MZARM v Minister for Immigration
[2018] FCCA 965
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARM v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 965 |
| Catchwords: MIGRATION – Protection (class XA) visa – applicant claimed to fear harm from Colombian drug cartel if he returned to Colombia – whether tribunal’s failure to inform applicant of existence of s.438 certificate amounted to jurisdiction error – no jurisdictional error detected – information contained in s.438 certificate known to the applicant and was before the tribunal – whether tribunal’s failure to put to the applicant information in departmental international movement records amounted to a breach of s.424 of the Migration Act 1958 – s.424 not breached – information about international movements was before the tribunal and known to the applicant. |
| Legislation: Migration Act 1958, ss.424A, 427(1)(c), 438 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 |
| Applicant: | MZARM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 230 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 21 February 2018 |
| Date of Last Submission: | 21 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms S M Kelly |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr L T Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed 9 February 2015 and amended 1 February 2018 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $6,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 230 of 2015
| MZARM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The issue in this case was whether the failure to disclose a certificate under s.438 (“s.438 certificate”) of the Migration Act 1958 (“Act”) denied the applicant procedural fairness. It was common ground that the certificate in this case was invalid.
The applicant came to Australia in 2012. He developed an association with one Daniel Villa, a man later convicted of offences concerning drugs. Police ascertained the identity of the applicant upon seizing Mr Villa’s computer. The applicant provided assistance to the police leading to Mr Villa’s conviction and sentence to three years in a youth detention centre.
In his protection visa application, the applicant asserted that if he was returned to Colombia he feared harm from Mr Villa as well as from a Colombian drug cartel known as Los Urabenos (“LU”) for the applicant’s role in Mr Villa’s conviction.
In this case an issue arose about whether certain information should have been put to the applicant under s.424A or under s.427(1)(c) of the Act.
Synopsis
For the reasons that follow in my judgment the tribunal did not fall into jurisdictional error in this case.
Short factual narration
At all relevant times the applicant was a Colombian national. He arrived in Australia in February 2012 on a student visa. He applied for a protection (class XA) visa on 20 March 2013. The minister’s delegate refused to grant the applicant the visa he sought. On a merits review before the Refugee Review Tribunal (now the Administrative Appeals Tribunal) on 21 January 2015 the tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought.
In support of his protection visa application, the applicant made a statutory declaration on 19 March 2013. In it he stated that he believed he would be killed if he were to return to Colombia. He said he believed he would be targeted by members of LU, a group well-known for drug trafficking and for associating with street gangs that acted as informants and hitmen. The applicant said LU had taken the view that he had jeopardised their very lucrative Australian operations and they believed the applicant was to blame for their members being convicted and being sent to jail. The applicant’s solicitors provided detailed submissions in support of his protection visa application in which they stated that the drugs with which Mr Villa was involved had a street value in excess of AUD 900,000.
Mr Villa was sentenced in the County Court of Victoria on 19February 2013 by his Honour Judge Maidment after Mr Villa pleaded guilty to attempting to possess a marketable quantity of cocaine and to possessing cannabis. Mr Villa was sentenced to a youth detention centre order for three years.
Upon the delegate refusing the applicant’s protection visa application, the applicant sought a merits review on 10 December 2013. The tribunal invited the applicant to appear before the tribunal on 14 May 2014. He wrote to the tribunal on 28 April 2014 seeking an adjournment of the 14 May 2014 hearing. On 11 April 2014, the tribunal replied telling the applicant the hearing would proceed on 14 May 2014. On 14 May 2014 the tribunal heard some evidence then agreed to the applicant’s request to adjourn the hearing until 21 May 2014. The applicant supplied the tribunal with a Colombian police report in relation to telephone calls to his mother’s house. The hearing resumed on 21 May 2014.
The tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. The detail of the tribunal’s reasons may have been important to the applicant’s grounds of review had they not been amended. However, in the amended grounds of review the applicant relied on two grounds only. It is as well to set out the grounds in their amended form, namely –
1.The decision of the Tribunal is affected by procedural unfairness, in that the Tribunal failed to inform the applicant of the existence of a certificate under s 438 of the Migration Act 1958 (Cth)
2.The Tribunal fail to comply with s 424A of the Act, in that it did not put to the applicant the information contained in the Departmental movement records.
