CLI16 v Minister for Immigration
[2019] FCCA 259
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLI16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 259 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – s.438 of the Migration Act 1958 (Cth) certificate – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 438 |
| Cases cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicant: | CLI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1881 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 19 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Kajaliny Ranjith Legal |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1881 of 2016
| CLI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant proceeds on a further amended application filed on 13 July 2018. By that application the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 5 August 2016 which set aside a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection (Class XA) visa and substituted a decision to refuse to grant the Applicant a protection (Class XB) visa.
The Applicant did not proceed with grounds six and seven of the further amended application. Ground four had earlier been abandoned. Thus the Application proceeded on grounds one, two, three and five which were as follows:-
“1. The Tribunal failed to give proper and adequate consideration to the question of whether it would be reasonable, in the circumstances of the applicant, for him to relocate to another specified place within Bangladesh.
Particulars
a) The Tribunal found that the applicant could reasonably relocate to another, unspecified area in Bangladesh.
b) The Tribunal failed to nominate any location to which the applicant could reasonably relocate.
c) The Tribunal failed to give proper consideration to the reasonableness of relocation by reference to the specific circumstances of the applicant and the realities of life for him in the putative safe location.
d) The Tribunal failed to give proper consideration to the objections to relocation raised by the applicant and to the material before the Tribunal relating to the reasonableness of relocation.
e) The Tribunal failed to conduct a sufficiently fact-intensive analysis required in assessing the reasonableness of relocation.
2. The Tribunal’s approach, recorded at [92] of the Tribunal’s decision record, in relation to the applicant’s statement at the hearing that he would try to obtain evidence of a police complaint being made or his discussions with a solicitor, effectively deprived the applicant of the opportunity to give evidence and present arguments in relation to an issue that arose in the hearing, contrary to the requirement in s425 of the Migration Act.
Particulars
a) The Tribunal at [92] records that it asked the applicant whether he had any evidence of a police complaint being made or of his discussions with a solicitor.
b) The applicant responded that he did not but that he would try to gather such evidence.
c) The Tribunal records that it indicated to the applicant that any such evidence would be likely not to be given much weight by the Tribunal because it had not hitherto been provided and because of country information indicating that document fraud is prevalent in Bangladesh.
d) The inference from the Tribunal’s comments was that any such evidence adduced by the applicant after the hearing would likely be presumed by the tribunal to be fraudulent.
e) The applicant’s indication that he would attempt to locate evidence in response to a direct question from the Tribunal was met with a response implying that any such evidence would be likely to be given little or no weight.
f) Following the exchange recorded by the Tribunal at [92], the applicant did not provide additional evidence on that issue.
g) The applicant was thereby effectively deprived of giving evidence on an issue that arose in relation to the decision under review.
3. In the alternative to ground 2, the Tribunal’s statements at [92] of the decision record would give rise to a reasonable apprehension of bias on the part of the Tribunal, in that the Tribunal had prejudged the value of evidence it had not yet received.
Particulars
a) The applicant refers to and repeats particulars (a) to (f) of ground 2.
b) A reasonable lay observer would apprehend from the Tribunal’s comments recorded at [92] that it had closed its mind to the favourable consideration of any evidence that the applicant might adduce after the hearing in relation to a police complaint being made or any discussions with a solicitor.
5. The Tribunal failed to afford the applicant procedural fairness, in that it failed to disclose the existence of a certificate under s438, and/or failed to give the applicant an opportunity to make submissions as to whether the Tribunal should exercise its discretion under s438(3)(b).”
The First Respondent submits that no jurisdictional error affects the decision of the Authority and that the application should be dismissed.
