CAZ15 v Minister for Immigration
[2019] FCCA 1677
•21 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAZ15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1677 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether Tribunal failed to carry out its statutory duty or Applicant was denied procedural fairness – s.438 of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 425, 438 |
| Cases cited: DPE16 v Minister for Immigration and Border Protraction [2018] FCA 61 Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 SZNJG v Minister for Immigration and Border Protection [2018] FCA 334 SZTBR v Minister for Immigration and Border Protection [2014] FCA 582 | ||
| Applicant: | CAZ15 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2738 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 17 April 2018 |
| Date of Last Submission: | 21 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Ms Laing |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2738 of 2015
| CAZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 10 September 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a Liberian national, came to Australia as the holder of a student visa. He applied for a protection visa in August 2013. The application was refused. He sought review by the Tribunal. He attended a Tribunal hearing.
The Applicant claimed that he was from a particular county and tribe in Liberia and was the son of a chief “Zoe” who was the holder of a traditional role and head of a secret society in Liberia. He claimed that the role of Zoe was an inherited position and that he was expected to succeed his father as chief Zoe.
He claimed that Liberian secret societies practised initiations on males and children of Zoes and that he had avoided such initiation rituals because his mother had fled with him to Monrovia (the capital of Liberia) in 1979 when he was one year old.
The Applicant claimed that when he was 22 he found out from his mother that his father planned to initiate him into the tribal society. He claimed that as a converted Christian he did not want to succeed his father as the next chief or head Zoe because he considered the rituals in the initiation process to be sacrilegious in nature and to be in conflict with his personal and religious beliefs. He claimed he did not wish to accept his heritage of witchcraft, initiation and mutilation rituals.
However the Applicant claimed that in 2007, when he was 29, he decided to travel to his home village to meet his father to learn about his heritage, despite what his mother had told him about his father’s expectation that he would be his successor and the Applicant’s personal opinion about initiation rituals.
The Applicant claimed that he was initially welcomed by his father. He was not interested in his father’s allusions to his intention that the Applicant be his successor. The Applicant claimed he refused to accept an invitation to join his father and three other men for a traditional practice which he felt was likely to involve certain rituals and the practice of witchcraft. He claimed that his father became angry at his refusal and ordered the men to ensure that he attended. He claimed that he had been beaten and wounded before elders had intervened and he was able to escape.
The Applicant claimed that this 2007 incident intensified his fear and that he had not thereafter returned to his home county. He claimed that his father had openly declared that no matter where the Applicant went in Liberia he would find him and enforce his initiation. He claimed that threats had been made to his life and that the tribal elders and tribesmen viewed his refusal as defiance which could only be rectified through force and pressure or was otherwise punishable by death. He left Liberia in 2013.
The Applicant claimed that he would face persecution by the council of traditional Zoes and by traditional leaders and members of a particular named secret society whose authority was said to “supersede” the legal authorities and state protection in Liberia. He claimed that he would be forced to undergo initiation rituals, which included the application of body markings in unsanitary conditions and sacrificial burial, without his consent and that he would tortured. He claimed that it was necessary to initiate his elderly father’s successor before his father’s death. He also claimed to fear he would be killed because he would refuse initiation.
The Applicant claimed to fear harm for reasons of his ethnicity and membership of the particular social groups of “men in Liberia” and “member of the [specified] Societies and expected successor of a Zoe”. He claimed the authorities would not protect him because of the traditional and cultural laws that prevailed in Liberia.
The Tribunal Decision
The Tribunal summarised the Applicant’s claims. It referred to the fact that after he sought review, the Applicant had submitted further supporting documents, including a newspaper article of 31 December 2014 which reported that his father had threatened to kill his mother because she refused to disclose the Applicant’s whereabouts.
The Tribunal recorded that the Applicant claimed that the publication of this article would greatly affect his ability to relocate because there was a very real possibility that people would identify him by name or by the photograph attached to the article and that this would place him at a greater risk that secret society members and his father would discover his whereabouts. The Applicant also claimed that because he had a son (who was living in Liberia) who had the traditional name of a successor in the tribe, the family was at a greater risk of being identified and targeted, so that relocation was not feasible.
The Tribunal referred to the Applicant’s evidence at the Tribunal hearing and to the fact that it had put to him its concerns and information pursuant to s.424AA of the Migration Act 1958 (Cth) (the Act).
In its findings and reasons the Tribunal stated that it had significant concerns about the Applicant’s credibility, in particular about his evidence as to past events and what he feared upon return to Liberia. The Tribunal was of the view that numerous aspects of the Applicant’s claims were not credible; that he had changed his evidence and that he had been unable to provide credible responses to certain aspects of its concerns. The Tribunal did not find the Applicant to be a credible, truthful or reliable witness in relation to matters central to and related to his claims. It discussed its concerns in some detail.
First, the Tribunal considered that the Applicant’s evidence that he had three younger sisters, who were born between 1982 and 1988 and who were the biological children of his mother and father, significantly undermined his claims that his mother had not seen his father since 1979 when she escaped with the Applicant to Monrovia. This also undermined his credibility and his claims generally.
The Tribunal also found that the Applicant’s return to his home county at the age of 29 to see his father was inconsistent with his claims about his father and the plans for his initiation his mother was said to have told him about. The Tribunal considered the Applicant’s explanation (including that he wanted to negotiate with his father) for why he would want to see his father despite his knowledge about him and the plan to initiate him into the tribal society. It also had regard to the submission that the Applicant’s agent had provided about reports of ritual killings, abductions by Zoes and disappearance of people due to society activity; including ritualistic murders and forced initiations into secret societies. The Tribunal found it highly unlikely that the Applicant would have travelled to his home county in the claimed circumstances. It considered that this also undermined his credibility.
In addition, the Tribunal was concerned that the Applicant had provided changing and inconsistent evidence in relation to where he had worked and lived in Liberia. It considered this relevant in relation to his credibility generally and also to his claim that after he had escaped from his father and the rituals he was meant to have undergone in 2007 he was in hiding from his powerful, connected father who had organised a manhunt. It had regard to the agent’s submission that the Applicant’s father and other elders of the tribe were in positions of power and influence and were likely to be able to use their connections with authorities to locate the Applicant and track him down as a means of forcing him to endure harm and even death.
The Tribunal considered in detail the various inconsistencies between the Applicant’s evidence about his employment in Liberia in his protection visa application form and his evidence to the Tribunal and also inconsistencies with the details provided in his offshore student visa application form. The Tribunal recorded that at the hearing it had raised these inconsistencies with the Applicant and he had then changed his oral evidence, in particular disclosing that he had two long-term jobs between 2009 and 2013. The Tribunal considered that the Applicant’s changing evidence about what he was doing, in particular during the period he had claimed he was in hiding from his father and his “thugs”, undermined his credibility. The Tribunal found it difficult to accept that he had omitted one of these positions because he forgot or was confused.
The Tribunal found (as it stated it had put to the Applicant at the hearing) that the Applicant’s eventual evidence that he had worked for two government departments in stable long-term jobs since the events with his father in 2007 did not indicate that he was in hiding. This was particularly so given his written claims that his father was so well-connected to the government that he would not be able to relocate in Liberia or anywhere within the subregion in Africa and that his father, who had the support of the Liberian Ministry of Internal Affairs, had initiated a manhunt for the Applicant. The Tribunal did not understand why, if the Applicant’s father was so well-connected, he would not have found the Applicant while he was working in these two important positions.
