Ciw15 v Minister for Immigration
[2017] FCCA 1206
•6 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIW15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1206 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal erred in failing to give information to the applicant that enlivened an obligation under section 424A of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred in its consideration of the corroborative documents – whether the Administrative Appeals Tribunal erred in failing to consider state protection – whether the Administrative Appeals Tribunal erred in failing to consider relocation – whether the Administrative Appeals Tribunal misconstrued section 36(2A) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal’s decision was irrational or illogical and did not involve active intellectual consideration – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 438, 474 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases cited: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | CIW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3032 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 6 June 2017 |
| Date of Last Submission: | 6 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2017 |
REPRESENTATION
| Applicant appeared in person with a Malayalam interpreter. |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3032 of 2015
| CIW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 16 October 2015 (“the Tribunal”).
The applicant is a citizen of India and of Catholic faith who fears harm from Hindus or Muslims in India as a result of the conversion of his wife from Hinduism to Catholicism.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The applicant is a citizen of India, who arrived in Australia on 27 July 2013.
On 16 October 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 22 April 2014, the Delegate refused the applicant’s application for a protection visa.
On 16 May 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 16 October 2015, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 9 November 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A 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.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application in which he stated:
a)He is a Catholic from Kerala, India. In 2006, he met his wife, who was from a higher caste Hindu family, and they fell in love. The applicant claimed that his wife’s family opposed the match and that her brothers are active members of the Rashtriya Swayamsevak Sangh (“the RSS”). The applicant also claimed that his wife’s family was involved in the Bharatiya Janata Party.
b)On 2 October 2007, his wife’s brothers stopped him in the street and threatened to kill him if he continued to see her.
c)On 8 November 2007, he travelled to the United Kingdom to get away from his wife’s family and to find work. However, he could not forget her and returned to India 10 days later. He said they kept their relationship secret.
d)On 17 May 2009, a Christian-Muslim riot took place and the applicant’s house was bombed and burnt. The applicant claimed that as a Catholic, he was now on a Muslim hit list, as the Muslims were looking to kill 12 Catholics in retribution for persons shot by police on that occasion.
e)The applicant’s wife’s parents arranged for her to marry her cousin, who was also a leader in the RSS. The applicant claimed that on 24 April 2011, his wife converted to Catholicism and when her brothers found out, they planned together with some other RSS members to murder the applicant. The applicant said he learned of their plan and fled to Sri Lanka on 15 May 2011, and whilst away a group of RSS members threatened his parents and attacked his house.
f)On 20 May 2011, the applicant returned to India from Sri Lanka. The applicant claimed that his wife’s parents finally gave consent for the couple to marry, which they did so on 25 June 2011. The applicant claimed that after the marriage, the applicant’s cousin had vowed to kill the applicant. The applicant claimed that RSS members spread a rumour that he was converting Hindus to Catholicism.
g)On 8 March 2013, the applicant claims he was attacked by a group of RSS members and was hospitalised as a result.
h)The applicant claimed that after his release from hospital, he went into hiding with friends in Tamil Nadu and then secretly arranged for a visa to Australia and then left India.
The Delegate’s decision
On 27 March 2014, the applicant attended an interview with the Delegate, at which time he further claimed that on 8 September 2007, he was attacked by 5 people, two of whom were related to his wife.
The Delegate found that the applicant had not provided any documentary evidence in support of his protection claims and that he had provided inconsistent and conflicting information, leading the Delegate to make adverse credibility findings in respect of the applicant.
On 22 April 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Tribunal’s review and decision
On 16 May 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 22 September 2014, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.
On 16 October 2014, the applicant provided a further written statement in support of his review application.
On 28 October 2014, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal also put to the applicant country information for comment, which it identified with particularity and to which it had regard.
Ultimately, the Tribunal did not find the applicant to be a credible witness for which it gave detailed reasons expressing its concerns. For example, in relation to the applicant’s alleged marriage, the Tribunal noted that there were no photographs of the wedding or the wedding reception provided to the Tribunal, and that there was no other evidence from persons other than the applicant as to the marriage. Also, the applicant claimed to have left India in 2007 for 10 days when in fact he had left for more than 3 years.