The Court had before it:-
a)the further amended application filed 13 July 2018;
b)an affidavit affirmed on 18 July 2018 by Kajaliny Ranjithkumar, solicitor for the Applicant, to which is annexed a transcript of the Tribunal hearing;
c)an affidavit affirmed on 24 May 2018 by Ms Siran Nyabally, solicitor for the First Respondent;
d)an affidavit of Anna Rudic, Administrative Support Officer employed by the Department of Home Affairs, affirmed on 1 August 2018;
e)the evidence as contained in the Court Book;
f)written submission of the Applicant filed 12 July 2018; and
g)written submissions of the First Respondent filed 8 June 2018 and 16 August 2018.
Background
The Applicant is a national of Bangladesh who arrived in Australia on 4 May 2013 as an illegal maritime arrival. He applied for a protection visa on 11 June 2014, which was deemed by operation of statute to be an application for a temporary protection visa.
The Applicant’s Claims
The Applicant’s claims are as accurately set out by written submissions of the First Respondent. As taken from that document they are as follows:-
a)in his entry interview, the Applicant claimed that his “eldest brother was involved in politics and because of his involvement he was killed”. He said that “[b]ecause of the political involvement I was threatened and my maternal uncle they threatened to kill me”. He said that his brother “was involved with Jamal Islamia” and that “Mufi”, who was in another party, killed him;
b)in his statutory declaration accompanying his visa application, he repeated that his eldest brother “was a key member of the Jamaat-e-Islami … the largest Islamic party in Bangladesh”. He said that his brother “played a key role in organising rallies and demonstrations and I often attended with him to assist in canvassing support”;
c)in the statutory declaration, he claimed that:-
i)members of the opposing Awami League, led by Mufi, approached his brother’s restaurant to extort money from them;
ii)his eldest brother was killed by Mufi and a “large group of Awami League members” and the Applicant was also injured;
iii)after the attack and the Applicant’s recovery, he and his maternal uncle tried to lodge a case against the Awami League with the police, but they refused;
iv)the Applicant was assaulted after he took over responsibility for his eldest brother’s restaurant and he was told to withdraw the police case;
v)the Applicant relocated to his uncle’s home in the Dhaka Division but Awami League members visited his family home and warned his family that he should withdraw the case;
vi)after the Applicant left Bangladesh, the Awami League has continued to harass his family;
vii)in 2014, the Awami League assaulted his younger brother, who has subsequently disappeared.
d)in his representative’s submissions to the Department of Immigration and Border Protection (‘the Department’) post-protection visa interview, it was said that the Applicant feared harm because “he would be recognisable as a family member of a Jamaat-e-Islami supporter as his brother had a high position … and also because of the controversial circumstances surrounding his brother’s death”. It was further said that “he would continue to seek justice for his brother” and that the Applicant was affected by the data breach;
e)his representatives provided submissions to the Tribunal prior to the hearing. They also provided a further statutory declaration of the Applicant. In it, he claimed that:-
i)the Awami League had found him at his uncle’s house in Dhaka;
ii)the Awami League would find him anywhere else in Bangladesh; and
iii)the Awami League is still looking for him, they are still harassing his family, and his younger brother is still missing.
f)the Applicant then provided a post-hearing statutory declaration, and his representative provided a post-hearing submission. In his statutory declaration, the Applicant said that he went to a lawyer to lodge a complaint against Mufi and the Awami League members after the police refused the complaint.
