CCB16 v Minister for Immigration
[2018] FCCA 2732
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCB16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2732 |
| Catchwords MIGRATION – Applicants arrived in Australia on sponsored family (class FA) (subclass 600) visa – applicants then living in Australia illegally – application for protection visas – tribunal in receipt of documents covered by a certificate given under s 438 of the Migration Act – applicants not credible witnesses – tribunal did not err in its handling of documents covered by s 438 certificate – application dismissed. |
| Legislation Migration Act 1958, ss 36(2)(a), 36(2)(aa), 438(1)(b) |
| Cases cited Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 MZAOL v Minister for Immigration [2017] FCCA 1837 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| First Applicant: | CCB16 |
| Second Applicant | CCC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1633 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 29 August 2017, 9 March 2018 and 15 August 2018 |
| Date of Last Submission: | 15 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant | None |
| Second Applicant | In person |
| Solicitors for the Second Applicant: | None |
| Counsel for the First Respondent: | Mr L Brown on 29 August 2017 Mr M Hosking on 9 March 2018 |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 29 July 2016 and amended on 29 August 2017 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7 328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1633 of 2016
| CCB16 |
First Applicant
And
| CCC16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raised for determination the single question whether the Administrative Appeals Tribunal fell into jurisdictional error by failing to disclose a certificate given under s 438(1)(b) of the Migration Act (“Act”) dated 22 February 2016 notifying the tribunal that certain information should not be disclosed to the applicants.
When I heard the application for judicial review, the decision of the Full Court in Minister for Immigration and Border Protection v CQZ15[1] had not been handed down. As a result, it was necessary to hear this proceeding in segments on 29 August 2017, 9 March 2018 and 15 August 2018.
[1] (2017) 253 FCR 1
In essence, the applicants contended in their amended application that the failure to disclose the s 438 certificate to them constituted a denial of procedural fairness, relying on the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection.[2] Conversely, the minister argued that the Full Court’s decision in CQZ15 was determinative, with the consequence that no denial of procedural fairness occurred in this case. The question for me was whether the tribunal fell into jurisdictional error in its dealing with the s 438 certificate.
[2] (2016) 243 FCR 1
Synopsis
For the reasons that follow, in my view the tribunal made no error in the way the applicants contended. I dismiss this proceeding and order the applicants to pay the minister’s costs.
Short factual narration
The applicants are citizens of India. On 25 May 2015 they arrived in Australia, each holding a sponsored family (class FA) (subclass 600) visa. Those visas expired on 26 August 2015. On 1 January 2016 the applicants were detained at Melbourne Immigration Transit Accommodation. In January 2016 the applicants were refused the bridging visas they sought.
On 11 January 2016 or thereabouts the applicants lodged their protection visa applications. In his application, the first applicant stated as follows –
a)he had witnessed a friend’s marriage while in India, later identified as Gulab Singh, and that he was effectively part of their marriage;
b)the parents of Gulab Singh’s bride did not approve of the union and killed Gulab Singh;
c)the bride’s parents threatened to kill the first applicant as well and were looking for him “like mad dogs” and the family was well regarded and included a member of parliament;
d)after the murder the first applicant moved away from his village to his in-law’s home but the bride’s family found him there;
e)he moved to Australia thereafter, but he feared that if he returned to India the family would kill him;
f)the authorities cannot help him because of the high profile of the bride’s family; and
g)the first applicant cannot relocate because he tried that once and the family found him.
The second applicant did not separately claim to fear harm.
The delegate refused to grant the visa on 22 February 2016.
In the tribunal
On 28 February 2016 the applicants applied for merits review before the tribunal. By letter dated 20 April 2016 the tribunal invited the applicants to give evidence and to present arguments at a hearing scheduled for 18 May 2016. The tribunal required the applicants to provide written submissions setting out all claims made and maintained by the applicants by 11 May 2016. The applicants provided their submissions by 11 May 2016 by their representative.
The hearing was duly convened on 18 May 2016. The applicants attended assisted by their migration agent. The hearing commenced at 10:03am in the morning and concluded at 12:58pm in the afternoon according to the hearing record.
The tribunal allowed the applicants until 25 May 2016 to provide additional material. On 24 May 2016 the applicants’ agent provided to the tribunal a three page submission and documents referred to in those submissions.
