BZP15 v Minister for Immigration
[2018] FCCA 1731
•20 April 2018 (but see order 3)
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZP15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1731 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – certificate under s.438 of the Migration Act 1958 (Cth) – no denial of procedural fairness – Tribunal did not act on material the subject of the certificate – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.02 Migration Act 1958 (Cth), s.438 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 | ||
| Applicant: | BZP15 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2666 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 20 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2018 (but see order 3) |
| Written reasons provided on: | 29 June 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
These orders do not take effect until the date on which written reasons are posted to the parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2666 of 2015
| BZP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 3 September 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of India, first applied for protection in 2008, having arrived in Australia that year. The application was refused. He sought review by the Tribunal. It affirmed the decision. He sought judicial review, including an unsuccessful application for special leave to appeal to the High Court. As discussed further below, in 2010 the Applicant also unsuccessfully sought Ministerial intervention under s.417 of the Migration Act 1958 (Cth) (the Act).
In October 2013, after the introduction of the complementary protection criterion and the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the Applicant lodged a second application for a protection visa. It was confined to a claim that he met the complementary protection criterion. The delegate refused the application and the Applicant sought review by the Tribunal. References to the Tribunal decision are to the Tribunal’s decision in relation to this second application.
The Applicant’s claims centred on his claimed involvement in politics and a political opinion in support of the Indian Congress Party. He claimed that he was involved in activities for the “Jubo Congress” in the Dalgaon branch of Assam State and that due to his political opinion and activities he became an “enemy” of the United Liberation Front of Assam (the ULFA), which was said to be a “terrorist organisation”. He claimed the ULFA targeted and harmed supporters of the Congress Party. He also claimed he had been the subject of extortion and kidnapping by the ULFA.
Insofar as the Applicant claimed to fear significant harm from his political opponents because of his political opinion, he claimed that he would not get state protection because the police were ineffective. He claimed that even if he moved to another part of India he would continue to face harm.
He provided some documentation in support of his claims including, relevantly, four untranslated letters on letterhead which referred to the “Head Office” of the “United Libaration (sic) Front of Assam” and were stamped “ULFA”. He also provided copies of two letters in English. One was on letterhead referring to the Dalgaon Block NSUI Unit dated 22 July 2008 and one was said to be from the office of the Dalgaon Block Youth Congress (I) and bore a date partly obscured on the copy, but indicating 22 July. I note that in its reasons the Tribunal referred (apparently interchangeably) to “Dalgaon” or “Dalgon”.
In the course of the review the Applicant attended a Tribunal hearing. The only evidence before the court of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
In its reasons for decision the Tribunal proceeded on the basis that it could only consider the Applicant’s claims under the complementary protection criterion having regard to the reasoning in SZGIZ.
The Tribunal noted that the Applicant had legally departed India on 17 May 2008. It also recorded that he had told it that he had not told the truth in his prior visa application about the names of his family members. The Tribunal found that this was one of the reasons that ultimately satisfied it that the Applicant was prepared to embellish, if not fabricate, his evidence.
The Tribunal accepted that the Applicant was a national of India, but for reasons which it gave, was not satisfied he was a generally credible witness.
The Tribunal addressed issues in relation to the Applicant’s claim to fear harm in India (in Assam) for reason of his political activities for the Jubo Congress. It referred to the fact that, as it had put to the Applicant at the hearing, the delegate had heard of the Jubo Congress in Bangladesh but not of a Jubo Congress in India and also that, based on country research, the Tribunal had not seen any reference to the Jubo Congress in India (although there were references to the Jubo League in neighbouring Bangladesh). It recorded that the Applicant said the Jubo Congress existed and that it acted according to the instructions of the Indian Congress Party. The Tribunal clarified with the Applicant that he was claiming that he was part of a group of local persons in his own village in Assam and that this group assisted the Indian National Congress Party.
The Tribunal considered the Applicant’s claims and evidence about the nature of the assistance provided by this group and his explanation that he was President of the Dalgaon Block Youth Congress which assisted the Indian National Congress Party. The Tribunal recorded that while it was also unable to find any reference to the Dalgaon Block Youth Congress in country information, it accepted that this was a small local group that assisted the Indian National Congress Party.