The Tribunal’s Decision
As set out from paragraph 83 onwards of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) the Tribunal:-
a)accepted the Applicant was a low level supporter of Jamaat-e-Islami based on family tradition. In view of the fact he did not appear to have maintained any contact with Jamaat-e-Islami or any interest in the party since being in Australia, the Tribunal was satisfied he would not resume a level of political involvement with Jamaat-e-Islami beyond that which he demonstrated in the past. With respect to his elder brother, based on the consistency of his claims and evidence the Tribunal was prepared to accept he held a more prominent role in the organisation;
b)noted the Applicant had been generally consistent in the claim of his brother’s death throughout the process of his application for protection and accepted that the Applicant’s eldest brother was of adverse interest to the local Awami League members, both for his political involvement and for his refusal to meet their extortion demands and that he was subsequently shot and killed by Awami League members or supporters during a Jamaat-e-Islami meeting in 2012;
c)accepted the Applicant went with his uncle to the local police station to try to make a complaint against Mufi and the Awami League for their involvement in the death of his brother. The Tribunal noted country information which stated the UK Home Office Report of February 2015 noted that high levels of politically motivated violence was perpetrated by the security forces and both opposition and government supporters. This was supported by other country information. In view of his claimed experience and country information, the Tribunal accepted that the police refused to accept the Applicant’s complaint as detailed by the Applicant. The Tribunal also found it plausible that having been refused help by the police the Applicant and his uncle approached a solicitor for assistance to make a complaint. However, based on the claims made at the time the protection visa application was lodged, the Tribunal noted the solicitor was reluctant to do so, on the basis that there would be no likely positive outcome and doing so might cause problems for the solicitor as well, a view which the Tribunal considered was supported by country information. Further, in the circumstances, the Tribunal found it problematic that the Applicant had produced no evidence of his discussions with the solicitor and/or of any subsequent police complaint made through the solicitor. The Tribunal considered the Applicant had ample time to produce evidence of the police complaint but made no attempt to do so. The Tribunal also considered it reasonable to assume that if the complaint was made through his solicitor then the solicitor would have paperwork in his possession about the matter which the Applicant could easily have obtained. The fact that the Applicant made no effort to produce such documentation caused the Tribunal to doubt a police complaint was made against Mufi and/or his Awami League associates. On the information before it, the Tribunal was not prepared to accept that a police complaint was made against Mufi and/or his Awami League associates in relation to the death of the Applicant’s brother. Further, the Tribunal did not accept that the Applicant would pursue a complaint on return to Bangladesh several years later, particularly as neither he nor any of his family, or the solicitor demonstrated any attempt to do so in the intervening years. Based on his oral evidence at hearing, the Tribunal was of the view the Applicant had no interest in pursuing the matter legally on return. The Applicant acknowledged it would not bring his brother back. The Tribunal believed that, combined with the passage of time in which no attempt had been made to follow through with a complaint, was the reason the Applicant would not pursue a complaint in future rather than his claimed fear it would put him and his family in danger;
d)accepted that the Applicant was attacked at his late brother’s restaurant towards the end of 2012 by Awami League persons acting on instructions of Mufi. The Tribunal was also prepared to accept that the Applicant’s father was also beaten by the same people and sustained injuries around the same time. As to why these beatings occurred, the Tribunal was satisfied, as suggested by the Applicant himself, that it was because Mufi and his Awami League associates came to know he had attempted to report the matter to the police and were angry about that (the Tribunal not accepting however any police complaint was ever made);
e)did not accept that the Applicant, his father or any other family members were and continued to be beaten and harassed or otherwise harmed in order that a complaint be withdrawn. The Tribunal accepted that the Applicant spent some time in hiding at his uncle’s house in Dhaka and thereafter, following an attempt by his attackers to locate him, at a friend of his uncles, before departing Bangladesh;
f)accepted the Applicant was beaten and robbed for attempting to report the matter to the police when the events transpired, but found it implausible that Mufi and his Awami League associates would harass, threaten and harm the Applicant’s family on a weekly, fortnightly or even a monthly basis as claimed for a period of at least three years or steal their land as claimed in the absence of any police complaint. The Tribunal did not believe the Applicant’s family would withstand such treatment for such a long period of time without taking steps to avoid future harm. In this respect, the Tribunal noted the Applicant claimed his family continued living in their usual place of residence. The Tribunal was also not persuaded that the Applicant’s younger brother disappeared as claimed in 2014;
