SZTYV v MIBP
[2018] FCCA 64
•23 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTYV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 64 |
| Catchwords: PRACTICE AND PROCEDURE – Evidence – admissibility – public interest immunity – whether the disclosure of the contents of an anonymous letter provided to the Department of Immigration and Border Protection making assertions about matters relating to first applicant’s claims for protection relate to a matter of state within the meaning of s.130 of the Evidence Act 1995 (Cth) (Evidence Act) – whether the public interest in maintaining confidentiality over the letter outweighs the public interest in admitting the letter into evidence – direction under s.130(1) of the Evidence Act given. |
| Legislation: Evidence Act 1995 (Cth), ss.130, 133 Migration Act 1958 (Cth), ss.424AA, 424A |
| Cases cited: Gilson v Minister for Immigration & Multicultural Affairs [1997] FCA 642 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Sankey v Williams (1978) 142 CLR 1 Singh v Minister for Immigration and Border Protection [2016] FCCA 2464 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| First Applicant: | SZTYV |
| Second Applicant: | SZTYW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1957 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 23 September 2016; 25 October 2016 |
| Date of Last Submission: | 25 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2018 |
REPRESENTATION
| First applicant appeared in person and as litigation guardian for the second applicant assisted by an interpreter |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
Pursuant to s.130(1) of the Evidence Act 1995 (Cth) the confidential annexure to the affidavit of Prue-Eliza Monument affirmed on 17 March 2016 is not to be adduced into evidence.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1957 of 2015
| SZTYV |
First Applicant
| SZTYW |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants seek judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicants a Protection (Class XA) visa (Protection visa).
Migration history
The applicants are mother and daughter, and are citizens of Lebanon. On 13 June 2012 the first applicant (applicant) applied to visit Australia as a sponsored family visitor; and, on 17 August 2012, she and the second applicant entered Australia holding a Sponsored Family Visitor (UL-679) visa that had been granted to them on 17 July 2012.[1] That visa remained in effect until 17 November 2012. On 16 November 2012 the applicants applied for a Protection visa. The applicant, but not the second applicant, made a substantive claim for protection. The second applicant applied for a Protection visa as a member of the applicant’s family unit.
[1] CB99
Applicant’s claims for protection
In her application for a Protection visa the applicant claimed she came to Australia to visit her ill sister. A few days after the applicant arrived “extreme problems took place in Jabal Mohsen”.[2] That was intended to be a reference to events described in a number of newspaper articles that accompanied the applicant’s application for a Protection visa. One report on 23 August 2012 referred to residents of Tripoli “fleeing their home [sic] due to clashes between the Alawite Jabal Mosen and Sunni Bab El Tebbaneh neighborhoods” and their being unable to return to their homes.[3]
[2] CB31
[3] CB58
The applicant claimed her home was damaged and robbed by Alawites because the applicant is a Sunni. The applicant purchased that home in 2004, renovated it, and moved into it in 2007. The applicant and her husband live in Hay Jalloul opposite the Medical Army and, when the “serious problems started the evening of 23 August 2012”, the applicant’s husband and children were lucky to escape to a particular street where “they all live now in a very small room”. The applicant claimed her children in Lebanon are “without school”, and the applicant’s husband warned her to stay where she is because of the serious danger surrounding her family in Lebanon.
The applicant also claimed the Alawite terrorists have already harmed her husband and children because the applicant’s husband was accused of being a Sunni Salafi. The applicant claimed the Alawites want Jabal Mohsen “to belong to them only”, and the applicant claimed she feared that if she returns to Lebanon she will be forced to join her family in the small room. Further, the applicant claimed:[4]
The Alawi in Jabal Mohsen are against any Sunni. The majority of Sunni are in Tripoli but only my family & a few other families are Sunni in Jabal Mohsen and the Alawi hated us and kicked us out. They damaged our home which is valued at over 100,000 US DOLLARS and now became inhabitable [sic].
