CWG16 v Minister for Immigration

[2019] FCCA 891

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWG16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 891

Catchwords:
MIGRATION – application to review decision of Administrative Appeals Tribunal – whether Tribunal misinterpreted law, took into account irrelevant considerations or failed to take into account relevant considerations – whether denial of procedural fairness – s.438 certificate – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.351, 424, 424A, 438

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;

(2016) 253 FCR 496

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305;
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63; (2006) 228 CLR 152

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1

Applicant: CWG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2701 of 2016

Judgment of: Judge Barnes

Hearing date: 25 March 2019

Delivered at: Sydney

Delivered on: 25 March 2019

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2701 of 2016

CWG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 14 September 2016, affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Nepal, first arrived in Australia in June 2007 as the holder of a student visa. He has returned to Nepal on two occasions, each time for a period of approximately two months. As the Tribunal recorded, in September 2012 the Applicant re-applied for a student visa. That application was refused. The Applicant unsuccessfully sought review and ministerial intervention under s.351 of the Migration Act 1958 (Cth) (the Act).

3. On 2 October 2014 the Applicant applied for a protection visa.  In a written statement in support of his protection visa application, he claimed to fear harm from Maoists in Nepal, in essence for two reasons:  first because of his father’s political involvement and secondly because of claimed legal proceedings against his father.  He claimed that his father was an ex-politician who was a member of the Nepalese Congress Party who had represented the local village.  The Applicant claimed that his father had advocated against the Maoist dictatorship during the insurgency period and did a lot of damage to the Maoist rebellion and that due to information his father had provided, local Maoists had been arrested and that some were killed by the army and police force.

4. The Applicant claimed that the Maoists were looking for an opportunity for revenge against his father and that, due to mental stress and on the advice of his family, his father had decided to quit politics and lead a normal life some 12 months earlier.  However he claimed that the local Maoists had then taken legal action against his father in a local court on the basis that he owned land or property above the legal limit allowed by the Nepalese government.  In his statement the Applicant claimed that this case was still at a pending stage in the court, but that pressure had been put on his father to transfer ownership of the land to Maoists or their nominees.

5. The Applicant stated that he also had land in his name that the Maoists had claimed, that his father and mother had fled to Kathmandu for safety 6 months earlier, that the Maoists had taken all the crops on their land and that as his father was not able to go to his farm, in practice he was not the owner of that land.  He claimed that his father had sought police support, but the police kept delaying action and that his father continued to receive threats which extended to his children.

6. The Applicant attended an interview with the delegate.  According to the delegate’s reasons the Applicant made an additional claim at the interview that his father had been framed for the murder of a man.  He was eventually acquitted and another man (Mr D) charged and sentenced.  The Applicant claimed to the delegate that Mr D had escaped from custody to India but occasionally returned to Nepal and had made threats against the Applicant’s father and his family.

7. The delegate refused the application.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. 

8. In its reasons of 14 September 2016 the Tribunal referred to the relevant law and Ministerial Direction.  It set out in some detail the claims in the written statement in support of the protection visa application and also the additional information the Applicant had provided at the interview with the delegate, which in some respects departed from his earlier claims.

9. In its findings and reasons for decision the Tribunal stated that while it appeared that the Applicant may have a right to enter and reside in India, it had not assessed whether s.36(3) of the Act applied.  It was not satisfied that the Applicant had a well-founded fear of harm in Nepal for a Convention-related reason or that he met the complementary protection criterion on the basis of removal from Australia to Nepal. 

10. The Tribunal found that it had multiple serious concerns about the credibility of the Applicant and the reasons he feared harm in Nepal.   It set these out at some length.

11. First, the Tribunal found that the Applicant’s evidence at the hearing overall was vague, inconsistent with earlier evidence and at times non-responsive to questions asked.  In particular, it found the Applicant’s evidence about the court case he claimed he had been involved in lacked detail, as did his evidence about particular threats said to have been made against him.  It found him non-responsive when particular inconsistencies in his evidence were put to him for comment.  The Tribunal was not satisfied that the Applicant was being completely candid or providing evidence of actual events that he had experienced.

12. The Tribunal found that the Applicant’s evidence as to the ongoing threat of harm to him and to his family from Mr D was extremely unconvincing.  It referred to a number of issues in this respect, including the fact that the Applicant was initially unable to recall when the court case in which his father was falsely implicated had actually occurred, except that it was when he was small and more than 15 years earlier.  The Tribunal had regard to the fact that on the Applicant’s evidence to it, Mr D was not living in Nepal and had not returned to the country since he fled at the time of his original conviction.

