DGM17 v Minister for Immigration
[2017] FCCA 2896
•24 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGM17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2896 |
| Catchwords: MIGRATION – Application for Protection (Class XA) visa. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(a), 438(1)(a), 375A |
| Cases cited: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 |
| First Applicant: | DGM17 |
| Second Applicant: | DGN17 |
| Third Applicant: | DGM17 AS LITIGATION GUARDIAN FOR DGO17 |
| Fourth Applicant: | DGM17 AS LITIGATION GUARDIAN FOR DGP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 679 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 6 November 2017 |
| Date of Last Submission: | 6 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 24 November 2017 |
REPRESENTATION
| The Applicants appeared in person |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed 20 July, 2017 be dismissed;
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 679 of 2017
| DGM17 |
First Applicant
| DGN17 |
Second Applicant
| DGM17 as litigation guardian for DGP17 |
Third Applicant
| DGM17 as litigation guardian for DGP17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant is a citizen of Fiji who came to Australia on 12 December, 2014 as the holder of a Tourist visa. On 4 March, 2015 the applicant filed an application for a Protection (Class XA) visa. The second, third and fourth applicants also sought protection visas on the basis that they were part of the first applicant’s family unit.
By this application the applicants seek judicial review of a decision by the Administrative Appeals Tribunal given 26 June, 2017 which affirmed a decision of a delegate of the first respondent not to grant them the visas. The ground of review specified in the application for review filed by the applicants is very general. I made orders on 14 August, 2017 that permitted the applicants to file and serve an amended application specifying their grounds of review more precisely and requiring them to file written submissions and a list of authorities by 23 October, 2017. Despite those directions, the applicants have failed to file an amended application or any written submissions in support of the case. I have written submissions from the first respondent.
The first applicant’s claims for protection were articulated in a statement accompanying his visa application dated 27 February, 2015 and in a statutory declaration dated 9 May, 2016 provided to the Tribunal.
The first applicant claimed that he was fearful of returning to Fiji because he held a strong political opinion against the Fiji Military Regime which he had expressed in blogs, newspapers and by distributing post-mortem photographs of his cousin, who he claimed was killed by the Fiji Military Forces on 5 January, 2007 in the course of a land dispute.
The first applicant claimed that were he to return to Fiji he would be arrested or even killed as he was a threat to national security.
Following the death of his cousin, the first applicant said that he began criticising the Fiji Military Regime for their inaction in investigating his cousin’s death and bringing the soldiers who killed his cousin to justice. He used various media outlets to express his views about the murder of his cousin. A military police officer was subsequently charged and later sentenced on 6 April, 2009 for his cousin’s death.
The first applicant claimed that on two separate occasions he was taken by the military and interrogated. The first occasion was on 16 March, 2007 at about 8:00pm, when he and his nephew were taken by the military and the police. He says that both were questioned about having taken photographs of his cousin in the morgue. They were made to crawl on the ground and were punched and kicked. His mobile telephone was confiscated and smashed. Following this incident he went to the hospital and obtained some painkillers.
The second occasion was on 24 January, 2012 at 6:00pm when the first applicant was taken and interrogated by the military and threatened with death if they found out that he still had the photos of his cousin’s body in the morgue.
On 19 May, 2015 the first applicant attended an interview before the delegate. On 7 August 2015, the delegate refused to grant the applicants the visas for which they had applied.
On 14 September, 2015 the first applicant applied to the Tribunal for review of the delegate’s decision.
On 11 April, 2016 the first applicant was invited to attend a hearing before the Tribunal because it could not decide the review application in his favour on the material then before it. It invited him to give evidence and present arguments in support of his review. The Tribunal requested that the first applicant provide a written submission setting out all of the claims he made and maintained. In response, the first applicant and the second applicant provided statutory declarations.
The Tribunal hearing proceeded on 10 May, 2016. At the hearing the applicants’ registered migration agent provided written submissions to the Tribunal as well as an affidavit from the first applicant (undated), statutory declarations from the first applicant’s cousins, information about the third and fourth applicants’ schooling, employment records and payslips, utilities bills and media articles.
