FNT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 123
Federal Circuit and Family Court of Australia
(DIVISION 2)
FNT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 123
File number(s): MLG 2764 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 21 February 2023 Catchwords: MIGRATION – Failure to consider submissions – s 438 non-disclosure certificates – application for suppression and non-publication orders – confidential informant – whether statement in Affidavit of applicant that he would not harm informant is sufficient for their protection – need to anonymise information in judgment to prevent identification of applicant with relatively unique profile – where hearing discontinued due to re-docketing by reason of potential conflict for first primary Judge – costs certificate pursuant to Federal Proceedings Costs Act 1981 by reason of discontinued hearing Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 232, 234
Federal Proceedings (Costs) Act 1981 (Cth) s 10
Migration Act 1958 (Cth) ss 5J, 36, 91X, 438
Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36
BOO17 v Minister for Home Affairs [2019] FCA 329
C7 v Minister for Immigration and Border Protection(No 2) [2020] FCAFC 70
CKG15 v Minister for Immigration and Border Protection (2017) 321 FLR 189
CQZ15 v Minister for Immigration and Border Protection (2017) 253 FCR 1
DMI16 v Federal Circuit Court of Australia & Ors (2018) 264 FCR 454
Fair Work Ombudsman v Bundaberg Refrigerated Transport Pty Ltd [2018] FCCA 2276
Hogan v Hinch (2011) 243 CLR 506
Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Singh (2014) 231 FCR 437
Mor v Minister for Immigration [2018] FCCA 1487
Orell v Forrest [2021] FedCFamC2G 197
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZSZW v Minister for Immigration and Broder Protection [2017] FCA 1544
Thind v Minister for Immigration and Border Protection [2013] FCCA 1438
XFKR V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 22 July 2022 Place Sydney Counsel for the Applicant Mr A Krohn Solicitor for the Applicant Aum Lawyers Pty Ltd Counsel for the Respondents Mr J Byrnes Solicitor for the Respondents Minter Ellison Lawyers ORDERS
MLG 2764 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FNT17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
21 February 2023
THE COURT ORDERS THAT:
1.Pursuant to ss 232(1) and 231(1)(a) and/or (c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) these reasons for judgment not be published other than to the parties and their legal representatives until either further or other order of this Court 7 days after the date of this order.
2.Within 7 days of the date of this order, the parties are to jointly approach the chambers to Judge Given in writing setting out any matter arising from the reasons for judgment which they consider might have the effect of enabling the identity of the applicant to be sufficiently identified.
3.Until further or other order of this Court or the Federal Court of Australia, the confidential Exhibit marked “TAY-3” to the Affidavit of Taylor Anthony Young affirmed on 1 March 2022 (confidential Exhibit) is suppressed and must not be published or disclosed other than to a Court or the legal representatives of the parties to these proceedings, pursuant to ss 231(1)(a) and/or 231(1)(c) of the Court Act.
4.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 13 November 2017 into this Court for the purpose of quashing it.
5.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
6.The parties have liberty to apply to seek to vary order 3.
THE COURT NOTES THAT:
1.The confidential Exhibit has been sealed in an envelope which is initialled by the Court and attached to a sealed copy of these orders and is held with the relevant files at the Court’s Registry at Level 17, Law Courts Building, Queens Square Sydney.
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:
Before the Court is an for application judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 13 November 2017 affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a Protection (class XA) visa (protection visa).
The Court has taken steps to anonymise, or make general, details such as the applicant’s country of origin, aspects of his claims and the names of certain persons because the applicant’s profile is relatively unique and thus identifiable, and accordingly, it is desirable, in the spirit of s 91X of the Migration Act 1958 (Cth) (Act) and having regard also to s 231(1)(a) and (c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), that the Court not publish information capable of causing him to be identified. No disrespect to the applicant is intended. The parties to these proceedings, and any Court on appeal will have the benefit of source documents which will give more fulsome context to matters which have otherwise been made general. As discussed with the parties at the hearing, in order to ensure that nothing was overlooked in this regard, I proposed to make a non-publication order in respect of these reasons for judgment with a view that anything which may not have been sufficiently anonymised can be raised with the Court for further consideration. I will make orders to this effect granting the parties 7 days in which to approach the Court. In the event that no response is received within 7 days, that order will be vacated upon the expiry of that period.
Background
The applicant arrived in Australia on 6 March 2008. Following his arrival, the applicant undertook tertiary studies in a particular discipline and graduated with a Bachelor’s degree in that field in 2014 (CB 270). The applicant claims to have one child, who is an Australian citizen by birth.
On 10 December 2013, the applicant applied for a Protection visa (CB 85). The applicant claimed to fear persecution on return to his country of origin, due to an escalation of “long-time” tribal animosity and violence.
The applicant claimed to belong to a number of tribes, and that he feared members of an identified “enemy tribe”, whose leader was killed by members of the applicant’s tribe in 2011. The applicant claimed that his father had been the chief of his tribe and a prominent political figure. The tribe was said to have been prosperous because of various sources of income. The applicant claimed that events including the death of the chief of the enemy tribe and a subsequent natural disaster in 2012 which destroyed property, detrimentally reduced the sources of income of the applicant’s tribe. This was said to have reinforced the continuing state of enmity between the applicant’s tribe and the other tribe.
Among the applicant’s siblings are two brothers who are relevant to these proceedings. As was agreed with the parties at the hearing, the brothers will be anonymised in these reasons for judgment as “AA” and “BB”.
Twice since coming to Australia, both times in 2012, the applicant returned to his country of origin, once when his father was very ill, and the second time when his father was dying (CB 47 to 48). The applicant’s father died in 2013. It is claimed that since the death of his father, tribal fighting escalated to a point where members of the applicant’s tribe destroyed a village of the enemy tribe. In November 2013, members of the applicant’s tribe attacked the enemy tribe at a celebration (CB 49). Since then, fighting has continued, and members of the applicant’s tribe have been displaced, including members of the applicant’s own family (CB 49).
