BYZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1483
•30 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BYZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1483
File number(s): MLG 936 of 2017 Judgment of: JUDGE RIETHMULLER Date of judgment: 30 June 2021 Catchwords: MIGRATION – judicial review – protection visa – grounds for review – reasonableness of conduct – reliance on material – relief granted – application allowed – costs Legislation: Migration Act 1958 (Cth) s 438 Cases cited: BMF16 v Minister for Immigration & Border Protection [2016] FCA 1530
CNY17 v Minister for Immigration & Border Protection [2019] HCA 50; 375 ALR 47
Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619
Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455
Minster for Home Affairs v DUA16 [2020] HCA 46; Minister for Home Affairs v CHK16; 385 ALR 212; (2020) 95 ALJR 54
MZAPC v Minister for Immigration & Border Protection [2021] HCA 17
Wei v Minister for Immigration & Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 327 ALR 28
Number of paragraphs: 49 Date of last submission: 3 June 2021 Date of hearing: 3 June 2021 Place: Melbourne(via Microsoft Teams) Counsel for the Applicant: Mr McBeth Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Mr Yuile Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 936 of 2017 BETWEEN: BYZ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 19 April 2017.
2.A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
3.The first respondent pays the applicant’s costs as agreed, and failing agreement, as taxed.
REASONS FOR JUDGMENT
JUDGE RIETHMULLER:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’), affirming a decision of a delegate of the Minister not to grant the applicant a protection visa to the applicant.
BACKGROUND
The applicant sought a protection visa on 28 November 2012. A delegate of the Minister refused to grant the visa in October 2014. The applicant applied for review by the Tribunal. The applicant appeared and was heard before the Tribunal on 1 July 2016 and again on 15 December 2016, where he gave evidence and presented arguments. A decision was made by the Tribunal on 19 April 2017, affirming the decision of the delegate to refuse his application.
The applicant then sought judicial review in this court and commenced proceedings as a self-represented litigant. He was later provided with some assistance by a community agency, in particular with issuing a subpoena to obtain information relevant to his case. This caused some initial delays in proceedings, following which the applicant was fortunate to be able to obtain pro bono assistance, which resulted in some further delays in the hearing of the matter. The case was then adjourned pending the determination by the High Court in the matter of CNY17 v Minister for Immigration & Border Protection [2019] HCA 50. Following the determination of that matter, this case was relisted for hearing.
Applicant’s Case
The detail of applicant’s claims are set out in paragraph 4(a)-(t) of the Tribunal decision dated 19 April 2017. In substance, the applicant had obtained an AusAID scholarship to study in Australia, where he obtained tertiary qualifications before returning to Papua New Guinea. When he returned to his village, he was elected to the village Council, and shown considerable respect by members of the village. Issues arose as to voting for a local member for parliament and the applicant spoke out against one of the candidates. That candidate threatened that they would take revenge against the applicant, following which his family’s houses and crops were destroyed, his younger sister was raped and drowned in the river.
After these tragic events, the applicant’s tribe and the other tribe in the area had considerable disputes resulting in many deaths. The applicant by this time was living in Port Moresby but expressed real fears that he was ‘being pursued’ in Port Moresby by those aligned to his political opponent and the family of another person who had died in the disputes. The applicant holds fears that the police are also aligned with those who would seek him to be harmed.
The applicant also made claims that his brother had been attacked with a knife and consequently died in hospital. After he arranged his brother’s burial in Port Moresby, the applicant returned to Australia, thinking that he would be able to obtain residence as a result of having a daughter in Australia, or with the assistance of his ex-girlfriend. However, he determined that it was more appropriate to apply for a protection visa.
On the applicant’s case, he remains genuinely fearful that those who are aligned against him would arrange to have him killed, even if he were to return to an urban area of Papua New Guinea, and that the police are corrupt and ineffective, resulting in them being unable or unwilling to protect him, but rather open to bribery for the purpose of killing him themselves.
