BZV15 v Minister for Immigration and Border Protection
[2017] FCCA 981
•16 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZV15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 981 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found to be not well-founded – whether the Tribunal erred in taking into account an earlier decision of the Refugee Review Tribunal which had been set aside, or overlooked an integer of the applicant’s claims or applied the wrong law considered – whether the decision is affected by an invalid certificate purportedly issued under s.438 of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425, 438 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 Minister for Immigration v Singh [2016] FCAFC 183 Minister for Immigration v WZARH (2015) 256 CLR 326 MZAFZ v Minister for Immigration [2016] FCA 1081 Re Refugee Review Tribunal;Ex parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZEPZ v Minister for Immigration [2006] FCAFC 107 |
| Applicant: | BZV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2679 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 May 2017 |
| Date of last submissions: | 26 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper |
ORDERS
The application filed on 30 September 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2679 of 2015
| BZV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 August 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 8 May 2017.
The applicant is a male citizen of Sri Lanka born on 17 February 1985.[1] He arrived in Australia as an unauthorised maritime arrival on 11 May 2012.[2]
[1] Court Book (CB) 3.
[2] CB 83.
The applicant applied for a protection (Class XA) visa on 10 August 2012.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 30 October 2012.[5]
[3] CB 70.
[4] CB 71 - 74.
[5] CB 77.
The applicant applied to the Refugee Review Tribunal (RRT) as it then was, for review of the delegate's decision on 5 December 2012.[6]
[6] CB 93.
By letter dated 12 April 2013, the applicant was invited to attend a hearing on 8 May 2013.[7] The applicant provided a phone statement to the RRT on the 2 May 2013 and was represented at the hearing.[8]
[7] CB 123.
[8] CB 126 - 134.
The application made further claims in an additional statement provided to the RRT after the hearing.[9]
[9] CB 145.
The RRT handed down its decision on 9 October 2013, affirming the delegate's decision not to grant the applicant a visa.[10]
[10] CB 182 - 204.
The applicant successfully appealed the RRT’s decision in this Court and the matter was remitted to the RRT for reconsideration.[11]
[11] CB 206; SZTLV v Minister for Immigration & Anor [2015] FCCA 773.
By letter dated 12 May 2015, the applicant was invited to provide written submissions to the RRT.[12] The applicant was subsequently invited to attend a hearing on 9 July 2015.[13]
[12] CB 217.
[13] CB 220.
The applicant appeared before the Tribunal by video on 9 July 2015 and at a further hearing on 20 July 2015.[14]
[14] CB 244 - 245.
By letter dated 28 July 2015, the applicant was invited to comment and/or respond to information and responded by email dated 19 August 2015.[15]
[15] CB 251 - 253.
The Tribunal notified its decision on 1 September 2015, affirming the decision under review.[16]
[16] CB 265 - 279.
The decision of the Tribunal
During the course of the two hearings, the Tribunal traversed with the applicant its concerns as to his claims, and also put to the applicant that it considered his credibility was in issue.[17]
[17] at [18].
The Tribunal, at [28], rejected the applicant's claim that he came from a wealthy family or would be perceived to be from a wealthy family. The Tribunal found this claim was fabricated, for the reasons it gave, including his omission to raise the claim until after the hearing before the Tribunal.
At [39], the Tribunal dealt with the applicant's Tamil ethnicity claim.
At [41], the Tribunal gave the applicant the benefit of the doubt and accepted his claims concerning his brother. It found the brother being a former LTTE member was not sufficient to cause the applicant to be of interest to the Sri Lankan authorities. At [42], the Tribunal did not accept that the applicant would be imputed with any anti-government or pro-LTTE opinion, for any of the reasons claimed. The Tribunal placed considerable weight on the applicant being able to depart Sri Lanka to India using a passport in his own name.