In this court
The applicant did not provide submissions to support his grounds in their amended form. However, before me the only two points that occupied debate related to s.438 and s.424A of the Act. Let me go to each.
The s.438 certificate issue
It was common ground that the s.438 certificate was invalid. The certificate itself appeared in the court book at page 153 but the folios mentioned in the s.438 certificate did not appear in the court book. Edward Lysander Rogers, the minister’s solicitor, deposed to the detail of the documentation in his affidavit affirmed 27 July 2017. The relevant documents to which the s.438 certificate applied had been sealed in an envelope that was handed up to me. With the concurrence of counsel for both parties I opened the envelope. It contained exhibit ELR1 to Mr Rogers’s affidavit. That exhibit consisted of two A4 pages being a printout of two emails. The first email was dated 6 November 2013 and was from the delegate to another departmental officer. In that email the delegate pointed out that departmental records indicated that Mr Villa had been sentenced to three years youth detention and that Mr Villa had been placed on a good behaviour bond. The delegate asked the departmental officer whether youth detention equated to imprisonment and whether a good behaviour bond equated with parole or something similar. The delegate asked whether Mr Villa was in a prison in Australia.
The responding email was dated 7 November 2013, the next day. In it the departmental officer told the delegate that Mr Villa was, at the date of the email, still onshore and from June 2013 Mr Villa was at Malmesbury Youth Justice Centre. The email stated Mr Villa would be imprisoned until 2016, that he was not in the community and that a good behaviour bond was additional to his term of imprisonment. The email then spoke of criminal justice visas.
Ms S Kelly of counsel for the applicant, with commendable skill and advocacy, advanced an argument that nondisclosure of the material in exhibit ELR1 deprived the applicant of the possibility of a successful outcome before the tribunal. She contended that it fell to the minister to successfully argue that on no view could those emails have prejudiced the applicant. Ms Kelly said it would be a rare case indeed for that result to follow.
This case must therefore be such a rare case. In my view there was no prejudice to the applicant by those two emails not being disclosed. Let me explain why.
First, the emails were in the nature of some basic enquiries about turns of phrase used in the criminal law. One asked whether youth detention equated with imprisonment. Another asked whether a good behaviour bond equated with parole or something similar. The questions were unimportant, it seemed to me. To the extent that the answers to those questions were important, the departmental officer responded with information about Mr Villa’s detention, where it was being conducted, when it would commence, when it would come to an end, that Mr Villa was not in the community and that a good behaviour bond was in addition to his term of imprisonment. The responses were anodyne. They were innocuous. Whatever information was imparted in the responding email of 7 November 2013 was already known to the applicant.
Next, the facts and circumstances of the applicant’s offending were before the tribunal as taken from the sentencing judge’s remarks of his Honour Judge Maidment, as mentioned in paragraph 20 of the tribunal’s reasons.
Next, the email dated 6 November 2013 that asked some very basic questions about the criminal law was wholly unconnected to issues of relevance in relation of the applicant’s protection visa. The questions themselves and the answers to those questions had no bearing on issues that fell for determination for the purposes of the applicant’s protection visa.
The authorities on point
Section 438 certificates have spawned a significant volume of judicial determinations at the highest level. At a much more lowly level I had occasion to examine some of the relevant cases in MZAOL v Minister for Immigration and Border Protection,[1] judgment in which was handed down on 8 August 2017. Since then, decisions of the Full Court of the Federal Court of Australia have addressed the lengths and breadth of s.438 certificates insofar as the failure to disclose documents covered by them give rise to issues of procedural fairness. Let me canvass a few of those issues here.
[1] (2017) 322 FLR 447
Upon the refusal of a grant of special leave to appeal to the High Court in Minister for Immigration and Border Protection v Singh,[2] the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Singh[3] stood. So too has the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection.[4] A tranche of cases then followed. In date order the first was the decision of Barker J in AVO15 v Minister for Immigration and Border Protection,[5] judgment in which was handed down on 24 May 2017. Next was the decision of the Full Court in BEG15 v Minister for Immigration and Border Protection[6] judgment in which was handed down on 29 November 2017. Next was another decision of the Full Court handed down the same day as the decision in BEG15, being the Full Court decision in Minister for Immigration and Border Protection v CQZ15.[7] Then came Minister for Immigration and Border Protection v BJN16.[8] Each made important observations about s.438 certificates. In this case, Ms Kelly and Mr Brown relied on each decision, admittedly for different reasons. It became necessary to examine the key holdings from each authority.