Following the hearing, on 19 May, 2016 the first applicant provided an extensive submission to the Tribunal (of some 283 pages), written by Oni Kirwin of the Pacific Indigenous Samaritan Association Inc.
On 26 June, 2017 the Tribunal affirmed the delegate’s decision not to grant the first applicant the visa.
In its reasons for decision, the Tribunal recited the entirety of the first applicant’s claims as set out in his statutory declaration dated 9 May, 2016. The Tribunal also noted that the first applicant had provided further documents in support of his case including, various news reports, blogs, articles about the treatment of his cousin and other Fijians by the Fijian authorities. He provided copies of letters of support by prominent Fijians for others seeking asylum in the United States, statements from the first applicant’s wife and two of his cousins, photographs of the first applicant’s deceased cousin and excerpts of various pieces of Fijian legislation.
The Tribunal summarised the first applicant’s evidence at the hearing. The first applicant does not take any issue with the Tribunal’s summary. In those circumstances I approach the case on the basis that the Tribunal’s summary of his evidence was accurate.
Before passing to how the Tribunal dealt with the evidence, it is necessary to record that the Tribunal had received a statement from a person called Oni Kirwin. The circumstances in which that statement came into the possession of the Tribunal is described by the Tribunal in its reasons as follows:
37. The applicant claimed that Fijian nationals who apply for protection visas are known to Fijian authorities. The Tribunal asked the applicant how the Fijian authorities would know this and the applicant said that they knew because they did not return to Fiji. The Tribunal indicated that this could be because they had obtained visas overseas, were awaiting the outcome of a visa application or were overstaying without visas. The applicant did not respond to this suggestion but instead said that he joined a social group in NSW recently. When asked about this group and how it was relevant to his case, the applicant said that it was a social media group that had been protesting. The Tribunal indicated that it did not appear that the applicant had ever mentioned this claim previously. His representative said that he had never heard this claim before. The applicant said that he had asked a lady involved with the group to write a letter explaining the group. He said the lady was also involved in the UN case. The applicant could not name the lady or the group. He later said that the group was called “something Fiji exile.”
38. Sometime after the hearing had been held, the Tribunal received a voluminous statement apparently from someone called Oni Kirwin. However, the statement was signed by someone other than Oni Kirwin. The statement itself is hard to comprehend and the relevance of the information provided in the statement to the applicant’s case is hard to understand. It appears that the statement is not specifically about applicant and the applicant’s name appears to have been pasted into the statement in a different font to the writing in the rest of the statement.
39. Ms Kirwin is not the applicant’s representative and does not appear to be a migration agent. Yet in her statement she appears to have advanced submissions on behalf of the applicant which were largely incomprehensible and where any sense could be made of them, inconsistent with the applicant’s evidence. For example, the statement makes nonsensical submissions about the applicant’s fear of persecution for his race (indigenous Fijian) and religion (Christian) when these claims were never made by the applicant and are not supported by any of the evidence which the applicant provided. It is unclear what Ms Kirwin’s relationship with the applicant was or how she formulated her statement or her submissions. The statement from Ms Kirwin and the submissions she has made are given no weight.
The Tribunal considered that the first applicant appeared genuinely upset when speaking about his cousin’s death. Having regard to that and to the various media articles provided by the first applicant, the Tribunal was willing to accept that his cousin was killed by a military officer in 2007. However, the Tribunal did not accept that the first applicant was ever arrested or harmed by the authorities in Fiji in relation to his cousin’s death, his claimed political views or for any other reason.
The Tribunal found that the first applicant’s claims about his arrest and interrogation in 2007 were inconsistent and implausible. In [46] – [48] of the Tribunal’s reasons, the Tribunal set out the difficulties that it found with the applicant’s claims and evidence about his arrest in 2007 and the reasons for which it formed the conclusion that his claims about that were inconsistent and implausible. The Tribunal noted that the first applicant could not remember when he claimed to have been arrested, then stated that it was sometime in February, 2007 but later changed his evidence to March, 2007. The first applicant initially stated that he was taken by three military officers and one police officer, but later changed his evidence and stated that there were two military officers and one police officer. The Tribunal also noted that the first applicant had given inconsistent accounts about whether photographs remained on his mobile phone when he handed it to the officers. The first applicant gave varying accounts as to how long he had been detained by the officers and the Tribunal considered the first applicant’s evidence that he walked to the hospital and then the village after being beaten for four to five hours to be very hard to believe. The Tribunal also found it hard to accept that the first applicant was only given painkillers after such a beating and rejected that claim.