g)accepted that past enmity exists between the Applicant and Mufi and his Awami League associates and that there was a real chance this could be reignited in the event the Applicant returns to his local area and his presence becomes known. In view of his family’s support for Jamaat-e-Islami and given the political affiliations of his adversaries, the Tribunal accepted that adequate State protection against such harm may not be available in the current political climate. The Tribunal asked the Applicant at hearing why he could not go and live in another part of Bangladesh, far from his village and his alleged attackers. The Applicant stated that he was previously located at his uncle’s house. The Tribunal put to the Applicant that it was one thing to go and stay with a relative but another to go somewhere entirely different where the likelihood of him being found would be greatly reduced. The Tribunal considered the Applicant’s responses but did not find it plausible that Mufi and his Awami League associates did or will indefinitely search for the Applicant across the length and breadth of Bangladesh based on an attempt the Applicant made some three years ago to seek justice for his brother’s death, and which in the Tribunal’s view, did not present any ongoing threat to Mufi and his associates. Whilst the Tribunal acknowledged they made an attempt to find him at his uncle’s house in Dhaka at the time the events occurred, the Tribunal saw no plausible reason why they would remain motivated to do so several years later. Even if the Tribunal was wrong and they were intent on locating him in future, the Tribunal found the Applicant could avoid being located by relocating to a different part of Bangladesh. The Tribunal considered this an entirely different proposition to the Applicant moving to the house of the uncle who accompanied him to the police station when the bid was made to lodge the police complaint in the first instance. The Tribunal considered the chance of the Applicant being located elsewhere in Bangladesh to be remote and that the Applicant could safely relocate to another part of Bangladesh;
h)asked the Applicant whether there was any reason to conclude it would be unreasonable for him to relocate to another part of Bangladesh noting that he was a single man, with no dependents and prior work experience. The Applicant’s representative stated in submissions that the Applicant has very little education, no job training, very little work experience and no family elsewhere in Bangladesh which would make relocation difficult. The Tribunal did not accept this.
Relocation
The Applicant argued that the Tribunal, having found that the Applicant faced a real chance of significant harm in his local area, failed to properly assess whether it would be reasonable for the Applicant to relocate.
The Applicant argued in oral submissions a position slightly different to that in his written submissions. The different position adopted by the Applicant and the First Respondent in argument went to with what degree of specificity an alternative place (to the local area) needed to be identified by the Tribunal and to what degree, in relation to that alternative place, the Tribunal was required to carry out an analysis to determine whether relocation was reasonable.
In essence, the Applicant argued the Tribunal committed jurisdictional error by failing to properly undertake an assessment of the particulars of any place. It described a safe place as “another part of Bangladesh” and thus did not conduct a detailed analysis of the safety of any nominated putative safe place and the reasonableness of the Applicant moving to that place. The Applicant referred to SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at paragraph 24 wherein Gummow, Hayne and Crennan JJ said as follows, in respect of the task of the Tribunal in relation to considering the reasonableness of relocation:-
“… What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”
The Applicant did not argue that the Tribunal failed to consider the Applicant’s objections to relocation. Indeed the Tribunal did consider those objections.
The First Respondent argued that:-
a)in applying the relocation principle, there is no requirement upon a Tribunal to identify a place of relocation at any particular level of specificity. Rather, the analysis may be done at whatever level of generality or specificity that the Tribunal determines to be appropriate. In some situations, relocation may be appropriate only in relation to some specific place; in other situations, relocation may be appropriate to every place within a country other than some specific place where there exists “localised harm”. In the latter scenario, the Tribunal need not go further than to find that a person can safely and reasonably move to any other area within their home country to avoid harm;[1]
b)this latter scenario was applied by the Tribunal in this case, which was open on the materials given the localised nature of the feared harm. Accordingly, the ground fails.
[1] Randhawa v Minister for Immigration (1994) 52 FCR 437; Plaintiff M196 of 2015 v Minister for Immigration [2015] HCATrans 240.