The Tribunal’s concerns were heightened by the fact that in his protection visa application form the Applicant had claimed that his profession before he came to Australia was full-time student, studying a BA at the University of Liberia from May 2011 to July 2013. The Tribunal considered that this further undermined the Applicant’s credibility, as did his evidence that as part of his employment in Liberia from 2009 on he had travelled to every county of Liberia which, the Tribunal observed, would include his home county.
In addition, the Tribunal expressed concern about the Applicant’s changing evidence in relation to his home addresses in Liberia. It referred to the fact that in his interview with the delegate he had claimed to have lived at additional addresses beyond those originally disclosed and had elaborated on these claims in a submission from his agent. The agent claimed that the Applicant’s residence at various addresses since 2007 had been ad hoc as his circumstances required him to move frequently.
The Tribunal observed that the Applicant had ultimately acknowledged at the hearing that he had lived at one particular address for a six-year period from November 2007 (apart from for one or two weeks). It noted that it had put to him that it would have been easy for his father’s thugs to have found him after the 2007 incident in these circumstances, particularly, as he claimed that they had visited this address looking for him. The Tribunal considered it unlikely that if the Applicant’s father’s thugs knew where he was living, they would not have found him in the six years he had lived at the one address. Given the Applicant’s ultimate clear evidence that in the six year period after the incident with his father he only lived at other addresses for one or two weeks, the Tribunal did not give weight to his agent’s submission that there should be “cultural leeway” given in considering the Applicant’s addresses. The Tribunal also found the Applicant’s changing evidence about where he had lived in Liberia undermined his credibility and his claim that he was in hiding.
In addition, the Tribunal was concerned about the Applicant’s claim that until he applied for another passport in 2013 he felt he did not need to have a valid passport after his previous passport expired in 2011. It referred to the fact that it had put to the Applicant its concern that his indifference to having a passport between 2011 and 2013 seemed inconsistent with his claims to be fearful of his powerful, connected father and to fear forced initiation.
The Tribunal also expressed concern because the Applicant had shown an ability to leave Liberia to travel to neighbouring countries in 2006, yet after the events with his father he had not taken any steps to escape Liberia by travelling to those countries. It considered it unlikely that he would believe that he would be safer in Liberia living at the same address for several years rather than escaping to another country (some of which he could have travelled to without a passport). It found that his decision to remain in Liberia undermined his claims.
Further, the Tribunal was concerned that the Applicant had been prepared to provide false information (as to his place of birth and his closest relative in Liberia) in his offshore student visa application (which it recorded it had put to him under s.424AA of the Act).
On the basis of these matters the Tribunal did not accept that the Applicant was a credible witness.
The Tribunal addressed a number of issues under the heading “Other Matters”. First, it considered the fact that at the hearing the Applicant had implied that there was now some urgency, because an important date for the initiation rituals had been when he reached the age of 35. The Tribunal understood that the Applicant had put this forward as a reason he had not been actively chased by his father at an earlier time. However the Tribunal had regard to the fact that, as it had put to the Applicant, he had not referred to this age limit in his statement and, while he had turned 35 in February 2013, he had not left his home or his job or Liberia until July 2013. The Tribunal did not accept that this claimed age limit explained why the Applicant was not harmed in Liberia, especially as he also claimed that another deadline for the initiation would be when his father was dying, which the Applicant obviously could not predict.
The Tribunal acknowledged the agent’s submission that credibility must be assessed with care. It stated that it had done so. It found that the agent’s submission did not overcome its concern about the Applicant’s credibility. It also considered the fact that the Applicant had given oral evidence in English. It was satisfied he had been able to understand its questions, respond to them and provide articulate arguments. While the Tribunal accepted that the Applicant may have been nervous in giving evidence at the hearing, it found that this did not explain its concerns.
The Tribunal addressed what it described as “corroborative evidence”. Insofar as the Applicant had claimed in his written material that he had been given a particular name which meant “prince” and that this was proof of his claims, the Tribunal had regard to his concession that other people were called by the same name. It did not place any weight on this name as supporting his claims. Similarly, it did not place any weight on the name of the Applicant’s son.
The Tribunal noted that there was evidence that people had been harmed for defying certain secret societies and refusing to become chief Zoes, but observed that this did not mean that the Applicant’s claims were true. It was prepared to accept that the Applicant may have scars on his body as he claimed and that they may even be as a result of having a fight with someone at one time, but did not accept that this meant that they were the result of being beaten by his father’s men in 2007 or that his claims were true.
Further, while the Tribunal noted that the Applicant had given “some” consistent evidence throughout the process, it was not satisfied that this overcame its concerns.
Under the heading “Documents” the Tribunal stated that it had considered all the documents produced by the Applicant, but that it was not satisfied that these overcame its concerns.
In relation to an email dated 30 July 2013 said to be from the Applicant’s landlord, which stated that the father’s thugs had visited for the previous three to four days to find out whether the Applicant had returned to Liberia and suggested that the Applicant would be killed if he returned because he had broken traditional laws, the Tribunal observed that as it had noted to the Applicant people “could write anything” and it had to consider the email in light of its credibility concerns.
The Tribunal had regard to the fact that the Applicant had produced a copy and an original newspaper article dated 31 December 2014 in support of his claims about what he had said to the delegate. It observed that the article showed the Applicant’s photograph and stated that his father was trying to kill his mother as she had refused to reveal the Applicant’s whereabouts. The Tribunal referred to the fact that it had put to the Applicant that there was country information indicating that fraudulent documents could be obtained from Liberia and that it would have to weigh up the newspaper in light of this country information and its concerns about the Applicant’s credibility. It recorded that the Applicant claimed that everything he said was true and that people had told him that he was on the media and the 10pm news and had texted him and sent him messages on Facebook telling him it was not safe to return to Liberia. The Tribunal referred to a “significant amount” of country information (in Annexure B to its decision) indicating the availability of fraudulent documents in Liberia, including media reports. The Tribunal found that it did not give those documents any weight. Nor did it give the Applicant’s assertions as to what people had texted, told him or posted to him any weight.
Annexure B to the Tribunal’s decision cites general country information to the effect that identification document fraud is rampant in Liberia; that corruption remains endemic and permeates every sector of society and that non-identity related document fraud and tampering also occurs in Liberia. Relevantly, under the heading “Media”, Annexure B also refers to information from four sources regarding fraud within the media in Liberia, including the print media. The reports cited were said to indicate that newspapers and journalists in Liberia commonly accepted payment to print (or not to print) articles. The cited information stated that media outlets rarely checked the accuracy of articles and that the placement of a story in a paper could often be bought or influenced by “outside influences” and referred to factors such as poor wages and financial and other pressures on journalists and conditions which tended to “compromise journalistic ethics”.
The Tribunal also referred to the Applicant’s statement in his protection visa application form that he would provide a Zoe certificate for his father. It observed that this had not occurred. It recorded that the Applicant had said at the hearing that he did not have the current Zoe certificate as it was difficult to obtain, but had also claimed that before lodgement of the protection visa application he had provided a previous Zoe certificate to his agent which he obtained from the Ministry of Internal Affairs in Liberia which kept a record of all the names of Zoes. The Tribunal had regard to the fact that the Applicant had not produced this document to the Tribunal after the hearing, despite the fact that he was given further time to produce documents.