The Tribunal considered that its findings in relation to the first applicant’s claims about his arrest and interrogation in 2007 were supported by the first applicant’s evidence that he returned to his village after the attack and waited for six months before relocating to Nadi and that he returned to his village in 2008 and remained there until he departed for Australia in 2014.
The Tribunal reasoned that the first applicant’s failure to attempt to leave Fiji until 2012 supported its finding that the assault did not occur at all.
The Tribunal considered, but rejected, the statement of the first applicant’s cousin which purported to support his claim about the arrest and interrogation in 2007.
Nor did the Tribunal accept that the first applicant was arrested by the police or military in 2012. The Tribunal noted that the first applicant could not remember the date on which this incident was said to have occurred and gave conflicting evidence about the time of the claimed incident. The Tribunal considered that the first applicant gave inconsistent evidence about how many officers he was arrested by on this occasion. The Tribunal indicated that it was unclear as to why the authorities would be worried in 2012 about the first applicant releasing photographs of his cousin who had died in 2007, given that the officer who had killed the first applicant’s cousin had been convicted in 2009.
The Tribunal did not accept that the first applicant had ever expressed criticism of the Fijian authorities. It said:
51. The Tribunal does not accept that the applicant ever expressed criticism of the Fijian authorities whether it was online, in newspapers or in any other way. His evidence about these claims was thoroughly unconvincing. He could provide no details about what he had written, on what platforms or when he did so. While he did eventually mention a website called Coup4.5, he did not identify what he had written on the site, what pseudonym he had used or when he had written the blogs.
52. In addition, there is no evidence that the applicant has expressed any criticisms of the Fijian government or authorities since he has been in Australia. The Tribunal places no weight on the applicant’s claim, raised for the first time at the hearing that he had joined a “social media group” that criticised the Fijian government. The applicant could provide no detail about the group or even name it.
The Tribunal concluded its examination of these issues by saying:
53. The Tribunal considers that the applicant has fabricated his claims of being arrested and assaulted, and his claims to have been publically critical of the Fijian government and Authorities, to bolster his claims for a protection visa. The Tribunal has found that the applicant was never harmed of arrested by Fijian authorities.
The Tribunal considered but rejected the first applicant’s claim that he faced a real chance of serious harm because he was related to cousins in the United States who were critical of the Fijian authorities. The Tribunal noted that the first applicant had provided no evidence that any of his family members had been harmed because of their relationship to family members in the United States.
The Tribunal did not accept that the first applicant would face any harm as a result of applying for a protection visa in Australia. It considered that there was no evidence that the Fijian authorities knew that the first applicant had made the visa application or that the Fijian authorities would discover that he had done so. The Tribunal did not accept the first applicant’s claim that the Fijian authorities would know who had applied for protection by the length of time that they had spent in Australia. It also found that there was no compelling evidence before the Tribunal to suggest that those persons who were known to have applied for protection overseas were harmed for that reason upon return to Fiji.
The Tribunal accepted that a number of people had been mistreated by the military and police, but that the first applicant had failed to advance a claim which had convinced the Tribunal that there was a real risk that the first applicant would be harmed by the Fijian authorities. Having regard to country information, the Tribunal accepted that some of Fiji’s laws supressed free speech, especially in relation to criticism of the government and Fijian authorities. However, given that the Tribunal had found that the first applicant had never publicly criticised the Fijian government, it found that he would not do so if returned to Fiji.
Accordingly, the Tribunal was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Migration Act 1958 (Cth).
The Tribunal also rejected the first applicant’s claim to complementary protection on the basis of its earlier factual findings in respect of the applicant’s claim to protection under s.36(2)(a) of the Act.
