DME16 v Minister for Immigration and Anor (No.3)

[2017] FCCA 2056

FEDERAL CIRCUIT COURT OF AUSTRALIA

DME16 v MINISTER FOR IMMIGRATION & ANOR (No.3) [2017] FCCA 2056

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – certificate issued under s.438 – adverse information provided to the Tribunal – public interest immunity – protection visa – whether the Tribunal failed to comply with s.424A – whether the failure to disclose the nature of a certificate constituted jurisdictional error – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 438, 440, 476

Cases cited:

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

Applicant: DME16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3193 of 2016

Judgment of: Judge Street

Hearing date: 1 August 2017

Date of Last Submission: 1 August 2017

Delivered at: Sydney

Delivered on: 1 August 2017

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The further amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3193 of 2016

DME16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for relief within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 October 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Zimbabwe and the applicant’s claims were assessed against that country.

2. The applicant applied for a Protection visa on 14 January 2014. The applicant had applied for an FA-600 (visitor) visa on 14 November 2013. That visa was granted on 29 November 2013 and the applicant arrived in Australia on 12 December 2013. That visa ceased on 29 January 2014. The delegate declined to grant the protection visa on 31 October 2014, making adverse credibility findings in relation to the applicant, and finding the applicant failed to meet the criteria under the Act. The applicant applied for review on 14 November 2014.

The Tribunal’s decision

Section 438 certificate

1. In the present case, on 28 September 2015, a certificate under s.438(1)(b) was issued by a delegate of the Minister and provided to the Tribunal. That certificate identified particular folios and advanced that the information had been provided to the Department in confidence. The view was expressed that the information should not be disclosed to the applicant or the applicant’s representatives because the information was provided in confidence but may identify the source if disclosed. The certificate on its face is a valid certificate within s.438(1)(b).

2. In the present case, the information the subject of the certificate has been tendered in evidence and a redacted copy has been provided to the applicant’s legal representatives. The document the subject of the certificate was properly the subject of a claim for protection on the face of the document. Part of its contents satisfy the requirements for public interest immunity in that the disclosure of that part of the document would give rise to the disclosure of the identity of the source of information.

3. Public interest immunity has protected informants and information that could lead to the disclosure of the identity of informants in both civil and criminal cases for a long period of time. The document in the present case was properly the subject of the issue of the certificate. It was argued by Mr Godwin that the certificate in the present case was one which may have been able to exclude certain parts of it. That does not give rise to the certificate in any way being valid or an argument that the certificate was invalid.

The Tribunal hearing

1. The applicant was invited to attend a hearing by a letter dated 22 July 2016. The applicant appeared on 18 August 2016 in accordance with that invitation to give evidence and present arguments. Following the hearing, an order was made by the Tribunal under s.440(1) of the Act in respect of the folios the subject of the certificate under s.438.

The applicant’s claims

1. The applicant feared harm from the authorities and associated groups in Zimbabwe, including, as arising from the authorities’ view of her actual and imputed political opinion and activities allegedly being pro-MDC/anti-government/local chairperson in Zimbabwe. The Tribunal did not accept the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe, there is a real risk the applicant would suffer significant harm.

2. The Tribunal identified the applicant’s claims, evidence, and background. The Tribunal set out the relevant law in an annexure to the Tribunal’s reasons. The Tribunal identified that the applicant had been the subject of credibility issues before the delegate.

Certificate material

1. The Tribunal, in its reasons, identified that it put to the applicant concerns about the applicant’s credibility of claims as well as information pursuant to s.424AA. The reference to information pursuant to s.424AA was information from the two persons the subject of the s.438 certificate. In that regard, the transcript of part of the hearing has been tendered. That part of the tender of the transcript identifies that particulars were provided to the applicant of the information to the effect that the applicant’s claims had been made up and that the applicant had provided false documents. On the face of the material before the Court, including the transcript, the Tribunal complied with its obligations under s.424AA.

2. Mr Godwin argued that there was further information identifiable from the redacted version of the folios concerning the applicant in respect of information concerning the applicant being in Australia for economic reasons and that the applicant was an economic refugee. The particulars provided by the Tribunal, that the applicant had made up her claims and provided false documents, patently subsumed the information concerning the applicant being in Australia for economic reasons and/or being an economic refugee. There was no failure to comply with s.424AA by the Tribunal in the present case.

3. The Tribunal identified its serious concerns about the applicant’s credibility and the veracity of her claims and her inconsistent, changing, and not credible evidence. The Tribunal provided detailed reasons in support of those credibility findings. Those detailed reasons have not been the subject of any criticisms and provide a rational and logical basis for the adverse credibility findings.

4. In the course of the Tribunal’s reasons, the Tribunal also referred to what occurred during the course of the hearing, pursuant to s.424AA, and that the Tribunal put to the applicant allegations she had told people in Australia that she had made false protection visa claims and she had obtained false documents to support her claims, that no one had sought to harm her or her family in Zimbabwe, that she experienced no problems at home and no one will seek to harm her or her family because she and her family are not of interest and they are not involved politically. The Tribunal noted that the applicant, in response, said that she does not know whoever passed that information to the Department, because it is not true. The applicant maintained that her documents and claims were true.

