SZGIZ v Minister for Immigration

[2019] FCCA 2819

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZGIZ v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2819

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a protection visa – Tribunal denied the applicant procedural fairness by not disclosing to the applicant a certificate issued under s.438 of the Act – whether the Tribunal’s disclosure to the applicant of the certificate could realistically have resulted in the Tribunal making a different decision – application dismissed.

Legislation:

1951 Convention Relating to the Status of Refugees, Art.1A(2)
1967 Protocol Relating to the Status of Refugees
Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A, 438, 476

Cases cited:

Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: SZGIZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2745 of 2016

Judgment of: Judge Manousaridis

Hearing date: 24 September 2019

Date of Last Submission: 24 September 2019

Delivered at: Sydney

Delivered on: 4 October 2019

REPRESENTATION

Solicitors for the Applicant: Ms L Shelly of Shelly Legal

Counsel for the First Respondent: Ms K Hooper

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2745 of 2016

SZGIZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Bangladesh, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. Until the evening before the hearing, it appeared the applicant, who was not then legally represented, intended to rely on the grounds set out in the application as originally filed. At approximately 7.30 pm on the evening before the hearing a lawyer acting pro bono for the applicant sent an email to my associate’s inbox attaching a proposed amended application together with written submissions prepared by counsel. The proposed amended application contains one ground, and that is that the applicant was denied procedural fairness because the Tribunal failed to disclose to the applicant a certificate that had been issued purportedly pursuant to s.438 of the Act (438 Certificate).

3. At the hearing before me Ms Shelly, who appeared for the applicant, applied for leave to file an amended application in the form of the draft attached to the email that had been sent to my associate’s email address. Ms Hooper, who appeared for the Minister, did not oppose the applicant being granted leave to file the amended application. I granted the applicant that leave. Ms Shelly relied on the written submissions prepared by counsel, and made oral submissions.

4. The Minister accepts the Tribunal failed to disclose to the applicant the 438 Certificate and that, by so doing, the applicant was denied procedural fairness. The Minister, however, submits that the Tribunal’s failure to disclose the 438 Certificate was not material to the Tribunal’s decision. More particularly, the Minister submits the applicant cannot establish that the Tribunal’s failure to disclose the 438 Certificate was material.

5. The question that arises, therefore, is whether the Tribunal’s failure to disclose the 438 Certificate to the applicant was material to the Tribunal’s decision. To be in a position to decide that question, it will be necessary to set out the applicant’s claims for protection and the reasons for which the Tribunal affirmed the delegate’s decision, and identify the document covered by the 438 Certificate the non-disclosure of which the applicant submits was material to the Tribunal’s decision.

Background

1. The applicant arrived in Australia in 1996 as the holder of a subclass 672 business visa. He applied for a protection visa in 2005. At that time the only criterion for the grant of a Protection visa was that provided for by s.36(2)(a) of the Act, namely, that the applicant was a “refugee” within the meaning of Art.1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. A delegate of the Minister refused that application, and in 2005 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision.

2. The applicant again applied for a Protection visa on 10 October 2012 claiming that he satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act, which had been added to the Act after the RRT affirmed the delegate’s decision. Although that application was initially rejected on the ground that it was barred by s.48A of the Act, on 3 July 2013 the Full Federal Court held s.48A did not bar the applicant from applying for a Protection visa limited to the complementary protection criterion provided for by s.36(2)(aa) of the Act.[1]

   [1] SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

3. On 7 August 2014 a delegate of the Minister refused to grant the applicant a Protection visa and on 19 January 2016 a differently constituted Tribunal (Previous Tribunal) affirmed the delegate’s decision. On 4 April 2016 this Court set aside the Previous Tribunal’s decision. The application for review was remitted to the Tribunal and, on 9 September 2016, the Tribunal affirmed the delegate’s decision.

Claims for Protection

1. In his form of application for a Protection visa the applicant claimed he was born into a conservative Muslim family. He is a moderate, and a liberal thinker. The applicant gradually started to distance himself from Islam until he converted to Christianity. The applicant claimed he will face significant harm because of his religious conversion, and that is because Islamist fundamentalists consider the applicant an apostate and Islamic society considers apostasy a sin. The applicant also claimed that, because of his long stay in Australia, he will be considered a westerner, and will be harmed for that reason.

2. Before the delegate the applicant claimed he converted to Christianity in 2010. The applicant claimed he had been attending a particular parish of the Uniting Church.