Grounds of review
The applicants’ review application to this Court contains a sole ground of review in the following terms:
1. The Decision Maker and Tribunal Member have not understood the risk to myself and an expected apprehension by the airport police if I return to Fiji. I will be taken into custody. This is a serious matter to myself and to my safety.
In his supporting affidavit filed on 20 July, 2017 the first applicant argues that the Tribunal “did not consider all submissions. That has been to the detriment of the decision”. In addition to that, on 11 August, 2017 the first applicant filed a further affidavit, which annexes a letter containing a number of complaints about the Tribunal’s decision.
The difficulty with the ground of review set out in the applicants’ application for review is that there is no material to suggest that the first applicant ever made a claim that he expected to be apprehended by airport police if he was to return to Fiji. As the first respondent points out, the Tribunal was not required to consider a claim not made nor one which cannot be said to clearly arise on the material before the Tribunal: see Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.
Further, I accept the first respondent’s submission that in the absence of any evidence of what occurred at the hearing, such as a transcript or audio recording of the hearing, there is simply no evidence, nor anything from which an inference could be drawn, that such a claim was made by the first applicant. The Tribunal’s reasons record the claims that the first applicant made and in the absence of such evidence, must be considered to be accurate: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1at [63]; NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]; SZRRY v Minister for Immigration & Anor [2013] FMCA 189 at [48] and CJV15 v Minister for Immigration & Anor [2016] FCCA 1447.
In any event, it is evident from the Tribunal decision record that the first applicant made a claim, during the course of the hearing, that Fijian nationals who apply for protection visas were known to Fijian authorities, because those persons did not return to Fiji. This claim was rejected by the Tribunal, which found that there was no compelling evidence before it to suggest that those known to have applied for protection overseas were harmed once they returned to Fiji. I accept that this was a finding open to the Tribunal.
I accept the first respondent’s submission that there is no jurisdictional error revealed by the ground articulated in the applicants’ application for review.
In his affidavit filed on 20 July, 2017 the first applicant says that the Tribunal did not consider all submissions and its failure to do so was to the detriment of the decision. However, as the first respondent points out, the first applicant has not identified what submissions were not considered by the Tribunal. The applicant was unable to assist me in the course of his oral submissions to identify what submission he had made to the Tribunal that had been ignored. The Tribunal’s reasons for decision revealed that it articulated the applicant’s claims by reproducing his statutory declaration in which they were contained, recorded the evidence that the applicant gave at the hearing before it (and about which there is no dispute) and dealt with each of the applicant’s claims by reference to the evidence and other material to which the Tribunal had access.
To the extent that the applicants’ complaint is that the Tribunal failed to consider the submission of Oni Kirwin, as I have set out above, the Tribunal gave comprehensive reasons for affording this submission and the statement of Oni Kirwin no weight. That was a course that was plainly open to the Tribunal.
In his affidavit filed on 11 August, 2017 the first applicant says (errors in the original):
A major concern is that at the Administrative Appeals Tribunal the then member > Tigiilago ETEUATI also of a Pacific Region background from the very beginning of my hearing had a biased attitude to my case and his repeated questioning expressing quite outwardly that he could not accept my statements was very disruptive to my concentration and I became very nervous.
Due to that predicament and the mental pressure that he placed me under I became confused and disorientated.
A copy of the disk recording will confirm my nervousness shortly after the beginning of the hearing. I was not allowed to have a break to collect my thoughts and the persistence from him over the doubts of my answers absolutely destroyed my mental aptitude at the time.
The AAT member, Tigiilago ETEUATI obviously has not refreshed himself with the present day political disposition in Fiji towards persons claiming protection in another country.
The Fijian Prime Minister has made it abundantly clear in the public media that asylum seekers on return to Fiji will be banished into a life of poverty and despair, with no hope of gaining meaningful employment. This is supported by the recent attached newspaper article that the AAT would not accept. An avadavat prepared by my representative at the time was also not accepted and taken into consideration.
