CLY15 v Minister for Immigration
[2017] FCCA 2504
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLY15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2504 |
| Catchwords: MIGRATION – Judicial review – Minister’s delegate notified the AAT under s 438 Migration Act 1958 that certain material should not to be disclosed to the applicant as this would be contrary to the public interest – in fact the material was disclosed in FOI release to the applicant’s migration agent – whether there was a jurisdictional error in relation to the notification – Tribunal may have relied on the notification and therefore committed jurisdictional error – appeal allowed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 375, 424A, 424AA, 438 Freedom of Information Act 1982 (Cth) |
| Cases cited: Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 SZMTA v Minister for Immigration [2016] FCCA 1329 BGZ15 v Minister for Immigration [2017] FCA 1095 |
| Applicant: | CLY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 67 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 27 February 2017 |
| Date of Last Submission: | 27 February 2017 |
| Delivered at: | Darwin |
| Delivered on: | 17 October 2017 |
REPRESENTATION
| The Applicant: | In Person Via videolink |
| Counsel for the Respondent: | Ms Davidson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the decision of the Administrative Appeals Tribunal made on 27 October 2015 be quashed.
That the matter be remitted to the Administrative Appeals Tribunal for rehearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 67 of 2015
| CLY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to refuse a protection visa made on 27 October 2015. The Tribunal affirmed a decision of the Minister’s delegate made on 12 May 2015.
The applicant applied to this Court on 24 November 2015. The matter was initially listed for hearing on 23 August 2016. On 19 August 2016 the solicitors who acted for the applicant sought leave to withdraw. It was said that the grounds of review that the solicitors considered to have merit were no longer tenable after the decision of the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 which had been handed down on 27 July 2016. I gave the solicitors leave and granted (with some concern because he was in detention) the applicant an adjournment to seek new legal representation. The matter was adjourned for hearing to 27 February 2017.
On 6 February 2017 the Minister filed an affidavit of Ms Mieke Dixon to the effect that on 14 July 2015 the applicant’s migration agent had been given various documents pursuant to a Freedom of Information Act 1982 (Cth) application. The documents included a Five Country Conference (‘FCC’) Finger Print Match Report. This recorded the applicant’s illegal entry to the UK in 2009, a claim for asylum in 2010, a conviction for drugs production and sentence of imprisonment for 2 years in 2010 and his removal from the UK to Vietnam in 2011. On 16 February 2017 the Minister filed a supplementary Court Book which disclosed that the FCC Finger Print Match Report had been provided to the Registrar of the Tribunal but was subject to a certificate given under section 438 of the Migration Act 1958 (Cth) (‘the Act’) stating that the disclosure of the information would be contrary to the public interest.
On 15 February 2017 new solicitors filed a notice of appearance. On 21 February 2017 those solicitors filed a notice of intention to withdraw.
On 23 February 2017 the Minister filed a supplementary submission dealing with the section 438 certificate issue.
At the commencement of the hearing on 27 February 2017 counsel appeared and informed me that the applicant’s solicitors sought leave to withdraw. Counsel told me that the solicitors had been retained the week before. He said he had not received a brief and had simply been instructed to attend court and seek leave to withdraw. Although these matters were unsatisfactory I saw little point in insisting that counsel, who was clearly unprepared, appear to represent the applicant. The applicant, who was by then living in the community, wished to proceed.
The grounds of review are as follows (without alteration):
1. I think the Decision maker did not consider all of the evidence or did not take into account relevant considerations.
2. I was not afforded procedural fairness.
3. I think the Decision is affected by bias.
4. I think the Decision maker misinterpreted the law.
No outline of submissions was filed by the applicant (or either of the firms of solicitors who briefly acted for him) at any point.
The applicant was assisted at the hearing by a Vietnamese interpreter.
At the hearing counsel for the Minister relied on her written submissions in relation to the grounds of review. In addition she raised the issue of the section 438 certificate and sought leave to rely on the affidavit of Ms Dixon about the FCC Finger Print Match Report. She relied on her written submissions and made oral submissions on the section 438 certificate issue.
I gave the Minister leave to rely on the affidavit. I explained to the applicant in summary terms the submissions made by the Minister and, in particular, that it was asserted and appeared to be true, that he had received the FCC Finger Print Match Report in the Freedom of Information (‘FOI’) release to his migration agent and that he had provided information about the events in the UK to the Tribunal and made submissions about them. The applicant made no submission in response.