According to the Tribunal, at the hearing the Applicant had initially explained that he joined the Dalgaon Block Youth Congress when he was 16 years old (around 1980), that he continued working for the Youth Congress for approximately 10 years (until 1990) and had confirmed that he did not work for the Youth Congress after that time. When asked by both the delegate and the Tribunal, he had said that he could not remember when he was President of the Youth Congress.
In its reasons, after recording this the Tribunal referred to the letters said to be from the “Dalgaon Block Youth Congress” and the “Dalgaon Block NSUI Unit” as follows (footnotes omitted):
14. However, two witness letters (amongst others) lodged by or on behalf of the applicant, included one from the “Dalgon Block Youth Congress” dated “22/07/[??]”; and one from the “Dalgon Block N.S.U.I Unit dated “22/07/08”. Both letters stated the applicant was the President of each of their organisations, from 1986 until 2006 (when asked, the applicant declined to comment about the two different names or why he could not remember the dates of his Presidency at hearing). Though the letters said the applicant allegedly ceased his Presidency (in 2006) some time before the Tribunal hearing (in August 2015), this was only fairly shortly prior to him departing India (on 17 May 2008). Further, that the applicant could only remember being the President of one organisation, and given as he could not remember (even approximately) when he ceased being President, I have rejected both letters as providing false evidence about this. This is also one reason that eventually satisfied the Tribunal the applicant was not a generally credible witness.
The Tribunal continued:
15. Next and as stated above, when asked repeatedly at hearing, the applicant agreed that he had ceased being a member of the Dalgon Block Youth Congress in 1990 (at which time he was 26 years of age). It was only later in the hearing, after he had also previously said he did not engage in any political activities after 1990, that the applicant said (words to the effect) that “it was all coming back to him” and he now recalled he was politically active after 1990 (discussed below). The aforementioned two letters (for instance) did speak of the applicant’s political conduct up to (at least 2006), though the applicant’s lack of any initial recall about this, and the Tribunal’s prior rejection of one component of the letters (and serious doubts about other claims therein), is one reason that has satisfied the Tribunal the applicant’s oral submissions about his latter political activities (after 1990) were at least embellished (if not false). This is also one reason that eventually satisfied the Tribunal the applicant was not a generally credible witness.
16. At any rate, and after discussing the claims at hearing, the Tribunal will accept the applicant was a member of the Dalgon Block Youth Congress; that he ceased being a member or actively associated with that group when he was 26 years old (1990); and that he did not have any problems arising from his former membership between 1990 and the time of his departure from India in 2008.
The Tribunal also addressed the Applicant’s claims (made near the end of the hearing) that he could “now” recall his political activities after 1990. He claimed that he had been a member of his village’s “local authority” which dealt with local complaints and organised a security officer for the village. The Tribunal found that none of the cited country information satisfied it that the Applicant would have a real risk of any harm based on what he claimed to have done for the local authority. It recorded that when the gist of this information was put to the Applicant at the hearing he had said, among other things, that he was not well and his memory was poor. However, although asked, the Applicant did not claim to have attended for any relevant medical treatment in Australia or before arriving here. The Tribunal put to the Applicant that it appeared that he was saying he was depressed as his migration status was not finalised. It understood he agreed that this was correct. When the Applicant was asked if there was anything specific about his work for the local authority that he believed may cause him problems on return to Assam State, he said his work was “very significant” and repeated that he had just remembered.
The Tribunal accepted that the Applicant had some very limited role in his local village authority for some time after 1990, in which role he and others had some involvement in settling local disputes. However, having regard to its other findings, the Tribunal was not satisfied that the Applicant had a real risk of significant harm for this reason should he return to his home region in India.
In these circumstances the Tribunal addressed the fact that at the hearing the Applicant had “offered” that the Tribunal could call a named ex-Minister of State from Assam. When asked why, the Applicant had initially suggested that this man would corroborate his claim to have been involved in the Dalgaon Block Youth Congress (which the Tribunal ultimately accepted). The Tribunal recorded that it told the Applicant that based on the evidence before it and having discussed this at the hearing, it would not pursue this request.
