CHZ16 v Minister for Immigration
[2018] FCCA 2197
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2197 |
| Catchwords: MIGRATION – Application for judicial review – whether Applicants afforded procedural fairness – whether Tribunal findings illogical or irrational – whether Tribunal acted upon an invalid s.438 certificate – no procedural unfairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 424A, 425. |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 WAEE v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 184 |
| First Applicant: | CHZ16 |
| Second Applicant: | CIA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1803 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 14 February 2018 |
| Date of Last Submission: | 14 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Applicants appearing in person |
| Counsel for the Respondents: | Mr. L. Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 21 March 2017 be dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1803 of 2016
| CHZ16 |
First Applicant
| CIA16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application comes before the Court by way of an amended application filed 21 March 2017. The Applicants are seeking judicial review under the Migration Act 1958 (‘the Act’) of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 August 2016. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse granting the Applicants protection visas (‘Visas’).
Background
The background and procedural history of this matter is extensive. The First Respondent has provided a concise summary of the background circumstances, which are replicated exactly below with citations omitted:
The Applicants are husband and wife and citizens of Malaysia.
The Applicants arrived in Australia in 2010 holding “Electronic Travel Authorities” valid until 3 May 2010. They thereafter did not depart Australia and were detained by immigration officers on 8 March 2014.
On 19 March 2014, the Applicants applied for the Visas. The Applicants claimed to fear harm from loan-sharks and the police in Malaysia following an incident the Applicants claim to have occurred in 2009 where they were kidnapped and threatened by loan-sharks.
On 12 June 2014, the delegate refused to grant the Visas.
The Applicants applied to the Tribunal for review of the delegate's decision, which was affirmed on 25 July 2014. This decision was set aside by Mansfield J of the Federal Court of Australia.
The matter was remitted to the Tribunal for reconsideration by a differently constituted Tribunal. The Applicants appeared before the Tribunal to give evidence and present arguments on 24 and 29 July 2015. The Tribunal affirmed the delegate's decision on 4 September 2015. This decision was set aside after the Minister conceded it was affected by jurisdictional error.
The matter was again remitted to the Tribunal for reconsideration by a differently constituted Tribunal. On 20 April 2016, the Tribunal invited the Applicants to appear before it at a hearing on 18 May 2017 to give evidence and present arguments.
On 20 July 2016, the Applicants were invited pursuant to s.424A of the Act to comment on or respond to adverse information. The Applicants responded on 21 July 2016.
On 2 August 2016, the Tribunal affirmed the delegate's decision.
Claims of the Applicants
The Applicants claim that they cannot return to Malaysia as they fear harm from loan-sharks, to whom they have a debt owing. They claim that these loan-sharks laundered money through their bank accounts and had access to these bank accounts. They also claim that they were kidnapped by the loan-sharks but when they reported this incident to police, the police forced them to change their statements. They claim that the loan-sharks now seek their debt as well as revenge for the Applicants reporting them to the police. [1] After the kidnapping, the Applicants fled Malaysia for Thailand, Taiwan and Singapore for short periods of time, but returned to Malaysia often. They claim that they cannot relocate within Malaysia as the loan-sharks are able to find them by tracking their bank transactions.
[1] Court Book 441 – 442 [6].
Tribunal Decision
The Tribunal found that a number of inconsistencies were present in the Applicants’ claims and evidence. These included:
(a)the First Applicant’s failure to close his bank accounts or instead use the bank accounts of the Second Applicant. The Second Applicant’s bank accounts were apparently unknown to the loan-sharks, so the failure to take either of these actions brings the credibility of these claims into question;[2]
(b)The First Applicant’s failure to change his telephone banking security questions similarly casts doubt over the claims. It was claimed the loan-sharks knew the answers to these questions and were able to access his account by using them.[3]
[2] Ibid 448 [30] – 449 [32].
[3] Ibid 450 [34].
