FKV17 v Minister for Immigration - [2018] FCCA 2260

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKV17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2260

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.438

Cases cited:

SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055

Applicant:

FKV17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG1233 of 2017

Judgment of:

Judge Vasta

Hearing date:

16 August 2018

Date of Last Submission:

16 August 2018

Delivered at:

Brisbane

Delivered on:

20 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Counsel for the First Respondent:

Mr McGlade

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Application for extension of time to file the Application dated 12 December 2017, and amended on 14 March 2018, and further amended on 16 August 2018 is refused.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG1233 of 2017

FKV17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant, FKV17, is a citizen of Uganda. He first arrived in Australia on 5 July 2013 on a prospective spousal Visa. On 14 July 2014, his prospective spousal Visa was refused by the Department. On 26 August 2014, the Migration Review Tribunal found that it had no jurisdiction to review that refusal.
On 2 October 2014, the Applicant applied for a protection Visa. A delegate of the Minister refused to grant that Visa on 24 July 2015. The Applicant asked the Administrative Appeals Tribunal (“the Tribunal”) to review the matter. On 9 August 2017, the Tribunal affirmed the decision.
This meant that the Applicant had 35 days from 9 August 2017 to ask this Court to judicially review the decision of the Tribunal. The Applicant filed his application on 12 December 2017, which was 125 days after the decision of the Tribunal. Therefore, the Applicant is 90 days out of time.
This is an application for leave to file out of time. I did hear full argument on the merits of the substantive application.

The Claims of the Applicant

In short compass, the Applicant claimed to be born in Pabbo, Amuru in Uganda. He lived in his home village from 1983 to 1995. At the end of 1995, he claimed his parents sent him to stay with his uncle in Lubaga-Kampa as a refugee. He claims that this occurred because his parents were worried about the Lord Resistance Army (“the LRA”) in the northern part of Uganda. The LRA were abducting children and killing people in the region.
The Applicant said that he left all of his brothers and sisters at home and live with his uncle and attended school until October 2001. He said his current wife, Jane, was also in that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2260
Decision Date: 20 August 2018

CaseChat Overview and Summary

The applicant, FKV17, sought judicial review of a decision made by the Minister for Immigration. The core of the dispute concerned the validity of a certificate issued under section 438 of the *Migration Act 1958* (Cth) and its impact on the disclosure of information to the applicant during the review process. The matter was heard in the Federal Court.

The primary legal issue before the Court was whether the certificate issued under section 438(2)(a) of the *Migration Act 1958* (Cth) was valid. This validity was challenged on the grounds that the certificate, which claimed disclosure of certain information would be contrary to the public interest due to it being an "internal working document and business affairs," did not provide sufficient reasons to form the basis for a claim to public interest immunity. Consequently, the applicant argued that the non-disclosure of this information constituted a denial of procedural fairness.

The Court considered the reasoning of the Administrative Appeals Tribunal, which had found the section 438 certificate to be invalid by reference to *MZAFZ v MIBP* [2016] FCA 1081. The Tribunal had concluded that the certificate lacked specificity regarding the reasons for withholding the information. The Court noted that the information purportedly covered by the certificate, namely the protection visa application, a statutory declaration, and the protection visa decision record, was in fact part of the applicant's own documentation and not related to detention or financial details as the Tribunal had erroneously stated. The Court found the Tribunal's reasoning in paragraph 56 of its decision to be anomalous and contradictory, particularly its assertion that it had not taken account of the information when it had clearly discussed it. The Court's analysis focused on the requirements of section 438, which mandates that a certificate specify reasons that could form the basis for a claim of public interest immunity.

The Court found that the certificate issued under section 438 was invalid because it failed to provide adequate reasons for non-disclosure. As a result, the non-disclosure of the information in folios 46 to 50 and 78 constituted a denial of procedural fairness. The Court therefore set aside the decision of the Tribunal and remitted the matter to the Tribunal to be heard again.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ground one is set out at follows:Ground 1: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth) 1. The certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth) with regard to folios 46 to 50 and 78, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).” This ground is based on what the Tribunal said at paragraph 56 of its reasons: 56. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because these folios contain information relating to ‘an internal working document and business affairs’. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reasons that could form the basis for the basis for a claim to public interest immunity. The Tribunal disclosed the information, and further notes that, in any event, the information in these folios was not relevant to this decision, as it is information relevant to his detention (such as names and addresses, and details of finances and property) and is not of probative value to this review. The Tribunal has not taken account of information in these folios. This paragraph is quite anomalous. It does not actually make any sense. The information that is in folios 46 to 50 and folio 78 of the departmental file are contained at page 27, page 54 and page 107 of the court book. That information can be described as:-a)the application for a protection Visa (folio 46);b)the statutory declaration of the applicant received 8 October 2014 (folio 50);c)the protection Visa decision record (folio 78). In paragraph 56, the Tribunal describes this information as “not relevant to this decision as it is information relevant to his detention (such as names and addresses, and details of finances and property)…”. Clearly the actual information in folios 46 to 50 and 78 has nothing to do with the detention of the Applicant nor does it have any details of finances and property. The Tribunal also said in paragraph 56 that it had “not taken account of information in these folios”, when clearly it had discussed these matters in the course of the very thorough reasons that it had given. Section 438 of the Migration Act 1958 (Cth) (“the Act”) reads as follows:438 Tribunal’s discretion in relation to disclosure of certain information etc.(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.