EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 638
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 638
File number(s): SYG 3058 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 12 August 2022 Catchwords:
1 MIGRATION – protection visa – lengthy migration history – adjournment request to obtain legal representation – bias – s 438 non-disclosure certificates
Legislation: Migration Act 1958 (Cth) ss 424A, 424AA, 438
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
CRU18 v Minister for Home Affairs (2020) 277 FCR 493
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 18 July 2022 Place: Sydney The Applicants: The Applicants appeared in person Solicitor for the Respondents: Ms Q Ren for Australian Government Solicitor ORDERS
SYG 3058 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKY17
First Applicant
EKZ17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
12 august 2022
THE COURT ORDERS THAT:
1.The application made on 3 October 2017 is dismissed.
Table of corrections:
28 April 2023
Paragraphs numbered “2 to 73” have been corrected to be paragraphs “1 to 72”.
Consequential cross-references are therefore corrected as follows:
(a) in paragraph 21 the cross reference to “[20]” has been changed to “[19]”;
(b) in paragraph 41 the cross reference to “[25] to [34]” has been changed to “[24] to [33]”; and
(c) in paragraph 58 the cross reference to “[10]” has been changed to “[9]”.
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 GIVEN:
By an application to show cause filed with this Court on 3 October 2017, the applicants seek review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 August 2017, affirming a decision of a delegate of the Minister (delegate) made on 23 March 2016 refusing to grant them protection visas.
BACKGROUND
The first applicant (applicant) is a citizen of Bangladesh (Court Book (CB) at 14). The second applicant is the applicant’s wife and she was included in the applicant’s visa application as a member of his family unit. The second applicant did not advance any separate claims for protection (CB 28 to 34).
The applicant initially arrived in Australia on 4 November 1997 travelling on an Indian passport in a false name, and as the holder of a temporary business entry visa (CB 60).
On 4 December 1997, the applicant applied for a protection visa relying on his (genuine) Bangladeshi passport (CB 60), which was refused on 12 March 1998. On 2 February 2000, the Refugee Review Tribunal affirmed that decision. On 6 February 2008, the applicant departed Australia (CB 60).
On 3 November 2008, the applicant re-entered Australia using a false Bangladeshi passport issued in a different name (CB 60). On 15 July 2014 the applicant applied for a protection visa (visa) a second time but again using his genuine Bangladeshi passport. The second applicant was included in this new visa application as a member of his family unit (CB 1 to 39).
The applicant’s claims for protection can be summarised as follows (see CB 19 to 22, 62 to 65, 103 to 107):
(a)he was the leader of the Bangladesh Freedom Party (BFP), which is now almost non-existent. The former members of the BFP are aligned with the Bangladesh National Party (BNP). Awami League (AL) members are against anybody formerly involved with BFP;
(b)in 2008, on his return to Bangladesh, he became close to the leader of the BNP. He joined the BNP and was appointed as the executive member. The applicant was also a friend of another named senior political figure;
(c)due to his association with these people he was attacked repeatedly and became scared for his life. On two occasions, he was attacked by AL youth and students. On another occasion, he encountered a bigger crowd of people and he was subjected to physical blows, following which he kept a low profile;
(d)in June or July 2008 he was interrogated by a group of Rapid Action Battalion (RAB) officers. The RAB discovered he was associated with leaders of the BNP and he was taken to an unknown place and questioned about the BNP leaders. After this incident, he remained in hiding for six months;
(e)on or around July 2008, the applicant was granted a visa to return to Australia, which he did in November 2008; and
(f)if he returns to Bangladesh, he will be killed by AL “goons”, imprisoned on false charges or subjected to cruelty by the RAB and the police. He claimed that Jubo League and Chatra League activists who are aware of his political involvement will also harm him. The applicant claimed there is a high degree of political violence in Bangladesh and the police would not offer him any protection.
On 23 March 2016, the delegate refused to grant the applicants the visa (CB 54 to 72).
On 20 April 2016, the applicants applied to the Tribunal seeking review of the delegate’s decision (CB 73 to 77).