The applicant also claimed that neither AA nor BB was able to safely live in a main city area, and instead they had to reside in “remote areas” of their country (CB 50). One of the applicant’s brothers was gravely injured and died as a result of the fighting in 2017 (after the Tribunal’s decision).
The delegate interviewed the applicant on 6 March 2015, and refused to grant the Protection visa on 3 July 2015. The delegate was not satisfied that the applicant was a credible witness (CB 191 to 195) and had arrived at a “positive state of disbelief” in respect of the applicant’s claims. This was said to be due to a number of factors, which included:
(a)the interval between the death of the applicant’s father in January 2013 and the application for protection in December 2013;
(b)the vagueness of the information provided;
(c)changing evidence; and
(d)the fact that the applicant has not provided any country information to support his claims (CB 195).
On 16 July 2015 the applicant made an application to the Tribunal for review of the delegate’s decision (CB 200 to 206) by which he appointed his (then) representative as his authorised recipient (CB 202). In or about October 2015 the applicant became differently represented by a solicitor (who is also his solicitor in these proceedings), and whom he appointed as his authorised recipient in the Tribunal proceedings (CB 216).
On 2 February 2017, the applicant was invited (via his authorised recipient) to attend a hearing before the Tribunal (CB 220 to 231). On 17 February 2017 the applicant’s solicitor wrote to the Tribunal and requested that the applicant be allowed to appear at the Tribunal hearing by video link by reason of his having moved to Western Australia (CB 232). On 23 February 2017 the applicant’s authorised recipient was notified that the Tribunal member had agreed to the applicant’s request, that the original hearing had been cancelled, and arrangements made for the applicant to attend a Court facility in Western Australian on a later date to appear via a video for hearing (CB 234). This arrangement was also formally notified to the applicant via his authorised recipient later that date (CB 240 to 248). On 24 February 2017 another invitation was issued to the applicant (via his authorised recipient) changing the time (although not the date) of the video hearing (CB 250 to 254).
On 23 May 2017 the applicant’s solicitor submitted a number of documents to the Tribunal including a written submission (CB 255 to 269), a copy of the applicant’s bachelor degree (CB 270), a statutory declaration by a support person (CB 271) and some letters of reference (CB 272 to 274).
On 25 May 2017 the applicant appeared before the Tribunal (via video as arranged) to give evidence and present arguments (CB 280 to 281. The applicant’s solicitor was also present in the video hearing. On 26 May 2017 the applicant’s solicitor wrote to the Tribunal to indicate that the applicant wished to provide further material in support of his case and requested until 31 May 2017 by which to do so (CB 282), which the Tribunal by email granted the authorised recipient (on 29 May 2017) extending time to “until COB 31 May 2017”. At 11:40pm on 31 May 2017 the applicant’s solicitor submitted a further submission to the Tribunal (second May submission) (CB 284 to 289). A case note from the Tribunal file records that on 23 August 2017 the applicant telephoned the Tribunal to ask about the likely timing of a decision in his review (CB 279). Late on the evening of 8 November 2017, the applicant’s solicitor submitted a second post-hearing submission to the Tribunal (post-dated 9 November 2017) (November submission) (CB 290 to 292).
On 14 November 2017 the Tribunal notified the applicant (via his authorised recipient) of its decision made the same date, affirming the decision of the delegate to not grant him a visa (CB 294 to 316).
The Tribunal’s decision
After setting out the applicant’s claims and evidence (CB 301 to 303 at [12] to [27]) the Tribunal summarised supporting material which it had also considered (CB 304 at [28]), being the additional documents referred to at [12] above.
The Tribunal accepted:
(a)that the applicant was a member of a number of tribes and that there had been tribal animosities in the area of his country from whence he came (CB 304 at [29]);
(b)that the identity of the applicant’s father was as claimed, and that he had held the public positions claimed (CB 304 at [29]) and been influential (CB 307 at [41]);
(c)that the natural disaster which the applicant claimed to have destroyed property belonging to his family in 2012, had occurred (CB 305 at [30]);
(d)that the applicant would be returning to his home country with a tertiary education and as a result may be considered by some to be intelligent, powerful and to possess leadership capabilities (CB 307 at [40]); and
(e)the applicant’s claims in relation to the conflict between certain tribes and that (even though the Tribunal did not accept the specifics of injuries allegedly inflicted on BB (see [18] below)), it did accepted that AA and BB may have participated in some tribal fighting in the past to some degree.
The Tribunal noted that the applicant had not claimed that he had, personally, been involved in tribal fighting or targeted by enemies in in his home region (CB 305 at [31]).
The Tribunal expressed concerns about the claims pertaining to BB and found the applicant’s evidence about what had happened to BB to be vague and somewhat unconvincing, examples of which it gave. The Tribunal also noted inconsistencies in accounts about how and when BB had been injured. Overall, based on the concerns it set out, the Tribunal did not accept that BB had been injured in the ways claimed, or had been disabled or was dead as a result of tribal fighting as claimed (CB 305 at [32] to [33]).
The Tribunal found the applicant’s evidence about the movements of AA and BB from the capital city back to their home region, and about their status at the time of the hearing to be internally inconsistent and vague. The Tribunal set out these inconsistencies as well as the applicant’s responses when the inconsistencies were put to him at hearing (CB 305 to 306 at [34]). While being prepared to accept that AA and BB had eventually returned to their home region, the Tribunal considered there may have been many reasons for them doing so, and did not accept the move was primarily because the capital was unsafe for them because they were away from tribal members who might protect them, that they were at particular risk in the capital or had been in hiding (CB 306 at [35]).
The Tribunal did not accept the applicant’s claims that he was expected to take over from his father as a tribal chief (CB 306 at [36]) for a number of reasons which it set out (CB 306 to 307 at [37] to [39]). The Tribunal thought that the applicant had exaggerated his profile, noting that his solicitor had made submissions which attempted to downplay the fact that AA had actually already taken over as chief (CB 306 to 307 at [38] to [40]). Despite the finding set out at [16(d)] above, the Tribunal was not satisfied that the applicant’s educational and leadership skill profile, even when combined with his family status as the son of a well-known chief, would result in him being targeted for serious harm by rival tribes. The Tribunal noted that many of the applicant’s siblings and their spouses were also highly educated and/or worked in a professional capacity in their home country (CB 307 at [40]).