The Tribunal’s decision
The applicant left Vietnam lawfully to work in South Korea between 1997 and 2003. He returned to Vietnam between 2003 and 2006. From 2006 to 2009 he worked lawfully in the Czech Republic. In 2009 he illegally entered the UK. In February 2010 he claimed asylum in the UK. In September 2010 he was convicted of drugs production and sentenced to 2 years imprisonment. In May 2011 he was removed to Vietnam.
In May 2013 the applicant arrived in Australia by boat and applied for a protection visa in June 2014. The applicant asserted that he had become a Protestant Christian while working in South Korea. He said that when he proselytised in his village he was subject to persecution by the authorities. He said that he had also complained of corruption by village officials. He claimed to have been threatened or assaulted by criminal elements or the agents of the government as a result of these matters or as a result of his involvement with a criminal gang in the UK. He also complained of the unauthorised release of personal information on the web (“the data breach”) by the Department in February 2014.
The delegate made an adverse credibility finding against the applicant based principally on inconsistency and implausibility of his claimed Christian proselytising in his village and on his failure to disclose his earlier travel history and criminal conviction in the UK and his repeated denials of these matters during his interview with the delegate.
The Tribunal considered substantially the same claims and reached a similar conclusion. Although it accepted that the applicant was a Christian it did not accept, based on the very limited ambit of the applicant’s claimed Christian preaching, that he had come to the adverse attention of the Vietnamese authorities. It did not accept, based in country information, that there was any generalised persecution of Protestants in Vietnam. The Tribunal did not accept that the applicant had been the subject of adverse attention by the authorities as a result of any complaint of corruption against village officials or that he was threatened or assaulted by criminal elements or thugs acting for themselves or on behalf of the authorities. It found these claims lacked credibility. The Tribunal found positively that documents that purported to be summonses to the applicant from the authorities were fraudulent and found that they were evidence of bad faith on the part of the applicant. The Tribunal found that because the departure of the applicant and his companions by boat was well known to the Vietnamese authorities as evidenced by a news article in official Vietnamese online media that the data breach would not have told the Vietnamese authorities anything they did not already know about the applicant. It did not accept that this knowledge about the applicant gave rise to any risk of harm to him and did not accept that his departure from Vietnam constituted a criminal offence which was likely to result in harm. The Tribunal found that the applicant did not meet the refugee criterion in the Act. The Tribunal also considered the alternative criterion in section 36(2)(aa) and found that the applicant was not at risk of significant harm if he were to be returned to Vietnam.
In the hearing before me the applicant did not address or expand on the grounds in his application for review. The oral submissions he made were directed to the merits of the Tribunal’s decision. He made no submissions directed towards identifying appellable error in the decision. Specifically, the applicant did not identify any evidence or relevant considerations that the Tribunal failed to take into account, did not identify any procedural unfairness, did not identify any matters that might constitute bias or apprehended bias or identify any misinterpretation of the law by the Tribunal. In the circumstances it is not possible to give any meaningful consideration to the grounds of review.
In BGZ15 v Minister for Immigration [2017] FCA 1095 Flick J pointed out the need to ensure that an unrepresented litigant “suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer” (referring to MZAGE v Minister for Immigration [2016] FCA 630 at [32] per Mortimer J). On the other hand, he observed (at [12]) that
… this Court has no general function to resolve an unspecified and unidentified error. Consideration as to whether there is any self-evident error, it is recognised, may well fall far short of a Judge of this Court independently parsing and analysing a Tribunal decision with a view to identifying a potential argument as to jurisdictional error and thereafter proceeding to resolve that newly formulated argument. In the absence of a self-evident error, this Court has no general duty of function to itself articulate a question of law.
As much might be said of any court exercising an appellate or judicial review jurisdiction. Subject to the matters addressed below, I am unable to identify any error in the Tribunal’s decision. The Tribunal’s adverse credibility finding had an intelligible and evident basis. The other findings also appear to have had a proper foundation. I can find no error in these matters.
The section 438 certificate
As a model litigant the Minister raised the question of the validity of the section 438 certificate issued by the Minister’s delegate. Section 438 of the Act provides as follows:
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;
(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.
The certificate was dated “24/6/5” (presumably intended to read “24/6/15”) and was in the following terms:
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 1 – 5 of file number FCC Fingerprint Match Reports [a reference number].
The disclosure of this information would be contrary to the public interest because:
(a) folios 1 – 5 contain information relating to an internal working document and business affairs.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.