The Applicant is said to have then claimed he had been “under the cover” of a high profile politician “doing work for the ex-Minister” and that he was the “spokesperson” in his local village for the politician. He also stated that now the “party was not there” and that there was pressure from the ULFA, the Maoists, the Muslim League and the BJP and that he would now be put under pressure.
The Tribunal stated that it found it very difficult to understand some of the Applicant’s claims at the hearing in relation to the reasons why he did not wish to return to India. Nonetheless, it accepted that he may have had some very limited (perceived) ongoing association with either the Dalgaon Block Youth Congress or a local politician after 1990 and in his home village. However nothing the Applicant said in this respect satisfied the Tribunal that, whatever he did after 1990, he would now have a real risk of significant harm should he return to Assam State. The Tribunal was satisfied that this was why he had continued to work and live in his home village (without harm) prior to “fleeing” to Kolkata in June 2007 (discussed later in its reasons).
Based on the accepted claims and country information, the Tribunal was not satisfied that the Applicant would face a real risk of suffering any harm from Maoists, the Muslim League or the BJP, should he return to his home in Assam State. With the exception of the claimed fear of the ULFA, the Tribunal was not satisfied the Applicant had a real risk of suffering any significant harm for any reason.
In relation to the ULFA claim, the Tribunal recorded the Applicant’s evidence that he had a wholesale business in India selling rice and that he also worked in a rice paddy and sold areca nuts. He claimed that he had been threatened by four males who were known to him and that in 2006 or 2007 he was kidnapped and his brother had to pay a ransom for his release. He claimed that while detained (for two days) he had been physically tortured. He had told the first Tribunal that he was targeted by the ULFA, but at the most recent Tribunal hearing, he also said he feared the Maoists. He claimed he had been “tortured” physically and mentally. The Tribunal understood that this claim related to the 2006/2007 abduction and extortion attempts.
In this context the Tribunal considered the Applicant’s evidence that in 2006/2007 he had received four letters from the ULFA demanding money (and that other threats were also made). He claimed he had not mentioned this to the local police because it was “well known” that people who reported problems with the ULFA were harmed.
Having regard to these claims, the ULFA letters and country information, the Tribunal accepted that this claim was plausible and that the ULFA had demanded money as the Applicant claimed. It also accepted the Applicant’s claim that he had paid money in response to the first three demands, but had refused the fourth request and that this was why he had been abducted.
The Tribunal considered the Applicant’s claim that he “fled” to Kolkata very shortly after being released. It recorded that given the length of time since the incident and the fact that it was difficult to illicit information from the Applicant at hearing, it had been “unable to explore this issue carefully” at the hearing. Nonetheless, based on country information, the Tribunal accepted as plausible that the Applicant was kidnapped after refusing a fourth demand for money by the ULFA, that his brother paid a ransom and that shortly thereafter the Applicant was released and travelled to Kolkata.
As to the reasons for the extortion attempts, the Tribunal had regard to the Applicant’s evidence to the effect that “all businessmen in Assam State are subject to such extortion”. It referred to country information in this respect. It did not accept the Applicant’s oral claims that he was at risk because he could identify ULFA persons concerned or (having regard to the Applicant’s evidence) that anything other than his perceived wealth had motivated the extortion attempts.
Nonetheless, given the ongoing nature of the insurgency in India’s north-east, the Tribunal accepted that should the Applicant return to Assam State he may again come to the adverse attention of similar persons (or groups) who may again seek to extort money from him. However, while the Tribunal accepted that the Applicant’s whereabouts were sought on one occasion in 2008 by people claiming to be associated with the ULFA, on the evidence before it, the Tribunal was satisfied that no further adverse approach to his family had been made since that time.
While the Tribunal expressed some doubts about the Applicant’s evidence, it indicated that it proposed to ask, “what if I am wrong?” and accept that the Applicant had a real risk of again being subjected to extortion attempts should he return to his home in Assam State. It was satisfied that any such harm would constitute significant harm.
Hence, as it recorded it had put to the Applicant at the hearing, the Tribunal considered whether the Applicant may be able to safely and reasonably relocate within India. It referred to s.36(2B)(a) of the Act, to the principles considered by the Federal Court in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 and to the appropriateness of considering relocation in the context of assessing a complementary protection claim. It observed that each case needed to be considered according to its merits.