Tribunal decision
The Tribunal decision is lengthy and detailed, running for some 47 pages, traversing all of the factual issues that arose in this case. The Tribunal ultimately concluded that:
141. Overall, considering the totality of the evidence and the applicant's claims individually and cumulatively, the Tribunal does not accept the applicant was the cause of the violent events in 2010 in his village, including the damage to property, killing of people, including his sister or others, or that he has been targeted by the Kandina tribe or Mr Kama's family as claimed. The Tribunal also does not accept that the applicant's brother was killed in the manner claimed.
142. While the Tribunal accepts there has been longstanding conflict and disputes between the two tribes as confirmed by country information, the Tribunal does not accept that the applicant faces harm as a member of the Mui tribe from members of the Kandina tribe generally because the evidence indicates that he has managed to live and work in Papua New Guinea until his departure in 2012 and he returned and departed again without incident.
GROUNDS OF REVIEW
The applicant initially filed an Application on 8 May 2017, setting out three grounds for review. He filed an Amended Application on 23 March 2019 setting out five grounds for review.
The applicant pursues grounds 2 to 6 (a total of five grounds) in his Further Amended Application for judicial review filed on 28 June 2019. I consider these in turn, accordingly.
Ground 2
Ground 2 is framed in the following terms:
In the alternative to ground 1, the Tribunal failed to make an obvious inquiry about a critical fact, or alternatively, acted unreasonably, in failing to request the [I] Letter that was stated to be attached to the statutory declaration of [I] dated 18 January 2016 but was omitted from the copy provided to the Tribunal.
Particulars
a)The statutory declaration plainly indicated that a letter from the deponent, [I], dated 28 February 2013 was supposed to be attached.
b)The applicant expressly sought and received confirmation from the Tribunal member at the hearing that the statutory declaration of [I] had been received by the Tribunal.
c) It was obvious from the face of the statutory declaration that the attachment of the [I] Letter had been omitted in error.
d) The Tribunal could easily have obtained the omitted [I] Letter by contacting the applicant or his representative.
e) The [I] Letter contained critical evidence which corroborated the applicant’s evidence on issues that were determinative of the review.
This ground relates to a statutory declaration that was provided to the delegate, which was discussed with the Tribunal at the respective hearing. The statutory declaration was from a person who was a witness, and was in very brief terms containing only two paragraphs, stating:
1. In regards to [BYZ] case as seeking asylum in Australia, I did a letter dated 28 Feb 2013 (see copy attached) as indicating my relationship and confirmation of the threat he faced whilst in Papua New Guinea and declare myself as the author of the initial statement.
2. The incidents described in the letter are facts based on my eye witness and personal association to [BYZ]. He still has great risk of danger to live in PNG as his enemies randomly approach me asking about his whereabouts.
As is apparent on the face of the statutory declaration, the deponent refers to a letter dated 28 February 2013, and declares that the contents of that letter are based upon the deponents own observations and personal association with the applicant. The letter is in far more lengthy terms, stating:
I am Kenneth Amesi and take this opportunity to declare my relationship with [BYZ]. I met [BYZ] in our high school days and over the years we have been very good mates and that still exit up until today.
I understand and know that [BYZ] has been through some tragic moments in his life and has left PNG for Australia seeking asylum. He lost family members, homes, properties in a tribal war fare that resulted in his village due to political opinions regarding the 2012 General Elections in PNG.
He did not have proper accommodation in Port Moresby so I accommodated him since he returned from his study in Australia. He went to his village and hosted a party with his tribe for 1his achievement and the trouble started from thereon after [BYZ] associated himself in conflicting political interests.
The situation turned awkward and many lives were lost and [BYZ] is the major culprit wanted by tribal enemies created due to their political motives in his electorate of [electorate name]. [BYZ] was on the run as he was in great danger of being killed so he used to hide and stay in my house. He had difficulty going out with friends, finding job, and even for shopping. Sometimes I took him out in my car for breather until I secured him a job with [Corporation Ltd] in Port Moresby.
There was still fighting in his home village and hired men and corrupt policemen who accepted bribery was on the run looking for him in Port Moresby. So, while on job with [Corporation Ltd] [BYZ] brought his younger brother, Steven from the village to come and stay with him.