13. The Tribunal also had regard to the fact that the Applicant had not claimed to fear harm from Mr D in his written statement in support of his protection visa application.  It found his explanation that he must have forgotten did little to convince it that there was a genuine and ongoing fear of harm.  The Tribunal also had regard to the fact that, when questioned, the Applicant did not disclose any motivation for the alleged threats by Mr D, except that his father had previously been suspected of the murder.  The Tribunal found the Applicant’s evidence as to the exact nature of the threats, the reason for the threats, who was actually threatened and how that information was communicated to be unsatisfactory.  Insofar as the Applicant had suggested threats were communicated through villagers, the Tribunal observed that he did not know who they were, but also claimed that whenever a threat was received, the police immediately responded and provided protection to his family, at times even staying overnight in the house.  He also told the Tribunal that if Mr D did return to Nepal, the police would promptly capture and shoot him. 

14. Despite the fact that the evidence of the Applicant was lacking in detail, the Tribunal accepted that this matter occurred when he was small and gave him the benefit of the doubt in some respects.  It accepted that around the year 2000, if not before, the Applicant’s father may have been implicated in a court case arising from the murder of a village man and that Mr D, who was convicted of this murder, may have made threats against his father.  However the Tribunal was not satisfied on the Applicant’s evidence that these threats arose for a Convention-related reason.  As this event occurred at least 15 years earlier and Mr D had left Nepal and not returned and no harm had actually befallen the family, the Tribunal considered the risk of harm to the Applicant from Mr D was remote or speculative and was not a real chance of harm.  It also found that in the remote chance that further threats were made by Mr D, the police in Nepal would provide effective protection to the Applicant and his family as they had done in the past.

15. The Tribunal also found that the Applicant’s evidence to it as to his father’s involvement in politics was inconsistent with his written claims.  The Tribunal had regard to the fact that when it took the Applicant through the entirety of his claims, he had failed to mention that his father was involved in politics until the Tribunal raised that claim and, even then, it was only to confirm that his father had been involved but had ceased to be involved when the Applicant was small.  The Tribunal found that when asked to identify precisely when this was, the Applicant was evasive, but eventually conceded that his father had not been involved in politics at the time he first travelled to Australia in 2007. 

16. Importantly, when asked by the Tribunal what risk of harm arose because of his father’s involvement in politics, the Applicant was recorded as telling the Tribunal that his claims had nothing to do with his father’s politics, although his father did continue to attend meetings.  The Tribunal found the Applicant’s evidence at the hearing in this respect was “considerably inconsistent” with his initial claims and that this reflected poorly on his credibility. 

17. Nonetheless, the Tribunal gave the Applicant the benefit of the doubt to the point of accepting that his father may have been a politician and a member of the Nepalese Congress Party.  However it also accepted, on the basis of his oral evidence, that the Applicant’s claims to fear harm had nothing to do with his father’s involvement in politics and that his father had not been active in politics at the time the Applicant left Nepal.

18. The Tribunal did not accept the initial claims of the Applicant as to his father’s involvement in politics and his asserted fear on that basis.  It did not accept the claims that his father did a lot of damage to Maoists during the insurgency period and was forced to leave politics or that the Maoists had sought revenge on the father or his family.  In that respect, the Tribunal also had regard to country information about the decrease in inter-party political violence in recent years and the fact that an individual’s membership of a political party and ability to be politically active was generally respected in Nepal.  It also found that the overall risk of violence on the basis of political opinion was now low in Nepal.

19. The Tribunal also expressed concern that the Applicant’s evidence had shifted from his initial claims in relation to the reason he feared harm on return to Nepal.  Contrary to his original claims, the Applicant told the Tribunal that he was the main person involved in a land claim by the village Maoists, that he and his elder brother each owned 10 bigha of land, whereas his father and mother each owned 2 or 3 bigha.  He claimed to the Tribunal that his land was being claimed by village people who were Maoists and jealous of the family landholdings.