The Tribunal considered the Applicant’s circumstances as follows (footnotes omitted):
33. That said, in June 2007, the applicant said he travelled to and resided in (at the home of a relative) in Kolkata, for around 9 months (prior to departing India). He therefore said he had already attempted to relocate to Kolkata but was unable to live in the relocation place “with comfort”. The applicant also said that in Kolkata, he had received a threat on his mobile phone telling him to pay the money demanded from him. The (first) Tribunal was satisfied the applicant could safely and reasonably relocate within India. The applicant however, believed the Indian police were ineffective and he would be harmed anywhere in India.
34. Regarding whether it is safe to reside in Kolkata, based on the country information considered, and the length of time since the extortion attempts of the applicant (in 2005-2007), the Tribunal is not satisfied the applicant is of any ongoing interest to the ULFA (or any other group) should he relocate to Kolkata. The applicant did say that he feared these groups had contacts and links in Kolkata; however his residence in Kolkata for 9 months prior to departing India, has satisfied the Tribunal the applicant understood he was not at risk in Kolkata. He did not claim to have taken any real steps to hide or otherwise protect himself in Kolkata, and was sufficiently confident to reside there with a relative. The applicant also referred to telephone threat/s he received in Kolkata, (when he had resided there for 9 months – 2007-2008); however, the Tribunal believes he could simply change his mobile phone SIM, to avoid such threats.
35. When asked, the applicant said there was no other reason he felt he may be harmed in Kolkata, other than that which is discussed above. In the circumstances, the Tribunal is satisfied the applicant can relocate to Kolkata in India, and by so doing, not have a real risk of suffering significant harm.
36. Regarding whether it is reasonable for the applicant to relocate, at hearing the applicant conceded he had extended family in Kolkata (at whose home he resided for 9 months). He said he could not afford to commence a business in Kolkata, however, the Tribunal noted the applicant was able to reside in Kolkata for 9 months, he was able to pay for his passport and visa for Australia, he was able to pay for his travel to Australia, and he had enough money to establish himself in Australia on first arriving. When this was put to him at hearing, the applicant said he borrowed money from a brother-in-law in India. However, the Tribunal then put to him he borrowed money to travel to Australia rather than establish a business in Kolkata; to which the applicant replied that he was not safe in Kolkata (however, the Tribunal is satisfied the applicant does not have a real risk of suffering significant harm in Kolkata). As a former (apparently successful) businessman in India, the Tribunal is also satisfied the applicant could establish a business in Kolkata; or otherwise find work commensurate with his skills there.
37. The applicant did not have concerns about finding accommodation in Kolkata; and the Tribunal is satisfied the applicant could reside there (with a relative), prior to re-establishing himself there. Further, no evidence was provided that there were concerns with respect to infirmity, health services, education or language, and neither did the country information considered in this decision support a finding that relocation on these grounds, would be unreasonable for this applicant. Consequently, I find it reasonable to expect the applicant to safely relocate within India.
38. Therefore, I am satisfied the applicant can safely and reasonable (sic) relocate within India.
In these circumstances the Tribunal also concluded:
39. Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in India. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to India. Again, based on the country information and accepted facts, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). For the same reasons, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Finally, none of the country information in the sources cited herein, have satisfied me the applicant has a real risk of suffering arbitrary deprivation of life in India.
The Tribunal found that, even considering cumulatively those of the claims it accepted, it was not satisfied that the Applicant had a real risk of suffering significant harm in India. It also found that there was no issue squarely raised by the evidence, although not articulated by the Applicant, that satisfied it that he had a real risk of suffering significant harm in India. The Tribunal concluded that the Applicant did not meet the complementary protection criterion and affirmed the decision not to grant him a protection visa.
The Applicant sought review by application filed on 29 September 2015. He now relies on an amended application filed on 12 January 2016. He did not file any written submissions. At the hearing I gave him the opportunity to elaborate on the grounds in his amended application. He did not do so directly. Rather, he claimed that all that he had said to the Tribunal was true, that it did not know the situation there (which I take to be in India) and what would happen if he returned. He suggested that he could provide further evidence.