[4] CB33
Hearing before Tribunal
Before the Tribunal, the applicant said that in the area where she lives there are a few houses occupied by Sunni Muslims, and the rest are Alawite; that the applicant used to live among the Alawites but “when I came to Australia, they took over my land. They occupied it”.[5] The Alawites whom the applicant said occupied her land were “those who were fighting”, namely, “the Abbar Khadani”.[6] The applicant claimed these Alawites accused the applicant’s husband of being Salafi.[7]
[5] T6.10. The transcript of the hearing before the Tribunal is annexed to the affidavit of N Senanayake made on 14 October 2015.
[6] T6.20
[7] T6.30
The Tribunal member asked the applicant whether she could tell the member “where you live exactly”.[8] The applicant said she lives in the “Kabaal”[9] area in “Jabal Moussa”, opposite the military health services, she has nowhere else to live, the applicant’s parents live in Hilan, which is “the family home”, not the applicant’s. [10] In response to the Tribunal member’s observation that maps and other media reports he has read differentiate the areas “Jabal Moussa” and “Kabaal”, the applicant said she lives in “Jabal Moussa”.[11] The applicant said her house in “Jabal Moussa” is the only house she has.[12]
[8] T8.5
[9] I assume this is intended to be a reference to Qubbeh or Kobbe to which the Tribunal refers in its reasons at CB244, [33]
[10] T8.5 The transcript record “Jabal Moussa”, but I have assumed that this is intended to be “Jabal Mohsen”
[11] T8.40
[12] T9.25
The Tribunal asked the applicant what she knew about the circumstances in which her house was destroyed. The applicant said that “the fight broke out so” the applicant’s husband took the children out of the area because they were exposed to snipers who killed many people. The husband took the children to the applicant’s parents’ village in Hilan. The applicant’s neighbours informed the applicant’s husband that their home had been looted.
The Tribunal asked the applicant whether her husband complained to the Lebanese Army or police about the Alawite family that occupied the applicant’s home. The applicant said her husband went to complain, and he applied for assistance to repair the house and get the house back, but the answer was “we’ve got nothing to do with those houses”.[13] The applicant said:[14]
I don’t know if there is a committee they say they come out and – and take – take records of the damages ….. this committee or – in the – in the government. Well perhaps some assistance, but if you don’t have anyone to help you from within the government, you’re lost.
[13] T13.15
[14] T13.25
The applicant said she did not know the name of the committee. The Tribunal then asked the applicant whether she can try and find out what the applicant’s husband did, to whom he reported the occupation and damage, and to provide a copy of the report that the applicant’s husband made and to inform the Tribunal what has been done subsequent to that.[15] The Tribunal also asked the applicant to provide “independent country information; perhaps, media reports; perhaps, an academic report that indicates that . . . Alawi families are moving into Sunni households in Obai”.[16]
[15] T13.35
[16] T16.10
The applicant said her husband was not very religious. She said her husband does not wear a beard, he does not go to the mosque, and he does not pray. The applicant said, however, “they suspected” her husband to be Salafi because he does not “get close to them”.[17]
[17] T17.15
Towards the end of the hearing the Tribunal member referred to s.424AA of the Migration Act 1958 (Cth) (Act), and said he intended to provide particulars of information he considers would be the reason or part of the reason for affirming the decision under review. The first matter the Tribunal member noted was that, in her application for a Protection visa, the applicant stated that between 1966 and 2012 her address was at Hilan in Lebanon.[18] The second matter related to a letter the Department of Immigration and Border Protection (Department) received from a person who did not identify himself or herself (Adverse Letter). The Tribunal said:[19]
… another document which was a piece of information that was given to the Department of Immigration in which it says you have two houses in Lebanon. You have one house in Hilan, which is where you[r] husband and your children currently live, and you also have a house in Tripoli next to Al Hakumi Hospital . . . and that you have moved your furniture out of that house in Tripoli and placed it in storage; and that you were falsely applying for a protection visa by saying that your house in Tripoli had been destroyed, when this was not the case; and that you have submitted documents from overseas that allegedly certified your situation, but that they were false documents not for [sic] your house but for a different house; and that you had previously unsuccessfully applied for a carer visa that hadn’t been successful and was, therefore, now applying for a protection visa using false information.