Unfortunately, a mob of suspected tribal enemies involved with police uniformed officials, probably bribed for the activity attacked [BYZ] and his small brother, Steven at his rental place in one of Port Moresby's squatter settlements. [BYZ] escaped being killed but his brother was attacked with multiple knife wounds and head injury and was rushed to a nearby clinic for medication.
Me and [BYZ] arrived later to check on him but he was pronounced death at the clinic. Steven lost a lot of blood and severe head injury got him down.
This statement is bona fide and truth to my understanding in all contexts.
…
The statutory declaration was also accompanied by copies of identity documents of the witness, including a copy of the witness’ passport. It is not in dispute that the author of the statutory declaration is the same author as that of the letter.
The statutory declaration and identity documents, together with a response to a hearing invitation were emailed to the Tribunal on Wednesday 22 June 2016 by the applicant. A copy of the email appears at page 313 of the Court Book (‘CB’).
The list of attachments in the email do not appear to contain a separate attachment that would be the letter attached to the statutory declaration. It appears that the applicant when sending the statutory declaration, omitted to send a copy of the letter that is referred to in that statutory declaration.
The applicant was asked about the statutory declaration at page 3 of the transcript where the Tribunal Member confirmed that they had the statutory declaration and some identity documents. In the transcript of the second hearing, again at page 3, the witness’ evidence in the statutory declaration was briefly discussed.
It is apparent from reading the transcript that the exchange admits of a circumstance where the applicant understood that the Tribunal had possession of the letter, but that the Tribunal had not seen the letter itself. The result was that the Tribunal made a decision without having regard to the contents of the letter from the witness who prepared the statutory declaration. The contents of the material were essential to the applicant’s claim. The statutory declaration (the brief two paragraphs) was referred to by the Tribunal in the decision where it said:
42. The applicant was asked about [I]’s statutory declaration where he states that the applicant's enemies still approach him and ask for his whereabouts. The applicant said that people know that he and [I] are friends and his tribal enemies are still looking for him. He said that [I] and he are from the same province, the Southern Highlands province, but from different tribes. People from different tribes speak different dialects and have different features so [I] can usually tell if a person is from a particular place, such as from the applicant's village or tribe. People know they are friends and so they approach [I] and ask for his whereabouts. The Kandina and the Mui tribe speak the same dialect. The applicant was asked why would people assume that [I] would know where he is particularly as it has been some time since the claimed events. The applicant said because everyone knows they are friends.
Importantly, the witness’ statement (as contained in the letter) addresses matters that were the subject of real issues before the Tribunal, such as whether or not the applicant’s brother died, a fact which was not accepted by the Tribunal: see paragraph [135] of the Tribunal’s decision.
The letter also addresses the central finding of the Tribunal as to whether or not the applicant was targeted and whether or not he was the cause of the violent outbreaks as a result of his political speech.
It is apparent that the letter contains relevant evidence for the purpose of the decision.
Counsel for the Minister attempted to minimise the importance of the material, arguing that it was not critical information, and that the witness was a friend or associate of the applicant, and thus it would not change the views of the Tribunal in any event.
I am not persuaded that one could conclude that the evidence of this witness was not material to the issues before the decision-maker. The mere fact that witness is a friend or associate does not result in their evidence having no weight. I am persuaded that the decision could have been different if this material had been before the Tribunal.
It was not through error of the Tribunal that the material was not before them initially, but rather, appears to have been an error by the applicant. However, it is apparent on the face of the statutory declaration, that it is intended to be read with a letter which was not enclosed in the email. There is no suggestion that this was deliberate or a stratagem. It appears that this was an administrative error of the type that can easily occur in litigation. The question is whether or not is was reasonable for the Tribunal to proceed to make a decision without requesting the material that had clearly been referred to, and discussed at both hearings.
There have been a number of cases that consider the question of reasonableness of the conduct of the Tribunal. For example, Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455 (declining to grant an adjournment), Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393; (2014) 141 ALD 619 (proceeding when an applicant had not appeared in circumstances that were clearly out of character for the applicant), Wei v Minister for Immigration & Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 327 ALR 28 (failing to ring the university to confirm an enrolment) and BMF16 v Minister for Immigration & Border Protection [2016] FCA 1530 (failure to inquire with the applicant’s solicitors as to whether the applicant desired to respond).
