DZR16 v Minister for Immigration
[2020] FCCA 1424
•4 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZR16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1424 |
| Catchwords: MIGRATION – Application for protection visa – whether substantial fear of harm or persecution – credibility of claims – delay in applying for protection visa – Tribunal not satisfied applicant held well-founded fear – Tribunal not satisfied applicant a witness of truth – whether Tribunal adopted arbitrary and inflexible reasoning – whether decision unreasonable – whether Tribunal failed to accord procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 418, 424A, 425, 425AA, 438, 474, 476 |
| Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 |
| Applicant: | DZR16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS. |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2782 of 2016 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 13 May 2020 |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 June 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr V. Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The application dated 20 December 2012 be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2782 of 2016
| DZR16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS. |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 20 December 2016, the applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 December 2016, affirming a decision of the first respondent (Minister) refusing to grant him a Protection visa (Class XA, Subclass 866) (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that none of the eight grounds of review are made out. To the contrary, the Tribunal was entitled to take into account the marked delay before protection from Australia was sought. It did not apply that consideration inflexibly. Nor was the Tribunal’s assessment of the relevance of the applicant’s return to Nepal in 2012 either arbitrary or otherwise unreasonable. I consider that the Tribunal gave the applicant’s claims, evidence and submissions genuine consideration.
Background
On 26 January 2009, the applicant, a 42-year-old Nepalese citizen, arrived in Australia as the holder of a student visa.
On 3 September 2012, he applied for protection. His claims for protection were set out in a covering letter from lawyers (who had represented him for much of the time, including in this court), together with his visa application form and a statement accompanying the application. Those claims may be summarised as follows:
a)he had lived, since 1996, in the Chitwan District, Nepal;
b)he had been a member of the Nepal Student Union (which is part of a political party in the Nepali Congress) and then commenced running a hotel business in 1999;
c)after 2002, the Maoist party started to “show up their cruel behaviour” of which he had been a victim;
d)at one stage, he was required to provide to Maoist party members on a daily basis with free “food and staying facilities” with the Maoists sometimes taking his vehicle, asking him for money, and forcing his staff members to join them. He also claimed that one of his workers had been kidnapped and he was threatened that if he told anyone they would kill him;
e)in 2006, he received a letter from Maoists which said they would kill him within a month unless he provided them with about one million Nepalese rupees;
f)later in 2006, after the actions of Maoists forced him to close his business, he moved with his wife to the Nawalparasi District, but as Maoist activities were increasing in that district also, they then moved to Madi in the Chitwan District and from that time onwards, they had lived in fear;
g)in 2009, he moved to Sydney with his wife; however, while in Australia his wife had left him;
h)in January 2012, he returned to Nepal for his grandfather’s funeral; however, he claimed that he could not leave Kathmandu and stayed at his sister’s house because. HE claimed that while in Nepal, a district lawyer was killed and he heard that Maoists had killed a police inspector near his house in Chitwan District;
i)he returned to Sydney in February 2012 and could not return to Nepal as he could not fulfil the demands of the Maoist party and that returning to Nepal would be like committing suicide;
j)he fears harm in Nepal because of: (1) his political opinion; and (2) his membership of a particular social group.
The applicant stated that for the foregoing reasons he did not wish to return to Nepal and preferred to remain in Australia where he could live a peaceful life.
On 25 October 2012, the applicant attended an interview with the delegate. On 26 October 2012, the delegate refused the visa application.
Delegate’s decision
In the evaluation of the applicant’s claims and evidence, the delegate addressed the question of why he had delayed in seeking protection. The delegate also advised him that the documents applied in support of the application would be given little weight having regard to the prevalence of forged information supplied in Nepal.
The delegate had regard to country information which undermined the claim to fear harm which was described as being speculative. The delegate found that the applicant had exaggerated his claims and had no substantial reason to fear harm in Nepal and accordingly was not satisfied he had a well-founded fear of persecution.
The delegate concluded he was not a person to whom Australia owed protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
Following the delegate’s refusal of the visa application, the applicant has remained in Australia on a series of bridging visas.
