DYZ16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 596
•3 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYZ16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 596
File number: SYG 738 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 3 July 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to set aside a decision to refuse to grant the applicant a Protection (Class XA) visa and substitute a decision to refuse to grant the applicant a Protection (Class XD) visa – whether the Tribunal erred in reaching credibility and factual findings – whether a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) was validly issued – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 36, 45AA, 66, 438, 476, 477
Migration Regulations 1994 (Cth) reg 2.08F
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 14 May 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr M Vethecan Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 738 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYZ16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
3 JULY 2024
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Bangladesh who applied for a protection visa. A delegate of the Minister refused to grant the applicant a Protection (Class XA) visa and the applicant applied to the Administrative Appeals Tribunal (Tribunal) for merits review of the delegate’s decision. On 28 February 2018 the Tribunal set aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa. The applicant now seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error in making its decision. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant entered Australia in March 2013 without a visa.
The applicant applied for a Protection (Class XA) visa on 20 June 2013. In a statement provided with his visa application, the applicant claimed to fear harm from his uncles and their sons in relation to a land dispute between his uncles and his father, and because his brother had disappeared since he left Bangladesh.
From 16 December 2014, by operation of s 45AA of the Migration Act and reg 2.08F of the Migration Regulations 1994 (Cth) (Regulations), the applicant’s application for a Protection (Class XA) visa was taken to be and always to have been a valid application for a Temporary Protection (Class XD) visa.
On 6 January 2015 a delegate of the Minister refused to grant the applicant a protection visa. Despite the applicant’s application for a Protection (Class XA) visa being converted, by operation of law, to a Temporary Protection (Class XD) visa, the decision made by the delegate was to refuse to grant the applicant a Protection (Class XA) visa.
The Department purported to notify the applicant of the decision by way of a letter sent on 6 January 2015. Although not addressed by either party in their submissions to the Court, it appears from a review of the notification letter that the applicant was not notified of the decision in a manner that complied with s 66(2)(d) of the Migration Act, because the letter did not provide information about the applicant’s right to have the decision reviewed under Part 7 of the Migration Act.
The Department sent a further notice of the delegate’s decision to the applicant on 24 August 2015 and advised the applicant of his right to apply for merits review of the delegate’s decision.
On 9 September 2015 the applicant applied to the Tribunal for review of the delegate’s decision.
On 15 September 2015 a delegate of the Minister issued a certificate and notification under s 438 of the Migration Act certifying that the disclosure of certain information would be contrary to the public interest because it contains information ‘relating to an internal working document and business affairs’.
On 7 December 2016 the Tribunal set aside the delegate’s decision and substituted it with a decision that the application for Protection (Class XA) visa was not valid and could not be considered. The Tribunal was of the view that it had no jurisdiction in relation to the application for a Temporary Protection (Class XD) visa as no Part 7-reviewable decision had been made at the time the applicant made his application to the Tribunal.
The applicant sought judicial review of the Tribunal decision of 7 December 2016 and on 19 July 2017 the Federal Circuit Court made an Order by consent, which included the following orders:
1.It is declared that the applicant’s application for a Protection (Class XA) visa is, by operation of s.45AA of the Migration Act 1958 (Cth) (the Act) and regulation 2.08F of the Migration Regulations 1994 (Cth) taken to be, and to always have been, an application for a Temporary Protection (Class XD) visa.
2.A writ of certiorari issue directed to the Second Respondent quashing its decision dated 7 December, 2016…
3.A writ of mandamus issue to compel the Second Respondent to reconsider and redetermine the applicant’s Temporary Protection (Class XD) visa application, according to law by exercising its powers under s.415(2) of the Act; namely, either s.415(2)(c), 415(2)(d), or s.415(2)(e) of the Act.
Following the remittal, on 15 November 2017 the Tribunal sent to the applicant a notice of an invitation to attend a hearing on 5 February 2018. The applicant appeared before the Tribunal on 5 February 2018 to give evidence and present arguments, assisted by a Bengali interpreter.
On 28 February 2018 the Tribunal set aside the delegate’s decision to refuse to grant the applicant a Protection (Class XA) visa and substituted that decision with a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its determination was whether the applicant met the refugee criterion, and if not, whether he was entitled to complementary protection. The Tribunal then summarised the applicant’s claims for protection and the evidence before it.