20. The Tribunal did not find this credible, given that the evidence of the Applicant had constantly shifted as to the precise nature of this claim.  It had regard to the fact that his initial claim was that it was primarily his father who was the target of the land claim.  It also found that his evidence as to when the claimed court case had commenced had changed from a claim that it was one year prior to his statement of 30 September 2014 to a claim to the delegate that the problems arose in 1988, or, as he told the Tribunal, that he first had notice of these claims when he returned to Nepal for his brother’s wedding in 2009.  The Applicant was recorded as telling the Tribunal he returned to Nepal in 2011 to attend the court proceedings in the District Court to provide evidence and sign documents to give his father authority to act and that he had attended the court for a couple of days.  However, the Tribunal had regard to the fact that the Applicant was unable to identify the names of other parties to the proceedings, except to claim they were Maoists and local villagers.  The Tribunal had difficulty accepting that he could not identify these parties and had regard to the limited evidence he had given as to what had occurred, despite his claimed attendance at court for a couple of days.  It also had regard to changes in the Applicant’s evidence about the status of the court case (whether a judgment was awaited, whether he had been successful at the District Court level or whether there had been an appeal on which judgment was awaited) and to his limited knowledge of the basis for the court case.  It found that further inconsistencies arose when the Applicant’s evidence to the Tribunal was compared to the statement accompanying his protection visa application, particularly as in the statement he had not claimed that his return to Nepal in 2011 had anything to do with the court case, but rather that it was due to the ill-health of his father.

21. The Tribunal found that these constant changes demonstrated that the Applicant’s claims had evolved with the progression of time.  It was not satisfied that his evidence in relation to the land claim was reliable. 

22. The Tribunal also had difficulty on the material before it forming a clear understanding of the precise movements of the Applicant, his father and older brother in Nepal and where they lived at any particular time.  It detailed the varying evidence in this respect, particularly as to when and whether his father had relocated to Kathmandu and whether he had been moving about or remained in the same place since 2002.  It had regard to the Applicant’s inability to offer an explanation for the inconsistent evidence about his father or as to whether his brother had lived in the one place in Kathmandu or moved about.  This led it to doubt the accuracy of the Applicant’s claims that Maoists would harm and kill him if he returned to Nepal.

23. The Tribunal found that these inconsistencies reflected poorly on the Applicant’s credibility.  It did not accept that his family members were in hiding and, in particular, that his brother and father had to move frequently to avoid harm from the Maoists.  It found that the fact the Applicant’s family had not experienced any harm in the past, yet were also said to be intimately involved in the court case, undermined his claim that he would be killed and harmed by the Maoists on return to Nepal.

24. The next concern expressed by the Tribunal was that the Applicant’s oral evidence about threats to harm him was “extremely unsatisfactory”.  It had difficulty obtaining detailed evidence from the Applicant about a claimed letter from the Maoists in 2009.  It found his evidence about the letter was extremely vague and had regard to the fact that while the Applicant claimed a Maoist leader in the village sent the letter, he could not remember the person’s name.  He also claimed the police would not act and so the matter had not been reported.  The Tribunal found this difficult to reconcile with the Applicant’s other evidence as to regular and prompt police support to his family in response to threats from Mr D. 

25. The Tribunal also found that the Applicant’s responses when it put to him that it was difficult to accept Maoists would harm him when harm had not befallen his family, in particular, his father and brother, was unsatisfactory.  It had difficulty reconciling the Applicant’s claim that he held the most land and so he was mainly targeted with his evidence that his brother held the same amount of land, given that it had rejected that his brother was in hiding.  Further, as the Applicant had said he had given his father authority to act in the court case so he had control of the proceedings, the Tribunal considered that his father was really the main person in the case.  It also found that the Applicant’s claim the Maoists would not act against his father as he was popular, difficult to reconcile with the Applicant’s claim the police would not assist them.  The unsatisfactory nature of the Applicant’s evidence in this respect was said to weigh in favour of the conclusion that he had manufactured his claims about the court case and threats of harm from Maoist villagers.

26. The Tribunal also found that the fact the Applicant had returned to Nepal on two occasions since 2007 (on each occasion for approximately two months), did not demonstrate ­that he had a genuine fear of harm and reflected poorly on his credibility and that of his claims.  It also drew an adverse inference from the Applicant’s delay in lodging his claim for protection, given the timing of the claimed events and the fact that it was not until October 2014 that he sought protection.  While the Applicant claimed that it was not until 2014 that he was advised by the Department that he could seek protection, the Tribunal was of the view that he would have made inquiries about seeking protection if he had a genuine fear of harm, particularly proximate to the claimed court case in 2011 if it had occurred.  The Tribunal found that this delay suggested that the Applicant’s claims to fear harm had been concocted in an effort to remain permanently in Australia. 