Tribunal’s decisions
On 21 November 2012, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 17 October 2013, the applicant appeared before the Tribunal to give evidence and present arguments (First Hearing). His representative and a Nepali interpreter were also present.
On 4 November 2013, the Tribunal affirmed the decision of the delegate (First Decision), having found significant difficulty in accepting the applicant’s credibility, including of new claims which had arisen in the course of the hearing.
On 4 December 2013, the applicant filed an application for judicial review of the First Decision. By amended application dated 7 April 2015, the applicant’s lawyers abandoned the original grounds of review, substituting for them a claim that the Tribunal had failed to consider one of the applicant’s claims.[1] On 29 April 2016, the First Decision was quashed and the matter remitted to the Tribunal. The court found that the Tribunal had not considered one aspect of the applicant’s claims.[2]
[1]The amended ground of application was that the Tribunal had failed to consider a claim that following his refusal to meet certain demands of the Maoists, there had been a fire in the premises adjacent to the applicant's restaurant.
[2] SZTPO v Minister for Immigration [2016] FCCA 929, [96].
On 19 May 2016, a delegate of the Minister sent to the Tribunal a certificate issued pursuant to s 438 of the Act (Certificate) respecting information contained in certain folios of the departmental file, claiming that its disclosure would be contrary to the public interest as it related to internal working documents and business affairs. Before me, it was conceded that the Certificate was invalid.
On 24 October 2016, the applicant’s lawyers provided to the Tribunal further written submissions and a statutory declaration which stated, amongst other things, that Maoists were still looking for the applicant.
On 31 October 2016, the applicant appeared before a reconstituted Tribunal to give evidence and present arguments (Second Hearing). His representative and a Nepalese interpreter were also present at that hearing.
Following the hearing, on 8 November 2016, the applicant provided a further statutory declaration stating, amongst other things, that: (1) in 2006, Maoists, who it was said, had strengthened their stronghold in city areas of Nepal, had thrown a petrol bomb at the neighbouring hotel. The applicant volunteered that the bomb had not been thrown at his own hotel by reason that it was situated nearby a petrol station; (2) in 2006, he had been Secretary-General of the “Hotel Professional Association-Chitwan” from 1999; (3) from February 2006, he had gone underground.
On 5 December 2016, the Tribunal affirmed the decision to refuse a visa, providing a statement of its reasons for doing so (Reasons) which were comprehensive in their assessment of the applicant’s claims, submissions, materials before it and country information.
By its Reasons, the Tribunal:
a)summarised the applicant’s claims and evidence and made the following findings as to why it had not accepted that the applicant was a credible witness and did not face harm in Nepal:[3]
[3] Reasons, [56].
i)if he had truly feared Maoists since 2006, he would have applied for protection sooner than September 2012;[4]
ii)if he feared for his life in Nepal, he would not have returned (from 6 January to 16 February, 2012), for his grandfather’s funeral;[5]
iii)the delay between the applicant being granted a visa on 5 December 2008 and his departure from Nepal on 25 or 26 January 2009 undermined the claim that he was living in hiding in Nepal;[6]
iv)it did not accept that the applicant was involved politically in either the Nepal Student Union or Nepali Congress for reasons including that his evidence about “his role and political activities and the centrality of this to the Maoist demands has changed throughout the process” – in particular, despite being one of the main reasons why he claimed he was targeted, his claim to have worked with 500,000 people as a social developer in the period 1996-1999 had first been raised at the Second Hearing;[7]
v)the applicant’s involvement with the “local Hotels Association” was considered not to be credible; in particular, despite being one of the main reasons why he claimed he was targeted, his claim to occupy a leadership position and his vocal opposition of Maoists had been raised for the first time at the First Hearing;[8]
vi)did not accept that there had been any sort of fire incident at, or near, the applicant’s hotel for reasons including: (1) despite being a claimed reason why he left Chitwan in 2006, the issue was raised for the first time at the First Hearing; and (2) his evidence about this matter had been different at the First and Second Hearings;[9]
b)did not accept that the applicant faced a “real chance of persecution involving serious harm” or “that there is a real risk he will suffer significant harm” in Nepal by reason of his political opinion or imputed political opinion or any of his claimed activities relating to the Nepal Student Union, Nepali Congress, the local Hotel Association or his claims relating to Maoists, or by reason of being a business person in Nepal;[10] and
c)it found the Certificate was invalid and that the information contained in the documents to which it related was irrelevant to the determination of the applicant’s protection claims: [130].
