CCM15 v Minister for Immigration
[2017] FCCA 304
•23 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCM15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 304 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – s.438 certificate – not disclosed – dob in letter inaccurately disclosed – jurisdictional error. |
| Legislation: Migration Act 1958, s.438 |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; (2005) 87 ALD 512; (2005) 222 ALR 411; (2005) 80 ALJR 228; [2005] HCA 72 Minister for Immigration and Border Protectionv Singh [2016] FCAFC 183 MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081 MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 MZZUT v Minister for Immigration and Border Protection [2015] FCA 141 |
| First Applicant: | CCM15 |
Other parties’ code names redacted with the consent of the applicants and the first respondent.
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2318 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 31 January 2017 |
| Date of last submission: | 31 January 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 February 2017 |
REPRESENTATION
| Counsel for the applicants: | Lisa Di Ferrari |
| Solicitors for the applicants: | Victoria Legal Aid |
| Counsel for the first respondent: | Tom Smyth |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore Lawyers |
ORDERS
The decision of the Administrative Appeals Tribunal handed down on 22 September 2015 in matter number 1311093 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2318 of 2015
| CCM15 |
First Applicant
& Ors[1]
[1] “Ors” substituted for other parties’ code names with the consent of the applicants and the first respondent.
Other parties’ code names redacted with the consent of the applicants and the first respondent.
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas.
The whole paragraph has been redacted with the consent of the applicants and the first respondent.
The applicants are citizens of an unnamed country[2]. The remainder of the paragraph has been redacted with the consent of the applicants and the first respondent.
[2] Amended with the agreement of the applicants and the first respondent.
Only the first applicant put forward protection claims. The other applicants’ claims were dependent on the first applicant’s[3] claims.
[3] Amended with the agreement of the applicants and the first respondent.
The first applicant’s claims
The first applicant claimed, as summarised by her counsel, that they had experienced politically motivated persecution and would do so again if forced to return to their home country[4]. The remainder of the paragraph has been redacted with the consent of the applicants and the first respondent.
[4] Amended with the agreement of the applicants and the first respondent.
Section 438 certificate
The Secretary of the Department of Immigration and Citizenship, as it then was, provided to the Tribunal under s.438 of the Migration Act 1958 (“the Act”) a certificate dated 26 March 2012 in the following terms:
I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information in folios 26-28 of file number CLF2012/35430.
This information affects the personal privacy of another individual and/ or information given by a third party whose identity cannot be disclosed.
In my view, this information should not be disclosed to the applicant or the applicant’s representative.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.
It was common ground that the Tribunal did not disclose the existence of the certificate to the applicants.
Ground 1
The first ground of review in the application filed on 15 October 2015 and amended on 16 January 2017 is:
The decision of the Second Respondent (the AAT) was made in breach of common law procedural fairness.
Particulars
(i)The AAT did not inform the Applicants that a delegate of the First Respondent (the Minister) had given to it a certificate under section 438 of the Migration Act 1958 (the Act).
(ii)The AAT did not give to the Applicants a copy of that certificate.
The first respondent applied for an adjournment of this matter pending the outcome of his special leave application in Minister for Immigration and Border Protectionv Singh [2016] FCAFC 183. The adjournment application was refused. The first respondent accepted that this court is bound by MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081. There was no special leave application in that case.
The first respondent has acknowledged that a s.438 certificate was given to the Tribunal in this case and that the Tribunal did not disclose it to the applicants. It follows, applying MZAFZ, that the Tribunal fell into jurisdictional error.
Ground 2
The second ground of review in the application filed on 15 October 2015 and amended on 16 January 2017 is:
The decision of the AAT was made in breach of common law procedural fairness and/or of section 425 of the Act.
Particulars
(i)The AAT had before it a ‘dob in’ letter, in the original language[5] and in an English translation (not done by a certified translator).
(ii)In the English translation, the ‘dob in’ letter accused the Applicants [words omitted][6] of lying in their application for a protection visa on political grounds. The remainder of the paragraph has been redacted with the consent of the applicants and the first respondent.
(iii)The AAT did not tell the Applicants that it had before it: (a) the original letter [words omitted][7]; (b) an English translation of it (not done by a certified translator).
(iv)The AAT only told the Applicants that an anonymous ‘dob in’ letter had been received by the Australian Embassy, and that it alleged that a family member was a member of a political group[8] and the Applicants had different names.
(v)The AAT misled the Applicants in respect of the ‘dob in’ letter.
[5] Amended with the agreement of the applicants and the first respondent.
[6] Words omitted with the agreement of the applicants and the first respondent.
[7] Words omitted with the agreement of the applicants and the first respondent.
[8] Amended with the agreement of the applicants and the first respondent.
One of the documents covered by the s.438 certificate was a “dob in” letter [words omitted][9]. A photocopy of it is at CB236. It says in English at the top, “anonymous”. At the bottom of the page is a photocopy of an envelope, which is addressed to the Australian Embassy [words omitted][10]. It contains the name of the sender.
[9] Words omitted with the agreement of the applicants and the first respondent.
[10] Words omitted with the agreement of the applicants and the first respondent.