Now, the combination of both of those pieces of information may lead me to believe that you primary residence is in Hilan and that you may have – and that if you do have a house in Tripoli, that is not damaged and is perfectly habitable, and your family has moved out while you seek a reason to stay in Australia. Now, because of this, the tribunal may find that you are fabricating your account of your house in Tripoli having been taken over by an Alawi family, and you are motivated in this by trying to find a way to gain residency in Australia. Now, you may have additional time to respond to that, but I would ask for you to comment on that information.
[18] T20.1
[19] T20.2
The applicant gave the following response to the Tribunal’s concern about the applicant’s having stated that between 1966 and 2012 her address was at Hilan:[20]
I want to tell you, Mr Member, that when I applied for a visa to Australia in 2011, I said I lived in Hilan because Hilan is in the district of …. [sic] Before I lived in – before I lived in Kabal, I lived in a house consisting of only one bedroom, and around that street, opposite to my in-laws, and that room, still, until now, there [sic]. So when I applied for a visa to Australia, I had to put my address Arandat Street or in Hilan. So when my husband talked to the travel agent and tried to apply for the visa, he asked about the address. He told him, in [Jabal Mohsen][21]; he said, “I don’t [sic] putting [Jabal Mohsen][22] as your address is going to help you because of the fighting there.” This is why he gave the address of my in-laws. He put Arandat Street. So I can’t see where the problem is if he put . . . my in-laws as my address because if that would be the best advice from me, because the situation in [Jabal Mohsen][23]was not stable and if the members would like – to want to send any correspondence, this cannot be.
[20] T20.35
[21] The transcript records “Jamamussen”, but this appears to be a mistranscription of “Jabal Mohsen”
[22] The transcript records “Jamamussen”, but this appears to be a mistranscription of “Jabal Mohsen”
[23] The transcript records “Jamamussen”, but this appears to be a mistranscription of “Jabal Mohsen”
The applicant then addressed the second concern the Tribunal member raised with her:[24]
Why should I, like, put my – empty my – the contents of my house and put them in storage while I’m coming only for two months?
[24] T20.47-T21.1
In response to that statement the Tribunal member said that his concern was that the applicant never intended to visit Australia for two months, and that the applicant “always intended to try and apply for a way of gaining permanent residency, which is the reason why you put your furniture in storage”.[25] The applicant responded:[26]
I just made an oath on the Koran and I will never – I was – I was encouraged by my sister to come and see my sisters here and go back – and my relatives … [sic] all these things I could have sent my husband to do that. I don’t want it – it to go this … If I had a mind to come and seek protection in Australia, I could have sent my – get my husband to come and do all this instead of me coming here. As a lady, I can’t do anything . . .
[25] T21.10
[26] T21.15
The following exchange then took place:[27]
[27] T21.20
THE INTERPRETER: . . . I want to ask you, Mr Member, these information [sic] you’re telling me now, are these [sic] new information or ---
[MEMBER]: No
THE INTERPRETER: --- because I didn’t – I didn’t come across these [sic] information before this.
[MEMBER]: I don’t know when it actually came in, but it’s dated December 2013.
THE INTERPRETER: Yes.