Despite accepting who the applicant’s father was and that he had been an influential figure, the Tribunal was not satisfied that the applicant would be imputed with a particular political opinion or face serious harm as a result of his father’s high profile. The Tribunal noted that he had not suffered past harm by reason of his father’s identity, including during the year in which he lived in his country’s capital city immediately prior to coming to Australia, or during his two visits back when his father was sick and dying (CB 307 at [41]). In relation to the claim to fear harm because his family was financially well-off, the Tribunal did not accept claims made by the applicant that his family received continued payments in relation to particular land holdings as claimed (CB 308 at [43]) but did accept that the applicant came from a well-known family and that they may generally be landowners and perhaps considered financially well-off. However, the Tribunal noted that there were no claims that the applicant or his family had experienced past harm on this basis and the Tribunal considered the possibility that the applicant would face serious harm on return to his home country from enemy tribesmen or criminal elements, on a financial basis, to be remote and that his fear of persecution on this basis was not well-founded (CB 308 at [43]).
Despite accepting certain matters as set out at [16(e)] above, the Tribunal did not accept that AA and/or BB had been specifically targeted in the past including by reason of being the sons of their high-profile father, and did not accept that anything similar would befall the applicant on return. That was because of the lack of past harm to him in the capital city and that it had rejected that the applicant was next in line as tribal chief (CB 308 to 309 at [46]).
The Tribunal then considered extensive country information regarding tribal wars in the applicant’s home country, the ability of the authorities there to offer the applicant effective state protection (CB 309 to 310 at [48] to [51]) and the post-hearing submissions made by the applicant’s solicitor on his behalf (CB 310 at [52]). The Tribunal found that the country information established there was more than a remote possibility that, as the member of two particular tribes, the applicant may be at risk in his home region on return, and that there was a real chance of serious harm from enemy tribesmen (CB 310 at [53]). The Tribunal noted that the applicant claimed that the authorities could not protect him, and country information which tended to support this (CB 310 at [54]). The Tribunal accepted that there was no effective protection in that regime and that the applicant faced a real chance of persecution for reasons of his membership of a particular social group of (specified) tribesmen, if he returned to his home region at that time or in the reasonably foreseeable future (CB 310 at [55]).
Having so found, the Tribunal turned to consider whether relocation within his home country was viable. The Tribunal set out the relevant law and the submissions of the applicant’s solicitor (CB 311 at [56] to [60]) which articulated that relocation was not a viable possibility for the applicant given, inter alia, his particular profile (CB 311 at [60] to [61])). The applicant claimed that there were noted incidents of the fighting spilling from his home region into the capital (CB 312 at [61]).
While accepting that tribal animosities could spill over into the capital, the Tribunal found that there was a remote chance that the applicant would face harm from his tribal enemies in the capital (CB 312 at [62]). Firstly, because of its non-acceptance that the applicant was next in line to be the chief (CB 312 at [63]) and secondly because nothing had happened to him in 2007/2008 or 2012/2013 in the capital (CB 312 to 313 at [64] to [65]).
Next, the Tribunal relied on the fact that AA and BB had resided in the country’s capital city for a number of years before returning to their home region and nothing had happened to them despite the applicant’s claims to the contrary (CB 313 at [66] to [67]). Even considering one of the reference letters provided by the applicant from a relevant official (CB 272), the Tribunal was not satisfied that there was more than a remote chance that the applicant would be seriously harmed by tribal enemies if he relocated to other areas of his home country, including to the capital, on return (CB 313 at [68]). The Tribunal also considered whether the claims regarding the perceived wealth and/or education of the applicant would mean that he faced a real chance of serious harm in the capital and found this to be remote, based primarily on the lack of past harm faced by the applicant or any of his siblings (CB 314 at [71]).
Overall, the Tribunal took the view that having regard to his level of education, language and family support, the applicant’s internal relocation to another area of his country on return would be reasonable (CB 314 at [73]) and that as a result the applicant individual claims and circumstances did not, singularly or cumulatively result in him facing a real chance of persecution in his country of origin for any Convention reason at the time of the decisions or in the reasonably foreseeable future (CB 314 at [73]). Accordingly, the Tribunal found that the applicant did not satisfy s 32(2)(a) of the Act.
The Tribunal considered two non-disclosure certificates purportedly issued pursuant to s 438 of the Act. In respect of the first of these (CB 199) the Tribunal considered this to be invalid (CB 314 at [74]) and observed that it had given the information the subject of the certificate (which it broadly summarised) no weight. The second certificate was the s 438 certificate in respect of the information which forms the confidential Exhibit. The Tribunal considered the certificate to be valid. The Tribunal noted that it had indicated to the applicant at the hearing, that the information the subject of the certificate did not have a bearing on his protection claims in relation to his country of origin. Accordingly, the Tribunal did not consider it to be relevant, or potentially relevant, to the issues arising on the review.
In relation to its complementary protection findings, the Tribunal relied on its anterior factual findings and was not satisfied that there was a real risk of significant harm under s 36(2)(aa) of the Act.
Application for judicial review
By an application to show cause filed with this Court on 15 December 2017, the applicant sought review of the Tribunal’s decision and raised three grounds of review, the first and third of which were particularised. The applicant has been represented by his solicitor since the inception of these proceedings, being the same solicitor who represented him before the Tribunal. The matter remained in the central migration docket from its commencement until 14 February 2022 when it was initially docketed to another Judge of this Court, (first primary Judge), who made orders on 29 March 2022 that the matter be heard and determined by a different Judge of the Court by reason of a potential conflict of interest which it is unnecessary to detail further in these reasons (including in order to not disclose details about the applicant’s country of origin (see above [2])). The matter was later brought into my docket and listed for hearing before me on 22 July 2022.