The Tribunal had doubts in relation to the kidnapping claim made by the Applicants because:
a)the kidnappers did not attempt to force the Applicants to withdraw money from their bank accounts;[4]
b)the kidnappers allowed the Second Applicant to go to the bathroom unattended on a number of occasions;[5] and
c)the Applicants did not contact family members or law enforcement, but claim to have contacted a person whom seemed to not know either Applicant particularly well.[6]
[4] Ibid 450 [35].
[5] Ibid 450 [36].
[6] Ibid 451 [39] – [40].
The Tribunal did not accept the Malaysian police reports tendered by the Applicants as genuine.[7]
[7] Ibid 453 [43].
The Tribunal gave no weight to a letter provided by a Malaysian Member of Parliament. The Applicants claimed the Member of Parliament had assisted them in obtaining the police reports.[8]
[8] Ibid.
Though the Applicants claimed to fear harm from loan-sharks who kidnapped them in Penang, they did not stay in Singapore or Taiwan for the full time allowed. They did not attempt to find work in these countries. They also later returned to Penang, despite their claims of being kidnapped there. The Tribunal found all these circumstances inconsistent with their claims to fear harm if they were to return to Malaysia.[9]
[9] Ibid 453 [44] – 456 [52].
The First Applicant claimed his brother was also kidnapped in order for the loan-sharks to determine the Applicants’ location. The Tribunal found this was not consistent with the claim that the loan-sharks were monitoring the Applicants’ home in Penang and there would be no need to kidnap someone to get this information if the Applicants were monitored.[10]
[10] Ibid 457 [54].
The Applicants claimed to have been unaware of protection visas for more than four years before being detained. The Tribunal found that as the Applicants had previously investigated whether they would be eligible for Temporary Work (Skilled) (Subclass 457) visas, that this claim was unconvincing.[11]
[11] Ibid 457 [56].
There were a number of inconsistencies found in relation to the evidence of the Applicants about debts owed in Malaysia or whether they had sent money to Malaysia. The Tribunal found that evidence given by the Applicants on these topics was inconsistent and often changing. The First Applicant was invited to comment on this pursuant to s.424A of the Act; the Tribunal did not accept the explanation offered by the First Applicant in response.[12]
[12] Ibid 458 [58] – 459 [60].
The Applicants provided black and white photographs to the Tribunal. One of these photographs was alleged to show a loan-shark pointing a long knife at the First Applicant. The Tribunal did not accept these as genuine evidence of the depicted event taking place andt hey also found it implausible that the photographs were recovered from an old computer and had not previously been provided to the Tribunal. [13]
[13] Ibid 461 [63].
Owing to the above, the Tribunal was not satisfied that the Applicants are persons in respect of whom Australia owes protection obligations under s. 36(2)(a) or s. 36(2)(aa) of the Act. Due to this, the Applicants did not satisfy the requirements for a protection visa and the Tribunal affirmed the decision of the delegate.[14]
[14] Ibid 461 [64] – 462 [67].
Grounds of review
The grounds of review set out in the Amended application, relied upon by the Applicants, are apprehended and summarised as follows:
a)The Tribunal erred by failing to afford the Applicants procedural fairness by:
i)considering evidence provided to a previously constituted Tribunal regarding the explanation by the Applicants for why they returned to Penang despite fearing harm from loan-sharks;
ii)refusing to accept the claim by the First Applicant that his brother was kidnapped in order for the loan-sharks to ascertain their whereabouts. This claim is not inconsistent with their evidence because the Applicants did not state they knew their house was being monitored, only that they felt paranoid to that possibility; and
iii)relying on a written record of interviews from the First Applicant’s Bridging visa interview and various other interviews between the Applicants and the Department of Immigration. The Applicants submit that evidence from these interviews should not have been considered because they are unrelated to their protection claims and they should have been given an opportunity to comment in adverse information obtained.
b)The Tribunal erred by failing to afford the Applicants procedural fairness as they had no opportunity to respond to adverse information regarding:
i)the hiring of Fuji Xerox equipment on 1 October 2008 and the fact that their business did not start trading until January 2009. They submit this information was adverse to their claim; and
ii)the Tribunal’s finding that the claims of kidnapping and fear of harm from loan sharks was inconsistent.