Having expressed its concerns in its decision record, the Tribunal found that the concerns expressed were so significant that it found that the applicant had not been truthful in any of his claims, with the exception of his claim to be a Catholic. The Tribunal found that he had fabricated his claims, with a view to achieving a migration income. The Tribunal then comprehensively rejected all claims made by the applicant of past harm, for the reasons given.
The Tribunal noted the corroborative documentary evidence provided by the applicant, but found that his credibility had been so poisoned that it gave no weight to any of the applicant’s allegedly corroborative material.
The country information to which the Tribunal had regard and upon which it relied satisfied the Tribunal that there were not substantial grounds for believing that, as a necessary or foreseeable consequence of the applicant being removed from Australia to India, there was a real risk that the applicant would suffer significant harm for practising as a Christian in India. The Tribunal further noted that Christians have generally co-existed peacefully with members of other religious groups in India.
The Tribunal concluded that there was not a real chance the applicant would face serious harm in the reasonably foreseeable future if he returned to India and continued to practise his Catholic religion. The Tribunal found that the applicant would not be harassed or be the victim of targeted attacks by practising Catholicism in India.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of a Malayalam interpreter.
At the request of the first respondent, the matter was listed on 6 May 2016 for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). On 6 May 2016, the applicant appeared before me. On that occasion, the matter was set down for final hearing today.
The applicant confirmed that he relied on the grounds contained in an Amended Application filed on 10 June 2016 as follows:
“1. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2. The Tribunal constructively failed to exercise its jurisdiction;
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings without knowing the contents in the document. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.
3.In finding that it was not satisfied that applicant was a person to whom Australia owed protection obligation, the Tribunal engaged in a press of reasoning that was irrational, illogical and not based upon findings or inference of fact supported by logical ground.
4. In finding that the government of Kerala could protect the applicant from Convention-related or significant harm, the Tribunal failed to engage in the jurisdictional task of considering how the state would protect the applicant from the particular harm the subject of the applicant's claim.
5. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s.91R(2)(a) of the Migration Act (which is mandatory jurisdictional requirements for the Tribunal to do so), if he asked to relocate in India. The Tribunal's failure to satisfy the statutory obligation was a serious jurisdictional caused by the Tribunal.
6. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.”
(Errors in original)
Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 makes the bare assertion that the Tribunal failed to comply with s.424A or s.424AA of the Act, in that it failed to give an invitation to the applicant to comment upon or respond to information. I asked the applicant what was the information that he said the Tribunal was required to give him, and the applicant responded that the Tribunal did not look at his matter properly.
The Tribunal, in its decision record, referred to two pieces of information that it purported to give to the applicant in accordance with s.424AA of the Act. In particular, the Tribunal gave the applicant information that although he went to the United Kingdom on 8 November 2007 as claimed, he did not leave 10 days later as claimed, but rather left on 20 May 2011, some three and a half years later.
The Tribunal put to the applicant that it had received information that the applicant had been arrested in the United Kingdom by Sussex Police for theft on 9 May 2011, taken to Brighton Custody and on 10 May 2011 issued with an Illegal Entry Notice, having overstayed his United Kingdom visa, which had expired on 1 May 2008.
The Tribunal noted that the applicant requested time in which to respond, and the Tribunal provided the applicant with 7 days in which to do so. However, the Tribunal noted that before it closed its hearing, the applicant conceded that the statement accompanying his application for protection was incorrect, but that everything he had said about his wife was true. The applicant also acknowledged that it was not true that he had been to Sri Lanka.
The Tribunal noted that it received a statutory declaration from the applicant apologising for the incorrect information in his statement. However, the Tribunal found that the applicant’s admission that the statement accompanying his application for protection was incorrect and his willingness under oath to tell the Tribunal further lies until presented with irrefutable evidence to the contrary, seriously undermined the applicant’s credibility, as well as the probity of any documents provided by him.
The other information given to the applicant by the Tribunal, pursuant to s.424AA, was in relation to whether a stamp in his passport indicated that he had entered Sri Lanka on 15 May 2011 was consistent with official processes in relation to arrival stamps for foreigners entering Sri Lanka in 2011.