The Tribunal considered the agent’s submission that the Applicant’s birth certificate recorded the chief Zoe status of his father. It found that it did not do so (as the Applicant and his agent had acknowledged at the hearing). The Tribunal was prepared to accept that the Applicant’s parents were as claimed in the birth certificate, but did not accept that the birth certificate was evidence that his father is or was in any position of power or honour as claimed.
The Tribunal was of the view that a photograph of the Applicant’s father did not prove anything. It observed that the Applicant had agreed. It did not give any weight to this photograph.
The Tribunal concluded that, considered cumulatively, the concerns it held about the Applicant’s credibility led it to conclude that he was not a witness of truth and that he had “exaggerated and fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims”.
Taking into account the adverse credibility finding and its view that the Applicant was “prepared to say anything in order to achieve a migration outcome”, the Tribunal was not prepared to accept that the Applicant was the son of a; Zoe; Head of Zoe; head of either of two named secret societies as claimed; or of anyone who held a traditional role in Liberian society, secret or otherwise. Noting the three children who were born to his mother and father between 1982 and 1988, the Tribunal did not accept that the Applicant’s mother left the Applicant’s father in 1979 as claimed. Nor did it accept that the Applicant’s mother fled from their home county to Monrovia for reasons of the Applicant’s safety. It did not accept that the Applicant was from a particular county as claimed, or that anyone had sought to threaten, harm or find him, including his father, a tribesman, or anyone from any society. It was not prepared to accept that the Applicant, his mother, his landlord, his child, or anyone else, had been subjected to any threats, pressure or harm from anyone in Liberia as claimed. It did not accept the Applicant’s claim that he travelled to see his father in 2007 “with all its consequences”. The Tribunal did not accept that the Applicant’s father had attempted to kill his mother in order to find out his whereabouts. The Tribunal was of the view that the Applicant had fabricated his claims of past harm, about his father’s and his own elevated position within society, that he had a heritage of witchcraft and rituals, and his claim that he faced a chance or risk of harm upon return.
The Tribunal found that the Applicant had lived in Monrovia (the capital of Liberia) for most of his life, that he was well-educated and that he had been able to obtain government and other jobs. It accepted that he had a child who was being looked after for him. It was not satisfied the Applicant had suffered harm in the past. Nor did it accept that there was any reason to consider that he would suffer harm on return to Liberia.
The Tribunal addressed the Applicant’s written claim that although Christianity was the majority religion in Liberia, he feared harm as a Christian because he had rejected the important traditional, secretive and sensitive tribal heritage. As it had not accepted that the Applicant had rejected his heritage and the Applicant had not otherwise claimed he feared harm on the basis of his religion, the Tribunal was not satisfied on the evidence before it that he faced a real chance or real risk of harm on the basis of his religion.
Insofar as the Applicant’s agent had submitted that the Applicant’s ethnicity was the essential and significant reason for the harm he feared, the Tribunal reiterated that it had not accepted the Applicant’s claims. It observed that the Applicant did not otherwise claim to it that he feared harm on the basis of his ethnicity. The Tribunal did not accept on the evidence before it that the Applicant faced a real chance or real risk of harm on the basis of his ethnicity.
Similarly, having regard to its findings and on the evidence before it, the Tribunal did not accept that the Applicant faced a real chance or real risk of harm on the basis of membership of any particular social group or that he would be perceived by anyone as having an adverse political opinion.
The Tribunal concluded that the Applicant did not face a real chance of serious harm in the reasonably foreseeable future on any of the claimed bases. It was not satisfied that anyone sought to cause the Applicant or his family harm now or in the reasonably foreseeable future. It did not accept that he had a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future in Liberia. It found that he did not meet the Refugees Convention criterion.
The Tribunal considered the complementary protection criterion. It referred to the fact that it was not satisfied as to the Applicant’s claims (other than as to his education, work, ethnicity, residence in Monrovia, Christianity and fatherhood). The Tribunal also reiterated that it was not satisfied that the Applicant had suffered harm in the past. Nor did it accept there was any reason to consider he would suffer harm on return. On the evidence before it, the Tribunal was not satisfied it had substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Liberia there was a real risk that he would suffer significant harm. It found that he did not meet the complementary protection criterion.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed on 7 October 2015. He now relies on an amended application filed, with leave of the court, on 19 April 2018.
There are two grounds in the amended application. Ground 1 is that the Tribunal “failed to carry out its statutory duty”. However three distinct issues are raised in the particulars.
Section 424A Issue
The first issue is raised in particulars (a) and (b) to ground 1, which are as follows:
a. The Migration Act 1958 s.424A requires the Tribunal to:
(i) give the Applicant clear particulars of any adverse information that was the reason, or part of the reason for affirming the decision;
(ii) explain why they are relevant; and
(iii) give the Applicant an opportunity to comment on the information
b. The Tribunal had the following information in respect of which it failed to carry out its statutory duty;
(i)That the Applicant went to [his home] county to negotiate with his father; and
(ii)That the Applicant applied for a new passport.
In oral submissions the solicitor for the Applicant stated that particular (b)(ii) (that the Applicant applied for a new passport) was not pressed.
In support of this aspect of ground 1, the Applicant contended that the information referred to in particular (b)(i) was used by the Tribunal in its adverse credibility finding, but that the Tribunal had failed to give him particulars of this information, explain why it was relevant and invite him to comment upon it in accordance with s.424A of the Act.
In oral submissions the solicitor for the Applicant submitted that s.424AA of the Act was in effect a defence in relation to a failure by the Tribunal to comply with s.424A of the Act. Hence it was contended that if the Minister sought to argue that a failure to comply with s.424A was “saved” by s.424AA, then it was for the Minister to prove that the information had been raised with the Applicant at the hearing in accordance with s.424AA of the Act. No authority was cited in support of this proposition. Nor was there any reliance on any authorities in relation to the relationship between ss.424A and 424AA of the Act.
After the hearing the solicitor for the Applicant drew the court’s attention to the decision of the Federal Court in SZSSC v Minsterfor Immigration and Border Protection [2014] FCA 863 at [8] and [81(f)] in support of the proposition that it was not necessary for the Applicant to provide a transcript of the Tribunal hearing to succeed in such a contention.
However SZSSC did not involve consideration of s.424A or s.424AA of the Act. Rather, in considering whether a failure to consider and determine a submission of substance would amount to jurisdictional error, Griffiths J observed at [8] that although the appeal books did not contain a copy of the transcript of the Tribunal hearing, it was evident from the Tribunal’s statement of reasons that certain matters had been discussed at the Tribunal hearing and that an issue was “apparently” put to the Applicant. While there are circumstances in which an inference can be drawn from the Tribunal’s reasons as to what occurred (or did not occur) at a Tribunal hearing, SZSSC is not authority for the proposition that it is always for the First Respondent to provide a transcript of a Tribunal hearing to establish reliance on s.424AA whenever an Applicant alleges non-compliance with s.424A of the Act.
However the question of whether an inference should be drawn about what was raised with an Applicant at the Tribunal hearing would only have to be determined in these proceedings if the Tribunal’s obligation under s.424A(1) was enlivened in respect of the particularised information.