The Tribunal recorded that it had discussed country information with respect to returned failed asylum seekers with the applicant.[18] The Tribunal did not accept that the applicant had any real chance of serious harm arising out of the applicant returning to Sri Lanka as a person who applied for asylum in Australia.[19]
[18] at [48].
[19] at [50].
The Tribunal considered the complementary protection criterion[20] and the complementary protection guidelines, in making its findings.[21] With respect to the applicant's status as a failed asylum seeker and in particular his detention and questioning at the airport, the Tribunal found there was no real risk of significant harm.[22]
[20] from [52].
[21] at [52]
[22] at [54].
The present proceedings
These proceedings began with a show cause application lodged on 29 September 2015 and filed the following day. The applicant continues to rely upon that application. There are three grounds in the application:
1. The Tribunal erred in making an irrelevant consideration.
Particulars
a. At [20] the Tribunal found that “other than the failure to fully address the applicant’s claims regarding being a wealthy Tamil, the decision of the RRT comprehensively sets out and addresses all of the issues raised by the applicant’s claims and the evidence before the RRT. That the Court identified no other errors in the RRT’s decision weighs strongly in favour of such a view”;
b. On 2 April 2015 the previous RRT’s decision [w]as quashed and the Court made the following orders:
i. [A] writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 9 October 2013 in Tribunal case no. 1219191; and
ii. A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 30 October 2012;
c. The RRT misunderstood the role of judicial review. The Court makes a decision based on the pleadings made by the Applicant and Minister for Immigration and does not carry our an independent review of the RRT’s decision for any other errors; and
d. Therefore, the Tribunal has filed to genuinely, realistically and independently considered the Applicant’s claims afresh with an impartial mind and has based its findings on the findings of the previous RRT’s decision which was quashed by the Court.
2. The Tribunal erred in failing to consider each integer of the Applicant’s claims.
Particulars
a. At [54] the Tribunal only considered whether being detained at the airport and questioned is significant harm,; and
b. The tribunal failed to consider whether the Applicant would face significant harm upon and/or after returning home.
3. The Tribunal erred in applying the wrong law.
Particulars
a. At [50] the Tribunal made a finding in relation to s91R; and
b. S91R was repealed on 18 April 2015 and replaced with s5J of the Act.
In addition to the court book filed on 1 December 2015 and the applicant’s affidavit which accompanied his application, I have before me as evidence an affidavit by Leonard Keith Leerdam made on 5 May 2017. That affidavit introduces a Ministerial certificate annexed to it and a small bundle of documents exhibited to the affidavit which were the subject of the certificate. In accordance with directions given by the Federal Court in Minister for Immigration v Singh[23] the documents were placed in a sealed envelope provided to the Court. I provided the applicant with access to those documents and gave him the opportunity to make submissions in relation to the certificate issued within 14 days of the trial, which took place on 15 May 2017. The applicant filed post-hearing submissions on 26 May 2017.
[23] [2016] FCAFC 183 at [67].
Only the Minister provided pre-hearing written submissions in accordance with procedural directions made by a registrar on 12 November 2015. I invited oral submissions from the applicant at the trial. He did not address directly the grounds in his application (which appear to have been written with some legal assistance) but he submitted that he was only asked one question at the Tribunal hearing (which he says was asked repeatedly). The applicant also submits that the Tribunal failed to consider documents he provided in support of his claims and failed to consider properly his claims for protection. The applicant claims that he would be in constant fear in Sri Lanka because of the likelihood of having to interact with the military at checkpoints and that he would suffer hardship there because of the collapse of his business. He fears being extorted by people who would take advantage of his vulnerability. He claims the Tribunal took no account of the fate of six people who have been harmed following their return to Sri Lanka.
Consideration
The applicant’s oral submissions are essentially an appeal to merits review. The Tribunal’s hearing record at CB 244-245 establishes that the Tribunal hearing went for two hours. The Tribunal’s description of what occurred at the hearing establishes to my satisfaction that the Tribunal’s questioning of the applicant over the course of the hearing was far more extensive than the single question or issue asserted by the applicant. It appears to me from the Tribunal’s decision record that the Tribunal gave adequate consideration to the applicant’s claims. The Tribunal specifically considered the fate of the six returnees at [47] of its reasons.[24]
[24] CB 277.