Section 36(2B) of the Act is, relevantly, as follows:-
“36 Protection visas—criteria provided for by this Act
…
(2B) … there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
…”
The question of whether it will be reasonable for a person to relocate to another part of the country requires a two stage analysis.[2] First, it must be determined whether there is a part of the country where the Applicant would not face a real chance or real risk of harm. Secondly, if there is such a place, it must be determined whether it would be reasonable for the individual Applicant to relocate to that place.
[2] CID15 v Minister for Immigration and Border Protection [2017] FCA 780, 32.
The Tribunal found that it was both “safe and reasonable for the Applicant to relocate to another part of Bangladesh to avoid any significant harm he may encounter in his local area from Mufi and/or his Awami League associates for reasons related to his political opinions and activities and/or the death of his brother.”[3]
[3] Decision Record, 139.
In reaching its findings the Tribunal also considered, in the context of reasonableness, whether it was practicable for the Applicant to relocate.
The Tribunal commenced its analysis of the relocation issue at paragraph 122 of the Decision Record. It concluded that analysis at paragraph 132 of the Decision Record. Paragraph 132 is as follows:-
“…The Tribunal acknowledges the applicant’s responses and the submissions made on his behalf that it would be unreasonable to expect him to relocate but the Tribunal does not accept this. The applicant is a young, single man with no dependents. Whereas his low level of education is acknowledged the Tribunal notes he nevertheless has farming experience and since being in Australia has secured and maintained factory employment, both of which would assist him to find employment on return to Bangladesh. Regarding his lack of family elsewhere in Bangladesh, the Tribunal also finds it significant that the applicant was able to travel to Australia where he has lived for several years in the absence of family support. The Tribunal considers it will be an easier proposition for him to establish himself in a new location in Bangladesh where he speaks the language and the Tribunal considers the applicant’s family can travel to visit him elsewhere in Bangladesh so he will not be entirely without support. For these reasons the Tribunal finds it will not be unreasonable for the applicant to relocate within Bangladesh to avoid any harm which may come to him in his local area from Mufi and his Awami League associates.”
The Court finds the Tribunal considered the case sought to be made by the Applicant. The Tribunal considered those matters raised by the Applicant as to why he could not reasonably locate elsewhere in Bangladesh. Those matters were stated as general and non-specific objections to relocation. Additionally, the Tribunal considered those other matters before it in evidence which went to the reasonableness of relocation and clearly took them into account. As submitted by the First Respondent, in light of the matters before it, it was not necessary for the Tribunal to look at particular parts of the country. The Applicant’s objections to relocation had not been framed in that way. No jurisdictional error has attended the Tribunal decision in this regard.
Grounds Two and Three
Paragraph 92 of the Decision Record is as follows:-
“The Tribunal asked the applicant whether he has any evidence of a police complaint being made or of his discussions with a solicitor. The applicant stated that he doesn’t have anything but can try to gather something. The Tribunal indicated that evidence he produces now might not be given much weight given he has made no previous efforts to provide evidence of these serious claims. Further, the Tribunal pointed out that country information indicates that document fraud is prevalent in Bangladesh and that this could also cause the Tribunal to question documents provided at this late stage...”
Following this exchange recorded at paragraph 92 above, the Applicant did not provide to the Tribunal the documents he had offered to gather. The Applicant argued two matters pertaining to this:-
a)firstly, that it can be inferred that the Tribunal’s comments recorded at paragraph 92 dissuaded the Applicant from adducing the documentary evidence he had offered during the hearing. Accordingly, the Applicant was effectively deprived of the opportunity to give the evidence he had indicated he wished to give as part of his case. The Tribunal therefore failed to give the Applicant the meaningful opportunity to give evidence and present arguments relating to the issues in the review required by s.425 of the Act. Even if it was not the intention of the Tribunal to dissuade the Applicant from presenting his evidence, the fact that the Tribunal’s comments had that effect will still result in a breach of s. 425 of the Act;
b)secondly, and in the alternative, the exchange between the Tribunal and the Applicant recorded at paragraph 92 of the Decision Record would give rise to a reasonable apprehension on the part of an informed, fair-minded observer of bias on the part of the Tribunal.