In SZSSC at [81] Griffiths J also addressed the legal principles to be considered in determining whether the Tribunal committed jurisdictional error by failing to evaluate a substantive and clearly articulated submission. In the course of summarising the applicable principles his Honour referred to the fact that there was no requirement that the Tribunal refer in its statement of reasons to every piece of evidence or every contention made by an Applicant and to authorities (such as Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184) in that respect. His Honour also addressed the relevance of s.430 of the Act and the circumstances in which a failure by the Tribunal to refer to particular evidence or to make a particular finding (such as to give rise to jurisdictional error) could be inferred from the absence of any reference to such matters in the Tribunal’s reasons. Griffiths J addressed the characterisation of a failure to deal with a submission of substance as a failure to exercise jurisdiction and referred to the fact that the visa applicant carried the burden of persuading the court to draw an inference that a failure to deal with a submission amounted to jurisdictional error. Insofar as it is intended to be suggested by the Applicant that a failure by the Tribunal to refer to s.424AA in reasons may support an inference that the Tribunal did not put information to an Applicant pursuant to s.424AA of the Act, in this case the Tribunal did refer to s.424AA (albeit not in relation to the information described in particular 1(b)(i) to ground 1).
However, the First Respondent submitted that the obligation in s.424A(1) was not enlivened in relation to this information (or that if it was then the exception in s.424A(3)(b) applied).
More generally, the First Respondent submitted that as no transcript of the Tribunal hearing had been put in evidence by the Applicant, there was insufficient evidence before the court as to what was said or not said at the Tribunal hearing to draw any an inference that the information in issue was not put to the Applicant at the hearing.
Reference was made in this respect to NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] and SZVHC v Minister for Immigration and Border Protection [2016] FCA 1324 at [56] to [57] which referred to a need for evidence from the visa applicant about what occurred, or did not occur, at a Tribunal hearing.
The visa applicant in NAOA had contended that the Tribunal had failed to comply with s.424A of the Act and had failed to afford him procedural fairness. There was no transcript of the Tribunal hearing in evidence. It was pointed out that the Full Court of the Federal Court had rejected a submission that an inference should be drawn that the Tribunal in NAOA had not raised the issue of the authenticity of certain documents with the visa applicant at the hearing. The court was of the view that on the evidence before the trial judge it was not open to him to have made a finding that such issue had not been canvassed. It was pointed out that there was no transcript in evidence before the trial judge and that the visa applicant had not given any evidence in affidavit form or orally to the effect that this issue had not been raised with him at the hearing. Their Honours found that in the absence of evidence about what occurred at the hearing the appellant had no sufficient evidential basis for such a ground.
In SZVHC Barker J considered a contention that the Tribunal had denied the visa applicant procedural fairness or was unreasonable when it refused his representative’s request to file further submissions. In that context, his Honour observed that there was no transcript in evidence or other evidence as to what had occurred at the Tribunal hearing. Barker J found no error in the approach of the primary judge in noting that the Tribunal’s account in its reasons revealed that the representative had made oral submissions and apparently had not sought more time to make written submissions. His Honour was of the view that in the circumstances of SZVHC and given the absence of any relevant evidence from the appellant, it was not open to the court to speculate on appeal as to what may have occurred at the Tribunal hearing. His Honour referred to NAOA in support of this proposition.
In supplementary submissions the First Respondent referred to the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and IndigenousAffairs v NAMW [2004] FCAFC 264, in which it had been argued that the Tribunal had breached s.424A(1) of the Act in failing to disclose certain information to the visa applicant. On appeal the Full Court discussed the operation of s.424A(1) and the exemption in s.424A(3)(a) of the Act in considerable detail. Merkel and Hely JJ remarked (at [120]) that particulars of information may be given to an applicant during the course of the hearing. Counsel for the Minister had contended there was no evidence that this had not occurred. Their Honours remarked that in the “usual course” the tape or transcript of the hearing before the Tribunal would reveal whether particulars of relevant information had been given to an applicant in the course of a hearing, but in that case the tape was defective. Regard was had to the fact that the reasons of the Tribunal disclosed that some specific matters in issue had been raised with the applicant at the hearing, but did not refer to the particular country information in issue in the proceedings.
The First Respondent submitted that it was in the unusual circumstances of that case that their Honours were prepared to infer on the balance of probabilities that the relevant country information was not raised by the Tribunal with the visa applicant prior to its decision. The Minister’s submissions also referred to SZEXQ v Minister for Immigration and Multicultural Affairs [2006] FCA 927 and SZJYAv Minister for Immigration and Citizenship (No.2) [2008] FCA 911 as “unusual” cases in which the Tribunal’s decision appeared to set out in sufficient detail what was said at the Tribunal hearing such as to enable the court to infer that certain matters had not been raised.
Apart from SZVHC, the only post-s.424AA authority referred to in submissions was the Minister’s reference to SZTBR v Minister for Immigration and Border Protection [2014] FCA 582 at [6]. That case addressed a ground of review relating to an asserted failure to comply with s.424A of the Act and the interaction of s.424A(1) and 424A(3). However, Pagone J also applied NAOA in finding that in the absence of evidence of what occurred at the Tribunal hearing (there being no transcript or evidence from the Applicant in that respect), the visa applicant had failed to establish that a certain matter had not been raised with him at the hearing.
The “information” particularised in ground (1)(b)(i) is that the Applicant went to his home county (in 2007) to negotiate with his father. This explanation was proffered by the Applicant in his oral evidence at the interview with the delegate in an attempt to explain why he would go to his home county despite the risk. However, while this explanation did not overcome the Tribunal’s concerns as to why the Applicant would go to the area, it is not in its terms a matter adverse to the Applicant. I am satisfied that, as the First Respondent submitted, the fact the Applicant told the delegate he went to his home county to negotiate with (or because he thought he could negotiate with) his father could not in its terms be said to constitute a “rejection, denial or undermining” of his claims in the sense considered in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]. Hence it did not enliven the Tribunal’s s.424A(1) obligation.
Accordingly no obligation arose on the Tribunal to put such information to the Applicant for comment, whether in writing or utilising the provisions of s.424AA of the Act.
If this information had enlivened s.424A(1) it would not be within the s.424A(3)(ba) exception because it was evidence provided orally to the Department. However, in addition to the oral evidence to the delegate this information was also provided by the Applicant to the Tribunal in a written submission from the Applicant’s agent (courtbook p.241) which stated that the Applicant had told the delegate in the interview that his intention was to negotiate with and to reason with his father in the hope that his father would agree to excuse him from his obligations of succession. If (contrary to my view) this information did enliven s.424A(1), it therefore fell within the exception in s.424A(3)(b) of the Act as information that the Applicant gave for the purpose of the application for review.
Hence it is not necessary to resolve the issue of whether it could be inferred that the Tribunal had put or had failed to put particular information to the Applicant in accordance with s.424AA of the Act.
This aspect of ground 1 is not made out.