As was pointed out in the Minster for Home Affairs v DUA16 [2020] HCA 46; Minister for Home Affairs v CHK16; 385 ALR 212; (2020) 95 ALJR 54, albeit in a slightly different statutory context, is that if a document is clearly provided in error, it is appropriate for the Tribunal to request a correct copy, or correct document: see paragraph [28].
This case appears to me to be similar to the circumstances that arise when a document is provided in error. In this case, one part of the document was not provided, and it was apparent on the face of the document that there was a missing document from that provided. I am persuaded that it was legally unreasonable for the Tribunal not to request the letter that was referred to in the statutory declaration. I am also persuaded that the letter was material to the application and could have resulted in a different decision. In these circumstances, this ground should be allowed.
GROUND 4
Ground 4 concerns the findings that the Tribunal made with respect to whether or not the applicant’s brother had died. The ground is expressed as follows:
The Tribunal’s finding at [138] that it did not accept that the applicant’s brother was killed or buried in the manner claimed was based on a misinterpretation of the evidence before it, namely the assertion that “the advice from the DFAT staff in Port Moresby [was] that there are absolutely no records of a death in the name of the applicant’s brother at either the hospital or the morgue.”
The relevant part of the Tribunal’s decision is at paragraphs 131 to 140 which provide :
131. Although the Tribunal accepts that even if the records and processes in Papua New Guinea are not particularly efficient or sophisticated, there should still be some indication of an admission, treatment and death, particularly in violent and criminal circumstances.
132. This information was put to the applicant at the second hearing. In response, the applicant indicated that his friend may have bribed the morgue guards to release the body of his brother. This does not explain the lack of any evidence that the applicant's brother was held at the morgue. There is therefore no independent evidence of the applicant's brother's death. The applicant was given the opportunity to make enquiries of his friend [I] of any receipts or records in relation to the release of the body from the morgue for or for any record of the burial but he did not do so. When asked why there would be no records at all of the death, the applicant responded by saying essentially that the records have been removed or altered by his enemies.
133. As discussed earlier, after the second hearing, the Tribunal wrote to the applicant pursuant to s.424A in relation to the adverse information put to him during the hearing and he responded to this in a submission dated 19 March 2017 as noted above.
134. While acknowledging that the country information confirms that police in Papua New Guinea are not particularly effective and there is widespread corruption, the Tribunal does not accept that all records have been removed from the hospital and the morgue in order to target the applicant. The Tribunal does not accept that there would be no evidence at all held by the hospital or the morgue.
135. The Tribunal does not accept that a person in the name of the applicant's brother was admitted with serious injuries on 27 May 2012 for the reasons claimed by the applicant or that he had died in the manner claimed. The Tribunal has placed no weight on the photographs or the purported hospital record provided.
136. Further, the applicant has given evidence he has absolutely no record of the burial or permit obtained, no receipt for the purchase of the plot and no knowledge where the grave was located. He also told the Tribunal that the cemetery does not keep records of burials and that nobody runs the cemetery.
137. The Tribunal has noted the advice by the Coroner that an order to bury the applicant's brother would only have been issued if the burial was legal and illegal burials are not unheard of in Port Moresby.
138. The applicant has claimed that anyone can bury a body at any time anywhere in the cemetery without any record being kept. The Tribunal accepts that record keeping by cemetery officials in Port Moresby is not complete and that illegal burials occur, however, given the advice from the DFAT staff in Port Moresby that there are absolutely no records of a death in the name of the applicant's brother at either the hospital or the morgue, and the concerns the Tribunal had about the applicant's credibility, the Tribunal does not accept that the applicant's brother was killed or buried in the manner claimed.