The Tribunal member also drew the applicant’s attention to the residential and postal address stated in the applicant’s application for a visitor visa.[28] That address was “RAHBAT ST. KOBBE-TRIPOLI”.[29]
[28] T22.5. The transcript of the hearing records the address as “Arandat Street, Obai”. That appears to be an error. The address stated in the visitor application (CB2) is RAHBAT ST. KOBBE-TRIPOLI”
[29] CB2
Tribunal’s reasons
The Tribunal found the applicant’s evidence lacked credibility, and “did not find the applicant to be a reliable, credible, or truthful witness, and that she fabricated her claims in order to be granted a protection visa”.[30]
[30] CB244, [31]
The Tribunal did not accept the applicant lives in Jabal Mohsen, or that her house was attacked, or that an Alawite family has occupied it.[31] The Tribunal found the applicant was “quite vague and inconsistent regarding the location of her house, claiming that the whole area of Qubbeh (sometimes written as Kobbe) incorporated the area of Jabal Mohsen, which is where she was from”; [32] and that, in her Protection visa application, the applicant claimed she lived in Hilan from 1966 to 2012, while in her visitor’s visa application the applicant claimed she lived in Rahbat Street in Kobbe.[33] The Tribunal also said (emphasis added):[34]
Given the applicant’s lack of credibility, I lend weight to the anonymous information provided to DIBP . . . that the applicant had two houses in Lebanon; one in Hilan and one in Tripoli next to the al-Hakumi (Government) Hospital that she had packed up prior to coming to Australia. There is a Tripoli Government Hospital in Kobbe, and I am satisfied that the applicant has houses in Hilan (as she outlined in her application) and in Qubbeh. The information given also included detailed and accurate personal information relating to the applicant and the daughter.
[31] CB244, [32]
[32] CB244, [32]
[33] CB244, [33]
[34] CB244-245, [34]
The Tribunal also did not accept the applicant lived in Jabal Mohsen because maps indicate that Qubbeh and Jabal Mohsen, while adjacent, are separate areas. The Tribunal accepted there are “periodic periods of conflict” in Jabal Mohsen. The Tribunal found, however, that, given the applicant does not live in Jabal Mohsen, the applicant would be unaffected by the conflict. Even if there were a possibility of such conflict spilling over into Qubbeh, the applicant has a residence in Hilan, but the fact the applicant has not moved to Hilan indicated the applicant feels no danger in Qubbeh.[35]
[35] CB245, [35]
The Tribunal also referred to a purported title deed and other documents the applicant provided as evidence of the applicant’s residing in Jabal Mohsen. The Tribunal gave these documents little weight. The purported title deed did not indicate a residential location other than “Tripoli Olives, No 16, estate 5496 division no 9” which the Tribunal found “was not indicative of Jabal Mohsen”.[36]
[36] CB245, [37]
The Tribunal also did not accept the applicant’s house had been taken over by an Alawite family.[37] First, there was no country information available to the Tribunal, nor did the applicant provide any that indicated there had been any instances where people have been evicted from their homes and Alawite families moved in.[38] Second, the applicant’s family did nothing to rectify the situation, or seek to evict the illegal tenants. The Tribunal referred to the applicant’s evidence that her husband complained to a committee, but the applicant was unable to name the committee. The Tribunal noted that the applicant was asked to ascertain the name of the committee from her husband and to provide to the Tribunal after the hearing with a copy of the complaint, but the applicant did neither.[39]
[37] CB245, [38]
[38] CB245, [38]
[39] CB245, [39]
The Tribunal did not accept that the applicant’s actions in Australia are those of someone whose house had been attacked and taken over.[40] First, the applicant did not apply for protection until three months after she arrived in Australia.[41] Second, the applicant claimed she had attempted to apply for a carer’s visa but when this was not going to work “they applied for a protection visa” and found that if “someone was in such fear of her life as the applicant claimed, it is reasonable to expect that she would have tried first for a protection visa”. The Tribunal noted that anonymous information given also stated the applicant had attempted to be granted a carer’s visa before deciding to apply for a Protection visa using false information.[42]
[40] CB246, [40]
[41] CB246, [40]
[42] CB246, [41]
The Tribunal also did not accept the applicant’s husband was considered a Salafist, and was targeted as a result. The applicant was unable to explain why her husband would be targeted, given that he was not an observant Muslim, and did not have a beard. The only reason the applicant gave, which the Tribunal considered to be implausible, was that her husband was quiet and kept to himself.[43]
[43] CB246, [42]
Course of judicial review hearing
Before I consider the grounds on which the applicant relies, it will be necessary to say something about the course of the hearing before me. The starting point is an application the Minister made on 20 July 2016 for a non-publication order. The application related to the Adverse Letter. A copy of that letter was identified as a confidential exhibit to an affidavit of an officer of the Department, Ms Prue-Eliza Monument made on 17 March 2016 the Minister filed. The purpose of the affidavit was to support a claim for public interest immunity in relation to the Adverse Letter. The Minister applied for a non-publication order because the Adverse Letter was accessible by the parties through the Commonwealth Courts Portal. On 21 July 2016 I made ex parte a non-publication order in relation to the Adverse Letter, and reserved liberty to the applicant to apply to set aside that order. The applicant did not exercise that liberty.