On 26 April 2016, a delegate of the first respondent issued two certificates each pursuant to s 438(1)(a) of the Migration Act 1958 (Cth) (Act) in respect of information held on the Department files which related to the visa application (CB 82 to 83).
On 1 August 2017, the applicants appeared before the Tribunal hearing to give evidence and present arguments with the assistance of an interpreter in the Bengali language (CB 90 to 92).
On 3 August 2017, the Tribunal invited the applicants to comment on certain information pursuant to s 424A of the Act (s 424A letter) (CB 94 to 95) to which the applicant provided a written response on 17 August 2017 (CB 96 to 97).
On 30 August 2017 the Tribunal affirmed the delegate’s decision (CB 99 to 110).
The Tribunal decision
The Tribunal found that the applicant was not a reliable witness (CB 107 at [46]). In particular, the Tribunal noted the applicant’s propensity for providing false and misleading information to the Department (at CB 104 at [26] to [27], [29]), and his delay in leaving Bangladesh and in applying for a protection visa (at CB 104 at [28], [31]; CB 107 at [47]).
In relation to the applicant’s purported affiliation with the BFP, the Tribunal noted that given the current status of the BFP and the passage of time, the applicant was unlikely to be of any adverse interest to the AL on the basis of his association with the BFP (CB 107 to 108 at [49] to [50]).
The Tribunal found the applicant’s claimed affiliation with the BNP to be improbable (CB 108 at [51] to [52]). Specifically, the Tribunal found it was implausible that the applicant would participate in political activities following his return to Bangladesh, after being away for more than 10 years (CB 108 at [52]). The Tribunal further noted the various inconsistencies in the applicant’s evidence, in particular, its concerns about the two pieces of information as outlined in the s 424A letter. The Tribunal noted the applicant’s response to the s 424A letter but, having regard to its credibility concerns, comprehensively rejected the applicant’s claims about fearing harm of persecution in Bangladesh (CB 108 to 109 at [53] to [56]).
After considering the applicant’s claims and evidence individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh, now or in the reasonably foreseeable future (CB 109 at [57] to [58]).
The Tribunal accepted that there was political violence in Bangladesh but found that the applicant did not have any profile which would heighten the risk of him being targeted and harmed in Bangladesh (CB 109 to 120 at [59] to [60]). In the circumstances, the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant would suffer significant harm (CB 110 at [61] to [63]).
The second applicant was refused a protection visa on the basis that she was a member of the same family unit of a person who did not met the protection visa criteria (CB 110 at [64]).
Proceedings before this Court
By an application to show cause filed with this Court on 3 October 2017 the applicants seek judicial review of the Tribunal’s decision and raise the following three grounds (errors in original):
1.The Second Respondent made an error in deciding the fate of the application and misconceived and misjudged the claim. The decision is erroneous one.
2. The Second Respondent made an error in respect to the miscalculation of the fact, particularly RAB incident.
3. The Second Respondent was biased regarding the other issues not linked with this claim.
On 24 November 2017, the applicant appeared at a first Court date directions hearing before Judge Dowdy, in whose docket this matter was originally listed. On that date his Honour made orders by consent which provided, inter alia, for the applicants to file and serve an amended application on or by 8 February 2018, and that the applicants and first respondent file and serve written submissions 14 and seven days before the hearing (respectively).
Written submissions were filed for the Minister on 11 July 2022, but not by or for the applicants. The applicants did not avail themselves of the opportunity to amend the originating application. Accordingly, the grounds of review which fall for consideration by this Court are those set out at [19] above.
On 3 May 2022, the matter was brought into my docket and listed for hearing before me on 18 July 2022. A listing notice to that effect was sent to the parties at their respective email addresses (which in the case of the applicants is the same gmail address contained in the originating application). The applicants appeared before me in person with the assistance of an interpreter in the Bengali language. The Minister was represented by a solicitor. Notwithstanding that the matter was listed for 10.15am, I did not ascend to the bench until some 15 minutes after that time to enable the Minister’s written submissions to be interpreted to the applicants with the assistance of the Bengali interpreter. At the outset of the hearing, I explained to the applicants the limitations on the Court’s jurisdiction in relation to the granting of the visas, and they indicated that they understood.