The affidavit filed by the Minister does not expressly say that the section 438 certificate was before the Tribunal or that it was not disclosed to the applicant but I infer from fact that the certificate was addressed to the Registrar of the Tribunal that it was before the Tribunal and from the absence of any mention of the certificate in the Tribunal’s written decision and the absence of any order pursuant to section 440 of the Act that its existence was not disclosed.
However, it is clear from the Tribunal’s decision that the general subject matter of the certificate, information provided under the FCC agreement including the applicant’s drug production conviction and sentence of imprisonment in the UK, was considered by the Tribunal (see paragraphs 31 to 35 of the Tribunal decision).
The applicant’s written statement to the Tribunal dated 19 July 2015, prepared by his migration agent, refers to his drug production conviction and sentence of imprisonment in the UK. It also appears to refer to his unsuccessful application for asylum in the UK and his removal from the UK to Vietnam. Although the statement does not specifically refer to the FCC Finger Print Match Report it refers to the subject matter of that report including the applicant’s involvement with drug production in the UK, his sentence of imprisonment and removal from the UK. The applicant’s statement was also prepared after the date of the FOI release on 14 July 2015. I infer that the FCC Finger Print Match Report was known to the applicant and his migration agent at the time the statement was prepared. I am satisfied that the applicant had the opportunity to make submissions about the material in the report and did so (Court Book p 327).
Counsel for the Minister submitted that the decisions in MZAFZ v Minister for Immigration [2016] FCA 1081, 243 FCR 1 and Minister for Immigration v Singh [2016] FCAFC 183, 244 FCR 305 should be distinguished because the documents that were the subject of the certificate had been revealed to the applicant on 14 July 2015 as part of the FOI release and, consequently, that no “practical injustice” arises, relying on Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [37], [38].
Minister for Immigration v Singh concerned section 375A of the Act which is analogous but not identical to section 438. Section 375A is in Part 5 of the Act and deals with matters other than protection visas. Section 438 is in Part 7 and is concerned with applications for protection visas. However, much of the reasoning of the Full Court in Singh is applicable to section 438 and the Full Court gave express consideration to that section. In Singh a delegate of the Minister signed a certificate pursuant to section 375A that disclosure of information about a fraudulent employer reference scheme, including a witness statement and a summary of a taped record of interview, would be contrary to the public interest. The Tribunal provided particulars of the allegations about the fraudulent scheme to the applicant and sought his response but did not disclose to him the existence of the certificate itself. The Court held that the decision of Dowsett J in Davis v Minister for Immigration [2004] FCA 686, to the extent that it is authority for the proposition that the Tribunal does not ordinarily need to disclose a certificate to an applicant, should be overruled (at [59]).
The Court held that the disclosure of the certificate, as distinct from the subject matter of the certificate, may be of importance where, for example, the certificate was invalid. Failure to disclose the certificate in those circumstances would deprive the applicant of a chance to challenge the validity of the certificate through judicial review. The Court observed that the disclosure of the certificate would often not undermine the confidentiality which section 375A (or section 438) was designed to protect because the certificate would not disclose the information in question.
MZAZF v Minister for Immigration [2016] FCA 1081, 243 FCR 1, a decision of Beach J, concerned an application for a protection visa and a certificate given under section 438(1)(a) of the Act, as does the case before me. The certificate in MZAZF said that the disclosure of the information “would be contrary to the public interest because it contains internal working documents” (at [29]). The certificate in this case is in similar terms but, in addition, refers to “and business affairs”.
Beach J held that section 438(1)(a) refers to public interest immunity. He observed that what was specified as the basis of the claim, “contains internal working documents”, has never been either a necessary or sufficient basis for public interest immunity whether at common law or under statute (at [37]. In my view, the addition of the phrase “business affairs” makes no difference. It is not a recognised category of public interest immunity.
An examination of the documents covered by the certificate does not indicate a basis for a claim of public interest immunity. The FCC Finger Print Match Report (in fact there are two documents so described but they are almost identical) was revealed by the Minister in a supplementary court book. Although counsel for the Minister did not expressly concede that the certificate was invalid the conduct of the Minister in revealing the Finger Print Match Report in the way he did is inconsistent with a claim of public interest immunity. The documents themselves say, in part, under the heading “Limits On Use And Disclosure”:
For immigration and nationality purposes
Information received through FCC arrangements may be used for immigration and nationality purposes, including in related judicial proceedings. For the purpose of the Protocol, immigration and nationality purposes are defined as “the consideration, regulation and enforcement of whether, and on what basis, any person may enter or remain in the territory of one of the Participants”.