On 7 July 2016 the tribunal affirmed the delegate’s decision to not grant the applicants the protection visa they sought.
It is necessary to go to the detail of the tribunal’s decision in order to understand why the decision does not reveal jurisdictional error.
Between paragraphs 1 and 4 of its reasons the tribunal correctly identified the applicants and the nature of their application for protection.
Between paragraphs 5 and 10 of its reasons the tribunal correctly recorded the criteria for the grant of a protection visa.
Between paragraphs 11 and 13 of its reasons the tribunal correctly recorded that the issue in this case was whether Australia had protection obligations in relation to the applicants.
Between paragraphs 14 and 66 of its reasons the tribunal addressed the claims the applicants made.
That examination of the applicants’ claims was detailed and comprehensive, it seemed to me, reciting where relevant the questions the tribunal put to the applicants and their responses, revealing to my mind that the tribunal approached its task with a mind open to persuasion (see Minister for Immigration and Multicultural Affairs v Jia Legeng)[3] and that the tribunal gave active intellectual consideration to the claims the applicants made (see Minister for Immigration and Citizenship v SZJSS[4] and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs).[5]
[3] (2001) 205 CLR 507
[4] (2010) 243 CLR 164
[5] (2003) 216 CLR 473
In paragraph 67 of its reasons the tribunal stated that it did not accept that the applicants were credible witnesses. It reasoned that because –
a)they had given contradictory evidence about their movements at the time of Gulab Singh’s murder;
b)it was implausible that the bride’s family would seek to harm anyone else and country information did not support the proposition that friends of the people who marry against the wishes of their family might be harmed;
c)it was far-fetched that three people already charged with the murder would seek to harm the first applicant;
d)new claims made at the tribunal hearing regarding two other witnesses were implausible;
e)the claims regarding the applicants being framed or subject to harm by police who were “in on the conspiracy” were implausible and were contradicted by the first applicant’s request to the tribunal to contact police to verify his account; and
f)they did not apply for protection earlier than they did.
Between paragraphs 69 and 70 of its reasons the tribunal said it gave letters from India little weight by reason of the tribunal’s appraisal of their contents, the speed at which those letters came into existence and the tribunal’s general concerns about the applicants’ credibility. In the end, the tribunal concluded that the applicants did not have a basis for seeking protection under s 36(2)(a) or s 36(2)(aa) of the Act.
In this court
Being dissatisfied with the decision of the tribunal, on 29 July 2016 the applicants applied to this court for the issue of constitutional writs on the basis that the tribunal had fallen into jurisdictional error. In their application filed to commence this proceeding the applicants relied on two generalised grounds of review, unsupported by particulars, namely –
a)the decision of the tribunal was affected by error of law; and
b)the tribunal denied the applicants procedural fairness.
Expressed in those terms, no insight was given about the propositions of fact or law that underpinned the applicants’ contentions about the tribunal falling into jurisdictional error. As I have observed many times previously, in the absence of particulars a court is entitled to dismiss an applicants’ application for judicial review, as has been held in a long line of decisions of the Federal Court of Australia including WZATH v Minister for Immigration and Border Protection,[6] BHK15 v Minister for Immigration and Border Protection,[7] AQN15 v Minister for Immigration & Border Protection,[8] WZAVW v Minister for Immigration and Border Protection,[9] CNN15 v Minister for Immigration and Border Protection,[10] BYM16 v Minister for Immigration and Border Protection,[11] MZARG v Minister for Immigration and Border Protection[12] and DQQ17 v Minister for Immigration and Border Protection.[13]
[6] [2014] FCA 969
[7] [2016] FCA 569
[8] [2016] FCA 571
[9] [2016] FCA 760
[10] [2017] FCA 579
[11] [2018] FCA 326
[12] [2018] FCA 624
[13] [2018] FCA 784
When this matter was first fixed for hearing on 29 August 2017 the applicants applied to amend their application, handing me their proposed amended application. Counsel for the minister told me the minister did not object to the grant of leave because the amended application streamlined the case and was a useful document – his words. In their amended application, the applicants abandoned the two earlier grounds, correctly in my view, and relied instead on one ground. It was in the following terms –
(1) The decision of the second respondent was affected by jurisdictional error, in that failing to disclose the existence of a certificate issued pursuant to section 438(1)(b) of the Migration Act 1958 (Cth) (Act) to the Applicants constituted a denial of procedural fairness.
