MZARM v Minister for Immigration and Border Protection (No 2)
[2020] FCA 1167
•14 August 2020
FEDERAL COURT OF AUSTRALIA
MZARM v Minister for Immigration and Border Protection (No 2) [2020] FCA 1167
Appeal from: MZARM v Minister for Immigration & Anor [2018] FCCA 965 File number: VID 575 of 2018 Judge: BROMBERG J Date of judgment: 14 August 2020 Catchwords: MIGRATION – s 424A and s 438 of the Migration Act 1958 (Cth) – Administrative Appeals Tribunal denied the appellant procedural fairness in failing to disclose existence of s 438 certificate – whether that denial was material to outcome – whether Tribunal erred by failing to provide appellant an opportunity to respond to certain departmental movement records – appeal dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: DQM18 v Minister for Home Affairs [2020] FCAFC 110
Minister for Immigration v SZMTA (2019) 264 CLR 421
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Date of hearing: 31 July 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: Ms S Kelly Solicitor for the Appellant: Clothier Anderson Immigration Lawyers
Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 575 of 2018 BETWEEN: MZARM
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
14 AUGUST 2020
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant pay the costs of the appeal of the First Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia (“FCCA”) published as MZARM v Minister for Immigration & Anor [2018] FCCA 965. By that judgment, the FCCA dismissed the appellant’s application for judicial review of the decision of the Second Respondent (“Tribunal”) to affirm the decision of a delegate of the First Respondent (“the Minister”) to refuse the appellant a Protection (Class XA) Visa (“protection visa”).
The appellant is a citizen of Colombia. In February 2012, he arrived in Australia on a student visa. Shortly thereafter, he befriended a fellow Colombian national by the name of Mr V. He later distanced himself from Mr V because he suspected that Mr V was involved in cocaine trafficking.
On 20 March 2013, the appellant applied for a protection visa. In his application, the appellant claimed he had a well-founded fear of persecution in Colombia, or faced a real risk of significant harm if returned to Colombia, because he had assisted the Australian Federal Police in securing a drug trafficking conviction against Mr V. The appellant claimed that Mr V or Los Urabenos, the cartel with which Mr V was associated, would seek retribution against him or harm his family.
The appellant relied on two grounds of appeal before this Court. The first ground concerns the Tribunal’s failure to disclose certain material that was subject to a certificate under s 438 of the Migration Act 1958 (Cth) (“Migration Act”). The second ground concerns whether the Tribunal failed to comply with s 424A of the Migration Act by failing to put certain departmental movement records to the appellant.
GROUND ONE
The appellant’s first ground of appeal raises a procedural fairness point the success of which ultimately turns on whether the failure to afford the appellant procedural fairness was material to the outcome of the Tribunal’s determination.
The claim in question is the appellant’s claim that Mr V or Los Urabenos may harm him or his family in Colombia. Having identified that claim at [141] of its reasons the Tribunal then said at [142]:
Departmental movement records indicate that [Mr V] departed Australia in January 2014. The court's sentencing remarks refer to [Mr V’s] intention to return to Colombia and the applicant claims that he has heard that [Mr V] has returned there from someone familiar with [Mr V’s] family. The tribunal therefore accepts that [Mr V] has returned to Colombia. However, despite the fact that [Mr V] has returned to Colombia, he has not made any attempts to contact or threaten the applicant or to 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 this 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.
At [156] of its reasons, the Tribunal found that neither the appellant or his family in Colombia have faced any threats or harm from Mr V or Los Urabenos and at [158] the Tribunal found that the risk that the appellant would be targeted by either Mr V or Los Urabenos if he returns to Colombia now or in the reasonably foreseeable future was remote.
It is not in contest that information in the form of two emails dated 6 and 7 November 2013 (“notified information”) was provided to the Tribunal under a notification given to the Tribunal pursuant to s 438(2) of the Migration Act on the basis that the information in question was the subject of a certificate made by the Minister under s 438(1) of the Act. It is also not in contest that the s 438 certificate was invalid and the failure of the Tribunal to inform the appellant of the existence of the s 438 certificate constituted a denial of procedural fairness: see Minister for Immigration v SZMTA(2019) 264 CLR 421 at [27].