Given the applicant was the only applicant who had appeared before the Tribunal, I asked the applicants whether or not the applicant would speak on behalf of himself and the second applicant or whether they both wished to address me. The applicant indicated that both he and his wife wished to address me, and accordingly I invited the second applicant to join her husband at the Bar table.
Adjournment request
Before turning to the substantive grounds, it is convenient to deal here with an application made during the course of the applicants’ oral submissions. When I invited the applicants to address ground 2 in oral submissions, the applicant said:
I don’t have a solicitor to represent me. If I had one then in these same nicely legal terms and all could have been answers from me. He could have answered on my behalf to all this.
and
So my humble request to the court is as I’m suffering hardship with my wife and children…I don’t have the permission to work…please provide me with a solicitor who can represent me in this court.
I asked the applicant whether or not the first respondent’s solicitors had, in the course of corresponding with the applicants in these proceedings, provided them with a list of free legal service providers, which is the Court’s understanding of a common practice of those who represent the Minister in this Court. The applicant told me that he did not know that he needed to find his own lawyer. The applicant again requested that the matter adjourn in order to enable the applicants to seek legal representation. The adjournment request was opposed by the solicitor for the first respondent.
The first respondent observed that the proceedings had been on foot for almost five years. A copy of a letter dated 25 October 2017 was tendered and marked Exhibit “2R”. The letter which forms Exhibit “2R” appears to be the first item of correspondence in the proceedings sent to the applicants by the solicitors for the first respondent and I make the following additional observations about it:
(a)it is addressed to both applicants;
(b)the address that is which appears on the originating application which a “Road”(the relevance of which is dealt with below); and
(c)the letter contains a number of bold subheadings. The first of which is “First Court Date” and the second of which is “Legal Advice” under which is said:
7.You are strongly urged to obtain legal advice and, if possible, legal representation in this matter. This is a complex and technical area of law requiring knowledge of the relevant provisions of the Migration Act 1958 and you may do yourself a disservice if your case is not properly considered. If you do intend to seek legal representation, you should do so immediately.
8. We enclose:
a. a list of agencies that may be able to assist you to obtain legal advice and/or representation; and
b. contact details for agencies that provide transcription and translation services, should you need such services for these proceedings.
I asked the solicitor for the Minister whether or not she had a copy of the list of legal services, which is said in Exhibit “2R” have been be enclosed with the letter. The solicitor for the Minister did not have a copy of that list in the file with her in Court, but said that the list could be provided by email to my Associate from her offices, as the letter was likely sent by email. Accordingly, I adjourned briefly to enable the solicitor for the Minister to have her office locate that email, noting that she is not the author of the letter. When I resumed after a brief adjournment, I was informed that the letter was not in fact sent by email which from the absence of such a notation on the face of the letter appears to be accurate. Accordingly, the solicitor for the Minister was not able to provide me with the enclosures. However, applying a presumption of regularity, I am prepared to accept that the enclosure was likely sent together with Exhibit “2R”.
Even if I was wrong about that, paragraph [8] of the letter made clear that the Minister’s solicitors were offering to provide a list of agencies who may be able to assist the applicants with legal advice, and having been so alerted to the possibility that the list existed, the applicants were on notice that they could request it from the first respondent.
As noted above, the applicant appeared before Judge Dowdy on 24 November 2017. There is nothing to suggest to me that the applicant pursued the question of representation with either the solicitor for the Minister who appeared on that occasion, nor raised with the Court his desire to obtain a lawyer.