Section 425 of the Act
The next issue raised in ground 1 is in particular (c), which is as follows:
The Tribunal failed to comply with s 425 of the Act:
i)The Tribunal was required to give the Applicant a meaningful invitation to appeal before it and to present arguments and give evidence.
ii)The invitation can only be a meaningful invitation if the Tribunal carries out its duty to review the application and the evidence presented.
iii)The Applicant presented a number of documents to the Tribunal (CB330-331; pages 58-65).
iv)The Tribunal noted and put to the Applicant that, “There is country information indicating that fraudulent documents can be obtained in Liberia and that it would have to weigh up the newspaper actually produced in light of the country information.”
v)The Tribunal did not go on to make any finding that the documents provided were fraudulent.
vi)The Tribunal did not, therefore, complete its task to review the application.
The reference in the particulars to “pages 58 – 65” is intended to be a reference to paragraphs in the Tribunal decision.
The Applicant’s written submissions in relation to this issue were brief and unsupported by authority. It was contended that the Tribunal was required to give the Applicant a meaningful invitation to appear before it to present arguments and give evidence and that, as stated in particular c(ii), “the invitation can only be a meaningful invitation if the Tribunal carries out its duty to review the application and the evidence presented”. Otherwise the submissions repeat the particulars.
While expressed in terms of a failure to comply with s.425 of the Act, the essence of this ground (as explained in oral submissions) is a contention that the Tribunal erred in failing to make express findings that documents provided by the Applicant were fraudulent. It was pointed out that the documents produced by the Applicant included an email from a person he said was his landlord and a copy and the original of a Liberian newspaper article dated 31 December 2014, which was after the interview with the delegate.
Particular concern was expressed about the Tribunal’s consideration of the newspaper article which the Applicant claimed supported everything he had said in his interview with the delegate. A copy of the article is in the courtbook. It is not disputed that the article shows a photograph of the Applicant and refers to his parents. It stated that the Applicant’s father (who was named) had threatened to kill his wife because she failed to disclose the whereabouts of their son (the Applicant) and that she claimed she knew nothing about their son’s whereabouts, except that he was in Australia and should have succeeded to his father’s role. The article also stated that the Applicant’s father denied ever threatening to kill his wife, but that he had requested information about his son’s whereabouts to replace him as head of the [specified] society.
The Applicant acknowledged that the Tribunal had referred to the fact that it had put to him country information in Annexure B to its reasons which was said to indicate that fraudulent documents could be obtained from Liberia and that it would have to weigh up the newspaper article produced in light of the country information and its concerns about the Applicant’s credibility. However it was submitted that the country information referred to in Annexure B to the Tribunal decision did not state that “every” document from Liberia was fraudulent, but rather referred to the availability of fraudulent documents in Liberia, including media reports. It was contended that in these circumstances what was “missing” from the Tribunal decision was a finding that the Applicant’s documents were fraudulent.
When asked how this would amount to a failure to comply with s.425 of the Act, the solicitor for the Applicant submitted that the Tribunal’s reasons indicated that the Tribunal had a view about documents from Liberia and therefore was not going to give any weight to any Liberian documents, so that the hearing invitation was not a meaningful invitation in that it was not a real opportunity for the Applicant to make arguments and present evidence to the Tribunal.
Counsel for the First Respondent queried whether this issue was properly characterised as raising a failure to comply with s.425 of the Act. In any event it was submitted that while in order to complete the review required under the Act (the essence of ground 1) the Tribunal was obliged to consider and determine the application against the applicable statutory criteria, it was not obliged to make an express finding as to whether or not the Applicant’s documents were fraudulent unless it was otherwise prevented from making a determination on the review. The First Respondent submitted that this was not such a case and that the Tribunal had not erred in relying on country information regarding the availability of fraudulent documents and refusing to place “any weight” on the newspaper article provided.
The First Respondent also submitted that it was not necessary for the Tribunal to mount a positive case that fraudulent documents had been produced, but rather for it to weigh the information that was before it against other information. In this case the Tribunal was said to have done so in weighing the newspaper article against its credibility concerns and the country information about fraudulent documentation (relevantly in relation to the media accepting payment to print stories). It was submitted that having regard to this weighing process it was a perfectly orthodox approach for the Tribunal not to afford this document any weight and that while a fairly strong inference arose that the Tribunal considered the document to be fabricated, it was not necessary for it to make a positive finding to that effect to complete the exercise of its jurisdiction.
In addition, the First Respondent pointed out that insofar as it was intended to be suggested that the Applicant was denied fairness at the Tribunal hearing in relation to information concerning document fraud, there was no transcript to support such a contention. The First Respondent also contended that it was clear from the Tribunal’s reasons that it put to the Applicant that there was country information indicating that fraudulent documents could be obtained from Liberia, and informed him that it would have to weigh up the newspaper article in light of the country information and its concerns about the Applicant’s credibility. It was pointed out that Annexure B to the reasons referred to a significant amount of country information indicating the availability of fraudulent media reports in Liberia.
In a post-hearing list of authorities the Applicant referred to four cases in relation to the requisite invitation under s.425 of the Act. SZSSC is referred to above in relation to s.424A of the Act. Griffiths J also stated (at [56]) that the statutory obligation on the Tribunal to invite an applicant to a hearing to present arguments (that is, to make submissions) relating to the issues arising in relation to the decision under review indicated that in conducting such a review the Tribunal must consider any such arguments or submissions, at least those which were of substance and were clearly articulated. However there is no suggestion in this case that the Tribunal failed to “consider” any argument or submission (or document) provided by the Applicant or his adviser. The fact the Tribunal did not make any express finding as to fabrication or fraud does not demonstrate that it failed to have regard to and actively engage with the newspaper article.
Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 at [132] was also cited. In Kaur Mortimer J dealt with a contention of legal unreasonableness. In that context her Honour referred to decisions of the High Court and the Full Court of the Federal Court indicating that s.360 (and also s.425) imposes an obligation on the Tribunal to give an applicant a meaningful opportunity to appear and present evidence and arguments in support of his or her review application. Mortimer J indicated, albeit in relation to Part 5 of the Act, that the reasonable exercise of discretions conferred by that part of the Act was connected with the extent of the obligation in s.360 and that the manner in which the Tribunal exercised such discretions must not frustrate the purpose of the obligation in s.360. However, there is no issue as to the exercise of a discretion or allegation of legal unreasonableness in this case. The reference to these general principles does not advance the Applicant’s case.
Similarly, the Applicant’s reference to the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 is of no direct relevance, as no ground of legal unreasonableness has been raised. Nor was any reliance placed in this case on s.422B of the Act (the equivalent of s.357A which was considered by Hayne, Kiefel and Bell JJ in Li at [51] to [62]). It is the case that in Li their Honours reiterated the general principle that s.360(1) (the equivalent of s.425(1)) requires that the invitation be meaningful in the sense that it must provide the applicant with a real chance to present his or her case. However the Tribunal’s approach in its reasons to the document provided by the Applicant does not demonstrate any failure to afford a meaningful hearing invitation to the Applicant.
Finally, the Applicant referred to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 which considered principles in relation to the unreasonable exercise of a power to adjourn the review. It is of no direct relevance to the issues that have been raised in this case.
Beyond the general remarks in Kaur, the authorities cited for the Applicant do not support the proposition that the manner in which a Tribunal made findings in relation to corroborative evidence can in itself demonstrate an earlier failure to comply with s.425 of the Act. As indicated, this is not a case in which the Tribunal exercised a discretion in circumstances which could have frustrated the purpose of the obligation under s.425 of the Act.
The Applicant also appeared to submit that the Tribunal fell into jurisdictional error by failing to make an express finding that any or all of the documents he provided to the Tribunal were fraudulent. No authority was cited in support of this proposition.