Particulars
(a) On 22 February 2016 a delegate of the First Respondent issued a certificate pursuant to s 438(1)(b) of the Act notifying the Second Respondent that certain information should not be disclosed to the Applicants.
(b) The existence of that certificate was not disclosed to the Applicants.
(c) The Federal Court of Australia in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 found that procedural fairness requires that the existence of a certificate be disclosed to an applicant, and that an applicant be afforded an opportunity to make submissions as to the validity of the certificate and the exercise of the Tribunal’s discretion under ss 438(3)(a) and 438(3)(b).
(d) The Federal Court found that this requirement applies regardless of whether the certificate was validly issued (at [65]) and regardless of whether the information was adverse, positive or neutral to the applicant (at [55]).
(e) Accordingly, the Second Respondent erred in failing to disclose the existence of the certificate to the Applicants.
On 29 August 2017 counsel then appearing for the minister opened in a manner that I routinely require the minister’s counsel to do in the discharge of the minister’s responsibilities as a model litigant where a litigant was unrepresented to inform the court in a non-controversial manner the issues involved in the case.
Mr Brown of counsel for the minister brought to my attention that the sole ground agitated by the applicants relied on the decision of Beach J in MZAFZ as well as to a consideration to be given to the receipt of documents covered by a certificate given under s 438 of the Act. Mr Brown submitted that in AVO15 v Minister for Immigration and Border Protection[14] Barker J received in evidence the relevant documents covered by the certificate. Mr Brown referred to my own decision in MZAOL v Minister for Immigration.[15] I told the parties that whether or not I received the document covered by the s 438 certificate may have represented a threshold issue in the case. Mr Brown told me that in two weeks from the hearing date the Full Court of the Federal Court of Australia was to decide a case concerning the very same issue. I told the parties that while I could have decided the case according to the law as it then stood, it made more sense to await the decision of the Full Court. All agreed.
[14] [2017] FCA 566
[15] [2017] FCCA 1837
On 29 November 2017 the Full Court of the Federal Court of Australia handed down its decision in CQZ15. In it the Full Court clarified uncertainties that arose from the decision in MZAFZ.
On 9 March 2018, at the request of the parties, I listed this proceeding for further hearing. Debate was squarely focussed on the use that could be put to an affidavit of a solicitor in the employ of the firm retained by the minister. It is unnecessary to name him. He affirmed his affidavit on 22 August 2017. To that affidavit he exhibited various documents including two documents that became exhibit JRB‑3. The first was marked as folio 88. The second was marked as folio 89.
Mr Hosking of counsel, who then appeared for the minister on 9 March 2018, said the notification under s 438 in this case was valid. Mr Hosking said that no denial of procedural fairness in this case occurred as the two documents exhibited as JRB‑3 had been raised with the applicants by the delegate as well as by the tribunal. Mr Hosking said the delegate put no weight on those documents and that in any event the documents were not relevant to any issue that fell for the tribunal’s determination.
There was merit in Mr Hosking’s contentions. It seemed to me they provided the correct answer to the s 438 point raised by the applicants. But in addition, in the applicants’ amended application for judicial review, the applicants relied on MZAFZ. The Full Court’s decision in CQZ15 must be taken now to be the locus classicus on s 438 certificates and not MZAFZ.