27. The Tribunal summarised that, having considered the Applicant’s claims individually and cumulatively, due to the numerous identified inconsistencies, shifting claims, and the lack of credible and non-persuasive evidence, it was not satisfied that the Applicant was a witness of truth.  It had fundamental concerns about most aspects of his claims and concluded that he had fabricated his material claims to create a profile for himself for the purposes of obtaining a protection visa.

28. The Tribunal did not accept that the Applicant and his family were involved in a court case in relation to their land that commenced between 2009 and 2011, or that threats had been made to harm him or his family if they did not surrender their land.  It did not accept that he or his family had any current legal proceedings against them by Maoists or any other political party.  It did not accept his claims that Maoist villagers were looking for him or members of his family as land owners.  It did not accept that he or his family had been threatened by Maoists or local villagers to surrender their lands or that they were of any adverse interest to the Maoists or to anyone else in Nepal.

1. The Tribunal was not satisfied the Applicant would suffer serious harm for the reasons he claimed if he returned to Nepal now or in the foreseeable future.

2. Nor, given that the Tribunal was not satisfied that the Applicant was a witness of truth or that his claims to fear harm were credible, did it accept he would be at risk of significant harm from Mr D, who had left Nepal over 15 years earlier, or that the police would withhold protection from him, or that he was at any risk of harm because his father was a former member of the Nepalese Congress Party, or that his family had been targeted by Maoists as landowners, or for any other reason.  It repeated that it did not accept the Applicant was involved in a land dispute, that other parties to the dispute wished to harm him, or that anyone in his family had a profile that would place them at risk of harm if he returned to Nepal.  It did not accept he was of adverse interest to anyone in Nepal.  It found the Applicant did not meet the complementary protection criterion and affirmed the decision under review. 

3. The Applicant sought review by application filed in this court on 4 October 2016.  There are 2 grounds in the application.  The Applicant did not file written submissions.  When given the opportunity today to elaborate on his grounds, he did not do so in any meaningful sense.  I will return to the submission that he did make.

4. Considering first the grounds in the application, the first is that the Tribunal did not correctly interpret the law relating to the Applicant’s protection claims.  Reference is made to ss.36(2)(a) and 36(2)(aa) of the Act.  This claim is explained in particulars as a claim that the Tribunal “did not appropriately consider” whether there was a real chance the Applicant would be persecuted on return to Nepal.  It was asserted that the Tribunal reached its conclusion “by merely refusing to accept evidence” he presented and/or not recognising him as a credible witness and that, in so doing, it had failed to take into account evidence that “related significantly” to establishing elements of ss.36(2)(a) and 36(2)(aa).

5. As the First Respondent submitted, this ground is not made out.  Insofar as the Applicant takes issue with the Tribunal’s adverse credibility findings, while credibility findings are not immune from review (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496) in this case the Tribunal gave cogent reasons for its adverse credibility findings, as set out in some detail above, in particular having regard to significant inconsistencies and shifts in the Applicant’s evidence. I note also that it gave the Applicant the benefit of the doubt in relation to some aspects of his claims, albeit those aspects were not such as to satisfy the Tribunal that the Applicant had a real chance of serious or significant harm.

6. While ground 1 is expressed as an asserted failure to correctly “interpret” the law, this assertion has not been particularised or explained.  It is not apparent and has not been established on the material before the court.  Insofar as the particulars of ground 1 take issue with the Tribunal’s failure to accept evidence the Applicant presented, he has not pointed to particular evidence that was not accepted or articulated how this constituted a legal error.

7. The Tribunal considered the Applicant’s written and oral claims but, for reasons which it gave which were reasonably open to it on the material before it, did not accept that the Applicant was a credible witness or that his claims to fear harm were made out.  If this ground is intended to cavil with the Tribunal’s findings of fact, including the particular adverse credibility findings, it seeks impermissible merits review. 

8. The Tribunal is not required to accept unequivocally any and all claims made by an Applicant.  It addressed the Applicant’s claims in light of adverse credibility findings based on a range of concerns including about inconsistencies and shifts in his evidence as set out above.  There is nothing in the material before the court to indicate that in reaching its credibility findings the Tribunal failed to accord the Applicant procedural fairness, reached a finding without any logical or probative basis or that illogicality, legal unreasonableness or other jurisdictional error is apparent on the basis contended for in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] to [135] or otherwise.

9. Ground 1 is not made out.

10. Ground 2 is a generally expressed contention that the Tribunal took into account irrelevant considerations and disregarded relevant considerations.  It is also asserted that the Applicant was not properly heard and there was therefore procedural unfairness in the

    
    

    decision-making process.

