DQS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 617
•16 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 617
File number(s): SYG 1959 of 2018 Judgment of: JUDGE LAING Date of judgment: 16 July 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal considered the claims and evidence before it in a manner that was open to it – whether the Tribunal afforded the applicant sufficient opportunity to present his case – allegation of bias – whether the Tribunal misunderstood or misapplied the law – non-disclosure certificate – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 425 & 438 Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
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
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 4 July 2024 Place: Sydney Applicant: In Person Solicitor for the First Respondent: Mr J Fyfe, MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1959 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
BACKGROUND
The applicant applied for the protection visa on 1 July 2013.
On 18 August 2015, the Delegate refused to grant the protection visa.
The applicant applied to the Tribunal seeking review of the Delegate’s decision on 2 September 2015. On 10 May 2018, the applicant appeared at a hearing before the Tribunal.
On 2 July 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter, the material before it and the criteria in issue at [1]-[36] of its decision.
At [37], the Tribunal expressed its conclusion that the Delegate’s decision should be affirmed. The Tribunal’s reasons for this were expressed at [38]-[41] of its decision as follows:
38. The applicant stated in his protection visa application that he had been associated with the Bangladesh Nationalist Party since high school and that after joining in 2005, he became an active member. He also stated he regularly attended meetings with his friends and helped with social activities and that as someone who was involved in the BNP, he was targeted after the Awami League Party supporters came to his father’s grocery shop looking for him and tried to extort money and then attacked their home. He also claims to have fled from his house and consequently fled to Dhaka. However at hearing he stated that from 2005 to 2009 he was a BNP member, that in 2005 he became an active member and was [a position (Position)]. In addition, documents he gave to the Tribunal suggests that he was appointed to the [Position] [in] 2005 but his membership receipt was dated [a later date] which suggests he was appointed to a BNP position before he joined. When this was put to him at hearing, the applicant stated that the committee was formed in January and according to a list, the membership cards were made in February. The Tribunal has considered this but does not accept the applicant’s evidence that his membership as evidenced by a document identified as membership receipt would date from when his card was made as opposed to when he paid to become a member. In reaching this conclusion, the Tribunal has considered whether the applicant is credible and in doing so, it has also considered that in his written statement he failed to mention he was [the Position]. When this was put to him, he stated it was not a significant role and that he had mentioned he was an active member. The Tribunal does not accept that if he were [the Position], he would not have mentioned that in his statement. That and the discrepancy in the documentation that suggests he became [the Position] before he became a member leads the Tribunal to find it is not satisfied he was [the Position] or indeed a member of the BNP. In reaching this conclusion, the Tribunal has also taken into account that the applicant was unable to identify until told that there was a BNP annual membership fee. In addition, he was unable to identify the colors of the BNP flag.
39. The Tribunal has also taken into account that when asked to name his national parliament representatives, he stated that there were four or five members representing the district of Kushtia but at hearing, he was only able to name two of those representatives. The Tribunal considers the name of the applicant’s representatives in National Parliament is a somewhat basic question for one who is allegedly interested in politics or politically active. While not conclusive, the applicant’s lack of knowledge about his national parliament representatives as well his lack of knowledge about BNP membership and its flag means that the Tribunal is not satisfied that the applicant has been associated with the Bangladesh Nationalist Party BNP since high school, joined in 2005 and became an active member.
40. In sum, the Tribunal does not accept that the applicant is credible or that he has been associated with the BNP since high school or that he joined the BNP or became an active member or held office. Given its overall credibility concerns, neither does the Tribunal accept that the documents the applicant produced are evidence that the applicant is either [the Position] or was a BNP member. Neither does the Tribunal accept that the applicant was targeted by the Awami League party supporters or officials or anyone else because of his political activities. It follows that the Tribunal does not accept that Awami League party supporters came to the applicant’s father’s grocery shop looking for him or ransacked the shop and threatened the applicant or that after his father reported the incident to the police, the Awami League supporters attacked the applicant’s home. Neither does the Tribunal accept that Awami League supporters continued to look for the applicant or that the applicant fled to Dhaka from his home town or that because he did not feel secure, he fled Bangladesh. Neither does the Tribunal accept that he is or was associated with the BNP in Australia and was or is on their member list.