The applicant was given two opportunities by this Court to file evidence in support of his application, including any transcript of the Tribunal hearing. No transcript has ever been filed, nor has the applicant sought to rely on parts of any recording of the hearing before the Tribunal. In the circumstances, I accept as accurate the Tribunal’s summary of various exchanges it had with the applicant, including its summary of the evidence given by the applicant at the Tribunal hearing (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
There is nothing before the Court to suggest that the information given to the Tribunal, referred to above, was not given in accordance with s.424AA of the Act.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to engage in an active intellectual process in relation to the applicant’s documents, because it gave the documents no weight, on the basis of credit findings, without knowing the contents of the document. In support of Ground 2, the applicant simply said what he said was true.
As referred to above in these reasons, the Tribunal explained why it gave the applicant’s documents no weight, having regard to the comprehensive difficulties the Tribunal had with the applicant’s claims, and its ultimate finding that the applicant had fabricated his claims to achieve a migration outcome.
Insofar as the documents related to evidence about the applicant’s marriage, the Tribunal gave reasons why it did not accept the applicant’s claims to have been married and those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
In Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50, North and Lander JJ stated at [36]:
“36. When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled, in our opinion, to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand … In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.”
Their Honours went on to state at [37] that the relevant tribunal was not relieved:
“…from giving consideration to corroborative evidence”… [but a tribunal]…“does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.”
As stated above, the Tribunal referred to all the documents relied on by the applicant and stated why it gave them no weight. In the circumstances, the Tribunal’s finding that it gave those documents no weight was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the Tribunal’s reasoning was irrational, illogical and not based upon findings of inference of facts supported by logical grounds. I asked the applicant what he meant by that ground and if there was anything further he wished to say. The applicant responded that he gave all the evidence to the Tribunal and that he was afraid to go back to India. That bare assertion in Ground 3 is, in the circumstances, not supported by any particulars or submissions either written or oral.
A fair reading of the Tribunal’s decision record makes clear that its findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, the assertion in Ground 3 that the Tribunal’s reasoning process was illogical or irrational is not made out.
Ground 4
Ground 4 asserts that the Tribunal failed to consider how the state would protect him from the harm he claims to fear. In support of Ground 4, the applicant said that when someone gets married in India, they stay in the wife’s house, and then went on to say that he was in a Muslim area and that they had burned his house. Having found that the applicant had fabricated his entire story, I accept the first respondent’s submission that it was not necessary for the Tribunal to consider state protection in respect of the applicant.
Accordingly, Ground 4 is not made out.
Ground 5
Ground 5 asserts that the Tribunal failed to properly consider harm that the applicant may suffer if asked to relocate in India. Again, it was not necessary for the Tribunal to consider the issue of relocation in circumstances where it comprehensively rejected the applicant’s claims and in light of country information before it.
In light of the confident adverse findings that it made against the applicant that the applicant did not have a well-founded fear of persecution, it was unnecessary for the Tribunal to do so (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).
Accordingly, Ground 5 is not made out.
Ground 6
In Ground 6 the applicant asserts that the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Act. In support of Ground 6 the applicant said again that he had told the truth and he wanted to have his family together. As referred to above in these reasons, the Tribunal found that there was not a real risk that the applicant would suffer significant harm in India in circumstances where it had found that his claims were fabricated.
It is not apparent how the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Act. The Tribunal clearly considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act and concluded that he did not. The Tribunal also found that the applicant did not meet the refugee criterion. There is no apparent misconstruction of s.36(2A) by the Tribunal.
Accordingly, Ground 6 is not made out.
The certificate issued under s.438 of the Act
In its capacity as a model litigant, the first respondent raised the issue of a certificate that was issued under s.438(1)(a) of the Act (“the Certificate”). During the course of submissions and discussion with counsel for the first respondent, Mr Reilly, it was conceded that the documents which were provided to the court in a sealed envelope and annexed to an affidavit of Chloe Hillary filed on 22 May 2017 did contain information that the Tribunal ultimately found to be adverse to the applicant. One of the documents disclosed that on 10 May 2011 the applicant had been served with an Illegal Entry Notice and was removed to India on 20 May 2011.