Before the Tribunal

1. The applicant provided a number of documents in support of his application for review. These included a letter dated 30 August 2015 from a reverend of the Uniting Church in Australia.[2] The reverend stated that the applicant was baptised in 2010 and has regularly attended worship services since that time; the applicant is a person of faith; the applicant has talked to the reverend about his hopes to volunteer in one of the church’s ministry projects; the situation in Bangladesh is not conducive to the applicant’s safe return to Bangladesh because, as a Christian convert, the applicant would be an extremely vulnerable person. Another document the applicant provided is a purported letter from a Mr R to the applicant stating that a case had been lodged against the applicant, and that police “are searching to arrest you everywhere”.[3]

   [2] CB130

   [3] CB122

2. At the hearing before it, the Tribunal questioned the applicant about the following matters:

   a)The applicant’s claimed conversion to Christianity. This included questions about the Christian related activities the applicant was involved in before he was baptised in August 2010; the specific books the applicant studied; whether the applicant had read the Old or the New Testament (to which the applicant did not answer, but only said he was given the Bible, and later said he thought he had read the Old Testament; whether the applicant knew the difference between the Old and the New Testaments (to which the applicant said that in the course of the hearing the reverend would explain those matters to the Tribunal, and later said he cannot remember anything); whether the applicant knew the denomination of Christianity to which he belonged (to which he replied “I like Jesus and that’s it” but on further questioning said he was a Catholic); and whether the applicant had any favourite stories in the Bible (to which the applicant said he could not recall).

   b)The applicant’s delay in lodging his first application for a Protection visa, and the applicant’s “migration history as summarised in the delegate’s decision record”. [4] The applicant said he did not apply earlier because he believed he would be granted an independent migration visa.

   c)The letter from Mr R asking why an arrest warrant had been issued in relation to the applicant. The Tribunal recorded the applicant had substantial difficulties explaining to the Tribunal details of the warrant, noting that the applicant stated terrorist groups had to be pacified, that his father was shot in October 2005 by persons whose identity he did not know but who, the applicant claimed, initiated the arrest warrant.[5]

   [4] CB305, [27]

   [5] CB306, [28]

3. The reverend also gave evidence before the Tribunal. He said the applicant has been consistently engaged with the Uniting Church, helping at morning tea and with donations. The reverend agreed it was not his role to question the purpose for which the applicant was involved in the church and that he accepted that participants in the church do so in good faith. The reverend also said he expected a person in the applicant’s position to understand the difference between Christian faiths “such as Christianity [sic] and the Uniting Church”. The Tribunal discussed with the applicant this part of the reverend’s evidence, namely, that he would expect a person in the applicant’s circumstances to understand the distinction between Christian faiths and pointed out to the applicant his earlier evidence that he did not understand the difference between Catholicism and the Uniting Church faiths.

4. After the hearing the applicant provided written submissions in which the applicant responded to matters the Tribunal asked him about during the hearing.[6] These included matters concerning the applicant’s conversion to and knowledge of Christianity.

   [6] CB294-297

Tribunal’s reasons

1. Although the Tribunal accepted as plausible the applicant’s claims that he does not practice Islam, it did not accept the applicant is a genuine Christian convert. The Tribunal relied on a number of matters.

   a)First, in the course of the hearing before it the applicant demonstrated little or no understanding of the concept of denomination, or the difference between Catholicism and the Uniting Church. The Tribunal acknowledged that in the post hearing submissions the applicant stated he understood the difference but the Tribunal noted that was not the evidence the applicant gave to the Tribunal; and the Tribunal preferred the applicant’s oral evidence.[7]

   b)Second, the applicant claimed he had read the Bible but he was inconsistent about whether he read the Old or the New Testament; he was unable to tell the Tribunal about any story in the Bible; and when the Tribunal asked the applicant whether he knew the difference between the Old and the New Testaments, he referred the Tribunal to the reverend for an explanation.[8]

   c)Third, the Tribunal considered that the applicant’s delay in applying for protection supported the Tribunal’s findings that the applicant does not fear harm because of his claimed conversion to Christianity.[9]

   [7] CB305, [26]

   [8] CB305, [26]

   [9] CB305-306, [27]