The applicants deny receiving Exhibit “2R”. However, again applying a presumption of regularity and reviewing the letter, on its face, I accept that it was sent. When I confirmed with the applicants that it was sent to the correct address, namely the address on the originating application which the applicants say is still their address to this day, the applicant said that correspondence was often mistakenly sent to the correctly named road, but using “Street” instead of “Road”. However, on the face of the document, it appears to have been sent to the Road address, not an address involving a Street. Accordingly, there is nothing to suggest that this was sent to the wrong address. Accepting it was correctly addressed and sent, I also presume it was received, but whether the applicants had regard to it or not is entirely another matter.
As the first respondent’s solicitor notes, the matter has been on foot now for almost five years. The applicants also have a lengthy migration history which precedes the application to this Court. Accordingly, I am not satisfied by the applicant’s explanation that he did not know that he needed to find his own lawyer or that he is “not smart enough” to obtain a lawyer himself. The applicants seem well-versed in the procedures that led to the making of this application. Further, there is no right to legal representation in migration proceedings. In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24], Katzmann J observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis (1994) 181 CLR 309 at 329–331; Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration & Citizenship [2009] FCA 50 at [17] per Perram J. Cf SZNVW 183 FCR 575 at [30].
Accordingly, I declined to adjourn the proceedings on the basis that I was not satisfied the applicants had taken proper steps in the almost five years in which these proceedings have been on foot to obtain legal representation if that was something that they wished, or to explore the possibility of free legal service providers. As a result, I was not satisfied that there would be utility in further adjourning the matter if the lengthy period which has elapsed since the originating application was filed yielded nothing in this regard, and there is no evidence before me that any such attempts have been made.
In relation to the request that the Court provide a solicitor for the applicants, while it is true that there is a discretion to do so under Part 12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), I was not satisfied that there was anything arising in the present matter or the circumstances of the applicants which warranted such a referral to be made. I note the effect of r 12.02 of the Rules, which expressly provides that a party has no right to apply for a referral. Accordingly, to the extent that the applicants could be taken to have made such an application, it was also refused and the hearing continued.
Ground 1
In relation to the first ground, which alleges that the Tribunal erred in deciding the fate of the application and misconceived and misjudged the claims, and that the decision erroneous, I asked the applicants what they wanted to say about it. The applicant said that “whatever [he] claimed there was the truth”, and it was the whole truth. He said that he made no mistakes and there was nothing wrong with his claims. He then opined, “Maybe the way I said could have been wrong” but did not take this further. When invited to speak to this ground, the second applicant said she had nothing to say.
To the extent that the ground suggests that the Tribunal misunderstood the applicants’ claims, the applicants have not been forthcoming as to the manner in which they say this misunderstanding manifested itself. As set out earlier, the applicant gave evidence at the Tribunal hearing with the assistance of an interpreter in the Bengali language. The applicants have not provided particulars to this ground, let alone a transcript to indicate what if any matters which the applicant addressed in his evidence to the Tribunal are said to have been misapprehended by it. If the applicants are seeking to allege that the Tribunal failed to consider some part of their claims, again, this is unparticularised. However, a full and contextual reading of the Tribunal’s reasons for decision does not reveal that it failed to consider any of the applicants’ claims or evidence as advanced by them. Rather, as set out, the first applicant’s claims, being the only applicant making substantive protection claims, were set out in detail at [17] to [24] of the Tribunal’s reasons.
The Tribunal also comprehensively rejected those claims on the basis of its credibility concerns pertaining to the applicant (see CB 107 to 109 at [48] to [56]). The first respondent says that the credibility findings were open to the Tribunal on the basis of the applicant’s previous history of providing false identity documents, delayed departure from Bangladesh, and delay in applying for a protection visa (CB 107 at [46] to [47]). The first respondent also submits that the Tribunal considered and rejected the applicant’s claim to fear harm on the basis of the general security situation in Bangladesh (CB 110 at [61]).
At the hearing before me, and based on the oral submissions which were made by the applicant at the bar table, the solicitor for the Minister characterised these submissions as being an impermissible attempt at merits review and noted that the Court does not have jurisdiction to examine the merits. This was again something which I outlined to the applicants at the outset, and they said that they understood.