Nothing that the Applicant said in oral submissions goes to show any jurisdictional error on the part of the Tribunal. Insofar as he took issue with the Tribunal’s view of his credibility, while credibility findings are not immune from review, as discussed further below this is not a case in which a jurisdictional error has been established, whether on any of the bases considered by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 or otherwise.
The first ground in the amended application is that the Tribunal made a decision which was unreasonable and capricious. It is asserted that the Tribunal “rejected the corroborative evidences particularly letters, which were submitted to the Tribunal in connection with the Party affiliation”, and that it “erred in solving this issue”.
The particulars to ground 1 refer to “corroborative evidence”, said to be letters from the Dalgaon Student’s (sic) Union and Dalgaon Block Youth Congress and ULFA. There was said to be “no basis at all” in what was said to be a Tribunal finding that “I do not find any of these letters to be genuinely issued documents”. The particulars continue that the documents were “not verified by the relevant Australian authorities in India”, that the Tribunal had exercised its power “without any common logic” and that it had made a jurisdictional error.
The particulars are unclear, in that the Tribunal did not make the asserted finding that none of the letters were genuinely issued documents.
The Tribunal considered the two letters said to be from the Dalgaon Youth Congress and the Dalgaon Block NSUI Unit in addressing the Applicant’s claimed political activities. It had regard to the claims in one letter that the Applicant had been President of the Youth Congress, and in the other that he had been President of the Dalgaon Block National Student’s (sic) Union of India (in both cases from 1986 to 2006). It took into account the fact that the Applicant initially explained that the Youth Congress was a local group and that he had worked for it from the age of 16 for approximately 10 years until 1990 and that he did not work for the Youth Congress after that time. The Tribunal also had regard to the fact that the Applicant said he could not remember when he was President of the Youth Congress and declined to comment about the two different names of the organisations or why he could not remember the dates of his presidency. Having regard to the fact that each letter said the Applicant allegedly ceased his presidency in 2006 (fairly shortly before he left India) and that the Applicant could only remember being President of one organisation and could not remember (even approximately) when he ceased being President, the Tribunal rejected both letters as providing false evidence in relation to “this”. It is apparent that “this” is a reference to the Applicant’s claimed presidency. The Tribunal did accept that the Applicant was a member of the Youth Congress and to that extent did not entirely reject the letters. Rather, as it pointed out, it rejected one component of the letters and had serious doubts about the other such that it found his oral submissions about later political activities after 1990 were, at least, embellished if not false. However the Tribunal also accepted that the Applicant had some very limited (perceived) ongoing association with either the Youth Congress or with a local politician after 1990.
Insofar as the Applicant challenged the Tribunal’s findings in relation to the four letters from the ULFA, the Tribunal accepted the Applicant’s claims in relation to those letters, that is that extortion demands were made in them.
The Tribunal did not make a finding rejecting the corroborative evidence in its entirety as contended in ground 1. It found that the Dalgaon letters provided false evidence in one respect, being inconsistent with and in light of the Applicant’s own evidence. It was reasonably open to the Tribunal to take this approach to the letters on the material before it for the reasons which it gave. It was not obliged to accept those letters uncritically as part of the Applicant’s evidence. It has not been established that the Tribunal’s reasoning in this respect or the outcome of the decision was unreasonable such as to establish legal unreasonableness (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158), as is contended for in this ground.
There is also no evidence that the Applicant asked the Tribunal for any of these letters to be “verified” with Australian authorities in India. No obligation on the Tribunal to make further inquiries in the Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 sense has been established either in this respect or in relation to the Tribunal’s failure to confirm the Applicant’s association with a local politician (which it accepted) by making inquiries of the politician.
Insofar as the Applicant takes issue with the merits of the Tribunal decision or seeks the opportunity to provide further evidence about the situation in India he seeks impermissible merits review.
Ground 1 is not made out.
Ground 2 is that the Tribunal misunderstood the Applicant’s claims and “failed to judge the claim on the basis of the reality and the prevailing situation in the particular area, where the applicant lived and made his political activities”.