5. The Tribunal, in its reasons, record that the allegations are from anonymous sources and the motives behind the allegations are unclear. In light of these circumstances the Tribunal recorded, in its reasons, that it did not consider these allegations to be credible or relevant to the decision in this matter. The concerns the Tribunal held identified in its reasons in respect of credibility led the Tribunal to conclude the applicant is not a witness of truth and that the applicant has exaggerated and fabricated accounts of events as well as claimed fears.

Refugee assessment

1. The Tribunal was not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm, either when she returns to Zimbabwe, nor thereafter, at the hands of police, militias, ZANU-PF members, or any other part of the authorities or groups of persons. The Tribunal, having considered the claims individually and cumulatively, found that the applicant is not a credible witness concerning past or future claims feared, and the Tribunal rejected all the claims made and found that the applicant does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by her or on her behalf.

2. The Tribunal, having considered the claims individually and cumulatively, was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant does not satisfy the criterion under s.36(2)(a).

Complementary protection assessment

1. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zimbabwe, there is a real risk the applicant would suffer significant harm as referred to in s.36(2)(aa) and found that the applicant failed to meet the criterion under s.36(2)(aa) and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the further amended application are as follows:

   1. The Second Respondent failed to comply with s 424A of the Migration Act 1958

   Particulars

   The Tribunal did not inform the applicant of information that would have been the reason or part of the reason for affirming the decision under review and give the applicant the opportunity mandated by s 424A(1) of the Act:

   (a) that the applicant was in Australia for economic reasons

   (b) that the applicant was an economic refugee

   (c)the effect of the quoted passage in the second “dob in” communication (without disclosing it was a quote)

   2. The Second Respondent has failed to afford procedural fairness to the Applicant.

   Particulars

   The Second Respondent did not tell the Applicant of the existence of the s 438 certificate or give the Applicant the opportunity to make submissions on the validity of the certificate if she so chose.

Consideration

Ground 1

1. In relation to Ground 1, as indicated above, Mr Godwin of counsel correctly identified that there were parts of the document the subject of the s.438 certificate that were not identified in the particulars given by the Tribunal to the applicant. That does not give rise to there being any breach of s.424A. That provision focuses on the need to give clear particulars “in the way that the Tribunal considers appropriate in the circumstances.” It is apparent in the present case the Tribunal did that. Further, I find that the matters identified by Mr Godwin of counsel were subsumed within the clear particulars given to the applicant. The Tribunal complied with its obligations under s.424AA, and therefore did not breach s.424A.

2. Insofar as there was content the subject of the redaction, the Court has earlier ruled that that material is properly the subject of the claim of public interest immunity and that the disclosure of that information would give rise to the likelihood of disclosure of the informants’ identity. It is in those circumstances that the proposition advanced by Mr Godwin, that there is a quoted passage in respect of a dob-in communication, is both misconceived and, as I understand the position, is not pressed. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, the core of the argument advanced by Mr Godwin was that the failure to disclose the existence of the certificate gave rise, of itself, to a practical injustice in the present case, as the applicant lost the opportunity of seeking to argue that the certificate was invalid, and also lost the opportunity, if successful in the challenge to the validity of the certificate, to seek to use part or all of the contents, and respond to the same in the course of the review.

2. Mr Godwin’s suggestion the certificate was invalid obliquely made by reference to the existence of content that could have been disclosed as revealed in the redacted version. This does not give rise to any real invalidity argument as a matter of construction or otherwise in respect of the present certificate.

3. On the face of the material before the Court, the certificate was plainly valid. The non-disclosure of a certificate is not something that could have, of itself, undermined the applicant’s claims. It is apparent, in relation to the conduct of the review by the Tribunal in the present case, that the Tribunal put to the applicant during the course of the hearing the substance of the material that may have undermined or detracted from the applicant’s claims. The Court finds that the information the subject of the certificate was sufficiently disclosed in the course of the hearing by the Tribunal to the applicant to give the applicant a fair hearing, and that this is not a case where the non-disclosure of the certificate has given rise to any practical injustice.

4. The case is clearly distinguishable from the decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 and MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 as, in the present case, the substance of the material the subject of the certificate was put during the hearing by the Tribunal to the applicant. For the same reason the decision in VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 is distinguishable.

5. In the present case, the Court finds that the failure to disclose the existence of the certificate to the applicant did not give rise to any denial of procedural fairness, as the Tribunal sufficiently disclosed the substance of the information to the applicant during the course of the hearing. Further, the Court is satisfied that even if the non-disclosure of the certificate was, itself, a jurisdictional error, in the present case it could not possibly have affected the outcome of the review, as the applicant had put to her, during the course of the hearing, the substance of the information.

6. The Court is satisfied that there was no practical injustice in the present case by reason of the failure to disclose the existence of the certificate. Further, this is a case where, as a matter of discretion, the Court is clearly satisfied that if there was a jurisdictional error in the circumstances of the present case by reason of the failure to disclose the certificate, it could not give rise to any practical injustice and relief should be withheld on discretionary grounds.

Conclusion

1. Accordingly, the further amended application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 August 2017