41. The Tribunal has concluded that the applicant has not in the past and will not in the future be motivated to engage in political activities of any kind. The Tribunal also finds that nothing in the applicant’s past suggests to the Tribunal that there is a real chance of being targeted by AL activists or anyone.
On the basis of the above, the Tribunal was not satisfied that the applicant faced a real chance of relevant harm for the reasons he had claimed. The Tribunal accordingly found that the applicant was unable to meet the criteria for the protection visa and affirmed the Delegate’s decision (at [42]-[47]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 13 July 2018 containing the following grounds:
Ground 1
The Tribunal fell into error that she failed to ask the correct question-whether the Applicant is likely to suffer harm in his home district and fled from Kushtia to Dhaka.
Particulars
(i)The Tribunal found that the applicant did not suffer any harm and discriminatory treatment from AL goons since 2005(AAT decision at [40]).
(ii)The Tribunal did not accept that the Applicant has suffered any harassment and discretionary treatment from the opponent party activists.
(iii)The Tribunal make the decision without proper inquires on AL atrocities against the applicant and his party activists in whole country though the Tribunal qualified to do so.
(iv)The Tribunal failed to ask itself whether the Applicant could be subject to harm when the applicant was out for normal business/ the applicant did not haram and mistreatment and fear of life and fled his living district.
Ground 2
The Tribunal erred and failed to assess Convention nexus/complementary protection whether a period of exile from home would amount of "significant harm" (s36[2A]) or serious harm (s 91R[2]) and section 5 of the Migration Act t 1958 (he Act) and thereby committed jurisdictional error and she failed to consider complementary protection criteria. Alternatively, the Tribunal fell in to error in that it applied the incorrect test as to whether the Applicant is likely to suffer harm for the purpose of complementary protection.
Particulars
(i)The Tribunal found that the applicant did not suffer any discretionary treatment since 2005 until he fled from his country thought there were more than sixteen thousand BNP activists were killed in since 2009-2017 the AL and police.
(ii)The Tribunal though did not accept that the AL did any harmful and discriminatory act against BNP.
(iii)The other funding that killing, detaining and kidnaping the BNP leaders and activists continuing.
Ground 3
The Tribunal in making finding that the Applicant will not face any problem in previous while he was in Bangladesh and will not face any harm if he returns to his country which is illogical and thereby fell into jurisdictional error.
Particulars
(i)The Tribunal found that the applicant is not a credible person and the Applicant did not satisfy the criterion set out ins 36(2)(a).
(ii)The Tribunal found that the BNP activists are not subject to harm and attacked by the AL and police.
(iii)The Tribunal fell in to error as it failed to differentiate that the Applicant is not likely to suffer haram as BNP activists and leaders are targets of AL goons.
Ground 4
The claim of particular social group/political opinion arises in the material. The Tribunal in erred when its failed to consider the particular social group.
Particulars
(i)The risk to the Applicant as a member of a particular social group and political opinion was not considered.
(ii)The applicant was an activist and leader of the BNP where the applicant was identified but the Tribunal did not consider it.
(iii) The claim arose on the material.
(iv) The Tribunal thereby committed jurisdictional error.
(As per the original)
Ground 1
Ground 1 contended that the Tribunal failed to ask the correct question, namely whether the applicant may suffer harm in his home district and fled from Kushtia to Dhaka.
Reference was made to [40] of the Tribunal’s decision, which is extracted above. In that paragraph, the Tribunal did not accept the applicant’s claimed involvement with the Bangladesh Nationalist Party (BNP), or the problems that he claimed had resulted. This was on the basis of the Tribunal’s findings regarding the applicant’s credibility.