Accordingly, it is necessary to state certain propositions of law that flowed from the Full Court’s decision in CQZ15. They include the following –
a)when, on the hearing of a judicial review application, the minister’s solicitor seeks to adduce affidavit evidence exhibiting a s 438 notification and the documents the subject of it, the relevance and admissibility of that affidavit will depend on whether the documents covered by the certificate could rationally affect the assessment of the probability of the existence of a fact in issue;[16]
b)as a general rule, documentary material before a decision maker is treated as being relevant for the purposes of judicial review as was held in Attorney-General for the Northern Territory of Australia v Minister for Aboriginal Affairs;[17] & [18]
c)in the absence of evidence to the contrary, it may be assumed that the tribunal has had regard to any document said to have been covered by the s 438 certificate in coming to its decision;[19]
d)whether or not there has been a denial of procedural fairness depends on the circumstances of a particular case, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam;[20] & [21]
e)the complainant must establish a loss of opportunity to advance his or her case and whether he or she will succeed in this usually depends on the circumstances of the case;[22]
f)in each case it is necessary to examine the consequences of the non-disclosure;[23]
g)as was held in Minister for Immigration and Border Protection v WZARH,[24] the grant of curial relief on account of denial of procedural fairness will follow unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome;[25] and
h)there is utility in a reviewing court receiving in evidence the documents covered by the s 438 notification.[26]
[16] (2017) 253 FCR 1 (at [62])
[17] (1989) 23 FCR 536
[18] (2017) 253 FCR 1 (at [64])
[19] Ibid (at [65])
[20] (2003) 214 CLR 1
[21] (2017) 253 FCR 1 (at [66])
[22] Ibid (at [67])
[23] Ibid (at [68])
[24] (2015) 256 CLR 326
[25] (2017) 253 FCR 1 (at [70])
[26] Ibid (at [85])
Consonant with those observations, I received the affidavit of the minister’s solicitor, read it as well as the documents exhibited as JRB‑3 and applied those to the specific facts of this case. In my view the tribunal canvassed with the applicant the issues that were set out in folio 88 and folio 89. But to better understand the reasoning underpinning that observation, it is necessary to understand what was stated in those folios. It was also necessary to ascertain how the tribunal addressed those issues.
Folio 88 was an email dated 5 January 2016 concerning the applicants. The source of the information recorded on the email was redacted. The email recorded the passport numbers of each applicant. The email stated that the applicants were husband and wife who came to Australia in May 2015, that they were living illegally in Australia and that they had been working illegally for the preceding five months. The email stated that a complaint was made against them and they were arrested on 1 January 2016. It stated that the applicants were applying for a visa to live in Australia. Then the email stated as follows (with errors in the original) –
… But they have a criminal history in India too that s why they are living in australia illegally to protect themselves Their police clearance should be checked during visa application process …
Folio 89 was an email dated 22 January 2016 relating to both applicants. It also recorded their dates of birth and their passport numbers. It stated the applicants were (with errors in the original) –
… using fake documents and medical condition to get more visa …
It stated they were needed in India in a murder case. The identity of the supplier of the information was redacted.
As mentioned earlier in these reasons, the documents exhibited as JRB‑3 – that is to say, folios 88 and 89 – did not form part of the court book in this proceeding. However, in the affidavit of the minister’s solicitor at paragraph 11 the minister’s solicitor affirmed that the documents exhibited as JRB‑3 were provided to the tribunal.
A closer examination of the tribunal’s reasons indicated that the tribunal did, in fact, address the notion that the first applicant was a witness to a murder. The issue was canvassed at paragraphs 16, 17, 18, 21, 22, 23, 25, 26, 27, 28 and 41 of the tribunal’s reasons. It seemed to me that the tribunal thoroughly examined the applicants’ claims and such evidence as there was in relation to the murder. In those circumstances, it seemed to me that the inquiries the tribunal made of its own accord and the answers the tribunal obtained to its own line of inquiry went well beyond the information in folios 88 and 89 of exhibit JRB‑3. In those circumstances, there was no loss of opportunity by the tribunal’s failure to put folios 88 and 89 to the applicants. The tribunal covered significantly more than there was in folios 88 and 89 with the applicants.
The contents of paragraphs 61 and 66 of the tribunal’s reasons addressed folios 88 and 89 leading to the tribunal placing no weight on the reference to “medical condition” and allegations of pending criminal charges. That rendered it unnecessary for the tribunal to address the first applicant’s police clearance certificate because the tribunal gave no credence to the allegations that the first applicant faced pending criminal charges.
I reject the applicants’ contentions that they were denied procedural fairness in the manner asserted in the amended application.
I dismiss this application and order the applicants’ to pay the minister’s costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 24 September 2018
Correction notice
Corrected the spelling of “denial” in paragraph 30(d).
Substituted the authorised citation in footnotes 16, 18, 21 and 25.
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