c)The Tribunal fell into jurisdictional error by making a decision that was illogical or irrational as it:
i)found that it could not verify the Applicants’ documents as there was some risk of exposing the Applicants or their families to harm if it made the necessary enquiries. The Applicants submit this is evidence that the Tribunal accepted they faced a risk of harm ‘for a convention reason under s.36(2)(a) of [the Act]’[15] and therefore the Tribunal was obliged to consider whether the Applicants met the criteria under s. 36(2)(aa);
[15] Applicants’ submissions [6].
ii)failed to ask a correct question in relation to the Malaysian documentation, namely whether the Applicants faced a real risk of significant harm for a non-convention reason if they returned to Malaysia (this ground is essentially a repetition of the preceding ground);
iii)made an irrational finding that loan-sharks were not involved in the loss of Fuji Xerox equipment, as this finding was based on an assumption;
iv)gave undue consideration to whether the Applicants’ claims of feared harm related to debts owed to Sin Chew and Fuji Xerox. The Tribunal should have only examined claims in relation to fear of harm from loan-sharks;
v)did not comprehend that the Applicants were only speculating in relation to their explanation of the money laundering by the loan-sharks (and therefore no adverse inference can be made from this information to their credibility);
vi)did not find that the loan-sharks/gangsters/kidnappers that the Applicants claimed to fear were a real risk to the Applicants. The Tribunal should have found that the kidnappers letting the Second Applicant use the bathroom three times unattended was ‘sensible’[16] and not inconsistent with the loan sharks being a real risk to the Applicants;
vii)found that calling Ms. Tee Mee Yoke for assistance whilst being kidnapped was unlikely. Additionally, the fact that the Tribunal made an adverse inference on the genuineness of the police reports because Ms. Yoke gave the wrong name for the First Applicant in the police report is unreasonable as this was a ‘little human error’;[17]
viii)failed to give adequate consideration to the Australian High Commissioner’s Office letter dated 13 October 2014, sent in reply to an earlier letter from a Malaysian Member of Parliament. It is submitted that this document added to the Applicants’ claims that the police reports were genuine;
ix)incorrectly assessed the Applicants’ explanations for why they returned to Penang on occasions when they claimed to fear harm in that location;
x)failed to make enquiries of the migration agent who previously represented the Applicants. The Applicants claim that the agent did not confirm the contents of the application with them before it was submitted. The Applicants subsequently raised claims before the Tribunal that were not in their original application. Therefore the Tribunal should have been on notice to make enquiries as there were inconsistencies; and
xi)failed to find that the photographs tendered to the Tribunal of the First Applicant being threatened by a man with a knife were genuine.
[16] Ibid [11].
[17] Ibid [12].
Supplementary grounds of review
The Applicants tendered a document containing supplementary grounds of review being that the Tribunal failed to afford the Applicants procedural fairness by:
a)acting on an invalid certificate under s.438 of the Act;
b)failing to disclose the existence of the certificate to the Applicants;
c)failing to provide the Applicants with an opportunity to make submissions on the validity of the certificate;
d)failing to disclose the extent to which the Tribunal would rely on the certificate; and
e)failing to give the Applicants the opportunity to seek a favourable exercise of discretion under s.438(3)(b) of the Act.
It should be noted that a number of these grounds are difficult to apprehend. The Court has sought to summarise the grounds as raised by the Applicants irrespective of whether they make sense as grounds.
Consideration of procedural fairness grounds
Previously constituted Tribunals
The Applicants submit that the Tribunal acted in a procedurally unfair way by having regard to evidence given by them at earlier Tribunal hearings. However, the Tribunal is entitled to have regard to all the evidence available to it.[18] No procedural unfairness arises from the Tribunal considering all the evidence available to it including evidence given before a previously constituted Tribunal.