By an Amended Application filed on 11 February 2022 (Amended Application), the applicant relies on four grounds of review each of which alleges jurisdictional error. These grounds can be summarised as follows:
(a)ground 1 - the Tribunal’s conclusion that it was not satisfied the applicant was a person to whom Australia owed protection obligations was legally unreasonable. More particularly, this complaint is directed at the Tribunal’s approach to the applicant’s claims regarding violence apparently suffered by his brothers;
(b)ground 2 - the Tribunal failed to properly consider the applicant’s post-hearing submissions of 9 November 2017;
(c)ground 3 - the Tribunal failed to afford the applicant procedural fairness in respect of certificates issued pursuant to s 438 of the Act; and
(d)ground 4 - the Tribunal erred in law in respect of s 36(2)(a) and (aa) and s 438 of the Act. In this respect, the applicant relies on his contentions in respect of grounds one and three.
Application in a proceeding
Before considering the applicant’s grounds of review, it is necessary to deal with the Application in a Proceeding filed on 11 March 2022 (suppression application), by which the first respondent seeks suppression and non-publication orders pursuant to ss 231(1)(a) and (c) and 232 of the Court Act to prohibit and restrict the publication or other disclosure of confidential Exhibit “TAY3” (the confidential Exhibit) to the Affidavit of Taylor Anthony Young affirmed on 1 March 2022 (first Young Affidavit) (which was provided to the Court in a sealed envelope). The suppression application is supported by a further Affidavit of Taylor Anthony Young filed on 11 March 2022 (second Young Affidavit).
The confidential Exhibit is comprised of the document/s which were the subject of a certificate issued pursuant to s 438(1)(b) of the Act on 22 February 2017, a copy of which certificate forms Annexure “TAY-4” to the second Young Affidavit (s 438 certificate).
The suppression application was initially returned before the first primary Judge. On that occasion, his Honour was also dealing with the issue referred to at [30] above and made the following orders:
1. The matter be heard and determined by a different Judge.
2. The confidential annexure marked TAY-3 sealed in an envelope remain confidential and not be removed from its envelope unless by an Order of a Judge of this Court.
3. The costs of and incidental to the hearing before the Court on 25 March 2022 be reserved.
At the commencement of the hearing before me there arose a question as to whether the first primary Judge had disposed of the suppression application. In my view, it had not been, and the effect of order 2 (read in particular in sequence with order 1) was simply to preserve the status quo until the matter was re-docketed and the suppression application could be fully ventilated before another Judge. If by order 2, the first primary Judge did seek to determine the suppression application, his Honour did so without delivering reasons[1] and the order is, in any event, subject to any further order of the Court. Accordingly, the suppression application remains extant for determination. The parties concurred with that view. Even if I am wrong, and the first primary Judge did intend that the orders constituted the making of the suppression order, I have in any event reached the conclusion that such an order is warranted.
[1] In respect of which I make no criticism
Chapter 4, Part 7 of the Court Act provides the regime by which suppression and non-publication orders are made. Relevantly ss 229 to 231 provide as follows:
Section 229 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice
Section 230 Power to make orders
(1) The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
(2) The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Section 231 Grounds for making an order
(1) The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
Section 232(1) of the Court Act provides that the Court may make a suppression order or a non-publication order on its own initiative or on the application of a party to the proceeding, the latter of which has occurred in the present case.
The principles in relation to the making of suppression and non-publications orders are reasonably well settled. As s 229 of the Court Act makes plain, a primary objective of the administration of justice is to safeguard the public interest in open justice, and the Court is required to take that into account.
The considerations in respect of making such orders in the context of the Court Act were considered in Orell v Forrest [2021] FedCFamC2G 197 per Judge Cameron at [5] to [8] and [15] to [22]. Relevant principles are also to be found in C7 v Minister for Immigration and Border Protection(No 2) [2020] FCAFC 70 at [13] to [17]. What is necessary for the administration of justice has been considered by the Courts in the context of determining how far, under common law, a court may make an order suppressing evidence or the identities of witnesses. While the identity of police informants has been regarded as falling within the categories of matters necessary for the administration of justice, it is well established that the categories are not lightly to be extended: Hogan v Hinch (2011) 243 CLR 506 at [21] per French CJ. Considering the extensive use of a variety of non-disclosure certificates prescribed by the Act, it is surprising that there is not a wider array of authority as to whether suppression or non-publication orders ought extend to confidential information within that context.
Previous cases have recognised that the proper administration of justice is likely to be prejudiced if details of a confidential informant’s co-operation with authorities is made public, and this may justify the necessity of granting a suppression order: see Thind v Minister for Immigration and Border Protection [2013] FCCA 1438 (Thind) per Judge Lucev at [34]. While Thind was in a migration context, the confidential informants in that matter were part of an investigation by police of a scheme to produce fraudulent documents for use by persons in obtaining visas.
In the present case, the first respondent contended that disclosure of the information which forms the confidential Exhibit should be the subject of a suppression and non-publication order because its disclosure would:
(a)identify the confidential informant (who provided the information on a confidential and anonymous basis) and the nature of the assistance which that confidential informant gave;
(b)place the confidential informant at risk, given the nature for the information set out in the confidential exhibit “TAY-3”; and
(c)potentially deter future informants from coming forward to provide information and/or assistance to the first respondent’s Department.
The first respondent submitted that a suppression order and non-publication order are necessary for the proper administration of justice and/or to protect the safety of a person.
An Affidavit of the applicant affirmed on 17 March 2022 was filed for him in response to the suppression application. By paragraph [3] of that Affidavit the applicant deposed to the following:
I will not attack of assault or use force against any person whose identity may be revealed to me if I am shown information which the Minister for Immigration and Border Protection seeks to suppress, and I will not seek to cause any other person to do so.
In submissions, the first respondent says that this statement is not evidence but rather is a forward-looking statement which, at its highest, reflected the applicant’s state of mind at the time of making the Affidavit and without the benefit of knowing the identity of the confidential informant or the nature of assistance provided.