11. However the particulars to this ground complain that the Tribunal did not accept evidence relevant to the Applicant’s protection claim, namely, that he and his family were targets of Maoist villagers, threatened by Maoists or involved in a court case that threatened their lives because they did not surrender their lands.  Specific reference was made to the conclusory paragraphs of the Tribunal decision. 

12. The Applicant has not identified any consideration that the Tribunal was constrained from taking into account by the Act. Nor has he identified any integer of his claims to which the Tribunal failed to have regard. Insofar as it is asserted that the Applicant was not properly heard and that there was procedural unfairness, there is no transcript of the Tribunal hearing in evidence and, subject to what is said below in relation to the s.438 certificate, there is no denial of procedural fairness apparent in the decision-making process.

13. The Tribunal invited the Applicant to a hearing pursuant to s.425 of the Act at which he gave evidence and presented arguments.  It is apparent from the Tribunal’s account of what occurred at the hearing that the Tribunal raised issues of concern with the Applicant during the hearing.  There is nothing to indicate any failure to do so in the manner considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. The concerns raised with the Applicant should have put him on notice that there was an issue in relation to his credibility.

14. There is no information such as to enliven the Tribunal’s obligation under s.424A of the Act. I note that the Tribunal is not obliged to raise with an Applicant under s.424A its thought processes, subjective appraisals or inconsistencies in evidence for comment (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [18]), although it is clear that in the course of raising dispositive issues with the Applicant, the Tribunal did raise inconsistencies in his evidence.

15. It is apparent from the Courtbook that the Tribunal sought information from the Department in relation to the Applicant’s application for ministerial intervention after his student visa was refused and that refusal affirmed on review. I raised with the solicitor for the Minister whether there was any issue in relation to s.424 of the Act. However the information provided to the Tribunal consisted, in essence, of the application for ministerial intervention which repeated, in the context of describing what were said to be unique and exceptional circumstances, what subsequently appeared as the Applicant’s claims for protection. The Tribunal had regard to such claims for protection. There is nothing to indicate that the Applicant made protection claims in the context of his application for ministerial intervention that differed from those made in his protection visa application. The Tribunal was also aware of, and had regard to, his student visa application and his lack of success in that respect. There is nothing in the material before the Court to indicate that the Tribunal failed to have regard to such information (insofar as it was relevant) as required under s.424 of the Act.

16. I also note that the Tribunal considered the Applicant’s explanation that he had not applied for protection until 2014 because it was not until then that he was advised by the Department that he could apply for a protection visa, but was of the view, unrelated to the documentation, that had the Applicant been concerned about harm from a court case in 2011, he would have made enquiries and sought protection earlier.  No issue is apparent in that respect.  Insofar as the Applicant’s concern is that the Tribunal did not accept his claims, he seeks impermissible merits review.  

17. This ground is not made out, either as pleaded or as particularised. 

18. It is appropriate to mention in this context the issue that the Applicant raised today.  He expressed concern that he gave all the evidence he had to the Department and the Tribunal, but he did not know if they had asked “back home” in relation to the court case.

19. I asked the Applicant what documents he was referred to and took him through the Courtbook.  He appeared to concede that there was no document stating that he would be harmed if he returned to Nepal, other than the written statement setting out his claims.  He explained that his concern was that he did not know whether the government (and I take this to be a reference to the Department or Tribunal) had made any inquiries in relation to the claimed court case against his father and whether that was true.  He claimed today that the court case was still going on, but that he had not provided and could not provide any documents about the case to the Tribunal because of some (unexplained) difficulties getting such documents. 

20. I have considered whether the concerns that the Applicant expressed establish that the Tribunal failed to make an inquiry into a critical fact the existence of which was easily ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429.

21. I am not so satisfied.  There is no suggestion that the Applicant made any request to the Department or to the Tribunal to make such inquiries or that he raised difficulties in obtaining documents with the Tribunal in a manner that might have potentially enlivened any such obligation to inquire.  Indeed, the Applicant’s evidence in relation to the court case was, as the Tribunal detailed, of such shifting nature that I cannot be satisfied that there was any critical fact the existence of which would have been easily ascertained by making unspecified inquiries of some unspecified authority in Nepal into the existence of a court case in which the Applicant claimed he had been personally involved, but about which he gave limited and conflicting evidence.

