CDX16 v Minister for Immigration

[2016] FCCA 2793

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDX16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2793

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether clear particulars were given of the relevant information – whether this gave rise to an obligation enlivening s.424A – jurisdictional error identified – writ of certiorari issued – writ of mandamus issued – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 438, 476

Cases cited:

MZAFZ v the Minister for Immigration and Border Protection [2016] FCA 1081

SZTGV v Minister for Immigration and Border Protection & Anor (2015) 318 ALR 450

Applicant: CDX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2103 of 2016

Judgment of: Judge Street

Hearing date: 28 October 2016

Date of Last Submission: 28 October 2016

Delivered at: Sydney

Delivered on: 28 October 2016

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

ORDERS

1. Leave is granted to the Applicant to rely on the further amended application as annexed to the submissions dated 26 October 2016 and the need to file any further documents in that regard is dispensed with.

2. Under s.477 of the Migration Act 1958 (Cth) the Court extends time up to 4 August 2016.

3. A writ in the nature of certiorari is issued calling up the record of the Tribunal, and the decision of the Tribunal made on 31 July 2015 is quashed.

4. A writ of mandamus is issued to the Second Respondent to determine the application for review according to law.

5. The First Respondent pay the Applicant’s costs fixed in the amount of $15,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2103 of 2016

CDX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 31 July 2015, confirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant is a Shia Muslim and ethnic Bidun, born in Kuwait.

2. The Tribunal found that Iraq was the applicant’s habitual place of residence and assessed the applicant’s claims as against that country.  The applicant claimed to fear harm after the fall of Saddam Hussein as he and his family were badly treated by the new government who assumed they were supporters of the old regime. The applicant alleges that his brother was shot and killed and his family were not permitted to work, and that he was treated differently in school.

3. The applicant claimed to fear harm due to him being a Bidun and not holding Iraqi citizenship, and fears from militia due to being a Bidun or a perceived supporter of Saddam Hussein, and fear of Islamic State (IS) due to the applicant being a Shia.

Irregular Maritime Arrival Entry Interview (“the Entry Interview”– 18 August 2012

1. The applicant was the subject of an oral recording at the time of his irregular maritime arrival which was described as the entry interview on 18 August 2012. A recording was made of that interview. That document was the subject of a certificate pursuant to s.438 of the Act at the time of being provided to the Tribunal.

2. The applicant was also the subject of the completion of a written interview that recorded information in relation to two incidents. One in 2012 and one in the last night of 2011. That document is also the subject of a certificate pursuant to s.438 of the Act at the time of being provided to the Tribunal.

3. The certificates were not disclosed to the applicants representatives, although during the course of the review of the evidence before the Court, a copy of the recording, the audio recording of the time of entry, was provided to the applicant under cover of a letter dated 27 May 2015. The delegate rejected the applicant’s application for a visa on 19 August 2013. 

The Tribunal

1. The applicant applied for review on 23 August 2013. The Tribunal made adverse credibility findings in relation to the applicant and took into account in that regard, alleged s.438 material of the Act which was relevantly a reference to the letter dated 5 June 2015, and the response of the applicant to that letter.

2. The letter dated 5 June 2015 purported to be in compliance with s.424A of the Act in relation to oral information provided by the applicant at the time of his irregular maritime entry interview.

Proceedings before this Court

1. The balance of the further amended application are as follows:-

   1. The second respondent failed to comply with its obligation under s 424A(1 )(a) of the Act to give to the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.

   Particulars

   (a) On 5 June 2015 the second respondent sent a letter to the applicant which purported to give him clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.

   (b) The letter dated 5 June 2015 was incomprehensible, and it did not therefore comply with s.424A(1 )(a) of the Act.

   2. The second respondent failed to comply with its obligation under s.424AA(2)(b)(ii) of the Act.

   Particulars

   (a) During a hearing on 22 May 2015 the second respondent chose to orally give to the applicant particulars of information in accordance with s 424M(1 )(a) of the Act.

   (b) When orally giving the applicant particulars, the second respondent failed to advise the applicant that he may seek additional time to comment on or respond to the information.

   3. During the second hearing on 22 May 2015 the second respondent failed to comply with its obligation under s 425 of the Act to provide the applicant with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   4. The Tribunal failed to comply with its obligations under s 424A of the Act in relation to information that arose in the hearing; namely, translations of the applicant's documents given by the interpreter during the second hearing.