I have also considered the applicant’s submissions in the context of the grounds of review he has advanced.
Ground 1 – did the Tribunal place reliance upon the earlier decision of the RRT?
At [20] of its reasons the Tribunal said:[25]
The Tribunal has had regard to the findings of the delegate and of the RRT as well the decision of the Court. The view of the Tribunal is that other than the failure to fully address the applicant’s claims regarding being a wealthy Tamil, the decision of the RRT comprehensively sets out and addresses all of the issues raised by the applicant’s claims and the evidence before the RRT. That the Court identified no other errors in the RRT’s decision weighs strongly in favour of such a view.
[25] CB 271.
In my view, on a fair reading and viewed in context, the Tribunal was simply stating its understanding of the extent of the error made by the RRT in the previous review. It was not placing any particular reliance upon the RRT’s findings. Neither does the paragraph disclose any lack of impartiality.
The Minister submits that the decision record shows that the Tribunal conducted a full reconsideration of the totality of the applicant's claims and did not rely on factual findings by the first Tribunal. I agree.
Further, a quashed Tribunal decision does not mean that all steps taken validly are quashed and required to be repeated particularly with respect to the sending of a s.424A letter,[26] and in relation to reliance on evidence previously given.[27]
[26] SZEPZ v Minister for Immigration [2006] FCAFC 107.
[27] SZJXH v Minister for Immigration [2007] FCA 1691 at [25].
This ground does not reveal a jurisdictional error.
Ground 2 – did the Tribunal fail to consider an integer of the applicant’s claims?
At [54] of its reasons the Tribunal said:[28]
The Tribunal has had regard to whether the harm the applicant may suffer arising from his return as a failed asylum seeker, in particular, being detained at the airport and questioned, is significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s being questioned, or detained for investigation will involve severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, his being questioned, or detained for investigation cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that his being questioned, or detained for investigation would cause extreme humiliation which is unreasonable.
[28] CB 278-279.
I accept the Minister’s submissions in relation to this ground.
The Tribunal considered whether the applicant faced a real risk of significant harm beyond being questioned and detained at the airport as set out at [54]. Further, the Tribunal's findings with respect to the complementary protection criterion were permissibly informed by its prior factual findings made by reference to the Refugees Convention criterion, as per SZSHK v Minister for Immigration[29].
[29] (2013) 138 ALD 26 at [32], [34].
The use of the phrase “in particular” at [54] was not used as a limitation, but merely to identify a core example featured by the applicant's claims.
Further, at [48], the Tribunal acknowledged the applicant's claim to fear harm was broader than harm “at the airport”. The Tribunal's identification of this claim was subsumed in the finding of broader generality, at [55], which should be read as referring back to the particular finding at [50] concerning this claim by reference to the Refugees Convention.
Ground 2 discloses no error.
Ground 3 – did the Tribunal apply the wrong law?
I accept the Minister’s submissions in relation to this ground.
The legislative amendments provided in ground three were made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No. 135, 2014) and as per Schedule 5, it did not apply.
Item 28 states:
…the amendments made by Parts 2 and 3 of this Schedule apply in relation to an application for a protection visa that is made on or after the day this item commences.
The applicant's visa application was lodged on 12 October 2012, which is prior to the commencement date on 14 April 2015.
I reject Ground 3.
A further issue
On 15 April 2015, the Minister (through his delegate) purportedly issued a certificate under s.438 of the Migration Act, preventing disclosure, other than to the Tribunal, of certain identified matters or information.