[2] [2017] HCATrans 107
[3] (2016) 244 FCR 305
[4] (2016) 243 FCR 1
[5] [2017] FCA 566
[6] [2017] FCAFC 198
[7] [2017] FCAFC 194
[8] [2017] FCAFC 197
In AVO15, Barker J was concerned with a s.438 certificate that related to five documents, two being internal departmental working documents of no or only passing relevance to the visa application. Two other documents were the reverse of documents actually disclosed under a freedom of information request and which had no or only passing relevance to the visa application. The final document was not referred to in the tribunal’s decision and was not of any relevance to the decision-making of the tribunal, according to his Honour. In those circumstances, Barker J held as follows –
To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, especially at [57] (Gageler and Gordon JJ).
On 29 November 2017 in separate decisions, the Full Court of the Federal Court handed down reasons concerning s.438 certificates. Applying the media neutral citations as a guide to determining which was earlier in time, it seemed the earlier was Minister for Immigration and Border Protection v CQZ15.[9] Next was Minister for Immigration and Border Protection v BJN16[10] and the last was BEG15 v Minister for Immigration and Border Protection.[11] Each Full Court was identically constituted – Kenny, Tracey and Griffiths JJ. Each case turned on different facts yet each Full Court made observations about aspects of s.438 certificates.
[9] [2017] FCAFC 194
[10] [2017] FCAFC 197
[11] [2017] FCAFC 198
In CQZ15, the Full Court (per curiam) referred to the observations of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam[12] as a particular species of a breach of procedural fairness. It involved a failure to act in conformity with a departmental representation regarding enquiries to be conducted prior to a visa cancellation decision being made. Gleeson CJ held that whether or not there had been a breach of any such procedural fairness would almost always depend on the attendant circumstances. The chief justice rejected the applicant’s claims and at paragraph 38 of his Honour’s reasons the chief justice held as follows –
No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children.
[12] (2003) 214 CLR 1
That led the Full Court in CQZ15 to say the following –
Wherever there is an issue as to whether there has been a breach of procedural fairness of the kind alleged in Lam and in this case, the complainant must establish a loss of opportunity to advance his or her case, and whether he or she will succeed in this usually depends on the circumstances of the case.
In paragraph 72 of its reasons the Full Court in CQZ15 upheld as valid a submission by the minister to the effect that the requirements of procedural fairness necessitated a consideration of the relevant circumstances including the documents subject to the certificate in order to determine whether or not there was any unfairness in failing to disclose the certificate. The Full Court agreed with the minister’s submissions that in Minister for Immigration and Border Protection v WZARH[13] the High Court had left open the possibility that it could be established in a particular case that the relevant documents contained material that on no view could be thought to have prejudiced the interests of the applicant and could not and did not even possibly undermine the applicant’s prospects of a favourable decision by the tribunal. The Full Court held that in such a case it would not be necessary for the reviewing court to speculate as to what the applicant might or might not have done had he or she known about the contents of the documents before appearing before the tribunal. In paragraph 73 of its reasons in CQZ15, the Full Court held as follows –
… What the reviewing court would have to determine was whether the documents contained material which negatived the suggestion that the non-disclosure deprived the applicant of the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (Mason, Wilson, Brennan, Deane and Dawson JJ); see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609; 81 ALJR 1190 at [29], [85].
[13] (2015) 256 CLR 326
In Minister for Immigration and Border Protection v BJN16,[14] the Full Court made observations of particular relevance where an issue arose as to the invalidity of the s.438 certificate. The Full Court held that there was nothing to support the view that it was always a jurisdictional error for the tribunal to act on an invalid s.438 certificate and that in so doing the tribunal would invariably deny procedural fairness to an applicant. The Full Court also held the documents covered by the s.438 certificate might be relevant in determining whether or not an applicant had received procedural fairness before the tribunal and as to the exercise of the court’s discretion to grant relief. That was the case whether or not the certificate was invalid.