The Tribunal had strong reservations about the credibility of the applicant’s claims, citing numerous inconsistencies in the applicant’s evidence and the implausibility of some of the applicant’s responses to concerns about his evidence that were put to him. The Tribunal was of the view that the applicant was embellishing his story as he went along, and accordingly did not accept any of the claims made by the applicant about his fears of harm.
The Tribunal accepted that the applicant worked in his father’s shop in his village before moving to another city in 2008 to train as a tailor, where he worked until November 2012. The Tribunal accepted that in November 2012 the applicant transited to Australia through people smugglers.
However, the Tribunal did not accept that:
(a)the applicant was involved in any land dispute in Bangladesh;
(b)the applicant had received any threats from his cousins or had been assaulted by anyone in relation to any land dispute, or as a consequence of any complaint to police, or in relation to any political activity or membership of any political party;
(c)the applicant was a member of any political party in Bangladesh;
(d)the applicant’s uncles or cousins were members of the Awami League, or had used any influence they could have against him; and
(e)the applicant’s brothers had disappeared, or that his brothers had disappeared at the hands of the cousins or uncles.
Based on its non-acceptance of the above claims, the Tribunal found that the chance of the applicant being assaulted in Bangladesh in the reasonably foreseeable future was remote.
Considering the applicant’s claims individually and cumulatively, the Tribunal found that there was no real chance that the applicant would suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal found that the applicant did not have a well-founded fear of persecution for any reason now or in the reasonably foreseeable future if he returned to Bangladesh, and accordingly did not satisfy the criterion in s 36(2)(a) of the Migration Act.
Based on the same findings of fact, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if he returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal therefore found that the applicant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 20 March 2018, and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
In his application as filed, the only relief sought by the applicant is an order that the Tribunal decision be quashed. This is not sufficient to engage the Court’s jurisdiction. Pursuant to s 476(1) of the Migration Act, this Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution, which applies where an applicant seeks a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. At the hearing, I made an order allowing the applicant to orally amend his application to seek a writ of mandamus. Following this amendment, I am satisfied that the application invokes the Court’s jurisdiction under s 476(1) of the Migration Act.
The applicant raised the following ground in his application (reproduced without alteration):
I HAVE NO WAY TO GO BACK TO BANGLADESH UNLESS I DIE HERE FEW PEPOLES ARE WAITING IN BANGLADESH TO KILL ME. I DO NOT WANT TO DIE AT THIS EARLY AGE. I WANT TO STAY HERE AT ANY CONDITION PROVDED BY AUSTRALIA IMMIGRATION.
Pursuant to an Order made by a Registrar of this Court on 31 October 2023, the applicant was required to file and serve any amended application and written submissions at least 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing in accordance with the Order.
The evidence before the Court comprises:
(a)an affidavit of the applicant filed on 20 March 2018, which annexes a copy of the Tribunal decision;
(b)a court book filed by the Minister on 2 May 2018;
(c)an affidavit of Annette Haddad filed by the Minister on 15 May 2018, which annexes copies of documents subject to a certificate issued under s 438 of the Migration Act; and
(d)an affidavit of the applicant filed on 14 March 2024, which annexes a transcript of the Tribunal hearing.
At the hearing, I explained to the applicant that his application lacked sufficient details for the Court and the Minister to properly understand what errors he believes the Tribunal made. I gave the applicant the opportunity to tell the Court why he believes the Tribunal made a jurisdictional error. The applicant’s oral submissions are addressed below.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT), where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Matters raised by the applicant the hearing
In his oral submissions, the applicant questioned how he can prove or make people believe that there is a real danger for him in Bangladesh. When I explained to the applicant again that the Court does not consider for itself whether he will face harm in Bangladesh and instead only looks at whether the Tribunal made a serious legal error, the applicant said that he was not ready to proceed today because his English is not good enough. I explained to the applicant that he did not need to speak in English, and that he could speak in his own language and the interpreter would interpret his words in English. The applicant said that he could not proceed with the hearing today.
When I asked the applicant to explain why he could not proceed with the hearing today, making submissions through the interpreter, the applicant submitted that he understood that I had told him that I could not consider whether he would face harm and he wanted to get legal advice to make a submission for ministerial intervention. I declined to grant the applicant an adjournment so that he could seek legal advice in circumstances where the judicial review application has been on foot for six years and the applicant has therefore had ample prior opportunity to seek legal advice should he have wanted it. I am satisfied that the applicant was able to understand and participate in the hearing with the assistance of an interpreter.