The applicant’s post-hearing submissions address this issue. Although no leave was granted for an amended application, the applicant seeks to advance an additional ground of review, which reasonably requires consideration, in the following terms:
1. The decision of the AAT was affected by jurisdictional error as the AAT denied the applicant procedural fairness and a real and meaningful opportunity to be heard under s425 of the Act by not disclosing to the applicant that a delegate of the Department of Immigration and Border Protection had issued a certificate under section 438 of the Migration Act to the AAT.
Particulars
a. On 15 April 2015 Elizabeth Hepper of the Department of Immigration and Border Protection issued a certificate and notification regarding the disclosure of certain information under s438 of the Act in regards to folios 104-106 of the departmental file;
b. Similar to the certificate issued in the matter of MZAFZ v Minister for Immigration & Anor [2016] FCCA 1319, the certificate describes the information “relating to internal Department working documents and business affairs” and as such does not meet the statutory prescription of s438(1)(a);
c. At paragraph 5 of Leonard Keith Leerdam sworn on 5 May 2017 it states that “the Minister in this matter makes no claim for privilege over the documents”;
d. It appears that as there is no public immunity ground raised by the Minister then the grounds for the issue of the certificate were invalid;
e. Folios 104-105, the Matter Details Summary which is undated, identifies the applicant's court proceedings and his classification is “credibility”. It is the applicant's position that a departmental classification of “credibility” is extremely adverse to the applicant;
f. Even though s438(3) allows the AAT to disclose the certificate and its information to the applicant, the AAT made a decision not to exercise its discretion to disclose. It is noted that the Minister'[s] legal representatives did not reproduce the certificate in the Court Book;
g. At paragraph 20 of the AAT decision record states as follows:
20. The Tribunal has had regard to the findings of the delegate and to the RRT as well the decision of the Court. The view of the Tribunal is that other than the failure to fully address the applicant's claim regarding being a wealthy Tamil, the decision of the RRT comprehensively sets out and addresses all of the issues raised by the applicant's claims and the evidence before the RRT. That the Court identified not other errors in the RRT's decision weighs strongly in favour of such a view.
h. At paragraph 29 of the AAT decision record the AAT found that the applicant fabricated his claim that he was from a wealthy Tamil family;
i. It is difficult to speculate what influence the certificate had on the AAT's findings, nevertheless the AAT has denied the applicant procedural fairness and a real and meaningful opportunity to be heard under s425 of the Act (MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183).
In his written submissions, the applicant contends that the purported certificate was invalid, that it may have been relied on by the Tribunal in its reasons and that the Tribunal breached s.425 of the Migration Act by not disclosing the existence of the certificate under s.438(3) of the Migration Act.
Section 438 of the Migration Act provides as follows:[30]
[30] see page 4, “Annexure A”, of the affidavit of Leonard Leerdam made on 5 May 2017.
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; an
(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.
The purported s.438 certificate in the present case covered “internal working documents and business affairs” of the Minister’s Department (together, the Documents).
The operation of s.438 was considered by Beach J in MZAFZ v Minister for Immigration[31] (the correctness of which was confirmed by the Full Federal Court in Minister for Immigration v Singh[32]). In that case the Minister had issued a certificate under s.438. Beach J found that the certificate was invalid. His Honour also concluded that had it been valid, the Tribunal would have been required to disclose its existence to the visa-claimant so as to comply with its procedural fairness obligations. His Honour’s conclusion in relation to this matter is as follows:[33]
[31] [2016] FCA 1081.
[32] [2016] FCAFC 183. The High Court refused special leave to appeal against that decision on 12 May 2017.
[33] at [2016] FCA 1081 [51]-[52].
Putting to one side for the moment s 422B, given that the Tribunal ex hypothesi would have relevant documents covered by the certificate, for the applicant not even to have knowledge of the existence of the certificate is antithetical to her interests. Only with knowledge of the certificate would she then be able to:
(a) challenge its validity;
(b) enquire of the Tribunal how it was going to use the material; and
(c) seek an exercise of power under s 438(3)(b).