[4] Reasons, [58]-[62].
[5] Reasons, [63]-[70].
[6] Reasons, [71]-[74].
[7] Reasons, [75]-[86].
[8] Reasons, [87]-[93].
[9] Reasons, [94]-[99].
[10] Reasons, [116]-[125].
The Tribunal affirmed the delegate’s decision to refuse the visa application.
Procedural history
On 20 December 2016, an application for judicial review was lodged on behalf of the applicant together with an affidavit made by his solicitor which exhibited a copy of the Reasons but which adduced no further evidence.
By his application, it was stated that further particulars to certain of his grounds of review would be provided upon a transcript of the hearing being obtained and adduced in evidence. However, this did not occur.
By a response filed on behalf of the Minister an order was sought for dismissal of the proceeding on the basis that the decision was not affected by jurisdictional error and, being a private of clause decision,[11] was not amenable to relief.
[11] Act, 474(2).
On 21 June 2017, orders were made by consent regulating the preparation of this proceeding for trial including that the applicant have leave to file any amended application, further evidence or submissions. None of the opportunities afforded by that consent order were taken.
The Minister’s submissions were therefore responsive to the matters raised in the application.
On 30 April 2020, an affidavit was made on behalf of the Minister to which was exhibited the documents the subject of the Certificate. The documents so produced were largely un-redacted and the deponent affirmed that the Minister made no claim for privilege, public interest immunity and did not seek to protect the confidentiality of the documents.
As a consequence of the Covid-19 pandemic, a practice was adopted, where appropriate, to conduct hearings by audio and or video link. When the matter was called on for hearing, the first communication with the applicant was lost. When communication was re-established, it then appeared the applicant required the assistance of an interpreter. Acting as model litigant, counsel for the Minister submitted it was appropriate for the matter to be stood down in order that enquiries could be made as to whether a Nepalese interpreter was available. That course was adopted. Upon enquiries being made, a Nepalese interpreter was located and arrangements were made for the provision of that interpreter to assist the applicant. The hearing resumed.
Somewhat surprisingly, once the interpreter became involved, on occasion the applicant responded to issues that were raised in the course of the hearing, doing so by answering in English and before the interpreter had become involved.
Judicial review
If the Tribunal’s decision was a privative clause decision[12], it is not amenable to judicial review. The decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[13] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[14] Whether it should do so is a separate issue.
[12] Act, s 474(2).
[13]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[14] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[15] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[15]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[16] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[17] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[16]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[17]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book, the decisions of each of the delegate and Tribunal and the application for judicial review.
The application contained eight grounds of review.
Grounds 1 & 2 – delay
Grounds 1 and 2 read:
The Second Respondent made jurisdictional error in that it treated delay in applying for a protection visa as an inflexible rule or policy which demonstrated that an applicant did not have a subjective fear of persecution
The Second Respondent made jurisdictional error by treating delay in applying for a protection visa as sufficient to reject the reason for such delay. Such reasoning is irrational, arbitrary and capricious
The substantive complaint made by Grounds 1 and 2 is focussed upon the issue of delay. The applicant contends the Tribunal erred by treating “delay in applying for a protection visa as an inflexible rule or policy demonstrating the applicant did not have a subjective fear of persecution” and made an “irrational, arbitrary and capricious finding” by “treating delay in applying for a protection visa as sufficient to reject the reason for such delay”.
In my view, the complaint is without substance. The Tribunal found that if the applicant had truly held a fear of Maoists since 2006, he would have applied for a protection visa sooner than September 2012 (being about three and half years after having first arrived in Australia in January 2009).[18] I accept the submission that, having regard to the following matters, the finding was open:
a)the applicant’s claim was that, since 2006, he had feared Maoists would kill him (when they demanded one million rupees) and accordingly hid in various places in Nepal;
b)his evidence was that Maoists came looking for the applicant at his home one month after the 1 million rupees were demanded, and that they had since come looking for him;
c)it rejected the applicant’s explanation that he did not know he could apply for a protection visa – the Tribunal reasoned that, if he feared persecution, he would have sought assistance in applying for a visa, and noted that prior to applying for the visa he had applied for a student visa.