139. The applicant has also referred to the advice provided by DFAT after enquiries were made in Port Moresby as being targeted to have an adverse effect on his case by casting doubts on his credibility with a "vicious and assumptive opinion". The Tribunal does not accept this supposition. The DFAT staff at the Australian Embassy do not have any vested interest in the outcome of any enquiries and are not aware of the applicant's individual circumstances or the full nature of his claims. They have merely made enquiries on the Tribunal's behalf in order to try and ascertain if there were any records to verify the applicant's brother was ever admitted to the hospital, whether his body was taken to the morgue, whether he was released from the morgue for burial and it is up to the Tribunal to consider whether to give any weight to the information provided and whether this is consistent with applicant's version of events. In this case, the lack of any information by the hospital or the Coroner is of concern, particularly as no hospital records or mortuary records have been discovered. These concerns were raised with the applicant and he was given an opportunity to address these.
140. In looking at all the information provided by both the applicant and DFAT in relation to these issues, the Tribunal does not accept that there would be no records whatsoever of any admission or treatment, transfer to the morgue, any record of the release of the applicant's brother's body, and nothing whatsoever to indicate or confirm that he was ever either at the hospital or the morgue. It is of concern that the applicant has provided a document purported to be from the hospital in Port Moresby in relation to his brother's admission there but the original of this record could not be found when enquires were made by DFA T at the Tribunal's request. The Tribunal does not accept the document submitted by the applicant to the Department as being genuine in the absence of any form of corroboration by the hospital itself. Further the applicant has claimed that his friend organised for a coffin for his brother's body, for his release and he arranged for a space at the public cemetery. While considering that the cemetery may be run along the lines indicated by the applicant and accepting that the burial was not conducted officially or even legally, the applicant was unable to provide any confirmation by his friend who he claims organised for a coffin to be delivered to the morgue, the release of the body and the burial.
Significantly, in paragraph [138] of the decision, the Tribunal accepts that the cemetery records in Port Moresby are not complete and that illegal burials occur, but concludes that there are no records of a death in the name of the applicant’s brother at the hospital or morgue, which, coupled with the Tribunal’s concerns about the applicant’s credibility, led the Tribunal to reject the claim that the applicant’s brother was killed. At the end of paragraph [139], the Tribunal returns to the proposition that it places weight upon the fact that no hospital records or mortuary records have been discovered, showing that the brother died.
The relevant information from the Department of Foreign Affairs (‘DFAT’), which had been provided to the Tribunal, is set out at pages 353-354 of the CB. It is relatively brief providing only:
…
•We note that the capacity of the Port Moresby General Hospital’s records department is low and the department cannot readily provide admission files. The Port Moresby General Hospital morgue has confirmed that it has no record of Mr Bakua’s death. While the usual process if for a deceased patient to be taken to the morgue, it is possible that Mr Bakua’s body may have been taken directly to a funeral home form the Gerehu clinic. If this occurred, the morgue would not have relevant records.
•The Papua New Guinea Coroner has confirmed it has no electronic record of issuing an order to bury Mr Bakua. It should be noted this would have only been issued if the burial was legal and illegal burials are not unheard of in Port Moresby. Electronic record keeping was only implemented in the Coroner’s office about 12 months ago and is based on manual transcription from the paper archives. The Coroner has offered to search the paper archives to ensure the record was not missed during the transfer process but cannot provide guidance on when this may be completed. DFAT has followed up several times but expect there will be a lengthy if not indefinite delay. The Port Moresby public cemetery is expansive and due to resource constraints it is not possible to check each individual grave.
…
This information does not sit easily with the findings of the Tribunal. First, the lack of hospital records appears to have been a result of the incapacity of the hospital to provide admission files, not because there was not an admission file for the applicant’s brother. Secondly, the information shows that the applicant’s brother’s body may not have been taken to the morgue but rather, directly to a funeral home, and that in those circumstances, the morgue would not have any relevant records.
In the context of the information provided, it was illogical to draw an inference, as the Tribunal did at the end of paragraph [134] of the decision. The Tribunal based that inference upon there being “no evidence at all held by the hospital or morgue”, as the DFAT information indicated that DFAT were unable to determine whether there was a patient file held at the hospital. The lack of a record at the morgue was not conclusive in the context of the morgue at Port Moresby Hospital, as some deceased’s are taken directly to a funeral home.