To deny her knowledge of the existence of the certificate would effectively preclude her from taking any one or more of steps [51] (a) to (c). Moreover, the fact that s 438 does not itself contain an express statutory obligation to disclose the certificate does not foreclose any procedural fairness requirement, subject of course to the operation of s 422B.
Further, if the applicant was told of the existence of the certificate, it would be a denial of procedural fairness for the applicant not to be given the opportunity to take steps [51] (a) to (c) (cf NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 473 at [35] to [43] per Moore J). The applicant may be seen as a beneficiary of any exercise of power under s 438(3)(b). It is counter-intuitive to suggest that as such a beneficiary she should be denied the opportunity to take any one or more of steps [51] (a) to (c).
It is important to note that Beach J in MZAFZ did not conclude that a failure to disclose a s.438 certificate per se amounts to a denial of procedural fairness. What concerned Beach J in MZAFZ was that the Tribunal had “acted on” documents covered by the certificate in that case. As his Honour said:[34]
As is apparent, the s 438(1)(a) certificate covered part of the Department’s file (the certificate referred to “file number CLF2013/87392”). Accordingly, the Tribunal had before it the documents covered by the certificate. Moreover, from the second sentence of [19], “I have also has [sic] had regard to ...” (my emphasis), one can infer in relation to the first sentence of [19] that the Tribunal had regard to the Department’s file including the documents covered by the certificate (see also s 430(1)(d)). But how it so had regard in relation to the documents covered by the certificate is opaque.
[34] at [48].
Consistently with the decision of the Federal Court in MZAFZ, I find that the certificate purportedly issued in this case was invalid. The assertion that “internal working documents” could support a certificate pursuant to s.438 of the Migration Act is unfounded. The documents in the present case were of the most mundane character and I had no hesitation in giving the applicant access to them. They simply dealt with the question of whether “enforcement action” (in other words, detention or removal) should be deferred following the earlier decision of this Court. That question was completely separate from the issues required to be considered by the Tribunal.
Whether or not the Tribunal “acted on” documents covered by a purported s.438 certificate is a question of fact for the Court based on the material that is before it.
In the present case, there is nothing in the reasons of the Tribunal, or in the Documents themselves (which were of the most anodyne nature and did not contain any information adverse to the applicant or were otherwise relevant to the issues that the Tribunal was required to consider), from which it could be inferred that the Tribunal had “acted upon” or had “regard to” the Documents.
Furthermore, even if I were wrong in the above analysis and the Tribunal did “act upon” the Documents in some unspecified way, this would not necessarily lead to the conclusion that the applicant is entitled to any relief. Where an allegation of denial of procedural fairness is made, the applicant will be defeated if it can be shown that what occurred “did not deprive the person of the possibility of a successful outcome”.[35] In circumstances where undisclosed documents could not conceivably have had any impact on the outcome of a review there is no practical unfairness.
[35] Minister for Immigration v WZARH (2015) 256 CLR 326 at 343 [60] per Gageler and Gordon JJ citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal;Ex parte Aala (2000) 204 CLR 82 at 116-117 [80]- [81], 122 [104].
The Documents were not relevant to the question whether the applicant was owed protection obligations. They neither assisted his case, nor harmed it in any way. The fact that neither the Documents, nor the purported s.438 certificate, were shown to the applicant did not “deprive [him] of the possibility of a successful outcome”.
Accordingly, as in BEG15 v Minister for Immigration & Anor[36] at [40]-[68] and AVO15 v Minister for Immigration[37] at [84]-[90][38], no injustice was occasioned to the applicant by the Tribunal not having disclosed to him the Documents or the purported s.438 certificate, or the fact of the existence of the purported certificate.
[36] [2016] FCCA 2778.
[37] [2017] FCA 566.
[38] The Minister’s submissions also referred to a decision in SZTML v Minister for Immigration & Anor decided by this Court on 4 May 2017 (SYG1239/2016, per Judge Smith for which written reasons have not been published).
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 June 2017
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