The applicant submitted that he has been in Australia for the past 20 years, his father died, his mother is sick and he has no help from family or friends. He submitted that he will be in danger if he goes back to Bangladesh. If no one can believe him, there is nothing he can do.
The applicant submitted that he has a request of the Australian government: if he dies here in Australia, he would like his body returned to Bangladesh.
The matters raised by the applicant’s submissions do not assert or establish jurisdictional error in the Tribunal decision.
The matters raised by the applicant relate to his desire to remain in Australia and his circumstances in Bangladesh and invite the Court to engage in impermissible merits review. As I explained to the applicant at the hearing, the Court cannot consider for itself whether he meets the criteria for a protection visa and the Court has no power to grant him any type of visa.
To the extent that the applicant complains that the Tribunal did not believe him, I consider that submission below in the course of considering the ground in the applicant’s written application.
The ground in the application
The ground in the applicant’s application, like the matters raised in his oral submissions, invite the Court to engage in impermissible merits review.
To the extent that the applicant’s ground expresses disagreement with the Tribunal decision, this is not, of itself, sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
In circumstances where the applicant is self-represented, I have interpreted the applicant’s ground generously as an assertion that the Tribunal made a decision that was illogical or irrational and I have also proceeded on the assumption that the applicant asserts error in the Tribunal’s adverse credibility findings.
The Tribunal explained its approach to the assessment of the applicant’s credibility in detail in its reasons. In relation to the general principles that apply to the assessment of a protection visa applicant’s credibility, the Tribunal said at [85]-[87] of its reasons:
85.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1991) CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
86.The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and MacIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
87.The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
This approach to the assessment of credibility does not disclose any jurisdictional error and there is nothing in the Tribunal’s application of these principles that exposes jurisdictional error. The Tribunal’s ‘strong reservations’ about the credibility of the applicant’s claims were based on an ‘extraordinary number of inconsistencies’ in his evidence given at his entry interview, his protection visa interview with the Minister’s delegate, his hearing before the Tribunal and in his written statement, as well as ‘implausible explanations’.
The Tribunal’s consideration of the applicant’s credibility was not limited to a consideration of his credibility at a high level of generality. Rather, the Tribunal at [92]-[105] of its reasons summarised several examples of inconsistent evidence relating to the applicant’s claims at various stages and his explanations when invited to comment on the inconsistencies. The subject matter of the inconsistencies identified included the amount of money the applicant paid to a people smuggler to transport him to Australia, whether he or his family members were members of any political parties, a new claim about attacks on his brothers, issues relating to the land dispute, including whether his father’s name was on a deed, how the issue arose and what happened when the applicant’s father raised the issue with his brothers, the circumstances in which a complaint was made to the police, the circumstances of the claimed assault on the applicant and its aftermath, village arbitration, the applicant’s time in another location, a health issue relating to his mother, the length of time during which he returned to his home village and what he did at the village. At [108]-[114] of its reasons, the Tribunal identified eight topics regarding which it considered the applicant’s evidence to be implausible, and recorded the applicant’s responses when the implausibility was put to him.
Based on the evidence before it, it was open to the Tribunal to make adverse credibility findings against the applicant and to find that he was ‘embellishing his story as he went along’. Based on its credibility findings, it was open to the Tribunal, on the evidence before it, to reject the core aspects of the applicant’s claims for protection. The Tribunal decision is not one that no logical or rational decision-maker could have reached on the evidence before the Tribunal: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131], [135].
The Tribunal did not make any jurisdictional error in reaching the credibility and factual findings that it made.
The ground raised in the applicant’s application, even when interpreted generously, does not establish jurisdictional error.
Non-disclosure certificate
As a model litigant, the Minister raised an issue for the Court’s consideration in relation to the certificate issued under s 438 of the Migration Act.
Section 438 of the Migration Act provides:
(1)This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
As noted above, the certificate was issued on the basis that disclosure of the information ‘relating to an internal working document and business affairs’ would be contrary to the public interest. The documents were identified in the certificate by file and folio number and they are in evidence before the Court in the affidavit of Ms Haddad. The documents purportedly covered by the certificate comprise a record of the applicant’s entry interview, conducted by an officer of the Department on 2 April 2013, and internal Departmental email correspondence requesting a copy of a physical file relating to the applicant. The certificate appears in the court book and there is no suggestion that the Tribunal was not in fact notified that s 438 applies to the information, as required by s 438(2)(a) of the Migration Act.