I agree that there is no basis on which to conclude that the Tribunal failed to consider the claims raised by the applicants, or somehow misconceived them, or any of the applicant’s evidence given at the Tribunal hearing.
If the essence of this ground is to express the applicants’ dissatisfaction with the ultimate outcome reached, then without identifying any actual error going to jurisdiction, the fact that the applicants are understandably disappointed that the Tribunal did not find in their favour is nothing more than an attempt to engage this Court in impermissible merits review, as the first respondent notes. That the result was not one with which the applicants agree is not a determinative factor in establishing error or, more specifically, that they were denied procedural fairness. It is well-established that what is required by the Tribunal for procedural fairness to be accorded is a fair hearing, and not a fair outcome: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25].
Accordingly, ground 1 is not made out.
Ground 2
The only submissions made by the applicant in relation to ground 2 was to make the adjournment request which has been addressed at [24] to [33] above. When I asked the second applicant if she wished to say anything in relation to ground 2, she said that she did not.
This ground alleges that the Tribunal erred in respect to the “miscalculation of the fact, particularly RAB incident”. Again, I invited the applicants to tell me about this ground. The applicant said the Tribunal made an error of fact.
When I asked what that factual error was, the applicant said “that was the time when the incident took place, the commander was there the whole time. That is true.” When I asked again what the alleged error was, the applicant said, “That is true, absolutely. God is true. Whatever I said is true like that.” When asked whether or not the applicant was seeking to complain that the error was that his claim had not been accepted, the applicant said yes.
The Minister relies on the fact that the applicants did not particularise the manner in which the Tribunal is alleged to have made factual errors in relation to the RAB incident. I note, however, that even if there were some factual error established, this would not necessarily amount to jurisdictional error: see CRU18 v Minister for Home Affairs (2020) 277 FCR 493, per Wigney, Jackson and Snaden JJ, where at [31] their Honours found:
…More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 , 647–648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123 , 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 , 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ).
The decision record of the Tribunal demonstrates that it rejected the claim that the applicant had been detained and interrogated by members of the RAB. The first respondent said that this finding was open to the Tribunal based on inconsistencies between the applicant’s account of this incident as expressed before the delegate and later in his evidence given to the Tribunal. Those inconsistencies turned upon whether the RAB had detained his friends, together with the alleged length of the applicant’s detention and the extent of harm said to have been inflicted upon him by the RAB (CB 109 to 110 at [53] to [54]).
The Tribunal put those inconsistencies to the applicant for comment at hearing, as well as to both the applicants in its s 424A letter (CB 94 and 106 at [43]). The reasons for decision expressly refer to having considered and rejected the explanation which was given in reply to the Tribunal’s s 424A letter, namely that the reference to three other people related to a separate scenario (CB 108 at [53]). I accept the first respondent’s submission that the finding about the RAB incident was further bolstered by the Tribunal’s adverse credibility finding in relation to the applicant (CB 107 at [46]). Accordingly, in my view, ground 2 is not made out.
Ground 3
This ground makes a bare assertion that the Tribunal was biased. Specifically, it was said to have been biased regarding “other issues not linked with this claim”.
Again I invited the applicants to tell me about this ground. The applicant said that, “My main thing is the second one. That is my main problem.” I took this as being a re-agitation of the adjournment request which while dealt with at the outset of these reasons, had arisen during the applicant’s submissions regarding ground 2 I indicated to the applicant that I had heard him in relation to the second ground, his submissions having formed the adjournment request which I had refused. I asked the applicant to focus on the fact that we were now discussing the third ground of review and asked him what he wanted to say about the manner in which he said the Tribunal was biased.
The applicant said:
I want to say that yes…your Honour is on no side. But on the other side they have somebody who can represent them nicely with everything - nicely legally but my side I have nobody. That’s what I mean: that there is nothing. It’s biased for me. There’s nobody on my behalf to represent me.
The applicant then asked me what this ground was about. I indicated that I was asking the applicant precisely the same question, to which he replied, “What I feel I am saying that”.
