SZMJM v Minister for Immigration and Anor (No.2)

[2017] FCCA 1260

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZMJM v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1260

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the criterion in sub-s.36(2)(a) of the Migration Act 1958 (Cth) – whether the Tribunal erred by not giving the applicant the validity of the certificate under s.438 – whether the Tribunal failed to exercise its power under sub-ss.438(3)(a) or (b) – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 48, 357A, 375A, 418(3), 422B, 424A, 424AA, 438, 440

Cases cited:

Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
Minister for Immigration & Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Applicant: SZMJM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2816 of 2015

Judgment of: Judge Smith

Hearing date: 2 November 2016

Date of Last Submission: 2 November 2016

Delivered at: Sydney

Delivered on: 16 June 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary, DLA Piper Australia

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 18 September 2015.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 13 August 2014 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2816 of 2015

SZMJM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 18 September 2015. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

Background

1. This was not the first time the applicant had applied for, and been refused, a protection visa. His first application was made on 13 July 2007. Ordinarily, the applicant would have been prevented from applying for a further protection visa by operation of s.48A of the Migration Act 1958 (Cth) (Act). However, this changed when, in March 2012[1] a new criterion for protection visas was introduced into the Act: sub-s.36(2)(aa). In SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 (SZGIZ) the Full Court of the Federal Court held that the bar in s.48A of the Act only operated to prevent an application on the basis of the same criterion as had already been determined. The effect of that decision was that further applications for protection visas were not prohibited if an earlier visa application was based on the criterion in, say, sub-s.36(2)(a), and the new application was based on a claim to satisfy the criterion in sub-s.36(2)(aa). This was so, even though the factual bases for the applications were identical.

   [1] Migration Amendment (Complementary Protection) Act 2011 (Cth), No. 121, 2011, Sch.1, Items 1 to 17, commencement date 24 March 2012.

2. As the applicant’s first protection visa was based on the criterion in sub-s.36(2)(a), the decision in SZGIZ meant that he could make a further application based on sub-s.36(2)(aa). That is what he did on 4 October 2012.

3. On 13 August 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. In doing so, the delegate considered whether the applicant satisfied either the criterion in sub-s.36(2)(a) or the criterion in sub-s.36(2)(aa) of the Act.

4. The applicant applied to the Refugee Review Tribunal[2] for review of that decision on 16 September 2014. The Tribunal affirmed the decision on 18 September 2015. Unlike the delegate, the Tribunal did not consider the refugee criterion.

   [2] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Grounds of application

1. The only ground on which the application for judicial review is based is that the Tribunal ought to have considered the criterion in sub-s.36(2)(a) because the delegate had done so. That ground must fail. In Minister for Immigration & Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127, the Full Court of the Federal Court held that:

   The delegate did not have the power to consider the second protection visa application by reference to s 36(2)(a) as well as s 36(2)(aa) of the Act. Further, the Tribunal was not obliged to consider the applicability of both criteria since the delegate had elected to do so.

2. The Minister’s submissions brought another issue to the Court’s attention. When an application is made to the Tribunal for review of a delegate’s decision to refuse to grant a protection visa, the Secretary of the Department of Immigration must give to the Tribunal each document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision: s.418(3) of the Act.

Consideration

1. In this case, amongst the documents given by the Secretary to the Tribunal was a document signed by a delegate of the Minister entitled “Certificate and Notification regarding the disclosure of certain information under s 438 of the Migration Act 1958”. The document relevantly stated:

   I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 51-54 inclusive of file number CLF2012/*****. The disclosure of this information would be contrary to the public interest because it relates to internal working documents and business affairs.

   …

2. The effect of s.438 of the Act is that, if the Minister has made a certification under s.438(1), the Tribunal may, if the Tribunal thinks it appropriate to do so, having regard to any advice given by the Secretary under sub-section (2), disclose any matter contained in the document, or the information, to the applicant: sub-s.438(3)(b). If the Tribunal does disclose the document or part of it to an applicant, it must give a direction under s.440 of the Act: s.438(4).

3. In MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 (MZAFZ), Beach J held that certification by the Minister was only valid under s.438(1) if it was made on a necessary or sufficient basis for public interest immunity to arise in respect of the documents, whether at common law or under statute: [36]. The fact that the documents in this case related to “working documents and business affairs”, was not sufficient to give rise to a claim of public interest immunity in respect of those documents. For that reason, the certificate was not valid and s.438 did not operate in respect of them.