The ground contended that the Tribunal failed to make “proper inquiries” regarding Awami League’s “atrocities against the applicant and his party activists”. In submissions, the applicant contended that his claims were “supported by the UN and the USA Country Reports including Aljazeera and BBC and various other international news and media reports”.
There are at least two difficulties that the applicant faces in relation to this ground.
Firstly, as the Minister submitted, the Tribunal was not under any general duty to make inquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). It has not been demonstrated that this is a case in which the Tribunal failed to conduct the requisite review by failing to make “an obvious inquiry about a critical fact, the existence of which [was] easily ascertained”: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Secondly, and relatedly, the Tribunal rejected the factual premise behind the applicant’s claims. The Tribunal did not accept the applicant’s claimed involvement with the BNP. In these circumstances, it is difficult to see how the Tribunal could have relevantly erred by failing to make further inquiries regarding “his party activists” more generally, or by failing to consider additional country information in this regard. To the extent that the applicant contends that the Tribunal should have asked him additional questions about his claims, the Tribunal was not under any identifiable obligation to do so. The Tribunal’s decision record indicates that the applicant was provided with opportunities to respond to concerns raised by the Tribunal. Ultimately, it was for the applicant to provide such information and evidence that he wished to rely upon in support of his claims. From the evidence before the Court, it appears that the applicant was given sufficient opportunity to do so at a hearing in accordance with s 425 of the Migration Act 1958 (Cth) (Act).
At the hearing before the Court, the applicant suggested that his concern in relation to this ground was that the Tribunal did not try and understand his situation or the situation in his country. However, the applicant did not identify any specific misunderstanding on the part of the Tribunal beyond the Tribunal’s non-acceptance of his evidence and claims.
The Tribunal did not accept that the applicant would be targeted by Awami League supporters or anyone, or that he fled to Dhaka from his home town. Nor did the Tribunal accept that there was a real chance of the applicant suffering any harm (including serious or significant harm) if he returned to Bangladesh. For these reasons, the Tribunal found that the applicant was unable to meet the criteria for the visa in ss 36(2) or (2)(aa) of the Act. Such findings were dispositive of the applicant’s claims to have faced harm and fled, and of his protection visa application more generally. It has not been demonstrated that the Tribunal failed to ask the correct question, by reference to the provisions in the Act that it was bound to apply, in making these findings.
I accept the Minister’s submission that it has also not been demonstrated that the applicant made any separate claim to face harm when “out for normal business”. To the extent that this was raised by the applicant’s other claims, its non-acceptance was subsumed in the Tribunal’s reasoning for not accepting those claims. It has not been demonstrated that this reasoning was relevantly closed to the Tribunal.
It is understandable that the applicant may disagree with the Tribunal’s rejection of his claims and, on this basis, feel that the Tribunal has misunderstood his case or the situation in his home country. However, as was discussed at the hearing of this matter, this Court has no power to overturn the Tribunal’s decision based upon disagreement alone. For the reasons that follow, I have found that the Tribunal’s decision was not one that was relevantly closed to the Tribunal. This is so even though another decision maker might have taken a different view of the applicant’s claims.
For the above reasons, ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal failed to assess whether “a period of exile from home” would amount to serious or significant harm. In this manner, the Tribunal was contended to have failed to assess the applicant against the relevant criteria and/or failed to apply the correct test. In the particulars, the applicant referred to “more than sixteen thousand BNP activists” being killed in 2009 to 2017 by the Awami League and the police, with violence against BNP leaders and activists continuing. Despite this, it was contended that the Tribunal “did not accept” that the Awami League “did any harmful and discriminatory act against BNP”.
I accept the Minister’s submission that this aspect of the ground misunderstands the reasoning of the Tribunal. The Tribunal’s decision was not premised upon any finding that violence against BNP members, supporters or activists did not occur from those associated with the Awami League. Rather, the Tribunal did not accept that the applicant had been associated with the BNP, or involved with political activities of any kind (at [40]-[41]). The applicant does not appear to have claimed to face harm in the form of “a period of exile from home” and, in any event, the Tribunal did not accept that the applicant would face a real chance of “any harm”, from any person, as a result of his alleged affiliation with the BNP.