In its reasons the Tribunal stated that at the hearing it raised its concerns with the Applicant in relation to the email said to be from his landlord. This alerted the Applicant to the relevance of this issue and gave him an opportunity to comment. No failure to comply with s.425 (whether in relation to raising a dispositive issue or otherwise) is apparent in this respect. Nor has it been established that the fact the Tribunal raised its concerns meant that the Applicant was not offered a meaningful hearing invitation.
The Tribunal considered the landlord’s email of 30 July 2013 in its reasons. It summarised its content. As indicated above, it recorded that the writer of the email suggested that the Applicant was not safe because his father’s thugs had been visiting for the past three to four days to find out whether the Applicant had returned to Liberia, claimed that Applicant would be killed because he had broken relevant traditional laws and indicated that the writer was worried that if “they” could not get to the Applicant they would come after his son.
However, the weight to be given to such evidence was a matter for the Tribunal. It was reasonably open to the Tribunal to be of the view that this letter did not overcome its concerns about the credibility of the Applicant’s claims. Such finding is to be seen in light of the Tribunal’s concern about the Applicant’s evidence about his addresses between 2007 and his departure from Liberia in July 2013, including his evidence to the Tribunal that while his father’s thugs had visited his home address while he was in Liberia, they had not “found” him. In that context the Tribunal considered it unlikely that the Applicant’s father’s thugs would know where he was living and would not find him in the six year period he was living in his landlord’s property if his claims were true. The Applicant’s changing evidence about where he lived in Liberia also undermined his credibility and his claim that he was in hiding.
The Tribunal’s finding that the email from the Applicant’s landlord (as well as the other documentary evidence) did not overcome its credibility concerns did not necessarily involve an inference that the email was fraudulent or not genuine in the sense of not being from the Applicant’s former landlord. It was not necessary for the Tribunal to make a finding of fraud before, in effect, giving the content of the email little weight when considered in the context of its extensive concerns about the credibility of the Applicant’s claims and having regard to the fact that, as it had put to the Applicant, “people could write anything”.
The main evidence relied on in support of this aspect of ground 1 was the Liberian newspaper dated 31 December 2014 which included an article to which the Tribunal referred and described in paragraph 5 of its reasons.
In the course of describing supporting documents that had been provided to it, the Tribunal recorded that at the Tribunal hearing of 1 September 2015 the Applicant’s agent had told it that a submission and newspaper article had been forwarded to it on 16 March 2015. There was no record of receipt. The agent provided copies of the submission and article during the hearing. The Tribunal gave further time for the original to be produced. This was provided on 10 September 2015 together with a submission.
At paragraph 5 of its reasons, the Tribunal recorded that the “additional claims” in this newspaper article included:
His father threatened to kill his mother because she refused to disclose the whereabouts of the applicant. This was reported in a Liberian newspaper article dated 31 December 2014. The article also states that the applicant should have succeeded his father as head of the [specified] society. His mother had to flee because the father threatened to kill her. The father denied this except he said that he wanted to find out where his son was so he could succeed him as head of the [specified] society.
Consistent with the post-hearing submission, the Tribunal also stated (at paragraph 6) that the Applicant claimed that:
The publication of the newspaper article would greatly alter the applicant’s ability to relocate because there is a very real possibility that people will identify the applicant either by name or by his photograph attached to the article which would place him at even greater risk of [specified] society members and his father discovering his whereabouts. Further, because the applicant has a son who has the traditional name of a successor in the tribe, the family is therefore a greater risk of being identified and targeted. Relocation is not feasible in these circumstances.
In its findings and reasons, in addition to concluding that the documents produced by the Applicant did not overcome its concerns, in considering this particular document the Tribunal stated:
60. The applicant had produced a newspaper article (copy and then original) dated 31 December 2014. He said that the article (which post-dated the delegate’s interview) supported everything that he had said in the delegate’s interview.
61. The Tribunal noted that the article showed his photo, and stated that the applicant’s father was trying to kill his mother as she had refused to reveal the applicant’s whereabouts. The Tribunal put to the applicant that there is country information indicating that fraudulent documents can be obtained from Liberia, and that it would have to weigh up the newspaper article produced in light of the country information, and its concerns about the applicant’s credibility. The applicant claimed that everything he said is true, people have told him that he is on the media, and the 10 PM news, and they text him and send him messages on Facebook and tell him it is not safe to go back. Annexure B refers to a significant amount of country information indicating the availability of fraudulent documents, including media reports. The Tribunal does not give these documents weight, nor does it give the applicant’s assertions of what people have texted/told/posted him.
It is apparent from the material cited in Annexure B to the Tribunal’s decision that in this context the Tribunal’s reference to information about the availability of fraudulent documents was a reference to the information from cited sources about fraud within the media in Liberia, including within the print media. The cited reports indicated that newspapers in Liberia had accepted payment to print or not print articles. In other words, the “fraud” in question did not relate to whether articles in fact appeared in print, but rather to whether the stories reported were accurate.
The reports cited by the Tribunal in this context included the US Department of State Country Report on Human Rights Practices for 2014 which observed that “Newspapers commonly accepted fees to publish press releases or other favourable stories” and that “media outlets rarely check the accuracy of articles”. Also cited was the Freedom House report on Freedom of the Press Liberia 2014 which stated that “… reporters commonly accept payment from individuals covered in their stories, and the placement of a story in a paper or on a radio show can often be bought or influenced by outside interests”. Other cited information referred to reasons for the vulnerability of Liberian journalists to bribery and compromised ethical and professional standards.
It was in light of this information that the Tribunal found that it did not give the copy and original of the newspaper article “any weight”. Later in its reasons the Tribunal expressly rejected the claim that anyone had sought to threaten, harm or find the Applicant, including his father, tribesmen or anyone from any society. It also did not accept that the Applicant’s father had attempted to kill his mother to find out the Applicant’s whereabouts. It is implicit in such findings that the Tribunal did not accept that the publication of the newspaper article supported or established the truth of the claims therein, having regard to the cited country information and its concerns about the Applicant’s credibility. In light of these findings a clear inference arises that the Tribunal was of the view that the story reported in the newspaper article was not true.
The Tribunal sufficiently dealt with the newspaper article in determining not to give it any weight. It was not necessary in these circumstances for the Tribunal to also make an express finding that such document was fraudulent, fabricated, or not accurate, in order to carry out its review (and see generally the discussion of principle in DPE16 v Minister for Immigration and Border Protraction [2018] FCA 61).
As indicated, the Tribunal recorded that it raised its concerns in this respect with the Applicant at the hearing. It stated that it informed him that it would have to weigh up the article produced in light of the country information about fraudulent documents from Liberia and its credibility concerns. The Tribunal identified the issue of concern and gave the Applicant the opportunity to respond. There is no evidence to the contrary. The circumstances were such that the Tribunal sufficiently alerted the Applicant to its doubts about the genuineness of the document. In completing the review it was unnecessary for the Tribunal to also put to the Applicant that it may make findings which raised an inference that the content of the article was not true and had been fabricated.