2. The Tribunal referred to particular items of evidence:

   a)First, it referred to the purported letter from Mr R. The Tribunal found the applicant was unable to articulate in a coherent manner significant details about the document. It concluded that, given the credibility concerns the Tribunal had “about the applicant and his evidence in the course of the hearing relating to the document”, the Tribunal decided not to give the document weight and found there is no arrest warrant in relation to the applicant.[10]

   b)Second, it referred to the evidence the reverend gave at the hearing, and also in a post hearing letter dated 21 August 2016 where the reverend stated it was perhaps remiss of him not to have spoken at greater length with the applicant about denomination differences but offered a reason for the oversight, namely, “the strong ecumenical commitment of the congregation”.[11] The Tribunal found the reverend’s oral evidence to be significant; and the fact that “the applicant . . .  on his own evidence” needed time to gain a deeper understanding indicated to the Tribunal that the applicant’s understanding of Christianity is limited, contrary to his claims that he had been a practitioner for many years and that he had converted to Christianity.[12]

   c)Third, the Tribunal referred to the evidence of two other witnesses: a Ms P, who gave evidence that she had been to Bangladesh a number of times and observed the ill treatment of converts by Muslim fundamentalists; and a Ms G, who gave evidence that the applicant’s conversion to Christianity is real, and that he would be harmed if he were to return to Bangladesh. The Tribunal accepted that each of the reverend and the other two witnesses believe the applicant is a Christian convert, but noted that the determination whether the applicant converted to Christianity is a matter for the Tribunal.[13]

   d)Fourth, the Tribunal referred to the baptism certificate. The Tribunal accepted the applicant was baptised. The Tribunal found that “in consideration of the evidence as a whole, and given the Tribunal’s concerns about the applicant’s credibility”, the Tribunal did not accept the applicant is a Christian of any faith; or that the baptism certificate is conclusive evidence of his Christianity; or that his Christian-related activities, such as attending church and assisting, mean he is a genuine Christian; or that because of those activities he would be perceived to be a Christian.[14]

   [10] CB306, [28]

   [11] CB306, [31]

   [12] CB307, [32]

   [13] CB307, [33]-[35]

   [14] CB307, [36]

3. The Tribunal considered the applicant’s claims based on his medical condition and on his being perceived to be a westerner. Relying on country information, the Tribunal was satisfied that an applicant’s having lived in Australia for over 20 years would not have given such applicant a profile that would be adverse to any individual; and it found the applicant’s claim that he would be perceived as wealthy because he has lived in Australia for 20 years to be speculative.[15] The Tribunal acknowledged it was plausible that, because he has lived in Australia for 20 years, the applicant could face difficulties in finding accommodation and employment but this is a difficulty any person would face who moved into an area in which the person had not lived for some time. Further, although the Tribunal accepted the applicant suffers from diabetes and other clinical conditions, and that it is possible the clinical and medical services he would receive in Bangladesh are not of the same standard as those available in Australia, the Tribunal was not satisfied the applicant would be denied access to adequate clinical services, or that there is a real risk he would face significant harm.

   [15] CB308, [40]

4. Finally, the Tribunal considered whether the applicant would face a real risk of significant harm if he were to return to Bangladesh. After referring to country information which noted that although Christians in Bangladesh were treated equally in law, but were nevertheless discriminated against in many ways, the Tribunal found the applicant would not practice Christianity on his return to Bangladesh because he is not genuinely interested in the Christian faith. The Tribunal also found that, although the applicant was not a strict practitioner or adherent of Islam, that did not mean he is a Christian. In any event, the applicant did not claim he was harmed in Bangladesh because of his limited practice of Islam while in Bangladesh.[16]

   [16] CB309-310, [44]

5. Having made these findings, the Tribunal found there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Bangladesh there is a real risk he would suffer significant harm.

The 438 Certificate

1. The 438 Certificate relevantly provides as follows:

   I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to information provided to DIBP as an allegation relevant to file number . . . . This information was given to the Department of Immigration and Border Protection in confidence.

   Information provided as attachment to email was provided as an allegation and the source has an expectation of anonymity. The identity of the source should not be disclosed or by extension, any information contained within the allegation that would have potential to identify the source.

   The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4)

2. The 438 Certificate applies to a number of documents, only one of which is relevant (dob-in-letter).[17] It purports to set out information provided by a “Source” about the applicant, who is identified as “POI”. That information includes the applicant’s having held a bridging visa that expired; the applicant’s working full time for over one month at a named place; the applicant having been caught before by field officers; the applicant’s being a particular height and build, and the applicant’s possibly being “a violent person”.