These grounds cannot succeed.
The relevant exchange to which the Tribunal was referring in paragraph 92 of the Decision Record appears at KR1.4 to KR1.12, exhibited to the affidavit of Mr Ranjithkumar. The context is as follows:-
“TRIBUNAL MEMBER: So you went to the solicitor and asked him to do something and he advised you that nothing would happen. So is there a case being filed or not?
THE APPLICANT: Look, the solicitor advised that he's happy to take up the case, however, he also advised that nothing would happen, no positive outcome would happen if this matter is followed.
TRIBUNAL MEMBER: Yes, you keep saying that, but my question is, is there a legal case before the court or isn't there?
THE APPLICANT: No, this was not taken up at the court level or- that's what he's trying to make it.
TRIBUNAL MEMBER: Then it must be a mistake in your written claims where you say nonetheless, you and your uncle filed a case. Do you mean that you just took it to the solicitor? Is that what you meant by that?
THE APPLICANT: The solicitor advised us that he will take this matter up, so we assumed that the solicitor might lodge it or take this matter up with the court. We were not aware of it. To us in relation to torture and everything, the solicitor noted down everything and they said he will follow it up with.
TRIBUNAL MEMBER: Okay. But you don't sound very sure that there is a case or not.
INTERPRETER: Sorry, can I ask him to repeat.
THE APPLICANT: When I left Bangladesh, after I left Bangladesh, I heard from my family that they asked my family members withdraw the case and they also demanded 1 million taka. So from that, I assumed that the case was taken up at that level or- with the court.
TRIBUNAL MEMBER: Are there any court papers, police papers, papers from the solicitor, available about this matter because I'm actually at this point not persuaded that there is a court case?
THE APPLICANT: I don't have it at the moment, however, I can try to gather some evidence.
TRIBUNAL MEMBER: You see, that would make me question the situation because you've had a very long time to produce documents about this case and this case is quite integral to your claims. So now from what I'm hearing from you, you're not even certain that there is a case and if you provide me with information about it now, I might not give it much weight because there's plenty of information, independent information, to suggest that fraudulent documents can be obtained in Bangladesh very easily. I would have thought if there were such documents you would have presented them by now. And what I'm hearing from you is a lot of uncertainty.
You're saying that you went to the solicitor and you explained the situation and he didn't give you much hope that anything would be able to be done. That's what I'm hearing.
INTERPRETER: He said I did not know about this, so - about the case, so I don't know what he means with that. That's why I couldn't bring any evidence in relation to that.
THE APPLICANT: Now, I've taken an oath, so it's-if you believe what I am saying, it's okay, otherwise I can't help much about it. I can't help it.”
An allegation of bias is a serious allegation. The threshold is high. There is no tenable basis, as submitted by the First Respondent, on which this exchange could give rise to an apprehension of bias and this is particularly so when examining the whole of the transcript. There is no possible basis on which this allegation could be firmly established on the evidence. The Tribunal made preliminary observations to the Applicant for his comment and consideration.
Nor can the Applicant argue that he was “dissuaded’’ by the Tribunal from taking up some procedural option that may have been available to him.[4] He puts before the Court no evidence that he was actually dissuaded. No practical injustice was suffered by the Applicant. The decision remained for the Applicant, and the observation of the Tribunal was a fair one. The Applicant was able to provide further material post the hearing and the Tribunal had turned the mind of the Applicant to a factor which may have presented a difficulty for him given the facts and history of the matter at that point in time. The Tribunal offered to the Applicant an opportunity to comment and/or respond. That was all part of the inquisitorial process. As was said in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, by Flick J:-
“24. The application of such generally expressed propositions must necessarily take into account the legislative or other context in which a decision is being made. With specific reference to a decision of the Tribunal, Allsop J (as his Honour then was) observed in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264 at 269:
[19] … The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
[4] Minister for Immigration v WZARH (2015) 256 CLR 326, 59.
