Cem17 v Minister for Immigration
[2018] FCCA 1391
•29 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1391 |
| Catchwords: MIGRATION – Review of Administrative Appels Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 425, 425A, 438. |
| Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 BEG15 v Minister for Immigration [2017] FCAFC 198 BNV15 v Minister for Immigration & Anor [2016] FCCA 740 Minister for Immigration v BJN16 [2017] FCAFC 197 Minister for Immigration v CQZ15 [2017] FCAFC 194 Minister for Immigration v Eshetu (1999) 197 CLR 611 MZAFZ v Minister for Immigration [2016] FCA 1081; (2016) 243 FCR 1 Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59 SZMUF v Minister for Immigration [2009] FCA 182 |
| Applicant: | CEM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1572 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Haddad of Clayton Uz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1572 of 2017
| CEM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 17 May 2018.
The applicant is a citizen of India who arrived in Australia on 1 March 2014 on a tourist visa.[1] On 29 April 2014, the applicant lodged his application for a protection visa.[2] The application was refused by the delegate on 11 December 2014.[3] On 16 December 2014, the applicant applied to the Tribunal for merits review of the delegate's decision.[4] The Tribunal (differently constituted) affirmed the delegate's decision on 1 April 2016 (First Tribunal Decision).[5]
[1] Tribunal Decision Record (DR) [1].
[2] Court Book (CB) 1-54.
[3] CB 77-92.
[4] CB 93-94.
[5] DR [7].
The applicant applied for judicial review of the First Tribunal Decision on 1 April 2016.[6] By consent of the parties, a judge of this Court quashed the First Tribunal Decision on 20 July 2016 and remitted the matter to the Tribunal for redetermination.[7] The Tribunal then conducted a further hearing on 14 December 2016 and affirmed the delegate's decision on 24 April 2017.[8] It is from this decision that the present judicial review proceedings arise.
[6] Ibid.
[7] Ibid.
[8] DR [89].
Applicant's protection claims
The applicant's claims can be summarised as follows:[9]
a)he faces serious harm in India because he helped his younger brother marry his sister-in-law against the wishes of her family. The sister-in-law's family wishes to harm the applicant because they were against her marriage to his brother who is of a lower caste;
b)after his brother and his sister-in-law married, her family threatened them and they moved to the United Kingdom where they now live. The sister-in-law's family wish to harm the applicant because she is now “out of reach” and he is now “the only suspect”;[10] and
c)if returned to India, his sister-in-law's family will try to harm him by implicating him in "false cases". He also claimed that his sister-in-law's family have contacts in the Indian government and police and will use those contacts to harm him.
[9] DR [24]-[26].
[10] CB 5, applicant's response to Question 37.
Tribunal's findings
The Tribunal noted that the determinative issue in this matter was whether the applicant satisfied the applicable refugee criterion and, if not, whether he was entitled to complementary protection under the Migration Act 1958 (Cth) (Migration Act).[11]
[11] DR [13].
As a preliminary matter, the Tribunal engaged with the issue of “whether a certificate purporting to restrict disclosure of some departmental documents is valid” before addressing the substantive issues in the case.[12]
[12] DR [14].
The Tribunal noted that a non-disclosure certificate was purportedly issued by the delegate under s.438(1) of the Migration Act (the Non-Disclosure Certificate). The certificate purported to cover and prevent the disclosure of certain documents on the applicant's Departmental file because it “would be contrary to public interest on the grounds it contains information relating to an internal working document and business affairs”.[13] According to the Tribunal's description of the documents, they included
a)a protection visa application validity checklist;
b)a note relating to a telephone conversation with the applicant which confirmed his address;
c)an earlier disclosure decision checklist; and
d)a letter from the Tribunal to the Department advising the Department of the procedural history of this case after the matter was remitted by this Court on 20 July 2016.
[13] DR [16].
In addressing the Non-Disclosure Certificate and the underlying documents, the Tribunal purported to apply the reasoning in MZAFZ v Minister for Immigration.[14] It concluded that the Non-Disclosure Certificate was not a valid certificate because the expressed reasons for restricting disclosure (that the certificate covered internal working documents and documents about business affairs) were not a proper basis for any claim of public interest immunity.[15]
[14] [2016] FCA 1081. DR [18]-[21].