The applicant’s written submissions initially advanced the position that his ability to give instructions to his legal representatives was hampered without him being given access to the confidential Exhibit. However, ultimately, the applicant did not oppose the suppression order being made, with his Counsel indicating at hearing that Counsel had instructions to the effect that the applicant was content to leave the question to the Court. That was in circumstances where, as I understand it, that the applicant’s legal representatives had been given access to the confidential Exhibit on the basis that they provided an undertaking to the solicitors for the Minster that the content of the confidential Exhibit (nor the confidential Exhibit itself), would not be disclosed to the applicant. In my view, in the circumstances of the present case, that limitation is sufficient and there was no suggestion by the applicant or his representatives that it hampered their ability to formulate a ground of review (ground 3), put it at its highest and make submissions to the Court, in the absence of the applicant being apprised of the content of the confidential Exhibit.
In the present case, I am satisfied that the parties, necessary to the making of the order, have been heard for the purposes of s 232 of the Act. While taking into consideration the caution against too readily extending categories of the types of informants who might warrant their identities being withheld, I am of the view that the nature of the information which is contained within the confidential Exhibit is such that it is necessary to protect the safety of a person, pursuant to s 231(1)(c) of the Act. I am not persuaded by the statement in the applicant’s Affidavit that this is sufficient to allay that concern.
That is so for three separate reasons. Firstly, it is not an undertaking. Secondly, even if it was, it was proffered (necessarily) without the applicant being fully informed. Thirdly, in my view the statement does not cover all reasonable contingencies of how potential harm may arise.
In any event, quite aside from the fact I am satisfied that there is a basis pursuant to s 232 of the Court Act, I am also satisfied that the suppression order can be made in terms which do not prejudice the applicant’s ability to seek legal advice or prosecute his judicial review application before this Court, such that a proper balance has been achieved between the relevant stakeholders on this question.
Accordingly, I will make orders which give continuing effect to the regime already in place between the parties’ legal representatives to date. Section 234 of the Court Act provides that a suppression or non‑publication order operates for the period decided by the Court and specified in the order. In determining the period which is appropriate for the order, the Court must ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made and may be referrable to a fixed or ascertainable period or by reference to the occurrence of a specified future event.
By reference to the nature of the information in the confidential Exhibit is not clear to the Court what any specific fixed date might be whereby the danger to the informant may not be alleviated. It may be that with the effluxion of time, said risk dissipates. However, it is not possible to say when that might be with any certainty. In my view it is sufficient for the purposes of the present case to make the order until further order of this Court, or the Federal Court of Australia. If there becomes a need for the terms or duration of the order to be varied, such an order enables the parties to approach this Court, or in any appeal the Federal Court. I will so order.
Grounds of review
Ground 1 - legal unreasonableness
By the first ground, the applicant contends that the Tribunal acted in a manner which was legally unreasonable. The ground is particularised in two ways.
Particulars (i) to (v) allege an unreasonable finding of fact constituted by the Tribunal rejecting the applicant’s claims about harm inflicted upon his brothers. The applicant says this was inconsistent with the Tribunal’s acceptance of aspects of the applicant’s post-hearing submissions, in particular, that one of the applicant’s brothers had been injured in a recent incident of violence (CB 308 at [45] to [46]).
There is an additional complaint made by particular (vi) to this ground, namely that the Tribunal’s overall conclusion that it was not satisfied the applicant faced a real chance of suffering persecution or a real risk of significant harm, was legally unreasonable.
In relation to the first aspect of alleged legal unreasonableness, the applicant claimed to face a real chance of persecution and a real risk of serious harm on several bases, including his membership of two particular tribes. In support of this, he gave evidence of the harm said to have been inflicted on one of his brothers, BB. As summarised above, the Tribunal did not accept that BB had been harmed as claimed (CB 305 to 307 at [32], [33] and [41]).
The applicant says that, by the November submission, he asserted that one of the brothers had been injured in recent violence. The Tribunal was prepared to accept that there had been recent violence in “his home area” (CB 308 at [45] to [46]). The applicant alleges that the Tribunal failed to provide an intelligible, evidentiary basis for rejecting his claims in the light of the earlier and contrary finding about the harm suffered by one of the applicant’s brothers.
Further, or in the alternative, the applicant says that it was not reasonably open to the Tribunal to fail to reach the requisite state of satisfaction that the applicant did not have a real chance of suffering persecution or a real risk of suffering significant harm such as to meet the requirements of ss 36(2)(a) or 36(2)(aa) of the Act.
The test to be applied by the Tribunal was whether there was more than a remote possibility, and thus a “real chance” of persecution (ss 5H, 5J and 36(2)(a) of the Act) or a real chance (and thus a real risk of significant harm (s 36(2)(aa)) in the reasonably foreseeable future. Accordingly, the applicant says that the Tribunal’s conclusions were not reasonably open having regard to the “vast amount of evidence before it relating to violence between tribes” in the applicant’s home country[2] and the Tribunal’s:
(a)acceptance of the history of the tribal fighting claimed by the applicant (CB 308 at [46]);
(b)acknowledgment that this tribal fighting sometimes spilled over into to the capital (CB 312 and [66]);
(c)finding that the applicant’s father was a prominent person (CB 307 and [41]);
(d)finding that there was violence between the applicant’s tribe/s and another tribe and that this would put him at risk of persecution if he returned to his home region (CB 310 at [54]);
(e)acceptance that this violence is a feature of the applicant’s home region (CB 309 at [48]);
(f)finding that in 2014 and 2016 the situation was considered to be an emergency in the applicant’s home country (CB 310 and [51]) and that it was prepared to accept that fighting broke out around elections in 2017 and continues (CB 309 and [50]); and
(g)acceptance of the more recently claimed injury to BB, being the same year as the Tribunal decisions was made (CB 308 at [45]).
[2] Referring to CB 285 to 289, 290 to 291, 309 to 310 (at [48] to [55]) and 311 to 312
The applicant says that for the foregoing reasons (together with the fact that tribal fighting sometimes spilled over into the capital city) the critical findings of the Tribunal were not reasonably open on the material before it.