These findings were dispositive of the criteria in issue under ss 36(2)(a) and (aa) of the Act, which were correctly set out in the Tribunal’s decision (at [20]-[33] and [43]-[46]). In these circumstances, it was open to the Tribunal to adopt its factual findings in respect of the refugee criterion in considering complementary protection: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57] (Robertson J); SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [35] (Robertson, Griffiths and Perry JJ).
In written submissions, the applicant additionally contended that the Tribunal’s decision was affected by irrationality and bias because the Tribunal “did not accept the evidences [sic] of the witness”. It was suggested that this was indicated by the Tribunal’s asking of questions that were irrational or “not in the centre point of the applicant review application”.
Grounds such as illogicality and bias have high thresholds. It is not apparent how those thresholds could be said to have been met in the present case.
I accept the Minister’s submission that the Tribunal’s reasoning was logically open to it on the evidence. The Tribunal’s reasons for not accepting the credibility of the applicant’s claims were set out [38]-[39] of its decision. These included that:
(a)the documents submitted by the applicant suggested he was appointed to the Position before he joined the BNP as a member;
(b)the applicant’s written statement did not mention his appointment to the Position; and
(c)the applicant was unable to answer “somewhat basic” questions about the BNP, including regarding national parliament representatives and the colours of its flag. He was also unable to identify until told that there was a BNP annual membership fee.
It has not been demonstrated that this reasoning was logically closed the Tribunal. Whilst another decision maker may have reasoned differently, this is not sufficient to establish a ground of illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ). Although the Tribunal at times appears to have variously described the Position (which I have referenced generally so as not to identify the applicant), this difference in expression does not appear to have had any material effect upon the Tribunal’s reasoning or its decision in the matter.
The matters relied upon by the applicant are also incapable of demonstrating bias. As was discussed with the applicant at hearing, actual bias requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). Apprehended bias requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The questions that appear to have been asked by the Tribunal, as indicated from the Tribunal’s decision record, are incapable of meeting these thresholds. Although the applicant informed the Court that he felt that the Tribunal’s questions were confusing, he could not recall any examples of this, noting that it happened a long time ago.
It was open to the Tribunal to test the applicant’s knowledge of the BNP, in circumstances where his claimed involvement with the party was central to his claims. Other questions that the Tribunal raised in relation to concerns that the Tribunal held regarding his evidence appear to have been raised to alert the applicant to the issues arising on the review, in accordance with s 425 of the Act: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. I accept the Minister’s submission that, on the evidence before the Court, the Tribunal appears to have sufficiently complied with its obligations under this section, in circumstances where it would have been apparent from the Delegate’s decision and the Tribunal’s questioning that the applicant’s credibility was in issue. The fact that the Tribunal afforded the applicant the opportunity to respond to such questions indicated that the Tribunal Member’s mind was open, rather than closed, to persuasion.
Having regard to the above, ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the Tribunal erred in not accepting, on credibility grounds, that the applicant had faced or would face harm in Bangladesh. This was said to be illogical. In the particulars, the ground further suggested that the Tribunal “found that the BNP activists are not subject to harm and attacked by the AL and police” and contended that the Tribunal “failed to differentiate that the Applicant is not likely to suffer haram [sic] as BNP activists and leaders are targets of AL goons”.
In written submissions, the applicant contended that the Tribunal had “misinterpreted the law” in finding that he was “unlikely to suffer harm”. The applicant further referred to actions that had been taken against BNP activists and contended that “local leaders of the BNP recognised the applicant is a member of the BNP’s youth branch”.
Again, this ground appears to involve some misunderstanding of the Tribunal’s decision. The Tribunal did not simply conclude that it was “unlikely” that the applicant would suffer harm, but ultimately found that there was not a real chance or risk of this occurring. This exhibited a correct understanding of the “real chance” and “real risk” tests applicable to assessing ss 36(2)(a) and (aa) of the Act.