A translation of the “dob in” letter is at CB237. The translation indicates that it was folio 25 of the departmental file. As such, it was not included in the s.438 certificate, which only covered folios 26 to 28. The remainder of the paragraph has been redacted with the consent of the applicants and the first respondent.
A better translation was exhibited to an affidavit affirmed by Amy Faram, the applicant’s solicitor, on 11 January 2017. The first respondent accepted the accuracy of that translation. The remainder of the paragraph has been redacted with the consent of the applicants and the first respondent.
The Tribunal dealt with the “dob in” letter at paragraphs 121 and 122 of its reasons for decision. Those paragraphs are as follows:
121.The tribunal advised the applicant that the Australian Embassy in … [city omitted][11] received an anonymous dob in letter alleging that her family member was a member of a political group[12] and that they[13] had different names. The tribunal advised the applicant that it was not putting any weight on this letter because it was anonymous.
122.The whole of the paragraph has been redacted with the consent of the applicants and the first respondent.
[11] City omitted with the agreement of the applicants and the first respondent.
[12] Amended with the agreement of the applicants and the first respondent.
[13] Amended with the agreement of the applicants and the first respondent.
The first applicant affirmed an affidavit on 11 January 2017 in which she said the following: The remainder of the paragraph has been redacted with the consent of the applicants and the first respondent.
Contrary to what the Tribunal said at paragraph 121 of its reasons for decision, the translation of the “dob in” letter before the Tribunal did not say that the applicants[14] had different names. It simply set out in their names in two different places in the letter with some variations in the spelling. As the translation into English was from a different script, it may be assumed that there is no set spelling in English of the applicants’ names. Consequently, the variation in the spelling of the applicants’ names in the translation of the “dob in” letter that was before the Tribunal was of no significance.
[14] Amended with the agreement of the applicants and the first respondent.
Indeed, the correct translation of the “dob in” letter, annexed to the affidavit of Amy Faram, does not indicate that the original letter [words omitted][15] set out the applicants’ names more than once. Therefore, it appears that, in reality, the letter [words omitted][16] did not suggest there was any variation in the applicants’ names. The one exception to that is the third applicant[17], whose name is stated in the alternative in the correct translation of the “dob in” letter. It appears that the writer of the “dob in” letter was unsure of the third applicant’s[18] precise name, or that the third applicant[19] had a diminutive.
[15] Words omitted with the agreement of the applicants and the first respondent.
[16] Words omitted with the agreement of the applicants and the first respondent.
[17] Amended with the agreement of the applicants and the first respondent.
[18] Amended with the agreement of the applicants and the first respondent.
[19] Amended with the agreement of the applicants and the first respondent.
The first applicant noted that the translation that was before the Tribunal [words omitted][20] went beyond what the Tribunal said, which was simply that the first applicant’s family member was a member of a particular party[21].
[20] Words omitted with the agreement of the applicants and the first respondent.
[21] Amended with the agreement of the applicants and the first respondent.
The first respondent argued that the applicants were not misled about the content of the “dob in” letter. However, for the reasons explained above, I do not accept that contention.
The first respondent then argued that, as the applicants were represented at the Tribunal hearing, and as they did not ask for a more full statement by the Tribunal of the terms of the “dob in” letter, it was not now open to the applicants to complain that they were misled. For that proposition the first respondent relied upon MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 and MZZUT v Minister for Immigration and Border Protection [2015] FCA 141.
In MZZQY, Beach J said at [27]:
Third, the appellant was at all times during the Tribunal proceeding represented by a migration agent. One could have expected the migration agent to have raised this integer with the Tribunal at the hearing, but nothing was done. The fact that the appellant was represented has some significance to the way the Tribunal could have been expected to conduct the proceeding and the way it would have read and approached submissions (see MZZUT v Minister for Immigration and Border Protection [2015] FCA 141 at [18]).
In MZZQY, the context was quite different. The question in that case was whether a particular aspect of the claim was before the Tribunal when, among other reasons, the representative had not raised it. In the present case, the question is whether the agent should have proceeded on the basis that the Tribunal had misrepresented what was in the “dob in” letter. I see no reason to suppose that the agent should have formed the view that the Tribunal might have misrepresented the contents of the “dob in” letter.
In MZZUT, Middleton J said at [18]:
I observe at the outset that the appellant had legal representation at the time that he lodged his application for the visa and when he filed both the earlier written submissions on 20 November 2012 and the Post-hearing Submissions. This has some (non-determinative) significance in the way the Tribunal is expected to conduct the proceeding and in the way it would read and approach submissions.
Again, the context was quite different and concerned the question of whether the applicant had made a claim. Obviously, where an applicant is represented it is reasonable to expect a claim to be more clearly articulated than where he or she is not represented. It is quite a different matter to expect an agent to confront a tribunal, without any evidence, with the suggestion that what they have said is wrong or incomplete. I do not consider that MZZQY or MZZUT assist the first respondent in this case.