The first respondent says that the Tribunal’s decision was not infected by illogicality or legal unreasonableness as alleged, and that its conclusions about harm to the brothers were open to it. The first respondent notes that at [32] of the reasons for decision, the Tribunal did not accept that BB was injured in either of the ways claimed (or was disabled or dead) as a result of tribal fighting in the past as claimed. In respect of this conclusion the first respondent says that:
(a)it amounts to non-acceptance of certain claims regarding BB, rather than a positive finding. The Tribunal did not have to accept uncritically any and all of the applicant’s claims, nor possess rebutting evidence before holding that an assertion was not made out;[3]
(b)the Tribunal had a logically sound basis for not accepting the claims, which is apparent from earlier in its reasoning (e.g. CB 305 at [32]), namely that the Tribunal had expressed concern about the vague and unconvincing nature of the applicant’s evidence in this respect; and
(c)it was a matter for the Tribunal to determine whether or not to accept the claims regarding BB, and the concerns set out at [32] of the reasons for decision provided a sufficiently logical basis for the Tribunal to reach the conclusion it did (i.e. the non-acceptance of the claim). This was despite the statutory declaration referred to at [33] of the reasons for decision.
[3] Citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451 and BOO17 v Minister for Home Affairs [2019] FCA 329 per Logan J at [15].
Accordingly the first respondent says that it was open to the Tribunal to reason, as it did at [41], that nothing had happened to BB (in the context of claimed fear of harm due to the applicant’s father’s high profile and imputed political opinion). The first respondent also says that the aforementioned conclusions were not affected by the Tribunal’s acceptance that one of the applicant’s brother’s may have been injured in recent tribal fighting which had escalated in his home area, because the November submission:
(a)did not specifically identify which of AA or BB had allegedly been injured; and
(b)dealt with post-election conflict amongst tribes which had escalated from recent elections.
The first respondent says that this has no logical bearing on the claims regarding harm BB allegedly suffered (allegedly in either 2013 or 2016, or whether he had previously been harmed because of the high profile or imputed political opinion arising from their father).
Consideration
By this ground, the applicant alleges that the Tribunal’s decision is vitiated by legal unreasonableness: see Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 (see in particular per Allsop CJ at [6] to [11]) and Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158 per Allsop CJ, Griffiths and Wigney JJ at [54] to [65]. In Stretton (supra) at [92], Wigney J summarised the task for the Court as follows:
…in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [76] at [105] ; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] –[45] ), or if the decision is within the “area of decisional freedom” of the decision‐maker (Li at [28] at [66] at [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently…
Accordingly, in assessing whether the Tribunal’s findings at [33] of its reasons for decision were unreasonable, it is not for this Court to substitute its own view of whether the Tribunal ought to have found differently in respect of injury to the applicant’s brother/s or whether the applicant ought to have been found to face a real chance of harm in his country of origin. It is well established that findings of fact fall to the decision-maker and it is not open to the Court to review findings of fact on an application for judicial review: see DMI16 v Federal Circuit Court of Australia & Ors (2018) 264 FCR 454 per Collier, Logan and Perry JJ at [69].
A finding may be legally unreasonable if it appears to be arbitrary, capricious, without common sense or plainly unjust: see Minister for Immigration v Li (2013) 249 CLR 332 (Li) per French CJ at [28] and Gageler J at [110] and Minister for Immigration v Singh (2014) 231 FCR 437 per Allsop CJ, Robertson and Mortimer JJ at [44]. A decision can be legally unreasonable if it lacks an evident and intelligible justification: see Li (supra) per French CJ at [76]. In Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541 Kiefel CJ found as follows[4] at [10] to [12] (footnotes omitted):
10. In the joint judgment in Minister for Immigration & Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
11. Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.
12. In Minister for Immigration & Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision‐maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.
[4] Albeit in the context of the reasonableness of the decision-maker in exercising a discretion
The statutory context in which the decision is made is relevant to the assessment of whether the findings or decision were reasonably reached (or discretion reasonably exercised): see Li at [67] to [72]. The relevant statutory context in the instant case was that the Tribunal was charged with reaching a requisite state of satisfaction as to whether the applicant satisficed either of ss 36(2)(a) or (aa).
In respect of the contention that the Tribunal erred by making an unreasonable finding of fact, I am not satisfied that the ground is made out. The findings by the Tribunal made earlier in its decision (where it rejected a claim of specific harm to BB) (CB 305 at [32]) differed to the context of its later accepted of potential injury to one of the brothers (CB 308 at [45]). This can be seen from the following:
(a)by its earlier finding, the Tribunal was assessing a very specific claim which had initially not been made,[5] and was then advanced in slightly more detail before the Tribunal;
[5] The Tribunal records at [32] the omission of the claim from the initial statutory declaration submitted to the Department in support of the applicant’s visa application
(b)the claim was that BB had been injured in tribal fighting in two very specific ways, and that he had been disabled and also may have died as a result of those injuries;
(c)specifically, the claim was given various chronological reference points. The delegate had been told that one form of injury had occurred in 2013. The Tribunal records that by a written submission made by the applicant’s (then) representative to the Department in March 2015 (CB 160 to 168) the claimed injury had been inflicted “last year”. The Tribunal erroneously interpreted that period by reference to the time of decision[6] (and thus incorrectly as 2016 and not 2014). However, notwithstanding that factual error, the claim made by the applicant about the injury of BB can be seen as spanning 2013 to (at the latest) 2014;
[6] 2017
(d)the Tribunal took into account the various inconsistencies and vagaries of the applicant’s evidence and was overall not satisfied that BB had been injured in either of the ways claimed and during the 2013 to 2014 period claimed;
(e)by contrast, the November submission (CB 291) said:
The Applicant instructs that the tribal conflict in his home areas has greatly escalated. While media reports indicate about 20 people have been killed, the applicant has been informed by members that approximately thirty people have been killed due to the conflict. He instructs that his brother has been seriously hurt and is currently in a coma. He has been advised that there are grave concerns that his brother will not survive. The applicant is deeply saddened by this news and is attempting to obtain evidence of his brother’s situation. Given the precarious situation in his home country, he has found it difficult to obtain this date.