[18] Reasons, [58]-[62].
While a decision-maker may err if it applies policy in a way which fetters its statutory discretion,[19] there is no such issue in the present case. The Reasons show that the Tribunal assessed and weighed the evidence before it in making its findings.
[19]See, generally, Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Brennan J).
I do not accept that the Tribunal had inflexibly relied on delay either solely or as a dispositive consideration as a basis for affirming the delegate’s decision. Contrary to Ground 1, the issue of delay was one of the six matters relied on in finding the applicant was not a credible witness. As to Ground 2, I consider that the findings were open and based on probative evidence before the Tribunal.[20] The findings do not approach the requisite extreme illogicality or irrationality necessary for a decision to be affected by jurisdictional error.[21]
[20]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [131] (Crennan and Bell JJ).
[21]See, CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [60] (McKerracher, Griffiths and Rangiah JJ), endorsing the principles set out in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [52], [54]-[56] (Wigney J).
Grounds 1-2 are rejected.
Grounds 3 – return to Nepal 2012
Ground 3 reads:
The Second Respondent made jurisdictional error by adopting arbitrary and inflexible reasoning to the circumstances and explanations of the applicant for his return to Nepal for his grandfather's funeral in early 2012.
Again, the applicant contends that the Tribunal “adopted arbitrary and inflexible reasoning” in making findings about his return to Nepal for his grandfather’s funeral.
I do not accept that the reasoning of the Tribunal was illogical or unreasonable. It found that if the applicant feared for his life, he would not have returned to Nepal from 6 January 2012 to 16 February 2012,[22] a finding that was based on the following matters:
a)the applicant’s return was considered to undermine his claim that he fled in 2009 due to safety concerns, that since 2006, Maoists had been asking his family about his whereabouts and that he was not safe anywhere in Nepal from the threat of persecution by Maoists;
b)the Tribunal had difficulty accepting the applicant’s evidence that after he returned to Nepal he stayed with his sister in Kathmandu and did not attend the funeral in Chitwan because he realised the situation was not safe;
c)in the absence of corroborating country information, the Tribunal did not accept that while the applicant was in Nepal in 2012, Maoists had killed a police inspector, a judge or lawyer and, in any event, had difficulty accepting he would not have departed Nepal as soon as possible if those incidents had occurred;
d)the Tribunal also had difficulty in accepting the applicant would have returned to Nepal in 2012 at all if he feared for his life and was being sought by Maoists at his family home in Chitwan as he had claimed.
[22] Reasons, [63]-[70].
Ground 3 is rejected
Ground 4 – compliance with ss 424A, 424AA of the Act
Ground 4 reads:
The Second Respondent made jurisdictional error by failing to comply with the requirements of sections 424A and 425AA of the [Act].[23]
[23]It is assumed that the reference to s 425AA is intended to be a reference to s 424AA of the Act.
While Ground 4 stated that particulars would be provided on obtaining a transcript of the Tribunal hearing, neither a transcript nor particulars have been provided. As presented at the hearing, Ground 4 was wholly unparticularised.
While the applicant bears the onus of establishing jurisdictional error on the part of the Tribunal,[24] he has not identified which material before the Tribunal was “information” in respect of which the Tribunal failed to comply with either s 424A or s 424AA; this ground must be rejected.
[24]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [67] (Gummow J), [91] (Heydon J), [92] (Crennan J).
Further, by its Reasons, the Tribunal stated that it had complied with s 424AA in respect of certain matters, being that:
a)the applicant’s student visa was granted on 5 December 2008 but he did not depart Nepal until “25/26 January 2009”:[25] and
b)the applicant had not, in his interview with the delegate, mentioned being targeted by Maoists because of: (1) his political association or activity; (2) his role as General Secretary of the local Hotel Association between 1999 and 2006; or (3) a fire/bomb incident.[26]
[25] Reasons, [72].