[18] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 [50]; SZEPZ v
Evidence regarding brother’s kidnapping
The Applicants submit that the Tribunal had no reasonable basis for rejecting their claim that the First Applicant’s brother was kidnapped by a loan-shark. At [54] of its decision, the Tribunal rejected this claim because it found that the First Applicant’s explanation for not raising the claim earlier implausible. The First Applicant claimed that he had thought he should only mention “his story”. The Tribunal did not find that this was credible as the claims regarding the brother’s kidnapping went directly to the issue of the Applicant’s risk of harm from loan-sharks.[19] The Tribunal also found that this claim was inconsistent with the Applicant’s claim that their home was being monitored by gang members. The Tribunal found it would be unnecessary to kidnap the brother to ascertain the whereabouts of the Applicants if their movements were watched.[20]
[19] Court Book 457 [54].
[20] Ibid.
In their written submissions, the Applicants responded that the claim was not inconsistent because they had only felt as if their house was being watched, rather than asserting that it had in fact been watched. However, this does not address the issue that the claim had not been raised at the earliest possible opportunity. The Tribunal did not find the explanation of the Applicant credible and it was open to the Tribunal to make this finding on the evidence before it.
Lack of procedural by relying on written records of interview
The Applicants submit that the Tribunal failed to afford them procedural fairness by relying on written records of interviews that took place on 8 March 2014, 24 March 2014 and 14 November 2014. The Applicants imply that a written record of the interview cannot be accurate and should not be relied upon. This is to be rejected. There is no evidence before the Court that the written records were not reliable and written records are materials that the Tribunal is entitled to have regard to. As pointed out by the First Respondent, there has been no denial of procedural fairness as the Applicants were provided with the opportunity to comment on the information contained within the written records in accordance with s.424A of the Act.
No opportunity to respond on hire of Fuji Xerox equipment
The Applicants submit that they were denied procedural fairness as they had no opportunity to respond to information regarding hire of Fuji Xerox equipment. As the Tribunal found that the claim to fear harm did not relate to any of the Applicants’ claims regarding debts owed to Fuji Xerox, it cannot be said that any adverse inference can attach to the Applicants’ case because of this evidence. Section 424A of the Act concerns information that could be ‘the reason, or a part of the reason, for affirming the decision under review’.[21] The information relating to the hire of Fuji Xerox equipment was not relevant to the Applicants’ protection claims as they did not fear harm from Fuji Xerox. The Tribunal did not err in failing to provide an opportunity to respond.
[21] Migration Act 1958.
I accept the submission of the First Respondent that even if s.424A of the Act did apply to this information, since the information was provided by the Applicants for the review of the decision, it falls under s.424A(3)(b). This section provides that s.424A does not apply to information given by Applicants for the purpose of the application for review. No error is demonstrated on the part of the Tribunal in this ground.
No opportunity to comment on/respond to the kidnapping Claims.
This ground is difficult to apprehend. The Applicants appear to submit that the Tribunal failed to take into account a compliance interview with the Department in 2014 (‘2014 interview’) where the Second Applicant mentioned the kidnapping incident should have been considered and was relevant as it may bolster the Applicants’ credibility. They appear to submit also that the Second Applicant was not given an opportunity to comment on the kidnapping incident, treating it as an inability to respond to adverse information under s.424A(1) of the Act.
This ground is not coherent. There does not appear to be any basis for s.424A(1) to apply since the Applicants complain of relevant information not being taken into account, rather than an inability to respond to adverse information. The Applicants have not pointed to any information contained within the 2014 interview that may have been adverse to them that they were unable to comment on.
The Applicants submit that the Tribunal failed to consider the 2014 interview, resulting in some sort of procedural unfairness or error. They submit that it was relevant material and may have helped her credibility as a witness.
This does not follow; the Second Applicant was provided the opportunity to give evidence on the kidnapping incident in the 2016 hearing before the Tribunal.
A Tribunal will not automatically fall into error where relevant material is ignored: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317. Whether jurisdictional error has occurred is determined by examining the nature of the omitted material in the circumstances of the case. The evidence of the 2014 interview with the Second Applicant in this instance would have been merely corroborative. The Second Applicant was able to provide her account of the kidnapping to the Tribunal, as demonstrated by the excerpt of the transcript provided in the submissions of the Applicants. No procedural unfairness arises because the Applicants were given an opportunity to give evidence regarding the kidnapping incident at the 2016 Tribunal hearing. As the evidence was merely a repetition of evidence already before the Tribunal, the 2014 interview has little bearing on the Applicants’ case and failure to consider it cannot be said to give rise to jurisdictional error.