Again asked to focus on what precisely it was about the Tribunal the applicants say evinced bias, the applicant said, “I feel that I’m a civilian, and my opponents are government solicitors.” When I pointed out to the applicant that in the Tribunal there had been no solicitor because it was not an adversarial process, the applicant asked, “Tribunal means AAPT or something like this?” The applicant then made reference to the fact that the Administrative Appeals Tribunal used to be named the Refugee Review Tribunal. When asked what relevance the change of name of the Tribunal had on the review process, the applicant made no submissions. When asked again if there was anything else he wished to say about why the Tribunal was allegedly biased, the applicant said, “I do believe it.”
The principles relevant to apprehended bias in the migration context (albeit referring to a Court proceedings nor the Tribunal) were distilled by the Full Federal Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] to [36]:
35. Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Livesey v New South Wales Bar Assn [1983] HCA 17 ; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 (Ebner); Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 ; (2011) 242 CLR 283 (British American Tobacco)).
36. Other relevant principles are:
(a)at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i)there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
The applicants have neither distinctly made, nor clearly proved, a claim of bias. Further, the fact that the applicant genuinely believed the Tribunal was biased is not determinative of the question. Nothing on the face of the Tribunal’s decision nor the manner in which it undertook its review would cause a hypothetical fair-minded lay observer attributed with appropriate knowledge of relevant matters to apprehend that the Tribunal brought anything other than an open mind to its task. It is this type of objective, reasonable person test which is how this task is to be approached.
Bias is not established simply from the fact that the Tribunal reached conclusions regarding the applicants’ claims, nor is it established by the outcome of the review in and of itself being not in favour of the applicants. Accordingly, notwithstanding the applicants’ belief, this bare assertion must fail.
Before concluding, I will note that in submissions in reply, the applicant again reiterated his desire for further time to obtain a solicitor. The second applicant also chose to address the Court for the first time in the hearing despite multiple prior invitations to do so. The second applicant said she accepted the Tribunal had not made any mistakes but was keen to reiterate that she herself had not:
…committed any mistake nor wrong. I have got a small kid, and, please, if you can worry about and think about my child and my future too. My child is going to the school here.
The second applicant made additional submissions that her child been born and raised in Australia and again asked the Court to think about her child. As I explained to the applicants at the outset of the hearing and also during the course of the hearing, it is not for this Court to assess for itself their protection claims, and while the Court has utmost sympathy for the fact that the applicants have waited a considerable amount of time for their judicial review to be heard, those are not factors which I am able to take into account in exercising my jurisdiction under s 476 of the Act to review the Tribunal’s decision.
Additional issue
The first respondent’s written submissions raise an additional issue for consideration by the Court which, even on its broadest reading, is not touched upon by anything in the originating application. I also have before me the Affidavit of Mengqi Ren affirmed 11 July 2022 (Ren Affidavit), which was filed in support of this additional issue and read at hearing.
As noted above at [9], two s 438 certificates were issued in respect of various documents held on the Department’s file which pertained to the applicant. The first certificate is dated 26 April 2016 and covers the following array of documents being folios 31-32, 49, 60, 72, 81, 87-88, 96-97, 102-107, 118-120 and 121 of file N97/7582 (first certificate).
The second certificate is dated 26 April 2016 and relates to the applicant’s protection visa application lodged in 2014 being documents at folios 25-56, 53-57 and 69 of file CLF2014/98780 (second certificate).
The Tribunal addressed the first certificate at [10] of its reasons where it said that during the hearing it disclosed the information to the applicant, but noted that the documents which were the subject of the certificate related to internal working documents and business affairs of the Department. The Tribunal noted that there was no reason provided by the Department as to why disclosure of the documents would be said to be contrary to the public interest, and the Tribunal noted that it would not be considering the documents in the course of review, because it did not consider them relevant. The applicant indicated to the Tribunal that he understood and made no further comment.