[14] [2017] FCAFC 197
In BEG15 v Minister for Immigration and Border Protection[15] the Full Court held that neither the invalidity of the s.438 certificate nor the failure by the tribunal to provide the applicant with a copy of it or the documents referred to in it gave rise to any practical injustice to the applicant.
[15] [2017] FCAFC 198
Having regard to that survey of recent decisions at Full Court and High Court level, the validity or invalidity of the s.438 certificate is but one only of the issues that the reviewing court must assess when determining whether an applicant has been denied procedural fairness. The reviewing court must examine the documents to assess whether their disclosure may have had a bearing on the outcome of the case. If by the nondisclosure the applicant has not “lost any opportunity to advance his case” (AVO15), nor has any “practical injustice” been identified (WZARH) then no detriment is likely to be shown with the consequence that an applicant is unlikely to be able to maintain that he or she was not shown procedural fairness.
On the facts of this case, the nondisclosure of the impugned documents did not deny the applicant of the possibility of a successful outcome as that notion was canvassed in Stead v State Government Insurance Commission.[16] The documents were not relevant to the task of the tribunal.
[16] (1986) 161 CLR 141
In my view, ground 1 was without merit.
The s.424A point
The applicant contended that the tribunal failed to comply with s.424A of the Act as it failed to put to the applicant the information in the departmental movement records. The applicant did not specifically identify the “information” on which he relied. It seemed he relied on an identical factual scenario in making those submissions as was relied on for the s.438 argument. The impugned documents were the emails of 6 November 2013 and 7 November 2013. In the course of opposing this ground, Mr Brown argued that the tribunal relied on the information that the applicant gave as well as country information. Relying on the decision of the High Court in Minister for Immigration and Citizenship v SZGUR[17] Mr Brown argued that for the purposes of s.424A of the Act the relevant “information” was concerned with the tribunal’s knowledge of some fact or circumstance that was communicated to or received by the tribunal but that it did not include the tribunal’s subjective use or appraisal of the evidence or the conclusions it drew from that evidence. In support, Mr Brown’s written submissions cited the decision of the High Court in SZBYR v Minister for Immigration and Citizenship[18] and the decision of a single judge of the Federal Court of Australia in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs.[19]
[17] (2011) 241 CLR 594 (at [9])
[18] (2007) 81 ALJR 1190
[19] [2005] FCA 1066
The applicant’s contentions were not easy to follow. Here, the tribunal applied country information properly available to it, especially about gangs of drug traffickers from Colombia. I detected no irregularity in the tribunal adopting that course. The applicant’s written submissions in relation to this ground pointed to paragraph 142 of the tribunal’s reasons. Relevantly, that portion of paragraph 142 provided as follows –
Departmental movement records indicate that Daniel Villa departed Australia in January 2014. The court’s sentencing remarks refer to Daniel Villa’s intention to return to Colombia and the applicant claims that he has heard that Daniel has returned there from someone familiar with Daniel’s family. The tribunal therefore accepts that Daniel Villa has returned to Colombia. However, despite the fact that Daniel has returned to Colombia, he has not made any attempts to contact or threaten the applicant or threaten or harm the applicant’s family in Colombia. While the applicant claims that his family has been contacted by Los Urabenos, his evidence is that occurred around the middle of 2013 and is not ongoing. The tribunal will deal with the applicant’s evidence and its concerns about these incidents below.
True, the tribunal did not identify the precise records to which it referred in the first sentence of that paragraph. However, the material in the second sentence came from the sentencing remarks of his Honour Judge Maidment. The conclusion which the tribunal reached in its acceptance that Mr Villa had returned to Colombia was open as was the conclusion in the penultimate sentence. The minister put the matter as follows –
… Indeed, in the course of reaching its decision, the Tribunal relied on information given by the applicant in writing during the course of his visa application or the Tribunal’s proceeding and independent country information not specifically relating to the applicant. Both of these types of information fall within the particular requirements of s 424A(1): SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415, [76]-[107] (Tracey and Foster JJ).
I agree. There was no merit in this ground
Conclusion
Both grounds failed. I dismiss this proceeding an order the applicant pay the minister’s costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 20 April 2018
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