It was disturbing to me that the AAT at such a critical hearing for myself and my family would not accept the evidence that I was presenting prior to the hearing and instead of trying to understand the plight of myself and my family all the AAT member was trying to do was to disprove and discredit my claims.
It is also quite obvious that the AAT members decision record actually varied very little from the Immigration Dept/Ministers decision letter. Like it was copied.
It seems to me, that the gravamen of the complaint in that affidavit is threefold: first, the Tribunal member was biased; second, the Tribunal did not properly consider his claim that returning asylum seekers were subjected to persecution upon their return to Fiji and forever thereafter and third, the Tribunal member refused to accept submissions and other material from the applicant which he saw as critical to the determination of his review.
As to the first matter, bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. An applicant is unlikely to be able to do that by reference to the decision-maker’s reasons for decision alone. Here, the first applicant has made no proper attempt to particularise his allegation of bias or to provide any evidence to suggest that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, a proper evaluation of the matter.
In his affidavit of 11 August, 2017 the first applicant refers to the Tribunal’s repeated questioning of him and the expression “quite outwardly” that the Tribunal member could not accept the first applicant’s statements. Leaving aside the difficulty of being able to assess the nature and extent of the Tribunal’s “repeated questioning” of the first applicant without a transcript, repeated questioning in relation to matters which are critical to the resolution of the review is not necessarily, or even generally demonstrative of bias. The Tribunal is not obliged to accept critically whatever it is that an applicant says. A Tribunal member is entitled to test the claims that are being made.
I accept the first respondent’s submission that there is nothing in the Tribunal’s decision record to indicate that a fair minded and informed person might reasonably apprehend that the member might not have brought an impartial mind to bear on the decision.
To the extent that the first applicant alleges that the Tribunal’s decision record varied very little from the delegate’s decision “like it was copied” and that perhaps is indicative of bias, I reject that submission. As the first respondent’s submissions point out, a review of the Tribunal’s decision as compared with the delegate’s decision does not create an “impression that there has been carried out a mechanical process of cutting and pasting devoid of cognitive activity”: SZNZK v Minister for Immigration & Citizenship [2010] FCA 651 at [38]. In my view, the Tribunal’s decision record reveals that it properly engaged with the first applicant’s claims in his evidence and the other material before it to determine the review.
I agree with the first respondent’s submissions that this complaint has no substance.
As to the second matter, I accept the first respondent’s submissions that his claim that he would be ill-treated upon his return to Fiji was not considered by the Tribunal must fail at a factual level. The Tribunal considered this claim:
56. The Tribunal does not accept that the applicant will face any harm as a result of applying for a protection visa in Australia. First, there is no evidence that the Fijian authorities know that the applicant has made a protection visa application or any reason for the Tribunal to believe that the authorities would discover that he had done so. The Tribunal does not accept the applicant’s claim that the Fijian authorities know who has applied for protection by the length of time they have spent in Australia. As the Tribunal indicated to the applicant there are a number of reasons to explain a long stay by a Fijian in Australia including that they were granted a visa, had been awaiting the result of a visa application or had simply been overstaying in Australia. In any event, there is no compelling evidence before the Tribunal to suggest that those who are known to have applied for protection overseas are harmed for that reason once they return to Fiji.
As to the third matter, it is not at all clear that:
a)the newspaper article annexed to the first applicant’s affidavit is in any way relevant to any of the claims that he has made; or
b)he attempted to provide it to the Tribunal. There is no transcript of the Tribunal hearing before me.
Given that the Tribunal otherwise generally considered the news reports, blogs and articles about the treatment of Fijians at the hands of the Fijian authorities in its decision record I find that it would be unlikely that the Tribunal would refuse to receive a newspaper article that the first applicant wished it to have.
Further, the first applicant argues that the Tribunal failed to accept an affidavit prepared by his representative prior to the hearing. But that does not appear to be accurate. Item number 17 in the court book is described as “documents received at hearing: 10.05.16”. Those documents span pages 292 – 372 of the court book. The first item in the list is a written submission from Results Migration, the applicant’s representative at the Tribunal hearing. The second item is described as the “first applicant’s statement”. It takes the form of an unsigned affidavit. It is apparent from that material, and I find, that the first applicant, by his representative, gave to the Tribunal a copy of the affidavit to which he refers in his affidavit filed in these proceedings on 11 August, 2017. If it was the case that the Tribunal member refused to take the affidavit as the first applicant alleges, its appearance in the court book is inexplicable.