…
27. Although there is no requirement imposed upon administrative decision-makers to continuously disclose a process of reasoning (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48], 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.”
Here the Tribunal reached no fixed conclusion before the completion of the hearing. What the Tribunal did do was afford an opportunity to the Applicant to address perceived deficiencies in his evidence and materials.
Ground Five
In response to this ground of judicial review, the First Respondent submitted that there is no certificate under s.438 of the Act in existence. The affidavit of Ms Rudic sets out the lengths to which the Department has gone to verify whether or not a certificate existed on both the departmental file and on the Tribunal file. That evidence is, relevantly:-
“5. I am aware that documents referred to as “folio 54” of Department file CLF2014/84434, are referred to in a disclosure decision checklist (the checklist) as being the subject of a certificate issued under s 438 of the Migration Act 1958 (Cth) (the non-disclosure certificate). Department file CLF2014/84434 contains documents and information held by the first respondent in relation to the application for a Protection visa lodged by the applicant on 11 June 2014. AAT file 1502335 contains documents and information held by the second respondent in relation to the application for a Protection visa lodged by the applicant on 11 June 2014.
5. A copy of the certificate does not appear on Department file CLF2014/84434
a. I have performed the following searches to try and locate a copy of the non-disclosure certificate referred to in the checklist.
b. On or around 16 July 2018 I reviewed electronic copies of Department file CLF2014/84434. It did not contain a copy of the non-disclosure certificate.
c. On 16 July 2018, I requested the IMA Protection Support Section within the Department conduct searches of their electronic records. They forwarded the request to the VIC TPVA Review Section as they could not locate the certificate. On 17 July 2018, I received a response from the VIC TPVA Review Section which stated that the certificate was not in their electronic records and that the case officer who had completed the checklist no longer worked with the Department.
d. On 20 July 2018 I received the paper file CLF2014/84434 from Converga (Department's records management outsourced company). I reviewed the file but could not locate a copy of the non-disclosure certificate.
e. On 20 July 2018, I requested the AAT conduct searches of their physical and electronic records in relation to AAT file 1502335 and Department file CLF2014/84434 to try and locate a copy of the non-disclosure certificate referred to in the checklist. On 27 July 2018, I received a response stating that the AAT was unable to locate any non-disclosure certificate. I was informed that: on the AAT case summary screen there was no indication of a non-disclosure certificate associated with AA T file 1502335; the Tribunal had possession of Department file CLF 2014/84434 from 25 February 2015 to 8 April 2015 (when it was returned to the Department “for FOI purposes”), and from 22 April 2015 to 5 August 2015; and there were no other Department files before the Tribunal in relation to case 1502335.
6. I am not aware of any other file or record that could enable me to locate the non-disclosure certificate referred to in the checklist.”
The Court concludes on the evidence before it that there was in fact no s.438 of the Act certificate. The Applicant argued however, in oral submissions, that no s.438 of the Act certificate was necessary for this ground to succeed. Section 438 of the Act is as follows:-
“438 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.”
A certificate is required.
Even if my view is wrong as to these matters, then the question remains as to what difference would there be to the outcome of the Tribunal hearing if the document identified, being a birth certificate in relation to the Applicant, which the Applicant claimed was not his in any event, and which was bogus, was now provided to the Applicant? No change in outcome would result. The Applicant’s identity was never in issue before the Tribunal. The document had no relevance, in respect of the thought processes or findings of the Tribunal, to the review before the Tribunal.
Further there is no evidence to infer from the decision of the Tribunal that in fact it took into account the document and further, that in some way its credibility findings may have been affected, as asserted by the Applicant. The Tribunal decision turned on its consideration of the reasonableness of relocation.
None of the grounds set out in the judicial review application can succeed. Accordingly, the application will be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 8 February 2019
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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Jurisdiction
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Procedural Fairness
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Statutory Construction
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