of the applications for the intervention orders provided to the Tribunal. The Tribunal stated at [93] that the appellant had not been able to provide any evidence that her relationship with Mr F was genuine or continuing. At [97] the Tribunal concluded –In light of the findings above, in that the Tribunal does not accept the applicant’s reason for leaving Malaysia was because of threats received because of her religion as a consequence of a claimed relationship with a Muslim man, the Tribunal does not accept there is a real risk that the applicant will suffer any form of significant harm at the hands of [Mr F’s] father or anyone else if she returns to Malaysia. As a result, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk she will suffer significant harm.The application to the Federal Circuit Court

Ratio Decidendi

Legal Principle Established

The appellant submitted that the denial of procedural fairness was material to the Tribunal’s decision, because there was a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the appellant a full opportunity to make submissions. The appellant pointed to the fact that the Tribunal expressed significant doubts about the credibility of the appellant’s claims. In that context, the fact that there were different informers about the allegations relating to the photographs could add weight to those allegations, and diminish the credibility of the appellant. The appellant submitted that three names had been attributed to the informers, Tammy, Shirlene, and Shri, and it was not obvious that they were the same person. The appellant submitted that even though the persons had the same telephone number, the Tribunal did not find that they were the same individuals. For these reasons, the appellant submitted that the Tribunal’s credibility findings could have been affected by the information covered by the certificate, and that therefore jurisdictional error by the Tribunal had been established. For like reasons, the appellant submitted that if the denial of procedural fairness was material, this Court should not refuse relief to the appellant on discretionary grounds.Consideration The appeal to this Court is brought under s 24(1)(d) of the Federal Court of Australia Act 1977 (Cth) and is in the nature of an appeal by way of rehearing: Western Australia v Ward (2002) 213 CLR 1 at [68]-[71]. In an appeal by way of rehearing the powers of the Court are exercisable where the appellant demonstrates some legal, factual, or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. If a court on appeal concludes that the primary judge has erred then it may make its own findings of fact and formulate its own reasoning based on those findings: Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 331 ALR 550 at [43]. The appellant has not sought any relief from the Court in its original jurisdiction under s 39B of the Judiciary Act1903 (Cth). Nonetheless, the appellant submitted that the Federal Circuit Court made errors that were to be characterised as jurisdictional. The principles relating to jurisdictional error have a different application to decisions of inferior courts than they do to administrative decisions. That is because the jurisdiction of an inferior court is ordinarily broader than that of administrative decision-makers. In Craig v South Australia [1995] HCA 58; 184 CLR 163 the Court stated at 179 -180 –… [T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.