It may be the case that the first applicant has concluded that the Tribunal did not receive those documents because it has not specifically referred to them in its reasons for decision. But as the first respondent points out, the Tribunal was not required to expressly refer to each and every individual piece of evidence provided by the first applicant. The claims made in the unsigned affidavit at court book pages 279 – 308 had been made by the first applicant in his two previous statutory declarations found at court book pages 4 – 7 and pages 284 – 287. The additional material provided in the applicants’ representative’s submission including the third and fourth applicant’s school records, utility bills, rental agreements and offers of employment were not relevant to the criteria for the grant of the visa. That the Tribunal did not refer to those documents is unremarkable.
Although it was not the subject of a ground raised by the applicants in this review, the first respondent brought to my attention that a certificate under s.438(1)(a) of the Act had been issued by a delegate of the Minister on 16 September, 2015. There is no evidence before the Court to suggest that the Tribunal invited the first applicant to comment on the certificate. Nor does the Tribunal’s decision record address the certificate. On that basis, the first respondent submits that this matter would appear to raise the issues addressed by the Federal Court in Singh v Minister for Immigration and Border Protection (2016) 244 FCR 305 and MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081.
At the conclusion of the hearing before me, I raised this matter with the first applicant and suggested that he may wish to obtain advice about it and I gave him the opportunity to file further written submissions addressing this point if he wished to do so. On 20 November, 2017 the applicants filed further written submissions. The applicants submit that the question for the Court in connection with this issue is “to consider whether by failing to address the certificate on its decision, and failing to invite the applicant to comment on the certificate, the decision of the tribunal was made in jurisdictional error.”
The relevant certificate was issued by the delegate on 16 September, 2015 and stated that the disclosure, otherwise than to the Tribunal, of matters contained in folios 7, 45 of the departmental file CLF2015/20489 would be contrary to the public interest because some of the material “contain[ed] information relating to an internal working document and business affairs.” The first applicant says that the certificate covered “an internal checklist and an identification test”.
The first respondent concedes that for the reasons given by Beach J in MZAFZ at [36] – [37], the certificate is on its face, invalid.
However, the first respondent submits that Singh does not stand for the proposition that every certificate issued pursuant to s.438 must be disclosed to the first applicant. And so it does not, because apart from anything else, Singh was concerned with a certificate issued pursuant to s.375A of the Migration Act, not s.438 of the Act. There are significant textual differences between s.375A and s.438. As the Full Court points out in Singh “s 438(3)(b) permits what s 375A does not, viz., disclosure to an applicant of the material subject to the certificate.”
MZAFZ was a decision of the Full Court of the Federal Court, although constituted by a single judge rather than three judges. It is, until it is overruled, binding upon this Court. In MZAFZ Beach J held that procedural fairness required the disclosure of a certificate issued pursuant to s.438 of the Act. His Honour said at [50] – [52]:
50.Procedural fairness required that the Tribunal ought to have (but did not in the present case):
(a)disclosed the existence of the certificate to the applicant; on this aspect, I do not propose to follow what was said in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [29] per Dowsett J who was in any event discussing s 375A and was influenced by the strictures thereof that did not contain an equivalent to s 438(3) (his Honour was not discussing s 376);
(b)given the applicant the opportunity to make submissions on the validity of the certificate if she so chose; of course there is an air of unreality to affording such an opportunity to a self-represented litigant who requires an interpreter, but that does not deny the existence of any such requirement;
(c)disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant;
(d)given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).
51.Putting to one side for the moment s 422B, given that the Tribunal ex hypothesi would have relevant documents covered by the certificate, for the applicant not even to have knowledge of the existence of the certificate is antithetical to her interests. Only with knowledge of the certificate would she then be able to:
(a)challenge its validity;
(b)enquire of the Tribunal how it was going to use the material; and
(c)seek an exercise of power under s 438(3)(b).