However the particulars to this ground are that the Tribunal considered the Applicant to be “President of National level but he was not”, and that “[h]e made it clear through the letter what is his position”. It was also asserted (errors in original) that:
The determining process made him a full that he was a national. It is irrelevant matter brought by the Second Respondent in making the decision to refuse the applicant’s protection visa. As it can be said that the Second Respondent made an error in deciding this issue.
The relationship between the particulars and the ground is not clear. The Applicant did not elaborate on this ground, despite being given the opportunity to do so. The particulars also misrepresent the Tribunal’s findings. The Tribunal did not find that the Applicant had been President of or at “National level”. Rather, it identified and addressed the Applicant’s claims in the Dalgaon letters that he occupied the post of President of the Dalgaon Block Youth Congress for a particular district (and also of the Dalgaon Block NSUI for a particular district) from 1986 to 2006 and also addressed his oral claims (which did not include a claim of “National” presidency). It has not been established that the Tribunal misunderstood the Applicant’s claims as presented in writing or orally.
Insofar as this ground is intended to be a complaint that the Tribunal did not assess the Applicant’s risk of significant harm in the particular area in India from which he came (Assam State), this is not made out. As set out above, while not satisfied that the Applicant had a real risk of suffering any significant harm for the reasons claimed in relation to his claimed political activities, the Tribunal proceeded on the basis that the Applicant had a real risk of being subject to extortion attempts from the ULFA or similar groups in Assam State and in that context considered the reasonableness of relocation to Kolkata, in circumstances where the risk of harm was from the ULFA or a similar group in Assam State.
Further, as the First Respondent submitted, in making relocation findings the Tribunal had regard to the Applicant’s particular circumstances and to specific objections raised by him in the manner considered by Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [45]-[50]. As her Honour pointed out at [58], in considering relocation the Tribunal’s task is “informed by what an applicant puts forward, but not necessarily confined to those matters”. The Tribunal addressed the practical realities. It discussed a variety of matters, including the absence of any evidence of concerns being expressed on the part of the Applicant about finding accommodation, infirmity, health services, education or language. The Tribunal also noted in that context the Applicant’s claims to speak, read and write Bengali and Hindi, thus indicating that it had not confined itself to matters raised by the Applicant.
It is clear that the Tribunal understood that the issue of relocation was to be approached not only by reference to the risk of harm, but also by reference to what was practicable and reasonable for the Applicant taking into account what it would really be like for him to live in the place said to be “safe” (and see SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18). The Tribunal considered the circumstances in the putative safe location. The Tribunal also considered information about the Applicant which, as it explained, it had discussed with him at the hearing, including the fact that the Applicant had previously lived in Kolkata with a relative without harm for 9 months and without hiding or otherwise protecting himself. It addressed his employment, family and financial circumstances in light of his personal circumstances and had regard to the fact that he could change his mobile telephone number to avoid telephone threats such as he claimed he had received while living in Kolkata.
Ground 2 is not made out.
Ground 3 is a contention that the Tribunal “made irrelevant consideration (sic) in deciding this application”. The particulars are that the Applicant stated at the hearing that he was never married and did not have children:
…but the Tribunal do not believe this. There was no reasons or details by the Tribunal forwarded in this regard. The Tribunal may be influenced by the country information or the Tribunal pre-occupied decision delivered only. The Tribunal was unreasonable in deciding this issue. As a result, they made an error in deciding this issue. (errors in original)
This ground misunderstands the Tribunal’s decision. The Tribunal accepted that the Applicant was unmarried.
It was suggested for the Minister that it may be that the Applicant had in mind the decision of the second delegate. The delegate did not accept the Applicant’s assertion that he did not have a wife and child to be truthful, given his earlier claims to the contrary. In contrast, the Tribunal acknowledged that the Applicant admitted that he had not told the truth in his prior visa application about the names of family members. It did not find he was married with children, but rather found that his willingness not to tell the truth was a matter that went to its satisfaction that he was prepared to embellish, if not fabricate, his evidence. This does not establish legal unreasonableness. The Tribunal also gave other detailed reasons for its credibility findings based on logically probative material.
Insofar as this ground may be seen as taking issue with the Tribunal’s consideration of country information, it was not an error for the Tribunal to have regard to relevant country information in assessing the Applicant’s claims (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]).
Ground 3 is not made out.