22. No such duty arose on the material before the court.  I also note that it was not suggested by the Applicant, and nor is it apparent on the material before the court, that the Tribunal failed to have regard to any evidence he provided in a manner constituting jurisdictional error.  The Tribunal considered the evidence and claims made by the Applicant, but for the reasons that it gave, did not accept the material aspects of his claims. 

23. The other issue that requires consideration was raised by the First Respondent. The Tribunal issued a certificate under s.438 of the Act which appears in the Courtbook. It states that disclosure of material in specified folios in the departmental file would be contrary to public interest because it contained “information relating to an internal working document and business affairs”. 

24. The solicitor for the First Respondent appeared to accept that the certificate was invalid and in any event conceded that the Tribunal had not invited the Applicant to comment on the validity of the s.438 certificate. It was acknowledged that in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, the High Court had found that the Tribunal’s failure to do so meant that it had breached its implied obligation to afford procedural fairness (see SZMTA at [2] and [38] per Bell, Gageler and Keane JJ and at [78] to [117] per Nettle and Gordon JJ).

25. However, as the First Respondent pointed out, consistent with the approach that had earlier been taken by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, the majority in SZMTA also held (at [45]) that any breach of the Tribunal’s implied obligation to afford procedural fairness would not amount to jurisdictional error unless such breach was material.  As Bell, Gageler and Keane JJ stated at [45]: “Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error”.  A breach is material to a decision only if compliance “could realistically have resulted in a different decision”. 

26. In this case, the solicitor for the Minister took the court through the documents covered by the s.438 certificate which had been handed up in an envelope (consistent with the approach suggested by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305). The first of these documents (folio 3) is the second page of a letter (the first page of which appears in the Courtbook) which notified the Applicant of the outcome of his request for ministerial intervention, of finalisation of the request and the expectation that he would leave Australia as soon as possible, that a fact sheet setting out information regarding bridging visas on departure grounds was attached, and that he should contact the Compliance Section of the Department as well as referring to an attached list of departmental officers.

27. The next document (folio 4) is a one-page document headed “Attachment B - Consideration Under Section 351 of the Migration Act 1958”. This was the part of the document on which the then Assistant Minister for Immigration and Border Protection indicated that she had read the attached Schedule but did not propose to consider the exercise of the power under s.351 of the Act to substitute a more favourable decision.

28. The next document (folios 5 and 6) is a two-page memorandum to the Assistant Minister apparently prepared by a departmental official for the purposes of her consideration under s.351 of the Act, in which the officer expressed the view that intervention in a number of cases was not appropriate as the circumstances were neither unique nor exceptional.

29. Also attached to a coversheet was a document identified as “Attachment A” (folios 7 and 8) which was a departmental memorandum about the Applicant’s request for ministerial intervention in relation to the decision to refuse his student visa application.  In this document, the officer summarised the Applicant’s claims to fear harm made in his ministerial intervention request, including that his father was an ex-politician and that he feared local Maoists, his claims about the relocation of his father, his property being seized, the police being unwilling to assist and the court case.  The officer made the point that claims against Australia’s protection obligations were assessed as part of the protection visa process.  I note that the Application claimed to fear harm on the same basis in his protection visa application.

30. There is nothing in the documents in relation to ministerial intervention that goes beyond the claims that the Applicant made in connection with his original protection visa application or that is otherwise relevant in that context.  The Applicant was clearly aware of these matters as they reflect the claims that he subsequently made. 

31. I accept that, as the First Respondent submitted, the Tribunal’s breach of its implied obligation to afford procedural fairness in relation to the s.438 certificate and the information to which it related did not amount to jurisdictional error. The documents at folios 3 to 6 could not realistically have affected the Tribunal’s consideration of the Applicant’s claims. They have no relevance to those claims. As indicated, although folios 7 and 8 contain a summary of the Applicant’s claims for protection, the author of the document did not make any assessment of the credibility of those claims and the Applicant himself was aware of and made such claims in support of his protection visa application. There is also nothing in these documents which enlivened the Tribunal’s obligation under s.424A of the Act.

32. Having regard to the approach taken by the High Court in SZMTA, it cannot be said that the breach of procedural fairness was material to the decision. There is nothing to indicate that had the Tribunal invited the Applicant to comment on the validity of the s.438 certificate or on the documents it covered, this could realistically have resulted in a different decision in relation to the protection visa application.

33. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed. 

34. The unsuccessful Applicant should meet the Minister’s costs.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Date:         5 April 2019