Consideration of illogical or irrational grounds
Risk of significant harm
The Applicants submit that the Tribunal failed to take into account a relevant consideration in relation to evaluating whether they met the complementary protection criteria. They submit that the Tribunal, by stating that it could not verify some documentation because it may put the Applicants or their families at risk of harm, demonstrated that it had already found that the Applicants faced some risk of harm under s.36(2)(a) of the Act.
This ground cannot be sustained; the Tribunal found at [64] – [66] that the Applicants did not meet the criteria under ss.36(2)(a) or 36(2)(aa) of the Act. The restraint regarding document verification is not a concession by the Tribunal.
Failure to ask a question regarding documents
The Applicants submit that the Tribunal failed to ask a correct question – namely if it found that there was some risk in verifying the Applicants’ documentation then it must ask itself whether the Applicants did face a real risk of significant harm for a non-Convention reason if returned to Malaysia. As noted by counsel for the First Respondent, the comment regarding the risk of verification was not a concession on behalf of the Tribunal and did not relate to any findings. It was a description of the Tribunal’s processes and a precautionary step in the lead up to a finding, not a finding that the Applicants faced harm.
Findings on Fuji Xerox
The Applicants submit that it was irrational that the Tribunal did not accept that loan-sharks were involved with the loss of Fuji Xerox equipment from their office. However, the Applicants’ assertion that loan-sharks were involved with preventing Fuji Xerox from retrieving the equipment was purely speculative. The finding that the loan-sharks were not involved with the loss of the Fuji Xerox equipment was open to the Tribunal on the evidence before it; there does not appear to be any error.
Undue consideration of Fuji Xerox debts
The Applicants submit that the Tribunal ‘neglected’ the fact that the central concern with the Applicants’ claim was about loan sharks and the Tribunal spent too much time considering the Applicants’ debts with Fuji Xerox. The obligation on the Tribunal was to give due regard to evidence regarding the loan-shark claim. There is nothing to suggest the Tribunal failed to give regard to any particular evidence regarding loan-sharks; the evidence is set out at length at [28] – [63] of the decision.
Findings on Applicant’s bank card
At [32] the Tribunal held that the First Applicant’s failure to cancel bank accounts and bank cards went to his credibility, in particular about claims that he had been kidnapped by loan-sharks who had gained access to his banking details. The Tribunal set out why it doubted the Applicants’ claims. It was open to the Tribunal to reject the First Applicant’s explanation and use his unexplained conduct as a basis to reject his claims. This ground is a challenge to a credibility finding which was based on the Tribunal’s assessment of evidence and claims. No jurisdictional error is apparent.
Challenge to findings of fact.
The grounds which are summarised in [23](c)(vi)-(vii) above are challenges to factual findings. They particularly relate to the challenge to factual findings at [37] - [40] of the Tribunal’s decision. The Tribunal set out its concerns in relation to the Applicants’ account of the kidnapping and the use of the telephone by the Second Applicant to report the kidnapping to an acquaintance that she barely knew rather than the police. This conclusion was open to the Tribunal and is not attended by any irrationality or illogicality.
Letters from an MP and Australian High Commissioner[22]
[22] Ground summarised at [23](c)(viii) of these reasons.
At [13] of the Applicants’ submissions, they complain that the Tribunal failed to give adequate consideration to a letter from the Australian High Commissioner’s Office, dated 13 October 2014. This letter was said to be in reply to an earlier letter from a Malaysian Member of Parliament. The Tribunal found the Member of Parliament’s letter did not indicate that he took any steps to verify the Applicants’ claims or to obtain documents in addition to the police statements.[23] The Tribunal found that the letter did not support the Applicants’ claims and this finding was open to the Tribunal.