The Tribunal continues, at paragraph [138] of the decision, to accept that there may be illegal burials and difficulties with cemetery records, but appears to proceed on the assumption that had the death occurred, there would be records at the hospital or morgue. Again, this is not the evidence from the DFAT official which was, simply, to the effect that they were unable to determine if the hospital had records, and further, that there may not be records of a death at the morgue, if the body had been taken directly to a funeral home.
In these circumstances, I am persuaded that the finding of the Tribunal was not open to it on the evidence that it had before it in this regard. I therefore find that the applicant has established this ground.
GROUNDS 3 AND 6
The applicant complains about how information that was covered by a certificate reportedly issued under s. 438 of the Migration Act 1958 (Cth) (‘the Act’) was dealt with by the Tribunal. The grounds are framed as follows:
3. The Tribunal failed to afford the applicant procedural fairness in its treatment of information covered by a purported certificate under s 438 of the Migration Act.
Particulars
a) A certificate under s 438 of the Migration Act was issued by the Minister’s delegate to the Tribunal in respect of two separate sets of documents, said to be covered by s 438(1)(a) and (b) respectively.
b) The certificate was plainly invalid in relation to the documents said to be covered by s 438(1)(a).
c)The Tribunal did not disclose the existence and/or scope of the certificate to the applicant in relation to both categories of documents.
d) The Tribunal did not give the applicant an opportunity to make submissions as to the validity of the certificate.
e) The Tribunal did not give the applicant an opportunity to make submissions as to the exercise of its discretion under s 438(3)(b).
f) It can be inferred that the Tribunal relied on at least some of the documents covered by the certificate.
g) The particulars of the information on which the Tribunal relied were not put to the applicant for comment.
6. The decision of the Tribunal was affected by a reasonable apprehension of bias in that the Tribunal had before it, under cover of a purported certificate under s 438, prejudicial material that was not relevant to the determination of the visa application.
Particulars
a) A certificate under s 438 of the Migration Act was issued by the Minister’s delegate to the Tribunal in respect of folios 87-90 of the Department file.
b) The Minister now accepts that that certificate was invalid.
c) The information covered by the certificate was prejudicial to the applicant, inter alia because it asserted that the applicant “may have pending charges for domestic violence and threats to kill.”
d) The information covered by the certificate was not relevant to assessing the criteria for the visa that was the subject of the Tribunal’s decision.
e) The Tribunal did not disavow reliance on the information covered by the certificate.
f) The Tribunal did not provide the appellant with particulars of the adverse information or give him an opportunity to respond to the adverse information.
g) A fair-minded lay observer who was aware that the Tribunal had before it the adverse information, did not disclose to the applicant that it had the adverse information and made a decision adverse to the applicant might reasonably apprehend that the Tribunal had not brought a fair, impartial and independent mind to the determination of the matter on its merit.
In this case, the certificate (which appears at CB260) relates to two separate pieces of information. The first paragraph of the certificate deals with a response from criminal history inquiries, and purports to certify that the disclosure of this would be contrary to the public interest, because it refers to the internal working documents and business affairs. The Minister concedes that the certificate in this regard is invalid.
The question then arises as to what use the Tribunal made of the information that was reportedly covered by the certificate. The relevant information is contained in an annexure to the affidavit of Ms Kowalewska, sworn 30 May 2019, where it states that the applicant “may have a pending charge for domestic violence offences and threat to kill”. The document also stated that it was recommended that the case officer contact Victoria Police directly, to determine whether any charges had been laid.
The Tribunal did not refer to this material in its decision. However, the relevant material was mentioned in the decision of the delegate, where the delegate said (at CB245):
The interviewing officer advised the applicant that his fingerprints had matched against law enforcement databases, and asked him to explain this. The applicant said that he had become upset when his ex-girlfriend refused to help him get a permanent visa, and that she rang the police. No charges had been laid, and he did not realise that he was supposed to declare this information in his application. Following the interview, he submitted a further statutory declaration reiterating his version of this incident, as well as documents relating to a family violence order issued against him by the Sunshine Magistrates' Court on 24 September 2012 (folios 180-183).