For the sake of completeness I note that no issue was taken in these proceedings with the Tribunal’s view that the Applicant’s birth certificate (which, contrary to the Applicant’s submission, did not record that his father was “Chief Zoe” and “Elder”) was not evidence that his father is or was in any position of honour as claimed. This finding did not involve any inference of fraud. The Tribunal was prepared to accept that the Applicant’s parents were as claimed in the birth certificate.
Similarly, the Tribunal’s finding that it did not give a photograph of the Applicant’s father any weight (as it did not prove anything) was not such as to require any finding of fraud.
This aspect of ground 1 is not made out.
Section 438 Certificate
Particular (d) to ground 1 is as follows:
The Tribunal failed to comply with s 438 of the Act:
i)The Tribunal had before it a certificate under s 438 of the Act (supplementary court book).
ii)All of the documents which were the subject of the certificate related to the Applicant’s application for a student visa or “offshore application” as the Tribunal referred to it. That application was central to the adverse credibility finding made by the Tribunal.
iii)The Tribunal was obliged to make the existence of the certificate known to the Applicant (Minister of Immigration and Border Protection v Singh (2016) FCAFC 183 at 44 and 46)) (errors in original).
It is convenient to consider this aspect of ground 1 together with ground 2, which is as follows:
2. The Applicant was denied procedural fairness.
a. By failing to make the existence of the Certificate and its contents known to the applicant, the Tribunal denied him procedural fairness. (see Singh (supra) para 52)
b. If the Tribunal’s decision is vitiated one or more these jurisdictional errors, the Applicant is entitled to the relief sought.
(errors in original)
The s.438 certificate issued on 2 July 2014 certified that paragraph 438(1)(a) of the Act applied to information in three folios in the Applicant’s departmental student visa file on the basis that:
The disclosure of this information would be contrary to the public interest because it contains information relating to an internal working documents and business affairs.
In written submissions the Applicant simply repeated the particulars to ground 1(d). It appears from the reference to Singh at [44] and [48] that this involves a contention that the Tribunal was obliged to disclose the existence of the certificate to the Applicant. In oral submissions the alleged jurisdictional error was said to be a failure to accord procedural fairness within ground 2. The Applicant submitted that by failing to make the existence of the certificate and its contents known to him, the Tribunal had denied him procedural fairness (and see Singh at [52]).
Reference was made to the fact that in its credibility findings the Tribunal had regard to inconsistencies between information in the Applicant’s protection visa application and in his offshore student visa application form (as well as to his oral and changing evidence to the Tribunal) in relation to his past employment.
The Applicant also contended that the s.438 certificate was invalid and that he was denied procedural fairness because the documents the subject of the certificate (which were about his offshore student visa application) were not put to him, in circumstances where the Tribunal’s concern was with claims that he had made in support of that offshore student visa application.
The solicitor for the Applicant did not dispute the Minister’s submissions in relation to Singh and later authorities (as discussed below), but submitted that the unfairness to the Applicant by withholding the information the subject of the certificate was that if he had been aware that such information was going to play a significant role in a credibility finding, he could have addressed what was in the documents.
It was contended that the Tribunal’s failure to make the existence of the certificate known to the Applicant was a denial of procedural fairness. Insofar as authorities indicated that it was necessary to look at the substance of the certificate and ask whether there was any real detriment to the Applicant in not being made aware of the certificate, the Applicant submitted that there was such detriment because the Tribunal decision was based almost exclusively on an adverse credibility finding and one aspect of that finding related to documents that were the subject of the certificate, in the sense that the certificate related to case notes about the Applicant’s offshore student visa application.
In supplementary submissions addressing the decision of the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599, the Applicant referred to the remarks of Bell, Gageler and Keane JJ at [2] that:
The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
It was submitted that the matters covered by the certificate related to a previous application lodged by the Applicant and that the Tribunal had (at paragraphs 32, 48 and 65) used facts contained in that application as one of the matters on which it based its adverse credibility findings.
The Applicant also contended that it was a matter for the First Respondent to demonstrate that the contents of, and attachments to, the s.438 certificate were not material. Reference was made to SZMTA at [93] per Nettle and Gordon JJ.
In written submissions the Minister accepted that the s.438 certificate was invalid. It was also pointed out that since the decision in Singh (cited by the Applicant) the Federal Court had considered a number of further cases involving certificates. It was contended that such further authorities (Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1, Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; (2017) 253 FCR 21, BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36, SZNJG v Minister for Immigration and Border Protection [2018] FCA 334 and AVO15 v Minister for Immigration and Border Protection [2017] FCA 566) established that:
a)for relevant error to be found, the applicant must demonstrate that the denial of procedural fairness resulted in a “loss of opportunity” to advance their case: CQZ15 at [67];
b)such a finding will not be open where the material which was covered by the certificate “on no view, could be thought to have prejudiced the interests of the applicant and could not, and did not, even possibly, undermine the applicant’s prospects of a favourable decision by the Tribunal’: CQZ15 at [72]; and
c)this will be so, regardless of whether or not the certificate was validly issued: CQZ15 at [72], [74].
The First Respondent drew the court’s attention to the fact special leave to appeal to the High Court had been granted in relation to CQZ15 and BEG15. Subsequently, in supplementary submissions the First Respondent submitted that in SZMTA, CQZ15 and BEG15 the majority of the High Court had essentially confirmed (at [2]) that the failure of the Tribunal to disclose the existence of a non-disclosure certificate would amount to jurisdictional error if and only if the breach of the obligation of procedural fairness was material. It was pointed out that Bell, Gageler and Keane JJ had also held at [45]:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
The First Respondent maintained reliance on his primary submissions in support of the proposition that in this case any breach of procedural fairness in relation to the failure to disclose the s.438 notification or of an inviolable limitation governing the conduct of review in relation to the invalid notification (as here) was not a material breach.
It was submitted that the documents the subject of the s.438 certificate were internal departmental case notes of a general administrative character which contained general factual details about the Applicant and his previous application for a student visa. The First Respondent contended that these documents contained no information which could be said to have any practical relevance in relation to the determination of the review and that the Applicant could not be said to have been deprived of any opportunity to advance his case by reason of the non-disclosure of the certificate, its invalidity or the underlying documents.
Insofar as the Applicant asserted that the documents the subject of the s.438 certificate “related to” his offshore student visa application and that the context of this application was central to the Tribunal’s adverse credibility findings, the First Respondent pointed out that the Tribunal had before it the offshore student visa application itself (which was not subject to the certificate) and had put to the Applicant various matters from that application. It was submitted that on no view could the generic references to the student visa application in the departmental notes the subject of the s.438 certificate have affected the Applicant’s prospects before the Tribunal.
Hence the First Respondent submitted that the failure to disclose the s.438 certificate and the documents could not “realistically” have made any difference to the Tribunal’s decision (SZMTA at [72]) and that the failure to disclose the certificate did not deprive the Applicant of an opportunity to give evidence or make arguments as to why he satisfied the criteria for the grant of a protection visa or deprive him of the possibility of a successful outcome.
Section 438(1) of the Act relevantly 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 …
The parties correctly accepted that the s.438 notification was invalid. No reason was specified in the certificate 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.
It is not in dispute that the Tribunal did not disclose the fact of the notification, the invalidity of the notification, or the documents the subject of the certificate to the Applicant (see SZMTA at [6]).