The Minister conceded that there was a ‘credible argument’ that the s 438 certificate was not validly issued. This was based on the judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081 (MZAFZ), in which his Honour held that the requirement in s 438(1)(a) that there be a ‘basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed’ required that the ground be one capable of attracting public interest immunity: MZAFZ at [36]. The Minister conceded that the reason in the certificate, namely that the documents contain information ‘relating to an internal working document and business affairs’, is not a reason that would attract public interest immunity.
I agree that the reason given in the certificate for stating that the disclosure of the information in the documents would be contrary to the public interest is not one that would be the basis for a claim of public interest immunity. I therefore find that the certificate issued under s 438(1) of the Migration Act is invalid. It follows that the notification for the purposes of s 438(2)(a) was also invalid.
As the majority of the High Court explained in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [39]-[40]:
39.If neither of the preconditions in s 438(1) is met in relation to a document or information, the section has no application to that document or information. The Secretary has no duty and no authority under s 438(2)(a) to notify the Tribunal that s 438 applies in relation to it. And the Tribunal has no need and no authority to exercise either of the powers conferred by s 438(3) in relation to it.
40.Thus, an incorrect notification by the Secretary that s 438 applies in relation to a document or information is invalid: the notification is a purported exercise of statutory authority that is devoid of legal effect in relation to that document or information.
Further, irrespective of the validity of the certificate and the notification, the fact of notification that s 438 of the Migration Act applied triggered a procedural fairness obligation that required the Tribunal to disclose to the applicant the fact of notification: SZMTA at [2], [27], [29], [38]. I have reviewed the transcript of the hearing before the Tribunal and the documents in the court book and I cannot see that the Tribunal disclosed to the applicant the existence of the certificate or that the Secretary had notified the Tribunal that s 438 of the Migration Act applies to the information. It therefore appears that the Tribunal did not comply with its procedural fairness obligation in respect of the s 438 certificate in the present case.
The invalidity of the certificate and notification and the failure of the Tribunal to notify the applicant of the fact of notification will only amount to jurisdictional error if these errors were material, in the sense that there is a realistic possibility that the Tribunal decision could have been different had the errors not occurred: SZMTA at [45]; LPDT at [7]. This requires consideration of whether there was any ‘practical injustice’ to the applicant: SZMTA at [38].
I do not consider that there was any practical injustice to the applicant as a result of the invalid issue of a certificate under s 438(1) of the Migration Act or the invalid notification that s 438 applied or the failure to inform the applicant of the fact of notification.
One of the documents purportedly covered by the certificate was internal Departmental email correspondence requesting the provision of a physical file. That email correspondence was not mentioned by the Tribunal in its reasons and does not appear to have had any bearing on the Tribunal decision. The process of how one officer of the Department provided a file containing information relating to the applicant to another officer of the Department is irrelevant to the Tribunal’s consideration of the applicant’s claims for protection. The invalidity of the certificate and notification and the failure of the Tribunal to inform the applicant of the fact of notification could not realistically have deprived the applicant of the possibility of a successful outcome insofar as the certificate purported to cover the internal Departmental correspondence.
The other document covered by the certificate was the record kept by the Department of the applicant’s entry interview. The Tribunal had regard to information from the record of the applicant’s entry interview in reaching its decision and relied on the information in making adverse credibility findings against the applicant. However, I accept the Minister’s submission that the applicant did not suffer practical injustice as a result of the s 438 certificate, in relation to the entry interview, for the following two reasons:
(a)as is evident from the transcript of the Tribunal hearing, the content of the interview was discussed with the applicant at length during the hearing for the purpose of providing the applicant an opportunity to reconcile inconsistencies in his evidence given at different times; and
(b)the information in the record of the entry interview comprised information about the applicant’s claims, provided by the applicant himself.
I therefore find that the issue of an invalid certificate, the invalid notification and the Tribunal’s failure to advise the applicant of the fact of notification of the existence of the certificate could not realistically have deprived the applicant of the possibility of a successful outcome. There was therefore no jurisdictional error.
CONCLUSION
Given that I have found no jurisdictional error in the Tribunal decision, the application for judicial review must be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 July 2024
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