I note for the sake of completeness that the grounds in the original application were the same as in the amended application, but lacked particulars.
As the First Respondent explained, an issue arises from the fact that the Department issued a certificate under s.438 of the Act. The certificate appears in the courtbook (page 127). It relates to information in folios 77 to 82 of the departmental file and asserts that the disclosure of this information would be contrary to the public interest because the folios contain information “relating to internal working documents and business affairs” and documents affecting personal privacy.
Copies of folios 77 to 82 are in Annexure to an affidavit affirmed by Tom Hillyard on 20 April 2018. This affidavit was affirmed on the day of the hearing. An earlier affidavit was filed and (I am told) served on the Applicant in December 2016, but included more documents than those actually the subject of the s.438 certificate. However that put the Applicant on notice of the documents that were the subject of the s.438 certificate. Moreover, an affidavit filed on 11 April 2018 included the correct documents, although references to the Applicant’s name were redacted (whereas the documents in the Annexure to Mr Hillyard’s affidavit include the Applicant’s name). The First Respondent’s pre-hearing written submissions addressed the documents and the s.438 issue in some detail. In these circumstances I am satisfied that the Applicant was in a position to raise any issues in relation to the s.438 certificate and the documents. The Applicant had nothing to say in this respect and did not seek any further opportunity.
The documents the subject of the certificate are internal departmental documents relating to the Applicant’s unsuccessful 2010 request for Ministerial intervention. The certificate purported to be a certificate under s.438(1)(a) of the Act which provides:
(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…
For the reasons given in relation to the certificate in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] per Beach J, the Minister accepted that in this instance the s.438 certificate was invalid. The certificate does not meet the requirements of the concluding part of s.438(1)(a) of the Act.
However the Minister submitted that while it appeared that the Tribunal did not put the existence of the certificate, or the material it covered, to the Applicant, no jurisdictional error arose as a consequence of the certificate having been issued. It was submitted that MZAFZ and the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 were distinguishable, as there was no basis on which it could be held that the Tribunal “acted on” the certificate. The court was referred to more recent decisions of the Full Court in relation to s.438 certificates, such as Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36 as well as the decision of Barker J in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566.
I have had regard to the certificate, the documents, the Tribunal decision, and Federal Court authorities in considering whether any jurisdictional error has been established because of the admittedly invalid s.438 certificate and the fact that, as conceded by the First Respondent, it appears that neither the certificate or the documents covered by the certificate were brought to the attention of the Applicant by the Tribunal.
As the documents and the certificate are before me I am in a position to consider whether there is any basis on which it can be said that the Tribunal acted on the certificate or the documents or whether they were, or were treated as, in some way material to the decision of the Tribunal (as considered in CQZ15). I consider that it is appropriate to have regard to the documents in this context (as canvassed in CQZ15 and BEG15).
The first document the subject of the certificate is headed “IN-CONFIDENCE” but no issue was raised in that respect in these proceedings. It is a departmental submission to the Minister dated 23 February 2010 relating to consideration of the Applicant’s request under s.417 of the Act that the Minister substitute a more favourable decision for a decision of the Tribunal. This is clearly a reference to the first Tribunal decision (which considered only the Refugees Convention criterion).
The submission expressed the view that intervention in a number of cases listed in a Schedule (including the Applicant’s case) was not appropriate in circumstances where they were neither unique or exceptional and no issues had been identified which engaged Australia’s obligations under the Convention against Torture or the International Covenant on Civil and Political Rights. It recommended that the Minister indicate on an attached decision document whether he wished to decline to consider the exercise of his public interest power in these cases. The annexures include the signatures of the authorising officer and the Minister and a record of the decision of the Minister that he did not propose to consider the exercise of the s.417 power in relation to the persons listed (including the Applicant).
In addition, the documents the subject of the certificate include the final version of an internal departmental document which summarised the Applicant’s request for ministerial intervention and which recorded limited personal details, his arrival in Australia and key visa application history. It also recorded that the Applicant claimed his case was unique and that he met the criteria for a protection visa and should be considered on compassionate and compelling grounds. It recorded that despite the fact that the Applicant requested the opportunity to provide further information, he did not do so.