[15] DR [19].
The Tribunal found that no material in any of the certificate-covered documents was relevant to the review and no information was adverse to the applicant.[16] Further, the Tribunal noted that the existence of the certificate was not disclosed to the applicant because it was not valid and the documents which it purported to cover were not relevant to the review.[17]
[16] DR [20].
[17] DR [21].
With respect to the applicant's substantive claims for protection, the Tribunal accepted that the applicant's brother married a woman from another Sikh family without the permission of her parents and that her parents were against the marriage.[18] It also accepted that the applicant's brother and his sister-in-law remain married and now live in the United Kingdom, and that the sister-in-law's family lodged a formal complaint with the authorities which alleged that the applicant's brother and sister-in-law had arranged a fake marriage in order to give the applicant's brother entry into the United Kingdom and to gain a financial advantage.[19] The Tribunal noted that although it accepted this complaint was made, the document did not mention the applicant in it or his involvement in the marriage.[20]
[18] DR [63].
[19] DR [65].
[20] DR [66].
On the basis of the evidence before it, the Tribunal did not accept that the applicant had any involvement in his brother's relationship or wedding, noting that the applicant could not give any detailed information about when the parties first had contact and did not have any familiarity with the circumstances of the inception of the relationship.[21] The Tribunal also noted that there was no evidence which suggested that the applicant's sister-in-law's family had any high level connections to government or police and did not accept the applicant's claims to the contrary.[22]
[21] DR [73].
[22] DR [75].
In reaching its conclusion that the applicant did not meet the refugee criteria, the Tribunal:
a)did not accept that the applicant was involved in arranging or facilitating the marriage of his brother and sister‑in‑law and did not accept that his sister-in-law's family had a perception that he was involved in the marriage;[23]
b)concluded that the applicant did not provide any satisfactory oral or documentary evidence which indicated that he had been threatened or at risk of serious harm from his sister-in-law's family;[24] and
c)found there was no plausible reason why his sister-in-law's family would seek to harm him in the future.[25]
[23] DR [77].
[24] DR [78].
[25] DR [79].
In light of these findings, the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm if he returned to India,[26] nor that there was a real risk he would suffer significant harm in terms of the complementary protection criteria.[27]
[26] DR [81].
[27] DR [84]-[85].
Accordingly, the Tribunal did not accept that the applicant was a person to whom protection obligations were owed.[28]
[28] DR [86]-[88].
The present proceedings
These proceedings began with a show cause application filed on 22 May 2017. The applicant continues to rely upon that application. There are three grounds in it:
1.Judicial error made in making the decision.
2.Wrong interpretation of my submission/documents/ information.
3.Not given enough opportunity to explain my case/situation.
The application is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 21 September 2017 and the affidavit of Annette Sophia Haddad, made on 23 May 2018. Ms Haddad’s affidavit relates to a purported Non-Disclosure Certificate, issued under s.438 of the Migration Act and exhibits the documents purportedly covered by that certificate.
I invited oral submissions from the applicant this morning. He directed his attention to Ground 2 and sought orally to provide some meaningful particulars to that ground. The applicant’s focus of attention was initially on the documentary evidence he provided in support of his claims.
The applicant’s concern was his view that the Tribunal did not deal properly with that documentary evidence. The Minister’s solicitor took me to the Tribunal’s decision concerning the assessment of the applicant’s claims from [35].[29] The Tribunal analysed in detail those claims. From DR [64]-[71], the Tribunal considered the documentary evidence submitted by the applicant. I see no arguable case of jurisdictional error by the Tribunal in relation to its analysis of the documents.
[29] CB 112
In essence, the Tribunal accepted that the documents corroborated the applicant’s claim of conflict resulting from the marriage of his brother to his sister-in-law. The documentary evidence supported an assertion that the couple were at some risk from her family. They are now living in the United Kingdom. The applicant’s difficulty, however, was that the documents did not place the applicant himself within the parameters of risk. The Tribunal at [73] of its decision,[30] did not accept that the applicant had any involvement in his brother’s relationship or wedding. That analysis continued in the following paragraphs and represents, in my view, a rational analysis of the applicant’s claims, reaching a conclusion that was open to the Tribunal on the material before it.