In my view this leads to the conclusion that the certificate is invalid on its face and, further, the documents are in fact not subject to public interest immunity.
In MZAFZ Beach J said (at [41]) that the invalidity of the certificate permitted an inference that the Tribunal failed to consider whether to disclose the information which was the subject of the certificate to the applicant under sections 424AA or 424A. If the Tribunal considered the information would be the reason, or part of the reason, for affirming the decision under review it was required to give particulars of the information under sections 424AA or 424A.
Referring to this failure Beach J said “for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error.” (at [44]).
The Minister submitted that in this case no requirement of disclosure arose under sections 424AA or 424A because the information was information the applicant gave and section 424A(3)(b) and (ba) did not require disclosure of such information.
I accept that the applicant gave information about his illegal entry into the UK, his criminal conviction, his sentence of imprisonment and his removal from the UK to Vietnam to the Tribunal. However, the context in which this information was given was that the Tribunal and, before it, the delegate had precise, detailed and official information about these matters which was not disclosed to the applicant. His repeated denials to the delegate were presumably based on his ignorance of the exact nature of the information held by the delegate. While this may be a legitimate technique when used by the delegate it would not ordinarily be legitimate if used by the Tribunal. There is no evidence that the Tribunal proceeded in this way, and my remarks are not to be interpreted as criticism of the Tribunal, but the information given by the applicant was not the actual information before the Tribunal, that is, the FCC Finger Print Match Report. If the Tribunal had regard to the information subject to the certificate it remained open for the Tribunal to measure the credibility of the applicant’s admissions against that precise and reliable information. Whether it was in fact used in that way by the Tribunal is not known. I do not accept that if the Tribunal had realised that the certificate was invalid it would have been relieved by section 424A(3)(b) or (ba) of the obligation to disclose the FCC Finger Print Match Report to the applicant.
The Minister further submitted that the invalidity of the certificate had no practical consequence because the provision of the FCC Finger Print Match Report was included in the FOI release and was in the possession of the applicant or his migration agent so as to permit submissions to the Tribunal on the information. In support of this submission, counsel referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
The facts of this case are similar to those in SZMTA v Minister for Immigration [2017] FCA 1055, a decision of White J. It was argued by the Minister in that case that the defect in the certificate had no practical consequence because the documents which were the subject of the certificate had been given to the applicant before the hearing in an FOI release. After concluding, like Beach J in MZAFZ, that he was entitled to infer that the Tribunal acted in some unspecified way on the invalid certificate and that constituted jurisdictional error, White J said at [57] and [58]:
Counsel for the Minister contended, however, that the defect in the certificate had had no practical consequence. Counsel submitted that the appellant’s possession of the documents by reason of the FOI request meant that he and his representatives had been able to make all the submissions they wished in relation to the documents in the belief that they would be before the Tribunal. That being so, it was said that there had not been a denial of procedural fairness to the appellant in any practical sense. In support of this submission, counsel referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
There is some force in the submission but ultimately I have decided that it ought not to be accepted. That is because the presence of the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision. There is no indication that the Tribunal member was aware that the identified documents were in the appellant’s possession in any event. It seems more likely that the member would have assumed that they were not. That would have been a natural inference from the delegate’s advice that the documents should not be disclosed to the appellant.
I also accept that there is force in the submission but like White J I am concerned that the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision. There is no evidence that the Tribunal was aware that the FCC Finger Print Match Report was in the possession of the applicant. It is conceivable, for example, that the Tribunal used any discrepancy between the admissions of the applicant and the report in assessing the applicant’s credibility.
The Minister also submitted that relief should be withheld on discretionary grounds because the applicant’s knowledge of the certificate could not have made any difference to the outcome of the review. Stated so narrowly with reference to the applicant’s knowledge the submission has force. However, my concern relates to the fact that the Tribunal did not know the report was in the possession of the applicant and whether the Tribunal may have acted in some unspecified way on the report. While it might be thought likely, absent the jurisdictional error, the Tribunal would have reached the same result and the same result will be reached on a new hearing I am not satisfied it is “inevitable”: Stead v SGIC (1986) 161 CLR 141, [145].
I propose to set aside the determination of the Tribunal and remit the matter to the Tribunal for further consideration in accordance with law.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 17 October 2017
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