(f)the foregoing passage has not been anonymised by the Court. This was, verbatim, the general terms of the information advanced to the Tribunal. It is sufficiently clear that, by reference to the context of the claim that it appears to have been made in the context of recent conflict which had “escalated” and that it is described as being “news” that this was advanced as a reasonably recent event, namely recent to November 2017. This claim was separate to that which was rejected by the Tribunal at [32] of the reasons for decision;
(g)further, at no time did the applicant claim that the brother in question was BB. In fact, it seems unlikely that he would have made such a claim, having told the Tribunal that he considered BB had already died;
(h)the import of the claims being separate is that, as a matter of logic, it remained open to the Tribunal to have rejected the former and accepted the latter; and
(i)even with that being so, the Tribunal did not categorically accept the claim of harm to the brother. Rather the Tribunal said that it accepted that:
one of the applicant’s brothers may have been injured in recent tribal fighting which has escalated in his home area.[7]
[7] Later at [46] the Tribunal expresses this again as a willingness to accept
In the foregoing circumstances, and where the Tribunal was willing to accept that (unlike the applicant) his brothers had participated to some degree in tribal fighting (CB 308 at [46]), it was open to the Tribunal to find as it did.
I reject the contention that the Tribunal’s findings in relation to harm which may befall the applicant lacked an intelligible evidentiary basis in light of the Tribunal’s findings about his brothers.
To the extent that ground 1 also cavils with the Tribunal’s ultimate conclusions about the real chance or real risk of requisite harm to the applicant in his home country, I find that this does not rise beyond an attempt to have the Court assess the risk of harm to the applicant. This is an impermissible attempt at merits review and no part of the Court’s jurisdiction.
Ground 1 must fail.
Ground 2 - Failure to consider submissions
This ground is extremely narrow in scope. The applicant alleges the Tribunal failed to adequately grapple with the November submission which is said to have contained integers of his claims.
It is uncontentious to say that the Tribunal must consider each necessary and relevant consideration and integer of an applicant’s claim: see SZSZW v Minister for Immigration and Broder Protection [2017] FCA 1544 per Perry J at [13] to [18].
The applicant makes reference to the following parts of the November submission (errors in original):
…approximately thirty people have been killed due to the conflict…
…police officers have been killed while attempting to calm the situation….Lawlessness and carnage continue to sweep the area.
…the issues faced by the Applicant’s brother provide…evidence that the Applicant is at a real risk of serious harm… ….the Authorities are powerless…
The applicant says the Tribunal needed to consider whether that recent violence might spill over into the capital city of his country of origin. The applicant says that while the Tribunal had made findings based on the situation in the capital in 2007-2008 and 2012-2013, finding that because the applicant had not suffered harm in those periods, he would not suffer harm on return, it failed to consider the very recent reports of violence.
The first respondent says that the November submission was considered, was limited to addressing tribal fighting in the applicant’s home region, and that even if that is incorrect, any such error would not be material.
Consideration
In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 per Collier, McKerracher and Banks-Smith JJ said, inter alia, the following at [18]:
• The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
• The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).
While the November submission concerned tribal conflict in the applicant’s home area, it also gave rise to an integer of the applicant’s claims which the Tribunal expressly accepted. Namely, that tribal violence often spilled over from regional areas to the capital (CB 311 to 312 at [59] and [62]).
The requisite beneficial and contextual construction of the Tribunal’s reasons for decision[8] reveals that it failed consider the latest information about the recent hostilities as raised by the November submission.
[8] XFKR V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 at [27] per Perry, Banks-Smith and Anderson JJ
I find that this, in turn, resulted in a failure by the Tribunal to consider integers of the applicant’s claims which were squarely raised on the material before it. The failure to consider those claims in light of the evidence in the November submission, particularly given the Tribunal’s own acceptance of violence spilling into the capital, was an error.
The first respondent submitted that even if in error, that applying a counter-factual it could not have resulted in a different decision being made.
However, while the Tribunal had excluded harm to the applicant based on a historical lack of harm to him in the capital over two time periods, this new information meant that there were new potential risks which needed to be assessed. This can be seen from the Tribunal’s finding that:
…the Tribunal finds remote the chance the applicant would be seriously harmed by tribal enemies if he relocates to other areas…including [the capital city] on return to [country of origin].
As such, had the Tribunal not so erred, there was a realistic chance that this could have resulted in a different decision being made.
Accordingly, I am satisfied that the Tribunal erred in the manner alleged by ground 2, that this error was material and it is a jurisdictional error. Jurisdictional error having been established, the applicant is entitled to the relief he seeks and the writs sought will issue.
Ground 3 - Procedural fairness
The third ground contends that Tribunal failed to afford the applicant procedural fairness in respect of the non-disclosure certificates purportedly issued pursuant to s 438 of the Act. In summary, the applicant’s complaint is that he did not receive a copy of the documents the subject of the certificates, and was therefore unable to comment on the underlying information.
Relevantly, s 438 of the Act provides for the issue of a certificate preventing disclosure of material where it would be contrary to the public interest or where information was given to the Minister in confidence. If the Tribunal is given a document or information and is notified that s 438 of the Act applies, then the Tribunal may have regard to any matter contained in the document or information and, if thought appropriate, disclose any matter contained in the document or information to an applicant.
The notification under s 438 of the Act triggers an obligation on the part of the Tribunal to disclose the fact of notification to the applicant (and allow a submission to be made as to validity of a certificate). However, breach of that obligation would only amount to jurisdictional error if it is material, in that it operates to deny the Applicant of an opportunity to give evidence or make arguments and thereby deprive the Applicant of the possibility of a successful outcome (in other words, the breach must give rise to “practical injustice”): Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421(SZMTA) per Bell, Gageler and Keane JJ at [2] and [38]. See also MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [50] and [60] per Beach J.
The evidence the subject of a notification may be admissible in determining materiality (see SZMTA (supra) per Bell, Gageler and Keane JJ at [3]). For that reason, the first respondent filed the first and second Young Affidavits. The first respondent seeks that the documents in the sealed Annexure to the first Young Affidavit be the subject of a suppression order under s 232 of the Court Act, see [32] to [44] above).