The submissions of both parties proceeded on the basis that it may be inferred that the notified information was not taken into account by the Tribunal. In those circumstances, the relevant question is that described by Bell, Gageler and Keane JJ in SZMTA at [48] (emphasis added):
In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.
The primary judge rejected this same ground raised by the appellant before him on the basis that the notified information was “not relevant to the task of the tribunal” (at [29]) and that therefore it was not material to the outcome. With respect to his Honour, I consider that the content of the notified information was of some relevance to an issue before the Tribunal namely, whether at the time of the Tribunal’s decision, Mr V was no longer in detention and had left Australia and was residing in Colombia. However, the fact that the notified information addressed an issue of some relevance does not necessarily mean that the information was material to the outcome reached by the Tribunal.
At [142] of its reasons (set out above) the Tribunal found that Mr V “has returned to Colombia” and, inferentially, that he was no longer detained in prison in Australia and had left Australia. Those findings were relevant to the Tribunal’s rejection of the appellant’s claim to fear being harmed by Mr V if he returned to Colombia because there was, as the Tribunal also found at [142], no evidence of any attempt by Mr V “to contact or threaten the [appellant] or to threaten or harm the [appellant’s] family in Colombia”.
The Tribunal was of the view that, despite Mr V having been released from prison and deported to Colombia, and having had the opportunity to threaten the appellant and threaten and harm his family, no such conduct occurred. The absence of that conduct, despite Mr V having the opportunity to engage in it, told against the existence of a well-founded fear that the appellant may be harmed by Mr V if returned to Colombia. The opportunity for Mr V to have engaged in that conduct, turned on two matters – Mr V not being imprisoned and Mr V having being deported to Colombia.
That Mr V was not in detention and was not in Colombia, as well as the time at which he left detention and was deported to Colombia were facts relevant to both the existence of the opportunity and the extent of the opportunity Mr V had to threaten and/or harm the appellant. The notified information was probative of those facts.
The notified information consisted of two emails. The first email (dated 6 November 2013) was an enquiry made by an officer of the Department of Immigration and Border Protection (“the Department”) holding the position of “Case Officer” in a section of the Department called “Onshore Protection Victoria”. He inquired as to whether Mr V “is in prison or not in Australia”. That inquiry was directed to another officer of the Department whose title was also recorded as “Case Officer” and who occupied that position in a section of the Department called “Criminal Cases, Status Resolution Victoria”. The officer to whom the inquiry was directed responded by email dated 7 November 2017. Relevantly, that officer stated that Mr V “is still onshore”. He referred to another officer having confirmed that to be so in June 2013 and then said that Mr V “is at the Malmsbury Youth Justice Centre” and that “He’ll be imprisoned until 2016 and he’s not in the community”.
The question that arises then is really this – if the Tribunal had taken the information just referred to into account, could the Tribunal’s rejection of the appellant’s claim of a well‑founded fear that he may be harmed by Mr V should he be returned to Colombia have been realistically affected?
In DQM18 v Minister for Home Affairs [2020] FCAFC 110, with Mortimer J at [114], I observed that “the adjective ‘realistic’ in the statements of principle by the majority in the High Court in Hossain and SZMTA is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that”.
In my view, the possibility of the Tribunal having reached a different outcome if it had taken into account the notified information is improbable and thus not realistic.
In arriving at that view I have proceeded on the basis, favourably to the appellant, that if the breach of procedural fairness by the Tribunal had not occurred the appellant would have become aware of the notified information and sought to have the Tribunal take it into account. I have, again favourably to the appellant, proceeded on the basis that a different finding by the Tribunal as to whether or not Mr V was in detention and in Colombia could have resulted in a different outcome to the appellant’s application.
The difficulty for the appellant is that, in the context of other information before the Tribunal, it is improbable that if the Tribunal had taken the notified information into account, the Tribunal would have given any, or any sufficient, weight to it such as to have altered the finding that the Tribunal made. That is because the Tribunal had before it more current information about Mr V’s whereabouts than that specified by the notified information. That more current information was not (contrary to the appellant’s submission) in conflict with the notified information but was information which can be seen to have overtaken it.