   [17] The Minister claims no privilege or confidentiality in relation to any documents covered by the 438 Certificate

Ground of application and parties’ submissions

1. The applicant relies on the following ground of application:

   The Tribunal has denied the Applicant procedural fairness by failing to disclose material evidence that was the subject of a certificate issued pursuant to section 438 of the Migration Act 1958 as per the binding authority of Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252

2. In his written submissions the applicant submits that the information contained in the dob-in letter is distinguishable from the information that was considered in Minister for Immigration and Border Protection v SZMTA[18] not to be “material” in “the sense of being significant or adverse to the interests of the Applicant”.[19] The applicant submits the document contains assertions that “were significant and adverse to the interests of the Applicant” that “may have had some bearing on the assessment of the Applicant’s credibility”. The applicant refers to the assertions that the applicant was “living and working illegally in Australia”, the applicant was scared of detection by immigration officials, which led him to enter his place of work through a back entrance, the applicant worked with other people on bridging visas who were working illegally, and the applicant may be violent if approached.

   [18] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

   [19] Draft Outline of Submissions on Behalf of the Applicant, [10]

3. In oral submissions, Ms Shelly repeated the substance of the submissions made in the applicant’s written submissions. Ms Shelly submitted that the dob-in letter was clearly adverse to the credibility of the applicant and, for that reason, was significant. Ms Shelly relied on the emphasised portion of the following passage from the judgment of the plurality in SZMTA:[20]

   The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

   [20] [47]

1. Ms Shelly submitted that, given the significance of the dob-in letter to the credibility of the applicant, it constitutes a “contrary indication” to the Tribunal’s paying no regard to the document.

2. The Minister, on the other hand, submitted the onus is on the applicant to show that the Tribunal’s failure to disclose the 438 Certificate deprived the applicant of the possibility of a successful outcome, and the applicant cannot discharge that onus. The Minister relies on the 438 Certificate being valid and the contention that, even if the 438 Certificate had been disclosed and the Tribunal exercised its discretion to disclose the dob-in letter to the applicant, that could not have made any difference to the outcome of the application. Here the Minister relied on two matters. The first is that much of what was contained in the dob-in letter related to the applicant’s immigration history. That history was before the Tribunal because it is set out in the delegate’s decision record,[21] and the Tribunal “discussed with the applicant his migration history as summarised in the delegate’s decision record”.[22] The second matter on which the Minister relied is the reasons the Tribunal gave for affirming the delegate’s decision. The Minister submitted that it could not be inferred that the Tribunal relied on any information contained in the dob-in letter.

   [21] CB55-56

   [22] CB305, [27]

Was the non-disclosure material?

1. The question of materiality is to be determined by applying the principles stated by the plurality in SZTAN. All justices in SZTAN were of the opinion that the issue of a certificate under or purportedly under s.438 of the Act obliged the Tribunal to disclose to the applicant in that case certificate.[23] According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to a jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, whether the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[24] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[25] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[26]

   [23] [2019] HCA 3, [28], [115]

   [24] [2019] HCA 3, [4]

   [25] [2019] HCA 3, [45]

   [26] [2019] HCA 3, [46]

2. The question, then, is whether the Tribunal’s disclosure to the applicant of the 438 Certificate could realistically have resulted in the Tribunal making a different decision. In my opinion, that question is to be answered in the negative. At least some of the material contained in the dob-in letter, namely, the applicant’s migration history, was information of which the Tribunal was already aware. In any event, I am not satisfied the Tribunal had regard to the applicant’s migration history or to any of the information contained in the dob-in letter when determining the applicant’s application for review. That is apparent from the Tribunal’s reasons for decision. The Tribunal there identified each of the matters on which it relied for not accepting the applicant’s claims. The matters on which the Tribunal relied were the applicant’s demonstrating little or no understanding of the concept of denomination or the difference between Catholicism and the Uniting Church, his limited knowledge of the Bible, including his inability to relate a single story from it, and the applicant’s delay in applying for a protection visa. There is nothing to suggest the Tribunal relied on the applicant’s migration history, or the applicant’s having possibly worked unlawfully in Australia, or the applicant’s possibly being a violent person.

Conclusion and disposition

1. The Tribunal’s failure to disclose to the applicant the 438 Certificate could not realistically have resulted in the Tribunal making a different decision. This being the only ground on which the applicant relies I propose to order that the application be dismissed.

2. Counsel for the Minister and Ms Shelly agreed that costs should follow the event, and that the costs should reflect the relevant amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as that schedule applied at the time the applicant filed his application with this Court. That amount is $7,206. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,206.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 October 2019