Acting on an invalid certificate does not, by itself, amount to jurisdictional error: see BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 at [30] per Kenny, Tracey and Griffiths JJ (noting that this was one of the cases in the appeal of SZMTA). It is not necessary to determine the validity or otherwise of a certificate where an applicant has been afforded procedural fairness in respect of the certificate and it did not circumscribe the applicant’s participation in the review: see Mor v Minister for Immigration [2018] FCCA 1487 at [83] per Judge A Kelly, CQZ15 v Minister for Immigration and Border Protection (2017) 253 FCR 1 at [68] and [69] (although this was in the context of non-disclosure of a certificate and note this was also a case in the appeal in SZMTA (supra)); CKG15 v Minister for Immigration and Border Protection (2017) 321 FLR 189 at [106] and [107] per Judge Manousaridis.
I am not satisfied that the applicant was denied procedural fairness by the manner in which the Tribunal dealt with either of the non-disclosure certificates.
In respect of the invalid non-disclosure certificate the Tribunal expressly stated that it gave the information the subject of the certificate, no weight. A similar, albeit not identical, statement was made in respect of the material which forms the confidential Exhibit. The Tribunal said that the information which was the subject of it:
Pertains to matters in Australia which have no bearing on his protection claims in relation to [country of origin], the Tribunal does not consider it is relevant, or potentially relevant, to the issues arising on the review.
It is tolerably clear that the Tribunal did not have regard to any of the material which was covered by either of the non-disclosure certificates. As the Tribunal found, the information covered by the material was not relevant to the question of whether the applicant was owed protection obligations. In my view there was no procedural unfairness to the applicant occasioned by the manner in which the Tribunal dealt with the certificates. At most, all the applicant lost was the opportunity to tell the Tribunal that the material covered by the certificates was not relevant to the review. The Tribunal had concluded that for itself.
Even if I am wrong about there being no procedural unfairness to the applicant, the error is not material because applying a counter-factual then (for the same reasons that there is no error in this particular instance, it is also not material). That is because, again, providing the applicant with the documents could not realistically have deprived him of the possibility of a successful outcome: see BEG15 per Kenny, Tracey and Griffiths JJ at [40] to [68] and AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 per Barker J at [84] to [90], which although pre-dating the authorities which relate to materiality, in essence found that where there was no practical injustice occasioned to the applicant by a Tribunal not having disclosed documents (or even the existence of a purported certificate), there is no error.
Ground 3 fails.
Ground 4 - Errors of law
The final ground contends that the Tribunal erred in law in respect of its interpretation of its obligations under ss 438, 36(2)(a) and 36(2)(aa) of the Act. The applicant relies on the matters set out in respect of grounds 1 and 3 to support this contention. For the reasons outlined in ground 1 of the application, the applicant submitted that it was not reasonably open for the Tribunal not to be satisfied that the applicant had a real chance of suffering persecution of a real risk of suffering significant harm pursuant to ss 36(2)(a) and 36(2)(aa) of the Act.
I am not satisfied that there are errors in respect of either grounds 1 or 3. For the same reasons, I am not satisfied that the errors contended for by ground 4 are made out either.
Additional issue
At hearing before me, Counsel for the applicant reserved the applicant’s position in relation to costs by reason of the discontinuance of the hearing and re-docketing of the matter, in the circumstances set out at [30] above. Specifically, at hearing before me, Counsel for the applicant foreshadowed an application would be made pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act), which is in the following terms:
Costs certificates—incomplete proceedings
(1) This section applies to the High Court, the Federal Court, the Federal Circuit and Family Court of Australia and a court of a Territory.
(2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3) Subject to this Act, where:
(a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(4) The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to that party in respect of such part as the Attorney‑General considers appropriate of any costs incurred by that party in relation to those proceedings.
(5) A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court.
I am satisfied by reference to s 10(1) of the Costs Act that it applies to proceedings in this Court. In my view subsection relevant to the instant case is s 10(3) of the Costs Act. While that subsection is cast in terms of a certificate being issued in respect of the proceedings, which is defined by the Costs Act only as “Proceedings includes a Federal appeal and a trial”, in my view the subsection does not intend that any certificate must be issued in relation to the entirety of the proceedings. Rather, it is available (and appropriate) that any costs certificate be issued in relation only to the part of the proceedings the costs of which were thrown away occasioned by the inability of the hearing to proceed, and its re-listing for new hearing. I note that this accords with the approach taken by Judge Vasta in Fair Work Ombudsman v Bundaberg Refrigerated Transport Pty Ltd [2018] FCCA 2276.
In all the circumstances of this case, I am satisfied that the discontinuance and new hearing which were required in this matter are not attributable to the neglect, default or improper act of any party to the proceedings. The issue as it arose was one in which the first primary Judge, quite reasonably, considered that he could not continue in the matter. I make no criticism of the first primary Judge for doing so. The circumstances giving rise to a potential conflict of interest were genuine and likely not discernible until the stage of proceedings at which his Honour dealt with them. Nevertheless, the parties incurred costs as a result of the inability of the matter to proceed to hearing at the juncture, and additional costs of attending hearing fixtures to deal with the issue.
Of course, any costs order in the applicant’s favour in these proceedings is paid by the first respondent from Commonwealth public funds. Costs paid as arranged by the Commonwealth Attorney-General pursuant to a Costs Act certificate similarly come from public funds. However, the distinction while fine, is not superfluous. In all the circumstances of this case, I am of the view that the first respondent ought not be required to meet the applicant’s costs thrown away occasioned by the inability of this matter to proceed before the first primary Judge, on a party/party basis. As part of hearing from the parties as to costs, I will hear from them as to the precise formulation of how those costs can be quantified or described for the purposes of the orders.
Conclusion
For the foregoing reasons, the applicant has succeeded in establishing the error alleged by ground 2 of the Amended Application. The matter should be remitted to the Tribunal for redetermination according to law. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 21 February 2023
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