2. Section 424A of the Act provides as follows:-

   Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.

   (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

3. It is of relevance to the present case that the carve out in relation to s.424A(3)(ba) of the Act expressly refers to the proposition:-

   Other than such information that was provided orally by the applicant to the department.

4. I find that the irregular maritime arrival interview/oral recording is information that was not excluded by s.424A(3)(ba) of the Act and the relevant question for the Court to determine was identified in SZTGV v Minister for Immigration and Border Protection & Anor (2015) 318 ALR 450, relevantly at [9]:

   Is there information that the tribunal considers would be the reason, or part of a reason, for affirming the decision that is under review within the meaning of s.424A(1)(a)?

5. I also take into account what was said by the Court in that regard at [18]:-

   The reasoning of the High Court in SZBYR and SZLFX is not readily reconcilable with that in SZEEU and NBKS. What is clear from SZBYR and SZLFX is the High Court’s endorsement of the proposition that “information” within the meaning of s 424A(1) of the Act does not extend to the “prospective reasoning process” of the Tribunal. Further, the information must be information that “would”, not “could” or “might”, be the reason or part of the reason for affirming the decision under review. Such information necessarily involves a rejection, denial or undermining of the applicant’s claims.

6. In the present case, the oral recording included information in which the applicant referred to an incident on the last night of 2011 as well as an incident in 2012.

7. The material significance in relation to the description of those two incidents was the additional information provided by the applicant, relevantly:-

   “You were asked, apart from what he had told the interviewer, are there any other reasons why you left Iraq?” 

8. The applicant replied, “No” in answer to the first question. In the present case, the oral record of interview was information enlivening the obligation of a s.424A(1)(a) of the Act.

9. The information was information that would be the reason or part of the reason for affirming the decision under review. Mr Poynder of Counsel submitted that in the circumstances of the present case, the letter dated 5 June 2015, on a fair reading of the document there were not clear particulars of the information under s.424A(1)(a) of the Act. I accept Mr Poynder of Counsel’s submission.

10. The information in the letter was referred to by the Tribunal in a manner that combined other information that did not enliven any obligation under s.424A of the Act that purported particulars of the information was a recounting of extracts, not just of the oral interview, but of other information that was excluded under s.424A(3) of the Act.

11. The combined information was collectively described by the Tribunal as “the information.” No clear particulars were provided by the slabs of extract included in the letter dated 5 June 2015. The letter did include a more distilled identification of matter that might be particulars which included reference to the entry interview. This included five what were said to be main facts and were described by the Tribunal as a baseline to assess the applicant’s claims over time. The same approach was adopted in relation to both the 2010 and the 2012 incident.

12. The difficulty created for the applicant in the present case was the heading, “The relevance of this information is that your claims appear to be inconsistent or contradictory for the following reasons, and this may place your credibility in issue.” What appeared thereunder was a combination of information again obtained from different sources without any distinction identifying the information that enlivened the obligation under s.424A of the Act. On a fair reading of the letter as a whole it cannot be said that there were clear particulars given of the relevant information in respect of the obligation under s.424A of the Act.

Consideration

1. I accept Mr Poynder of Counsel’s submission that this constitutes a jurisdictional error and that the applicant is entitled to the relief sought. It is not necessary in the circumstances of the present case for the Court to determine the second issue that was before the Court. However, I should say that the first respondent submitted that the provision of the oral recording to the applicant’s representative in the present case, which was the subject of one of the certificates, meant that there could be no practical injustice in respect of that information. I accept that proposition as correct. 

2. The second certificate, however, related to the written record. Whilst reference was made to a page of the transcript by the applicant’s representative was in the course of the hearing, it is not apparent that that information was provided to the applicant. In the circumstances of the present case, on the reasoning of Beach J in MZAFZ v the Minister for Immigration and Border Protection [2016] FCA 1081, the information is of a kind that had a potential materiality in respect of the review by the Tribunal.

3. I am bound by the decision of Beach J in MZAFZ v the Minister for Immigration and Border Protection [2016] FCA 1081. Insofar as that case is not distinguishable. In the present circumstances I do not regard the case as distinguishable.

Conclusion

1. The applicant is entitled to the relief sought in the further amended application. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2016