52.To deny her knowledge of the existence of the certificate would effectively preclude her from taking any one or more of steps [51] (a) to (c). Moreover, the fact that s 438 does not itself contain an express statutory obligation to disclose the certificate does not foreclose any procedural fairness requirement, subject of course to the operation of s 422B.
The conclusions reached about these matters by Beach J were not doubted in Singh. Both cases rejected the proposition in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 that a certificate issued pursuant to s.375A of the Migration Act need not be disclosed to an applicant. The corollary of that proposition is that it must be disclosed to an applicant. Insofar as it concerned a certificate issued pursuant to s.438 of the Migration Act that is, with respect, a significant aspect of the ratio of MZAFZ.
The first respondent submits that the Tribunal’s reasons make it clear that it did not act on the certificate or the documentation to which it relates. I reject that submission. Nowhere in the Tribunal’s reasons does the Tribunal identify the existence of the certificate. Nor does it identify the documents or information purportedly covered by it. The absence of any reference to the documents by the Tribunal in its decision record might be consistent with the proposition that the Tribunal paid no attention to the certificate or the material covered by it. But not necessarily so.
It is trite that when giving reasons for decision on a review such as that conducted by the Tribunal, it is not incumbent upon the Tribunal to refer to every piece of evidence or submissions made: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]. A court conducting a judicial review application can reach a conclusion that such evidence or submissions had been considered by the Tribunal even though there is no express reference to that evidence of submissions by the Tribunal. Indeed here, in answer to the first applicant’s complaint that the Tribunal did not have regard to his unsigned affidavit that he complains was rejected at the hearing, the first respondent submits that he should not be concerned even if that affidavit was not received by the Tribunal because “The claims made in the unsigned affidavit (CB 279-308) had been made by the applicant in his two previous statutory declarations (CB 4-7, 284-287)…”. By that submission the first respondent invites me to infer that the Tribunal has had regard to those two previous statutory declarations and so the first applicant was not prejudiced by a failure to take the unsworn affidavit. But the Tribunal does not, in its reasons for decision, refer to the earlier of the two statutory declarations (that which is at pages 4 – 7 of the court book) at all. That declaration was the first applicant’s statement lodged with his visa application when it was first made. It was not given to the Tribunal by the first applicant (at least according to what is in the court book). If the Tribunal had reference to that statutory declaration, it could only be because it was given to the Tribunal by the Department.
The point is that on the one hand the first respondent argues that I should infer from the absence of a reference to the certificate or the material covered by it in the Tribunal’s reasons, that the Tribunal gave no consideration to the certificate or the material covered by it. Yet, on the other hand, the first respondent argues that I should infer that the Tribunal has had regard to the first applicant’s first statutory declaration even though it is not referred to, either expressly or by implication, in the Tribunal’s reasons.
In my view it is likely, and I find, that the Tribunal had reference to the documents comprising the Departmental file which included not only the applicant’s first statutory declaration but also the certificate issued pursuant to s.438 of the Migration Act and the documents covered by it. That the Tribunal had access to the departmental file seems apparent from paragraph 12 of the Tribunal’s decision:
12. The applicant also provided to the Department and the Tribunal a number of documents in support of his case. These included various news reports, blogs and articles about the treatment of his cousin and other Fijians at the hands of the Fijian authorities, letters of support by prominent Fijians for others seeking asylum in the United States, statements from the applicant’s wife and two of his cousins in support of the applicant’s application, photographs of the applicant’s dead cousin and excerpts of various pieces of Fijian legislation. Of particular note are news articles which indicated that the Fijian military undertook an investigation into the death of the applicant’s cousin which was concluded within a few months of the applicant’s cousin’s death and articles which indicated that a member of the Fijian military was convicted of the manslaughter of the applicant’s cousin in 2009.
It is impossible to tell from the Tribunal’s reasons for decision what consideration the Tribunal gave to the certificate and the documents covered by it. There is nothing to suggest that the Tribunal was aware that the certificate was invalid or that it considered whether the certificate was valid or invalid. I am not prepared to infer that the Tribunal gave the certificate no consideration or the documents covered by no consideration as the first respondent urges me to do.