It is apparent that the matters mentioned in the police report relate to a dispute between the applicant and his ex-girlfriend, as referred by the delegate. They do not appear to have any relevance to the decision that the Tribunal had to make. Pursuant to s. 438 of the Act, the Tribunal were unable to rely upon this material, without having provided the applicant particulars of it, given that s. 438 provides the following:
438 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
As the High Court of Australia recently made clear in MZAPC v Minister for Immigration & Border Protection [2021] HCA 17 (‘MZAPC’), it is appropriate to assume that the Tribunal has conducted itself, as it ought to, according to law, in the absence of evidence and directly to the contrary or evidence from which an inference to the contrary may be drawn. There is nothing before the Court to show that the Tribunal relied upon this material, nor from which to draw such an inference. In these circumstances, the case falls within the second category of cases discussed in MZAPC at paragraph [65].
I note that in this case, the offences are not said to be offences of dishonesty. They have been squarely addressed by the applicant in his interview with the delegate. I am not persuaded that in the context of this case (noting the extent and reasons given by the Tribunal), that a fair-minded, lay observer and person who is properly informed of the nature of the process before the Tribunal might, reasonably, apprehend that the Tribunal, in this case, did not bring an impartial and unprejudiced mind to the resolution of the issue before it.
The applicant also refers to a bundle of information referred to as ‘dob in information’ which was also covered in the second paragraph of the certificate. This information, however, was dealt with squarely by the Tribunal, which stated in its reasons:
27. The Tribunal referred to the s.438 certificate issued by the Department in relation to information received from a third party. The Tribunal notes that the delegate has referred to this information having been disclosed to the applicant in error through the applicant's Freedom of Information application. The applicant told the Tribunal that the information provided to the Department was not correct. He believes that the reason that the person who has provided this to the Department was because he has not paid a bride price and is angry about this. She has no personal knowledge of his activities in Papua New Guinea in 2010 or after. The Tribunal considers that the information covered by this certificate is not relevant as it relates to a personal grievance between the applicant and his ex-partner and therefore it has not been taken into consideration in this review.
It is difficult to see that a reasonable person would conclude that this material might result in the Tribunal bringing a partial or prejudiced mind to the resolution of the matter, given that the Tribunal has squarely addressed the material and, specifically, found that is not relevant to the issue in question; noting that the person who made the disclosures to the Department had no personal knowledge of the applicant’s activities.
Stepping back and considering both the ‘dob in information’ and the possible police charges with respect to domestic violence and threat to kill, even if taken together, the matters do not seem to be sufficient to demonstrate that a fair-minded, lay observer, properly informed as to the nature of the process before the Tribunal, might reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to the resolution of the questions it had to determine. In this regard, I note in particular the fact that the material was discussed with the applicant, either by the delegate or the Tribunal, the presumption that the Tribunal would not have considered the criminal law information, and the Tribunal’s logical reasons for rejecting the relevance of the ‘dob in information’. I therefore find that the applicant has not established this ground.
Ground 5
Ground 5 is as expressed as follows:
The Tribunal failed to consider a claim clearly arising from the material before it, namely whether the tribal violence that the Tribunal accepted persisted and had caused the applicant’s family and others to flee the applicant’s home village constituted a real risk of significant harm, regardless of whether or not the applicant was the catalyst for the tribal violence.
The applicant argues that the Tribunal failed to consider his claim with respect to generalised violence, and confined its considerations to convention-based claims. As set out above, the Tribunal expressed its overall findings in paragraphs [144] to [142]. Whilst the Tribunal did express its findings with respect to the disputes between the two tribes, giving it a flavour of a convention-based finding, that was in substance the breadth of the claim by the applicant under the complimentary protection provisions.
That is, once his claim with respect to the political conduct leading to him being persecuted was rejected, his only risk was as a result of the disputes between the two tribes. In these circumstances, in the context of this case, those reasons are sufficient to deal with the claims of more generalised violence caused by the intertribal dispute. I am not persuaded that the applicant has established this ground.
CONCLUSION
As the applicant has established grounds for judicial review, it is appropriate to grant relief. It was agreed at the hearing that costs should follow the event at the scale fee and I so order.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller. Associate:
Dated: 30 June 2021
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