The Tribunal did not find that BNP activists were not subjected to harm by Awami League supporters, the police, or others. Instead, the Tribunal rejected the applicant’s claims on the basis that he was not a BNP activist or affiliate. As the Tribunal rejected the factual premise of the applicant’s claims (i.e. that he was or is associated with the BNP), the Tribunal did not accept that the applicant would face a real chance of harm in Bangladesh on the basis that he had claimed.
For the reasons given above, I have found that this reasoning was open to the Tribunal and was not relevantly illogical. Although the applicant submitted some documents that were said to evidence recognition of his involvement with and/or roles within the BNP, it is apparent that the Tribunal was not persuaded by this evidence. The documents submitted informed some of the credibility concerns that were held by the Tribunal. Specifically, the Tribunal was concerned that the documents suggested that the applicant had been appointed to the Position before he joined the BNP as a member, and that his written statement did not mention his appointment to the Position. Whilst another decision maker may have reasoned differently, I am not persuaded that it was closed to the Tribunal to have held these concerns and to have reasoned in the manner that it did.
For the above reasons, ground 3 is unable to succeed.
Ground 4
Ground 4 contended that the Tribunal failed to consider the risk to the applicant “as a member of a particular social group and political opinion”. The applicant contended that the Tribunal did not consider that the applicant “was an activist and leader of the BNP where the applicant was identified”.
In written submissions, the Minister contended that the applicant did not articulate a claim to fear harm as the member of any particular social group. However, the applicant’s claimed involvement with the BNP potentially gave rise to such a claim. Regardless, the Tribunal did not decide the matter on the basis that the applicant’s claims of involvement or opinion were incapable of meeting this definition for the purposes of the refugee criterion. Rather, the Tribunal rejected, at a factual level, the applicant’s claims regarding his involvement or association with the BNP on credibility grounds.
I am therefore not persuaded that the Tribunal failed to consider any claim that it was obliged to consider regarding the applicant’s claimed political membership, role or opinion. Rather, the Tribunal did not accept that the applicant’s claims in this regard were true. Further, in circumstances where the Tribunal does not accept that an applicant holds a well-founded fear of persecution for the reasons contended, “no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership”: SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] (Greenwood J).
In written submissions, the applicant additionally submitted in relation to “Ground 04” that the Tribunal breached s 425 of the Act by “not allowing the applicant to put his claims and or present arguments”. The applicant also submitted, apparently in relation to this ground, that:
28.The Tribunal mentioned that the applicant membership card is issued before the applicant become a member which is main issue of the Tribunal Member to dismissed the review application. There is no barred in the BNP Constitutions that an identity could not be issued before issuing an Invoice. In fact, the applicant paid the money by a receipt in early January and an Invoiced issued later the membership card issued to the applicant.
(As per the original)
Those submissions appear to take issue with the Tribunal’s reasoning at [38] of its decision, in which the Tribunal expressed concern regarding a “discrepancy in the documentation” suggesting that the applicant was appointed to the Position before he became a member of the BNP. In this regard, the Tribunal reasoned:
38.… documents he gave to the Tribunal suggests that he was appointed to the [Position] [in] 2005 but his membership receipt was dated [a later date] which suggests he was appointed to a BNP position before he joined. When this was put to him at hearing, the applicant stated that the committee was formed in January and according to a list, the membership cards were made in February. The Tribunal has considered this but does not accept the applicant’s evidence that his membership as evidenced by a document identified as membership receipt would date from when his card was made as opposed to when he paid to become a member. In reaching this conclusion, the Tribunal has considered whether the applicant is credible and in doing so, it has also considered that in his written statement he failed to mention he was [the Position]…
I accept that there was no evidence before the Tribunal that the BNP constitution barred an identity being issued before an invoice. However, this does not mean that it was closed to the Tribunal to have reasoned in the manner that it did. As I have found above, it was open to the Tribunal to have been concerned that the applicant had submitted a document indicating that he had held the Position a month before the date of a document purporting to be a receipt regarding funds paid by the applicant for membership. This was in circumstances where the applicant does not appear to have submitted any other documentation confirming that, as a matter of practice, such a receipt might be expected to have been produced some time after a person acquiring a position within the party.