Contrary to the first respondent’s submissions, in my view the Tribunal did fall into the error identified by Beach J in MZAFZ by not bringing to the attention of the applicant the fact that such a certificate had been issued. Again, contrary to the first respondent’s submissions, I do not consider the lapse in procedural fairness demonstrated by the Tribunal in this case to be a “technical breach”.
The first respondent argues that I should consider the documents covered by the certificate so that I can determine for myself whether any “practical injustice” resulted from the certificate not having been disclosed, such that a denial of procedural fairness can be made out.
As to a similar course, in MZAFZ Beach J observed:
54.Now the Minister submitted that I should look at the documents covered by the certificate, with the suggestion floated that once I looked at them I would be satisfied that:
(a) the certificate had properly been issued;
(b)there was nothing advantageous to the applicant not disclosed; and
(c)there was nothing disadvantageous to the applicant not disclosed.
55.I declined that invitation for a number of reasons. First, I am entitled to proceed on the basis that the documents covered by the certificate had relevance to the applicant’s visa application, whether favourable, unfavourable or neutral. If not, the s 438(1)(a) certificate would not have been necessary and the documents would not have been before the Tribunal. Second, it was the Tribunal’s task to review the documents, not mine. Third, even if I accepted points [54] (a) to (c), it does not address the points set out at [50] above in terms of what procedural fairness required that the Tribunal ought to have done, save for any operation of s 422B.
However, subsequently in Singh, the Full Court suggested:
67. First, the Minister initially sought to put before the Court the confidential information which was the subject of the certificate. For future cases, so that this material is not inadvertently seen by the Court prior to any debate as to whether it should be received, it should be provided manually in a sealed envelope with a clear statement on the front of it as to its contents. This will ensure that there is no premature disclosure of the material to the Court.
That does not appear to have happened in this case. On 30 October, 2017 the first respondent filed an affidavit by the solicitor responsible for the application in the first respondent’s solicitors’ office. Whilst the solicitor swearing the affidavit deposes that:
Exhibited to me at the time of affirming this affidavit are the documents the subject of the certificate reproduced at page 267 of the Court Book. I have placed the exhibit along with a copy of this affidavit in a sealed envelope in accordance with the statement of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [67]
the affidavit and the documents which are the subject of the certificate were filed by eLodgment and appear on the electronic court file and the Commonwealth Courts Portal. The first respondent argues that having regard to those documents, “it is apparent that the documents covered by the Certificates could not have had any material impact on the Tribunal’s consideration of the issues on the review. This case is thus distinguishable from Singh as no denial of procedural fairness resulted from non-disclosure of the existence of the certificates.”
But in my view that submission pays no regard to MZAFZ and the observations of Beach J I have extracted above at [65] of these reasons. An examination of the offending documents will not address the points set out at [50] of MZAFZ in terms of what procedural fairness required that the Tribunal ought to have done. The failure to undertake what was suggested in MZAFZ resulted in a failure to afford the applicant procedural fairness in this case.
The first respondent submits further that in the event that “the Court concludes that MZAFZ and Singh are not distinguishable, or that there may have been some technical breach of the Tribunal’s obligations, relief should be withheld on discretionary grounds for the reason that knowledge of the certificates and the documents to which they related could not have made any difference to the outcome of the review”. That was the approach taken in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [91] and BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [67]-[68].
For the reasons that I have expressed above, I am of the view that the Tribunal did not afford the first applicant procedural fairness by not disclosing to him the existence of the relevant certificate. I do not consider that it is a “technical breach”.
Nonetheless, having regard to the content of the documents covered by the certificate, it is difficult to see how the first applicant lost any opportunity to advance his case. He does not demonstrate any detriment occasioned to him or any of the other applicants by reason of the breach. There is no practical injustice as a result.
As a matter of discretion then, I would refuse relief because there would be no utility in granting the relief that the applicants claim.
Conclusion
For the reason I have given, the application must be dismissed with costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 24 November 2017
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