[30] CB 116
The applicant is adamant that his claims are true and that he will be personally at risk if he returns to India, particularly as his brother and sister-in-law are out of reach in the United Kingdom. The applicant submitted that the Tribunal should have given him the benefit of the doubt, or should at least have considered what the result would be if it was wrong in its assessment of his claims. I do not detect, however, any doubt in the Tribunal’s reasoning that would give rise to any obligation on the Tribunal to consider the situation if it had been wrong.
The applicant also submitted in his closing submissions that, even if he was considered to be not eligible for a permanent protection visa, he should have been given time to live in Australia while the risk in India diminished. The Tribunal was of course considering an application for a protection visa and its role was limited to reviewing the decision of the delegate in relation to that visa application. It would be open to the Minister, if he was so minded, to give the applicant some ongoing opportunity to remain in Australia, until the applicant is confident to return to India. That is beyond the scope of this proceeding.
I otherwise agree with the Minister’s submissions in relation to the grounds of review.
Ground 1
The applicant's first ground of review amounts to an unparticularised assertion of error as no particulars have been provided by the applicant.
An assertion of error combined with a failure to particularise the error or ground of review is a sufficient basis for the ground to be dismissed.[31] In this respect, the applicant's claim can be seen as little more than an emphatic way of expressing disagreement with the merits of the reasoning.[32]
[31] See BNV15 v Minister for Immigration & Anor [2016] FCCA 740 at [19] and the cases referred to therein.
[32] Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59, 61; Minister for Immigration v Eshetu (1999) 197 CLR 611, 626.
The Tribunal correctly outlined the relevant law in the attachment which formed part of its reasons,[33] and applied it to the facts of the case on the basis of the evidence available to it.[34] In particular, the Tribunal was acutely cognisant of the fact the previously constituted Tribunal had failed to consider a claim made by the applicant that he feared harm as a member of his brother's family.[35]
[33] DR Attachment A; CB 119-121.
[34] DR [76]-[85].
[35] DR [8].
The current Tribunal considered this claim in comprehensive detail.[36] While it accepted that the family of his sister-in-law were opposed to the marriage to the applicant's brother and placed significant pressure on them to divorce,[37] the Tribunal noted that the applicant was not able to provide any detailed evidence about the inception of his brother's relationship and could not demonstrate that he had any familiarity with the circumstances surrounding the development of that relationship.[38] Taking into account this lack of evidence and its findings, the Tribunal did not accept that the applicant was involved in arranging or facilitating his brother's marriage and consequently concluded that there was not a real chance that the applicant would face a real chance of harm from his sister-in-law's family if he returned to India.[39]
[36] DR [35]-[75]
[37] DR [65]-[71].
[38] DR [73]-[75].
[39] DR [76]-[71].
There is no basis for the applicant's ground of review as the Tribunal decision demonstrates that it plainly understood and considered the applicant's claims to fear harm, turned its mind to (and applied) the relevant test and concluded that there were not substantial grounds for believing that the applicant faced a real risk of suffering significant harm should he return to India.
Consequently, this ground does not demonstrate an arguable case of jurisdictional error on the Tribunal's part.
Ground 2
The applicant's second ground of review also fails to demonstrate an arguable case of jurisdictional error.
The applicant's claim that the Tribunal erred by its “wrong interpretation of [his] submissions/documents/information” is misconceived. The applicant's misconception is exposed by the fact that this ground appears to simply cavil with the weight given to his evidence by the Tribunal. Again, no meaningful particulars were provided by the applicant with respect to this ground prior to today’s hearing and I have dealt with the oral particulars provided today.
The ground amounts to little more than an attempt to invite this Court to engage in impermissible merits review of the matter. It is well established that the weight to be given to evidence is a matter for the Tribunal.[40] In this instance, the Tribunal comprehensively assessed the applicant's claims and evidence and gave fulsome reasons for its findings which were reasonably open on the evidence before it.
[40] Abebe v The Commonwealth of Australia (1999) 197 CLR 510, at [197]; SZMUF v Minister for Immigration [2009] FCA 182, at [14]; SZTEX v Minister for Immigration Protection [2014] FCA 1269 at [19].