The Tribunal’s findings that Mr V was not in detention but in Colombia was based on three matters set out at [142] of the Tribunal’s reasons. First, the Tribunal relied on Departmental movement records indicating that Mr V had departed Australia in January 2014. Second, it relied upon sentencing remarks which supported Mr V’s intention to return to Colombia and third, it relied on information provided by the appellant that he had heard that Mr V had returned to Colombia.
The notified information was, at best, current as at November 2013 and there is no basis for thinking that it could have realistically altered the finding made by the Tribunal that, as at January 2014, Mr V had left Australia and was residing in Colombia. There were two matters relied upon by the appellant to persuade me to the contrary.
First, it was put that Mr V had been sentenced to 3 years imprisonment commencing in about February 2013 and that it was therefore unlikely that he would have been released in January 2014. I am not able to speculate as to the likelihood of some form of early release that may have been provided to Mr V. No material was put before me about that possibility and I would therefore presume that it is improbable that any material could have been put before the Tribunal persuasive of the contention that the early release of Mr V as at January 2014 was an unlikely event.
Second, the appellant contended that the observation made in the notified information that “He’ll be imprisoned until 2016”, would have been given significant weight by the Tribunal because it was made by a “Case Officer” likely to have personal knowledge of and supervision over Mr V’s detention. The appellant contended that if Mr V’s “Case Officer” opined in November 2013 that he would not be released until 2016, it is unlikely that Mr V would have been released in January 2014.
The problem with that submission is that it mischaracterises the role and significance of the “Case Officer”. There is no basis for the submission that the person concerned had some personal knowledge of or supervisory responsibility for Mr V’s detention. The email in question identified the person as a “Case Officer” in the Department. There is no basis for thinking, that given that Mr V’s detention was likely controlled by Victorian authorities and not the Department, that the Departmental “Case Officer” in question had any familiarity with Mr V’s circumstances beyond that available to the Department by reason of inquiries made of the relevant Victorian Department responsible for Mr V’s detention. It is improbable, in my view, that the statement made by the “Case Officer” would have been treated by the Tribunal as of any real significance.
For those reasons the primary judge’s ultimate conclusion was not erroneous and this ground of the appellant’s appeal must be rejected.
GROUND 2 – WAS SECTION 424A ENGAGED?
By his second ground of appeal, the appellant contended that the Tribunal fell into jurisdictional error by not inviting him to comment on the Departmental movement records to which I have earlier referred. That failure was asserted to be contrary to the requirements of 424A(1) of the Migration Act.
That provision relevantly provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
In my view, the information that Mr V left Australia was not information that was “the reason”, or part of the reason, for the Tribunal affirming the decision under review within the meaning of that requirement in s 424A(1). The relevant reason or part of the reason for the Tribunal affirming the decision under review was that Mr V had not threatened to or had not harmed the appellant or his family. Assuming that none of the exceptions applicable under s 424A(2), (2A), or (3) applied, the Tribunal’s reliance on information that no threats of harm had been made or harm had been inflicted upon the appellant or his family would, I consider, have warranted an opportunity under s 424A for the appellant to respond to that information. However, the Departmental movement records were merely information of a fact or facts which the Tribunal used to make the finding that Mr V was no longer in detention and had left Australia. On its own, that information was not the reason or part of the reason for the Tribunal affirming the decision that was under review. Put another way, the reason or part of the reason for the Tribunal affirming the decision it reviewed was not that Mr V was no longer imprisoned and had left Australia as of January 2014: cf SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); and SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at [104] Buchanan J with Perram J agreeing at [107]).
Although I have come to the same conclusion as the primary judge for different reasons, the appellant’s second ground must also be rejected.
CONCLUSION
For the reasons I have given, each of the appellant’s grounds of appeal must be rejected. It follows that the appeal should be dismissed with costs. I will make orders accordingly.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 14 August 2020
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