[26] Reasons, [79], [88] and [96].
I accept that to the extent the applicant alleges the Tribunal did not comply with ss 424A or 424AA of the Act in respect of the matters set out above, no error is demonstrated. An inference of non-compliance should not be drawn in circumstances where: (1) the applicant has not provided a transcript of the Second Hearing; and (2) in its Reasons, the Tribunal expressly stated that it had complied with s 424AA.[27]
[27]GFV18 v Minister for Home Affairs [2019] FCA 1817, [9]-[10] (Bromwich J).
Ground 4 is rejected.
Ground 5 – treatment of evidence given at different times
Ground 5 reads:
The Second Respondent made jurisdictional error in failing to consider the effect of the length of time and number of occasions on which the applicant had been required to give an account of his activities and history.
In substance, the applicant contends that the Tribunal erred in “failing to consider the length of time and number of occasions on which the applicant had been required to give an account of his activities and history”. Counsel for the Minister properly accepted that, in some circumstances, a failure to make due allowance for this factor may result in jurisdictional error constituted by illogical reasoning.[28]
[28]See, generally, AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133 at [22] – [28] (Kenny, Griffiths and Mortimer JJ).
The applicant had given evidence at various points between
3 September 2012 (when the visa application was lodged) and 8 November 2016. However, the Tribunal made the following observations and findings:a)it “allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked”;[29]
b)it considered the applicant’s claim that he was “under pressure and cannot remember” certain matters but did not accept “that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims”;[30] and
c)it considered the applicant had provided some evidence that was consistent over time, but that those matters were “relatively easy matters to recall” and did not “outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness”.[31]
[29] Reasons, [101].
[30] Reasons, [101].
[31] Reasons, [102].
Reading the Reasons fairly and as a whole I am satisfied that they demonstrate the Tribunal had regard to and made due allowance for the span of time over which the applicant had given evidence on particular aspects of his claims.
I am satisfied that the Reasons confirm the Tribunal gave genuine consideration to the matters raised by the applicant.
Ground 5 is rejected.
Ground 6 – translations
Ground 6 reads:
The Second Respondent made jurisdictional error by arbitrarily dismissing claims about previous issues of translation.
The applicant contends that the Tribunal erred by “arbitrarily dismissing claims about previous issues of translation”. Again, this may be understood as an allegation that the Tribunal engaged in illogical reasoning. I do not agree. Relevantly:
a)in respect of the Tribunal’s concern that the applicant had not mentioned in his interview with the delegate that he had been targeted by Maoists for political reasons,[32] the applicant “questioned the interpreter at the Department interview”.[33] However, the Tribunal said it did “not accept the response and the reasons for the omission and is of the view that if there was a difficulty with interpretation he would have raised it previously not only after concerns were raised”;[34] and
b)in respect of the applicant not mentioning the fire/bomb incident at his interview with the delegate, the Tribunal did “not accept it was a result of interpretation difficulties at the Department interview as no complaint was raised in this regard until the Tribunal’s concern was raised”.[35]
[32] Reasons, [82].
[33] Reasons, [83].
[34] Reasons, [84].
[35] Reasons, [96].
I am not satisfied jurisdictional error is demonstrated. The above findings do not display illogical reasoning in the relevant sense.
Ground 6 is rejected.
Ground 7 – legal unreasonableness
Ground 7 reads:
The Second Respondent made jurisdictional error by making a decision which is unreasonable.
While the applicant contends that the Tribunal decision was “unreasonable”, the complaint was unparticularised. The applicant relied on the matters in his application and submitted that the Tribunal had not considered anything including the political situation in Nepal.
It may be accepted that a decision-maker may err by exercising a statutory power in an unreasonable manner – that is, in a manner devoid of any evident and intelligible justification or which is shown to be arbitrary or capricious.[36] For the reasons above, I consider that no such error is evident on the face of the Tribunal’s reasons.
[36]Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (French CJ) and [76] (Hayne, Kiefel and Bell JJ).
Ground 7 is rejected.