[23] Court Book 453 [43].
The Tribunal did not refer in its reasons to an acknowledgement letter from the Australian High Commissioner.[24] The letter is addressed to the Malaysian Member of Parliament and states (omitting irrelevant parts);
[24] Court Book 271.
I refer to your letter dated 26 August 2014 in relation to “the case of (names of applicants omitted)”, which has been copied to his Excellency, Rod Smith PSM, the Australian High Commissioner to Malaysia.
The High Commissioner has passed your letter on to me for a response.
I can confirm that your letter, and the accompanying supporting documentation, has been referred to the relevant authorities in Australia for information and appropriate follow-up action.
Thank you for bringing this matter to my attention.
It is not necessary for the Tribunal to refer to every piece of evidence in every contention made by an applicant in its written reasons.[25] There is nothing in the face of the document that suggests that it is relevant to any issue of substance that the Tribunal was required to determine.
Return to Penang and conduct of the agent[26]
[25] WAEE v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 184 [46].
[26] Ground summarised at [23](c)(ix)-(x) of these reasons.
The Applicants assert that the Tribunal incorrectly assessed the Applicants’ explanations of why they return to Penang on occasions when they claim to fear harm in that location. The Tribunal’s conclusion that the Applicants’ conduct was inconsistent with their claims was open to it and that conclusion was founded on the Tribunal’s assessment of the evidence. No jurisdictional error is apparent
It is said that the Tribunal failed to make enquiries of the migration agent who previously represented the Applicants and should have done so as there were inconsistencies between the claims given in oral evidence and written claims prepared by the migration agent. The Applicants claim that the agent did not confirm the contents of the application with the Applicants before it was submitted. The Tribunal did not accept that the Applicants’ former agent did not advance all the claims that they wished to make in filing their Visa applications. The Tribunal considered the claims in relation to the former migration agent in detail and did not accept the Applicants’ explanation regarding their migration agent to be true. It considered that any omission of any claims relating to loan-sharks in the original Visa application form cast doubt on the truth of those claims. It did not accept that the claims had been omitted by the migration agent. The circumstances in which the Tribunal will be under a duty to make enquiries will be rare and exceptional: Minister for Immigration and Citizenship v Le [2007] FCA 1318 [60]. Those circumstances did not arise in this case.
Claim in relation to a photograph.
At [63] the Tribunal made findings and gave reasons for rejecting a photograph that had been provided by the Applicants to the Tribunal which was said to prove that the Applicants had been kidnapped. The Tribunal did not accept the authenticity of the document and expressed its reasons for doing so. No error arises from this finding.
Consideration of supplementary grounds of review
The Applicants submit that they were not afforded procedural fairness because the Tribunal relied on documents covered by an invalid s.438 certificate, a principle established in MZAFZ v Minister for Immigration & Anor [2016] FCCA 1319 (‘MZAFZ’) and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (‘Singh’). The representative of the First Respondent adduced into evidence the documents covered by the s.438 certificate in the manner mandated in Singh. The First Respondent concedes that the s.438 certificate covering the documents is likely to be invalid and does not contest this issue.
The First Respondent submits that this case can be distinguished from MZAFZ and Singh as the documents covered by the certificate were not relied upon or acted on by the Tribunal. The documents detail interviews the Applicants had with the Department of Immigration in 2014. Having regard to these documents, the Court is of the view that there is nothing in the decision of the Tribunal that suggests that the Tribunal acted upon them. Any information referred to in the documents that was also referred to in the Tribunal’s decision was obtained from other sources, not the documents covered by the certificates. There is no information unique to the certificates that appears in the decision of the Tribunal.
This is a case such as that described in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 [91] where a technical breach of the disclosure rules may have arisen, but it has not resulted in any practical injustice. The Applicants were able to advance their case and have made extensive submissions before the Tribunal regarding their claims and evidence. Given the above, no failure to afford procedural fairness can be made out.
Conclusion
For the reasons given above, none of the grounds advanced by the Applicants succeed and their application is dismissed.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 15 August 2018
Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 [39].
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
6
2