As pointed out in SZMTA at [38], non-disclosure of a s.438 certificate is a breach of the Tribunal’s implied obligation of procedural fairness. Where, as here, an incorrect and hence invalid notification is given to the Tribunal that s.438(1) applies to a document or information, this can also give rise to jurisdictional error in the conduct of review as explained by the majority in SZMTA at [44] as follows:
… The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review…
However the majority in SZMTA concluded that where there was a breach of procedural fairness because of non-disclosure or a breach of such an inviolable limitation governing the conduct of the Tribunal’s duty to conduct a review, the breach would only constitute jurisdictional error if it was material (see, in particular, SZMTA at [38] and [44]).
Their Honours explained (at [38]) that for a breach of procedural fairness consisting of non-disclosure of the fact of notification to constitute jurisdictional error, it must give rise to a practical injustice and that this meant that the breach “must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision” (Ibid). Similarly, the breach of an inviolable limitation governing the conduct of review in the case of an incorrect and invalid notification would only deny legal force to the Tribunal’s decision if the breach is “material” (Ibid at [44]).
In SZMTA, Nettle and Gordon JJ rejected the majority approach that materiality was a criterion of jurisdictional error. Their Honours stated at [93]:
… it would impose the onus of establishing “materiality” on the applicant. That is reason in itself to reject it. As noted above, a finding of jurisdictional error means that the decision is to be regarded as a nullity. Thereafter, it is for the decision-maker, if seeking to have the court exercise its discretion to refuse to grant the relief that would otherwise follow, to establish that the relief would be futile in the applicant’s circumstances. To shift the onus of proof of materiality to the applicant would put in doubt the fundamental principle that a statutory power is to be exercised under, and according to, the terms of the statute. To repeat, a person affected by a decision made by an exercise of statutory power is entitled to apply for a decision and have a decision made by a decision-maker under, and in accordance with, the terms of the statute, not the terms of the statute subject to some level of materiality that the person is obliged to identify after the decision has been made. The playing field is set by the statute, not the decision-maker or the court on review.
However, insofar as the Applicant contended that these remarks mean that it was for the First Respondent to demonstrate that the content of the documents the subject of the s.438 certificate were not material, the approach of the majority in SZMTA is to the contrary. It is necessary to consider the materiality of an error in determining whether jurisdictional error is made out. In that context, as Bell, Gageler and Keane JJ pointed out in SZMTA at [46]:
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
(emphasis added)
Hence it was for the Applicant to satisfy the court that the breach was material. The Applicant did not address in any detail the nature and content of the documents the subject of the s.438 certificate, beyond referring to the fact that there was a reference to his offshore student visa application. However the documents are before the court in a supplementary courtbook and were addressed in submissions by the First Respondent.
The documents include three case notes dated 21 June 2013. In the first of these, a delegate of the Minister recorded satisfaction that the Applicant met the requirements for a student visa and that the visa was granted. The next document listed personal details of the Applicant, who was described by reference to his age, nationality, marital status and the absence of any relative in Australia. The name and date of birth of his son in Liberia was recorded, as was the Applicant’s completion of health and character questions and the fact that he had been nominated by AusAID to do a particular short course in an Australian Leadership Awards Program from 8 July 2013 and 2 August 2013. The case note listed the supporting identity, qualifications and employment documents provided by the Applicant. The next document appears to be a case note of the notification to the Applicant of the grant of the student visa until 12 August 2013. It contains the Applicant’s identity details (name, date of birth, citizenship and passport number), the conditions which applied to the visa and the term of the visa.
This material is not such that the Tribunal’s decision could realistically have been different if any of it had been disclosed to the Applicant. The fact of the grant of the student visa and the Applicant’s basic identity details were not in issue. The case notes do not record the information as to the Applicant’s past employment and residence in Liberia or other information in the student visa application which was of concern to the Tribunal. Such information was contained in the student visa application form itself, but it was not subject to the s.438 certificate and the information in question was raised with the Applicant by the Tribunal.
The final document subject to the s.438 certificate is a somewhat cryptic one page document which simply refers to case notes that as at 28 August 2013 and 27 September 2013 the Applicant’s student visa application was with the Integrity Unit. It provides no further information. These dates are after the Applicant’s student visa had expired. That expiration date was disclosed by the Applicant in his protection visa application form. This last document was of such marginal significance to the issues that arose on the Tribunal’s review that there was not a realistic possibility that the Tribunal’s decision could have been different if the limited content of this document had been disclosed, particularly as the Applicant sought protection before his student visa had expired.
Otherwise the information covered by the certificate was known to the Applicant. The information therein was provided by him. He disclosed the fact of his student visa application in his application form.
As indicated, the Tribunal did have regard to changes and inconsistencies between the Applicant’s evidence about where he worked and lived in his offshore student visa application form and in his written and oral protection visa claims. However the Tribunal put the information in the student visa application (which was not the subject of the s.438 certificate) to the Applicant for comment at the hearing under s.424AA of the Act. While it also had regard to the fact the Applicant was prepared to provide false information in his student visa application about his place of birth and whether he had a relative in Australia (matters not referred to in the case notes), it also put this information (which was not the subject of the s.438 certificate) to him for comment under s.424AA of the Act.
As the First Respondent submitted, the documents the subject of the invalid certificate were internal departmental notes which contain no more than generic factual details about the Applicant which had been provided in his earlier application for a student visa. On their face the documents are of a general administrative character. They contain no information which could be said to have had any practical relevance in relation to the determination of the review of the Applicant’s protection visa application.
Insofar as the Applicant contended that it was relevant that the documents related to the Applicant’s offshore student visa application which was “central” to the Tribunal’s adverse credibility findings, the Tribunal had before it a copy of the offshore application itself. That document was not subject to the s.438 certificate. The mere fact of the application and grant of the student visa were not matters that had any practical relevance to the Tribunal’s review. The generic references in the departmental case notes the subject of the s.438 certificate are not matters that were in themselves of any relevance to the Tribunal’s decision. The non-disclosure was not material and I am not satisfied it constituted jurisdictional error.
Even if the fact that the Tribunal took into account the actual offshore student application (which it had before it and was not the subject of the certificate) in its reasons was such as to tell against the drawing of an inference that the Tribunal paid no regard at all to any of the information in the case notes which was also in the student visa application form, the documents the subject of the s.438 certificate contained only generic information about the application and the Applicant or information of no relevance to the review. The information is not such that the Tribunal’s failure to disclose the notification and/or the documents could give rise to a realistic possibility that the Tribunal’s decision could have been different if the notification and/or the documents had been disclosed so as to allow the Applicant an opportunity to make submissions in that respect. The mere fact that the documents related to the grant of the student visa and the Tribunal had regard to other particular claims and evidence in that student visa application did not render the Tribunal’s failure to disclose the certificate, the notification or these particular documents “material” as considered in SZMTA.
I am not satisfied that the Applicant could be said to have been deprived of an opportunity to advance his case by the absence of an opportunity to make submissions about the invalid certificate, the particular underlying documents or by non-disclosure of the notification and the documents. I am satisfied that, as the First Respondent submitted, no practical injustice resulted from non-disclosure of the certificate or the documents the subject of the certificate and that hence the breach of procedural fairness or of an inviolable limitation was not material and did not amount to a jurisdictional error.
In those circumstances no jurisdictional error is established in relation to the s.438 certificate. Neither ground 1 particular (d) or ground 2 is made out.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 21 June 2019
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