Whilst there is no transcript of the Tribunal hearing in evidence, it is apparent from [12] of the Tribunal’s decision that it put this issue to the applicant pursuant to s 425 of the Act, giving him the opportunity to give evidence and present arguments in response. It is apparent that the Tribunal was not persuaded by the explanation that appears to have been offered by the applicant at hearing, namely that the committee had been formed a month before the cards were “made according to a list”. No other potential breach of s 425 of the Act is apparent on the materials that are before the Court.
Although the applicant may well disagree with the Tribunal’s reasoning, this does not provide the Court with sufficient basis to set aside the Tribunal’s decision.
For the above reasons, ground 4 is unable to succeed.
Additional ground 5
In written submissions, the applicant identified a further ground – ground 5 – which was that the Tribunal “applied the wrong test”, or failed to address a claim. The claim was said to be “in respect of involving with the politices [sic] of BNP youth branch” in his home country. The Tribunal was said to have erred in dealing “with the claim of denial involvement with BNP politics as discrimination”. The Tribunal was also said to have erred in denying or failing “to make findings that the applicant claims of denial constituted serious or significant harm”.
As considered above, the Tribunal rejected the applicant’s claims of involvement and/or association with the BNP in their entirety. I therefore do not accept that the Tribunal failed to consider the applicant’s claims in this regard. Rather, the Tribunal did not accept them. I have found above that the Tribunal’s reasons for not accepting them were open to the Tribunal on the material that was before it and did not involve misapplication of the relevant tests.
In essence, I understood this ground to disagree with the reasoning of the Tribunal. As was discussed above, however, this Court has no power to set aside a decision of the Tribunal based upon disagreement alone.
For these reasons, this ground is unable to succeed.
Non-disclosure certificate
The Minister observed that the material before the Tribunal included a non-disclosure certificate purportedly issued under s 438 of the Act (Certificate). The documents in question (Documents) were exhibited to an affidavit of Jennifer Louise Strugnell affirmed on 6 February 2019.
The Minister conceded that the Certificate was invalid. The Certificate stated that disclosure would be contrary to the public interest because the Documents “contain[ed] information relating to an internal working document and business affairs”. This was an insufficient basis for founding a claim for public interest immunity: Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [19]-[20] (Bell J, Gageler J (as his Honour then was) and Keane J); MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (MZAFZ) at [37]-[38] (Beach J). The Minister also conceded that the Tribunal did not, in accordance with its implied obligation of procedural fairness, disclose to the applicant the existence of the Certificate, nor give the applicant an opportunity to make submissions on the validity of the Certificate: SZMTA at [27]-[38].
However, the Minister submitted that no jurisdictional error arose because the breach was not material in the sense that it did not deprive the applicant of the possibility of a successful outcome: SZMTA at [2]-[3], [38].
The underlying Documents are before the Court in evidence. They consist of a record of the applicant’s Irregular Maritime Arrival Entry Interview (Entry Interview Record), and what appears to be an administrative document entitled “Disclosure Decision Checklist”.
I accept the Minister’s submission that the Tribunal does not appear to have relied upon these documents in any manner adverse to the applicant. The checklist was simply an administrative document, of no apparent material relevance to the applicant’s claims. Although the Entry Interview Record contained reference to the applicant’s claims, I accept that this was broadly consistent with what was stated within a statutory declaration that the applicant provided with his protection visa application in 2013. Although the Tribunal was concerned by the applicant’s lack of reference to his claimed Position in this statement, the Tribunal appears to have not been similarly concerned by the absence of reference to this in the Entry Interview Record.
Considering the above, I am not convinced that the Documents were of such significance that the Tribunal’s erroneous approach to the Certificate deprived the applicant of the possibility of a successful outcome. I accept the Minister’s submission that it could not realistically be said to have potentially affected the outcome in this matter.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 July 2024
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