The first respondent then argued that the Tribunal did not give the “dob in” letter any weight and accordingly the Tribunal’s failure to accurately explain the content of the “dob in” letter to the applicants could not have affected the outcome of the proceeding. However, as explained by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; (2005) 87 ALD 512; (2005) 222 ALR 411; (2005) 80 ALJR 228; [2005] HCA 72, the obligation to disclose the gist of a “dob in” letter is not satisfied by the Tribunal asserting that it placed no weight on it.
In the present case, the Tribunal did mislead the applicants about the content of the translation that was before the Tribunal. The Tribunal further inadvertently misled the applicants by not informing them about the true contents of the “dob in” letter as revealed in the translation annexed to the affidavit of Amy Faram.
If the Tribunal had disclosed to the applicants the original “dob in” letter [words omitted][22], the applicants could have explained the various matters described in the first applicant’s affidavit set out above.
[22] Words omitted with the agreement of the applicants and the first respondent.
In all the circumstances of this case, I consider that there was a denial of procedural fairness by failing to give the applicants an accurate summary of the “dob in” letter, or a copy of the original. This amounts to a jurisdictional error.
Ground 3
The third ground of review in the application filed on 15 October 2015 and amended on 16 January 2017 is:
The decision of the AAT was not made according to law, and/or was legally unreasonable /illogical.
Particulars
(i)Particulars (i) to (iv) of ground 2 are repeated.
(ii)The AAT proceeded on the basis that, given the anonymous nature of the ‘dob in’ letter, it would give it no weight.
(iii)The AAT must be taken to have found that the Applicants played no part in the ‘dob in’ letter. Were it otherwise, the AAT would have been obliged to afford the Applicants procedural fairness before making any adverse findings to the effect that the Applicants were in some way behind the ‘dob in’ letter.
(iv)On its face, the ‘dob in’ letter shows that the writer’s motive was to adversely affect the Applicants’ application for protection visas. Further, that the writer appeared to have relevant information about the applicant family[23].
(v)The AAT erred in disregarding the ‘dob in’ letter, by giving it no weight. Given the matters identified in the immediately preceding particular, both the fact that it was sent and its contents was evidence that supported the Applicant’s claims of fear of harm if she was returned to her home country[24].
[23] Amended with the agreement of the applicants and the first respondent.
[24] Amended with the agreement of the applicants and the first respondent.
The applicant’s agent sent the Tribunal a letter dated 24 June 2014 saying that:
Further, the threat [OPQ] faces [words omitted][25] is enhanced by the anonymous letter that was sent to the Australian embassy in [city omitted][26] alleging that she and her family are members of a political party[27] and they have different identities.
[25] Words omitted with the agreement of the applicants and the first respondent.
[26] City omitted with the agreement of the applicants and the first respondent.
[27] Amended with the agreement of the applicants and the first respondent.
The Tribunal said at paragraph 185 of its reasons for decision:
As raised with the applicants at hearing, the tribunal has information before it that an anonymous letter was sent to the Australian Embassy … [the remainder of the sentence omitted][28]. Given the anonymous nature of this evidence and the tribunal’s inability to test it, it gives no weight to this document in its assessment of the applicants’ credibility. The tribunal does not accept submissions that this letter is evidence of any threat or harm faced by the applicants [words omitted][29], particularly in light of the numerous concerns about the applicants’ claims set out above.
[28] Remainder of sentence omitted with the agreement of the applicants and the first respondent.
[29] Words omitted with the agreement of the applicants and the first respondent.
The applicants argued that the Tribunal erred because either:
a)it formed the view that the anonymous writer of the “dob in” letter was in the applicants’ camp, in which case the “dob in” letter went to the credibility of the applicants and it needed to be properly disclosed for that reason; or
b)it formed the view that the anonymous writer of the “dob in” letter was someone who was trying to adversely influence the assessment of the applicants’ claims of persecution, in which case that very fact was corroborative of the applicants’ claims.
The first respondent argued that it was entirely rational for the Tribunal to give no weight to an anonymous document that it was unable to test. I accept that argument.
The first respondent also argued that there was simply no basis on which it could be concluded that the Tribunal regarded the “dob in” letter as having emanated from the applicants’ camp. I accept that argument. It does not give rise to a question of illogicality or irrationality.
The first respondent also argued that it was open to the Tribunal to reject the applicant’s argument that the “dob in” letter itself was evidence of a threat that the applicants might face if they returned to their home country[30]. The Tribunal expressly rejected the applicants’ claim that the dob in letter was itself evidence of a threat of harm faced by them. That was perhaps poorly expressed. The Tribunal apparently meant that it did not consider that the “dob in” letter added significantly to the credibility of the applicants’ claims, given the numerous concerns it had previously expressed about them. In particular, the Tribunal said at paragraph 178 of its reasons for decision that aspects of the first applicant’s evidence were “highly vague, lacking in detail and confused”.
[30] Amended with the agreement of the applicants and the first respondent.
In all the circumstances of this case, it does not appear to me that the Tribunal’s reasons for decision were relevantly illogical or unreasonable. This ground is not made out.
Conclusion
As two of the applicants’ grounds have been made out, the matter must be remitted to the Tribunal with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 23 February 2017
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