The Tribunal summarised the Applicant’s protection claims to have been involved with the Congress Party and harassed by the ULFA, that he had refused to pay extortion attempts, was kidnapped and held until a ransom was paid, fled to Kolkata and then to Australia and the fact that the Tribunal (the first Tribunal) had accepted his ULFA claims, but had found that it would be reasonable for him to relocate as the ULFA was not active beyond Assam State. This document also referred to proposed removal and departure arrangements for the Applicant and suggested that his circumstances were not unique or exceptional and did not engage Australia’s obligations under the Convention against Torture, International Covenant on Civil and Political Rights or the Convention on the Rights of the Child.
The final document is the first page of what was, apparently, a draft of the previously described document. It is headed “SCHEDULE Sydney” and bears no number or date, but contains the details of the Applicant and the information to which I have already referred.
Insofar as these documents contain any information relating to the Applicant’s claims, they add nothing to what was already before the Tribunal. The protection claims made by the Applicant and the fact of his s.417 application were recorded in the delegate’s decision which was given to the Tribunal by the Applicant. In other words, the information relevant to the Applicant’s claims was before the Tribunal from other sources, in particular from the Applicant himself. While the Tribunal was aware of the fact of the s.417 application, there is nothing in that fact or the material the subject of the certificate of relevance to the Applicant’s protection claims beyond the claims and evidence which he himself put before the Tribunal.
As the First Respondent pointed out, it is necessary to consider whether the Tribunal in some way treated any of the documents to which the certificate applied as material to its consideration or whether it acted on such information. To say that a decision maker has regard to or acted on a document is to say that the decision maker has treated the document as material in some way to the decision on review (see CQZ15 at [65]).
Having considered the documents covered by the certificate, I am satisfied that the documents were not relevant to any issues in dispute before the Tribunal beyond the claims and evidence otherwise put to the Tribunal by the Applicant. Nor did they contain information that could have assisted the Applicant. Given the nature and content of these particular documents, I accept that the absence of reference to the certificate or to any of these documents in the Tribunal’s reasons supports an inference that the Tribunal did not consider these documents to be material to the review.
I am satisfied in the circumstances of this case that the Tribunal did not act on the certificate or information in the documents. Hence no substantive issue arises from non-disclosure of the certificate. While in some circumstances there may be a failure to afford procedural fairness because the Tribunal has failed to disclose to an applicant the existence of a certificate purportedly issued under s.438 or the documents the subject of the certificate or information in such certificates (see MZAFZ and Singh [2016]), this is not such a case.
There is nothing in the material before the court to suggest that the Applicant was denied procedural fairness in any way or that non-disclosure of the certificate or the existence (or content) of any documents the subject of the certificate (or the documents themselves) could have in any way deprived the Applicant of an opportunity to advance his case before the Tribunal. There was no denial of procedural fairness constituting jurisdictional error.
The mere fact that a certificate has been issued under s.438 and is invalid will not always mean that the decision of the Tribunal is affected by jurisdictional error (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 at [74]). However even if, contrary to my view, technically there was a jurisdictional error because of the Tribunal’s failure to disclose the certificate or the documents which it covered, I would exercise my discretion to refuse relief in the absence of any practical injustice to the Applicant.
The documents do not contain material that can be said in any way to have deprived the Applicant of the possibility of a successful outcome. The documents do not contain any material prejudicial to the Applicant’s interests. I cannot see how knowledge of the existence of the certificate or the content of the documents could have any bearing on the decision of the Tribunal or have made any difference to the result of the review, whether on a backward or forward looking view. I am satisfied that no practical unfairness is apparent, notwithstanding the non-disclosure.
In these circumstances the application should be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $5800. The Applicant told the court that he had no work permit and was unable to pay these costs. However, in this case his impecuniosity is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the First Respondent. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.
Recorded: not transcribed
As I am about to go on leave for an extended period I will not have the opportunity to provide written reasons before the period for filing any appeal would normally expire. In these circumstances, having regard to r.16.02 of the Federal Circuit Court Rules 2001 (Cth) and the concerns expressed in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 and CEV15 v Minister for Immigration and Border Protection [2017] FCA 976, I propose to make an order that the orders do not take effect until the date on which written reasons are posted to the parties.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 June 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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