That information led the Tribunal to make inquiries of the Australian Department of Foreign Affairs and Trade which ultimately disclosed that the applicant had entered the United Kingdom on a visa issued on 1 November 2007, which expired on 1 May 2008, and had made no further applications to the Home Office to regularise his stay and was ultimately removed to India on 20 May 2011. The report also disclosed that the applicant had been served whilst in prison at Brighton on 10 May 2011 with an Illegal Entry Notice. The information disclosed that the applicant had been arrested by Sussex Police for theft on 9 May 2011 and had been taken to Brighton Custody.
The information was discussed by the Tribunal with the applicant at the hearing in detail and was also the subject of information put to the applicant in accordance with s.424AA of the Act, as referred to above. The information was adverse to the applicant because it showed that the applicant had been in the United Kingdom for three and a half years, whereas in his written claims in support of his protection visa application he claimed that he had returned to India after just 10 days.
Counsel for the first respondent, Mr Reilly, informed the Court that there was no claim of confidentiality in respect of the documents the subject of the Certificate.
Mr Reilly further stated that the Certificate was invalid in that whilst it stated that disclosure of the information would be contrary to the public interest, the particulars of the relevant folios contained only information “relating to an internal working document and business affairs”. Mr Reilly submitted that, in the circumstances, the Certificate did not comply with the requirements of s.438 of the Act to identify with sufficient specificity why the disclosure of the information would be contrary to the public interest.
In support, Mr Reilly referred the Court to MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (“MFAFZ”) where Beach J considered a certificate in similar terms and stated that it was contrary to the public interest “because it contains internal working documents”. Beach J found that a certificate in those terms was invalid in relation to seeking to claim public interest immunity because of its lack of specificity. At [37], Beach J stated as follows:
“37. Now given that the phrase is referring to public interest immunity, one can appreciate that the certificate on its face is invalid. What had to be specified in the certificate was “any reason … that could form the basis for a claim …”. But the only reason stated was “…contains internal working documents”. But that has never been either a necessary or sufficient basis for public interest immunity, whether at common law (Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38 to 46 per Gibbs ACJ) or under state (section 130 of the Evidence Act 1995 (Cth)). The certificate in the present case is as deficient as the certificate purportedly produced under the legislative analogue analysed by Wilcox J in Burton at [43] to [52], albeit by way of obiter dicta. The certificate in the present case manifests imprecision and overreach. At best, it only disclosed one of a set of conditions (not fully specified in the present case) that together might have been sufficient to disclose a “reason … that could form the basis for a claim …”. At best, it only disclosed a reason that could form part of the basis for a claim, not the basis. It did not meet the statutory prescription of section 438(1)(a). It did not communicate to the tribunal or indeed any reader any reason which met the description “could form the basis …”. The description was not unimportant. It permitted the prima facie concealment from the applicant of documents or information. It triggered the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information could be dealt with. It potentially impacted on procedural fairness questions as narrowed by the section 438(3) boundaries.”
In the circumstances, the Certificate is invalid in the terms of MZAFZ.
Further, Mr Reilly submitted that, in any event, the information that may have been adverse to the applicant was clearly given to the applicant for comment in accordance with s.424AA of the Act, and, in the circumstances, there was no denial of procedural fairness to the applicant because there was no practical injustice shown. Mr Reilly referred the Court to Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [57]:
“57. That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour’s conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case”; it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”.”
In the circumstances, even if the Certificate was valid, the applicant was given an opportunity to comment on the information as referred to above. If the Certificate was valid, whilst the information on one of the documents as referred to above may have been relevant, I am satisfied that it was relevant only in the form of a springboard that prompted the Tribunal to make the inquiries that it did of the Department of Foreign Affairs and Trade which it then disclosed in detail to the applicant at the hearing for comment.
Accordingly, even if there was non-disclosure to the applicant of the Certificate and the documents the subject of the Certificate, the applicant did not lose any opportunity to advance his case and no detriment was shown. Again, no practical injustice is identified (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 per Barker J at [85] and [91]).
In the circumstances, the Certificate in the case before this Court had no consequence of denying the applicant any procedural fairness and no jurisdictional error is demonstrated by the issuing of that certificate whether valid or not.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal gave to the applicant in accordance with s.424AA of the Act information that may have been the reasons or part of the reasons for affirming the decision under review, invited the applicant to comment and considered his further written submissions.
The Tribunal identified independent country information to which it had regard. It is well established that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 11 July 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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