4. The next issue is whether the invalidity of the certificate led to jurisdictional error in the Tribunal’s decision.

5. In MZAFZ, Beach J held that there were two alternative errors: first, as the Tribunal had “acted on” the material, it followed a procedure contrary to law ([40]), failed to consider whether to make disclosure under s.424A or s.424AA ([41]-[42]); or whether the material was favourable to the applicant and disclosure should be made to the applicant ([43]). In the alternative, if the certificate were valid, the Tribunal denied the applicant procedural fairness by not revealing the existence of the certificate to the applicant ([50] - [53]).

6. In respect of the finding of procedural fairness, his Honour found, at [60], that s.422B did not operate to exclude any obligation to give an applicant procedural fairness by:

   (a)     disclosing the existence of the certificate;

   (b)     affording the applicant an opportunity to make submissions on the validity of the certificate;

   (c) as affording the applicant an opportunity to at least make submissions on the Tribunal’s approach under sub-ss.438(3)(a)(b);

   …

7. That approach to s.422B was approved by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 (Singh) in respect of the analogous provision in s.357A of the Act.

8. In Singh, the Court was considering a certificate purportedly issued under s.375A of the Act. Unlike s.438 of the Act, the effect of that provision, when it applies, is that the Tribunal must not disclose to the applicant or otherwise the material subject to the certificate.

9. As in MZAFZ, the Court in Singh did not have before it the documents to which the certificate related. Nevertheless, it found at [42] that, because of the prohibition on disclosure required by s.375A of the Act, the existence of the certificate circumscribed the applicant’s participation in the review by the Tribunal. That circumscription was sufficient to enliven an obligation to afford procedural fairness. That obligation required the Tribunal to disclose the certificate to the applicant.

10. The issue in the present case is whether, in light of MZAFZ and Singh, the Tribunal fell into jurisdictional error in connection with the certificate.

11. The first step in determining that issue is to consider the nature of the documents that were the subject of the invalid certificate. The documents were described as folios 51 to 54 in the Departmental file relating to the applicant. Those folios are in evidence. They consist of a minute dated 8 November 2012 and addressed to the “Director, Ministerial Intervention (NSW & VIC), Department of Immigration and Citizenship” concerning the possible referral of the applicant’s case to the Minister for a decision as to whether to exercise his discretion under s.48B of the Act.

12. Section 48B of the Act empowers the Minister to give notice that s.48A does not apply to a particular person. If that notice is given, that person may make a further application for a protection visa on the basis of the same criteria that formed the basis of an earlier application.

13. The minute refers to a request from the applicant’s agent, Mr Bitel. It then sets out a number of matters that were both known to the applicant and before the Tribunal in other documents that were not subject to any certificate under (or purportedly under) s.438 of the Act.

14. These matters were:

    a)the applicant’s personal details and then a chronology of what are described as “key immigration events”;

    b)a summary of the claims made by the applicant in his application made in 2007;

    c)a decision of the Refugee Review Tribunal in respect of the applicant’s first protection visa application;

    d)a reference to a decision of this Court remitting the matter to the Refugee Review Tribunal;

    e)the review by the Refugee Review Tribunal after the matter was remitted; and

    f)a summary of the claims made in the protection visa application lodged on 4 October 2012.

15. The minute also contained an assessment of the request for intervention by the Minister. That material was not contained in anything else before the Tribunal and was not given to the applicant.

16. The assessment includes statements that there was no credible evidence to support certain of the applicant’s claims and that those claims were unsubstantiated. The view is expressed by the author of the minute that there was “no credible new information that would enhance [the applicant’s] chances of making a successful PV[3] application”.

    [3] Protection visa.

17. The minute is signed by its author and the Director of Ministerial Intervention (NSW & VIC) who also indicated her agreement with the assessment in it.

18. Even though the Tribunal’s duty was to assess the material before it for itself, and make its own findings of fact, given that the assessment in the minute was made in respect of the same claims to be determined by the Tribunal, it is not possible to say that it could have made no difference to the Tribunal’s decision. For that reason, the applicant ought to have been given the opportunity to address the Tribunal on the validity of the certificate and whether, even if the certificate were valid, the Tribunal should exercise the power under either or both sub-ss.438(3)(a) or (b). The Tribunal’s failure to do so constituted jurisdictional error.

Conclusion

1. There is no reason for which relief ought to be withheld. There will be an order for the issue of writs of certiorari and mandamus.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       16 June 2017