By disclosing the fact of the existence of the first certificate and then explaining the information and documents which were purported to be covered by it and the relevance to the review, in my view, the Tribunal complied with its obligations in relation to procedural fairness which arise under the Act. Further, there is nothing on the face of the Tribunal’s reasons for decision to indicate that it relied on any of the information the subject of the documents which are covered by the first certificate. For this reason, even if the Tribunal were found to have somehow erred or failed to afford the applicant procedural fairness in relation to the first certificate, then, in my view, this would not be material, because it could not have resulted in a different decision on the basis of the documents themselves. But in any event, the applicant was given the opportunity to comment on the issue and declined to do so.
In relation to the second certificate, the Tribunal records that it advised the applicant there existed documents which were the subject of another certificate, again relating to internal working documents and business affairs of the Department, and that these documents related to his identity, which was not in dispute. The Tribunal records that it again advised the applicant that it would not be relying on the documents in making its decision. However, the Tribunal also records telling the applicant that one document in particular which was subject to the certificate was considered relevant to the review, namely a record of the applicant’s community status resolution interviews with the Department.
The Tribunal indicated to the applicant that the certificate appeared valid insofar as it related to that document and advised the applicant that it would discuss the content of the document with him in the course of the hearing. The applicant indicated that he understood this. The Tribunal then proceeded to give information to the applicant pursuant to s 424AA of the Act.
In the written submissions made to the Court, the Minister concedes that the Tribunal’s finding at [11] of its decision that the second certificate was validly issued, and its reliance upon that certificate, is now to be understood to be incorrect. However, the first respondent says that the reliance on the invalid second certificate was not material to the final outcome of the Tribunal’s decision.
It is at this juncture well-established that by reliance by a Tribunal on an invalid certificate only results in jurisdictional error if the breach is material in the sense that it could deprive the applicant of the possibility of a successful outcome: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2], [3], 38] and [44].
In order to rely on the interview record, which was the only document covered by the certificate upon which the Tribunal said it did rely, the Tribunal was required to give to the applicants clear particulars of any information arising from those documents covered by the certificate that it considered would be the reason or part of the reason for affirming the decision under the review, in compliance with its procedural fairness obligations under s 424A of the Act (or s 424AA to the extent that that section provides a mechanism by which the s 424A obligations can be facilitated): see SZMTA (supra) at [10].
The Minister submits, and I agree, that the Tribunal complied with the procedural fairness obligations required of it under Part 7 of the Act by putting the relevant information that emanated from the interview record to the applicants for comment, both in respect of the applicant at the hearing, but in respect of both applicants by the s 424A letter that was sent to them. In terms of what the Tribunal then made of the information which emanated from the interview record, at [56] of its reasons for decision the Tribunal did give weight to the fact that the applicant had repeatedly been asked by an officer of the Department his reasons for not wishing to return to Bangladesh on several occasions from 8 April 2014 to 1 July 2014, and that the applicant did not say that he was or would be involved in any political activity which was likely to cause harm on return until 22 July 2014.
The Tribunal put relevant particulars of the record of interview to the applicant for comment pursuant to s 424AA at the hearing (see CB 102 at [11], CB 105 at [32]). Following this, as noted earlier, the information was put to the applicants for comment in the s 424A letter (see CB 94 to 95). The applicant, took the opportunity to respond to the letter by the response dated 17 August 2017, and in that response the first applicant reiterated his position that all of his protection claims were genuine (see CB 96 to 97).
In my view, no jurisdictional error is caused by the Tribunal’s reliance on the invalid second certificate, and it could not be said that had the Tribunal not relied on this certificate as being invalid, any steps taken could have resulted in a different outcome. This is because the substance of the material which was withheld from the applicants by the withholding of the document itself in reliance on the invalid second certificate was in any event put to them for comment, such that they had the relevant particulars of it and were able to engage with that information itself.
Accordingly, while the Minister is to be commended for raising this issue in relation to the two s 438 certificates, in my view there is no jurisdictional error constituted by this additional issue.
For the foregoing reasons, I find that the Tribunal’s decision is free from jurisdictional error. Accordingly, it is a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 18 April 2023
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