Ground 8 – procedural fairness
Ground 8 reads:
The Second Respondent made jurisdictional error by failing to accord the applicant procedural fairness or to comply with section 425 of the [Act].
While the application indicated that particulars of this ground would be provided this did not occur.
For the reasons below, I do not accept that the applicant was denied procedural fairness in relation to the Certificate or that the Tribunal contravened s 425.
On the face of the Reasons, I consider that no error is demonstrated. The Tribunal identified all the “issues arising in relation to the decision under review”.[37] In particular, the Tribunal tested the applicant’s evidence about: (1) the circumstances in Nepal regarding Maoists;[38] (2) why there had been delay in his applying for a visa;[39] (3) why he returned to Nepal for his grandfather’s funeral;[40] (4) why he delayed in departing Nepal after being granted a student visa;[41] (5) his claimed political involvement;[42] (6) his claimed involvement with the local Hotel Association;[43] and (7) the fire/bomb incident.[44]
[37]See, generally, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
[38]Reasons, [54].
[39]Reasons, [58], [59].
[40]Reasons, [64], [66].
[41]Reasons, [72].
[42]Reasons, [50], [76], [79] and [81].
[43]Reasons, [88]-[89].
[44]Reasons, [95]-[96].
The Reasons confirm that the Tribunal engaged actively with the applicant’s claims and otherwise disclose no basis on which to conclude that there had been a denial of procedural fairness.
Ground 8 is rejected.
Certificate
The existence of the Certificate does not give rise to any jurisdictional error. The Certificate relates to information contained in documents exhibited to an affidavit made on behalf of the Minister: (1) application and identification test details form (folio 39); (2) protection visa application validity check (folio 41); (3) disclosure decision checklist (folio 61); and (4) an internal departmental email relating to a file transfer request (folios 76 – 77).
I have considered the documents exhibited to the affidavit and am at a loss to see why they were made the subject of the Certificate or why they could have been of any relevance to the issues addressed by the Tribunal.
The Minister properly conceded that the Certificate was invalid, on its face, because it was issued on the basis that the folios to which it related contained “information relating to an internal working document and business affairs” – those matters are neither a necessary nor sufficient basis for public interest immunity such that s 438(1)(a) would be engaged.[45] I accept that the invalidity in the Certificate does not result in jurisdictional error because:
a)the Tribunal: (1) correctly found the Certificate to be invalid; (2) considered the contents of the documents subject to the Certificate; (3) paid regard to those documents; and (4) correctly found those documents to be irrelevant[46] – specifically, it said that it “raised with the [A]pplicant the information is irrelevant to the determination of the [A]pplicant’s protection claims”;[47] and
b)given the Certificate was treated as invalid, no occasion arose for the Tribunal to consider exercising the discretionary powers under s 438(3) in respect of taking the documents into account or disclosing them to the applicant.[48]
[45]MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1, [37]-[38] (Beach J).
[46]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [48] (Bell, Gageler and Keane JJ).
[47]Reasons, [130].
[48]ERY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 357, [37] (Wheelahan J).
Put another way, given the Tribunal’s finding of invalidity, it properly treated the documents subject to the Certificate in the same way as any other document provided to it by the Secretary under s 418(3). In circumstances where those documents are, in fact, irrelevant to the review, the Tribunal was not required to make any comment on those documents in its reasons.[49]
[49]Minister for Immigration and Multicultural Affairs v Yusuf 206 CLR 323 at [68] - [69] (McHugh, Gummow and Hayne JJ).
Even if there were some obligation on the Tribunal to disclose further information about the documents subject to the Certificate (from its reasons (at [130]), it is unclear whether the Tribunal did any more than tell the applicant it considered the documents to be irrelevant), any such failure would not have been material – i.e. there would be no jurisdictional error. As a question of fact, the documents were of no significance to the review and, realistically, disclosure of anything additional would have made no difference to the outcome.[50]
[50]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48] (Bell, Gageler and Keane JJ); ERY17 at [44] (Wheelahan J).
Conclusion
For the reasons set out above, the application should be dismissed.
I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 4 June 2020
0
22
2