Ground 3
By this ground, the applicant complains that he was “not given enough opportunity” to put his case to the Tribunal. In essence, the applicant's ground appears to assert that he was denied procedural fairness in the conduct of his hearing. This ground is misconceived and discloses no error on the part of the Tribunal.
On 4 November 2016, the Tribunal invited the applicant to appear before it to give evidence and present arguments in compliance with ss.425 and 425A of the Migration Act.[41] The applicant appeared before the Tribunal on 14 December 2016 at a hearing conducted with the assistance of an interpreter in Punjabi and English,[42] where the Tribunal outlined the reasons for remittal of the matter from this Court and took further evidence from the applicant about his background, claims, and current circumstances.[43]
[41] CB 105-106.
[42] DR [9].
[43] DR [10].
Consequently, this ground does not demonstrate an arguable case of error on the Tribunal's part.
The Minister has also raised the issue of a Non-Disclosure Certificate, purportedly issued under s.438 of the Migration Act. The certificate is reproduced in the court book and is plainly invalid. That invalidity was recognised by the Tribunal at DR [16]. The Tribunal also considered the documents purportedly covered by the certificate and concluded that they had no bearing upon the review. The Tribunal’s analysis was, in my view, correct.
I have examined the documents and they have no relevance or only passing contextual relevance to the Tribunal’s review. There was nothing in the documents to enliven any obligation of disclosure on the Tribunal. It follows that the Tribunal was not in error in failing to disclose either the purported certificate or the documents to which it related. I otherwise agree with the Minister’s submissions on that issue.
Insofar as this ground may be understood as a generalised assertion of a "denial of procedural fairness" arising from the Tribunal's treatment of the Non-Disclosure Certificate, no jurisdictional error has been demonstrated.
A failure of the Tribunal to provide a certificate issued under s.438 of the Migration Act to an applicant is not, of itself, capable of constituting a denial of procedural fairness.[44] Instead, “[i]t will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined”.[45]
[44] Minister for Immigration v CQZ15 [2017] FCAFC 194 at [68], [72]; Minister for Immigration v BJN16 [2017] FCAFC 197 at [63]; BEG15 v Minister for Immigration [2017] FCAFC 198 at [30].
[45] CQZ15 at [68].
Where the material subject to the certificate is “incapable of having any bearing on the decision of the Tribunal”, or “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”, no jurisdictional error will be made out by the Tribunal's failure to make the existence of a certificate known to an applicant.[46]
[46] CQZ15 at [69], [73].
In light of these authorities, the Tribunal's treatment of the Non-Disclosure Certificate is entirely consistent with the course which the Tribunal was required to adopt.[47] Namely:
a)the Tribunal considered the validity of the Non-Disclosure Certificate and correctly[48] identified at DR [16] that the Non-Disclosure Certificate was invalid;
b)the Tribunal set out the nature and contents of the material which were purportedly subject to the Non-Disclosure Certificate in the decision (and, it may be inferred, properly read the material purportedly subject to the Certificate);[49] and
c)in light of the contents of the subject documents, the Tribunal expressly disclaimed any reliance upon the Non-Disclosure Certificate or the material which it purported to cover, finding that it was "not relevant to the review" and contained "no information which is adverse to the applicant or that supports his application";[50]
[47] MZAFZ v Minister for Immigration [2016] FCA 1081; (2016) 243 FCR 1 at [41]-[42].
[48] See, for example, CQZ15 at [74].
[49] DR [16].
[50] DR [20]-[21].
In those circumstances, having determined that the documents did not contain information that would be a reason, or part of a reason, for affirming the decision under review, it was entirely open for the Tribunal to decide that no disclosure was required under s.424AA or s.424A of the Migration Act.
The applicant has not identified any practical injustice which flowed from the Tribunal's reasoning in this regard. No such practical injustice can be identified, as the applicant was not deprived of any opportunity to advance his case or to address material which harmed his case and the material was, as explained by the Tribunal, wholly unconnected with the review which it was to undertake.
Accordingly, to the extent that it is asserted that the Tribunal erred by failing to disclose the Non-Disclosure Certificate to the applicant, no jurisdictional error can be made out as the Tribunal's approach was consistent with the existing case law, and not productive of any practical injustice.
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 May 2018
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