At the commencement of the hearing on 23 September 2016 I made enquiries of counsel for the Minister about the Adverse Letter. I indicated I was concerned to know whether the Tribunal’s treatment of the Adverse Letter gave rise to any issue about the Tribunal’s compliance with s.424A of the Act. I raised the concern, even though the applicant, who is not legally represented, did not claim in her application that the Tribunal did not comply with s.424A of the Act, and made no other claim in relation to the Tribunal’s use of the Adverse Letter. Counsel for the Minister, however, submitted that I could not consider whether the Tribunal complied with s.424A of the Act without the contents of the Adverse Letter being in evidence. Counsel submitted, however, that the Minister asserted a claim of public interest immunity over the letter. As counsel put it, “for your Honour actually to consider the 424A point, the document would formally have to be before your Honour, and we say that can only be done if a [public interest immunity] claim were to fail”.[44]
[44] T7.5
After explaining to the applicant the issues I had discussed with counsel for the Minister, I decided first to hear the grounds of review contained in the application, and then to invite counsel for the Minister to make submissions in support of the Minister’s claim for public interest immunity over the Adverse Letter. As events occurred, however, the matter had to be adjourned part heard without the proceeding reaching the stage where counsel for the Minister could make his submissions on public interest immunity. I therefore adjourned the matter for further hearing to 25 October 2016, and directed that by 7 October 2016 the Minister file and serve any affidavits and submissions in relation to his application for public interest immunity over the Adverse Letter, and that, by 21 October 2016 the applicant file any affidavits and submissions in response to the Minister’s submissions.
The Minister filed written submissions. The Minister’s written submissions deal exclusively with the question of whether the Adverse Letter attracts public interest immunity. The applicant also filed written submissions (second set of submissions) in which the applicant requested that I read the Adverse Letter “especially to see whether there is material in the letter beyond what has already been disclosed which would shed light on who wrote it (apart from their name) and if there is [sic] any matters of substance that have not been disclosed which do undermine” the applicant’s case.[45] The applicant also requested that I consider “whether the matters not disclosed provide necessary context to those that were disclosed for the purpose of s.424A”.[46] In addition, the applicant submitted as follows:[47]
I again draw His Honour’s attention to the fact that whatever adverse information the Member considered undermined my claim and at the time the Member did not show me the paper and failed to give me access to the particulars of the whole of the contents of the letter and I draw His Honour’s attention to the fact that the Member failed to read the letter to me and failed to give me particulars of all information, even including the name of my daughter, who is included in my application, and what was said about her.
[45] Applicant’s Second Set of Submissions, [2]
[46] Applicant’s Second Set of Submissions, [2]
[47] Applicant’s Second Set of Submissions, [5]
The applicant did not appear at the hearing on 25 October 2016. By a letter dated 24 October 2016 sent to the Court the applicant said:
I am aware that I should appear before His Honour on Tuesday at the Court. Sadly due to my serious sickness I will be unable to attend because I am very sick and cannot leave the house because I am dizzy and have lost balance.
I ask his Honour to make a decision on Tuesday morning and I strongly believe that the Court can help me as I am unable to attend.
There was attached to the letter a medical certificate dated 22 October 2016 stating that the applicant “is suffering from a medical condition and is unfit for work or driving from 22/10/2016 till [sic] 26/10/2016 inclusive.”
I, and counsel for the Minister, interpreted the applicant’s sending the letter as a request that the Court deal with the application in the absence of the applicant based on the grounds stated in the application and the submissions the applicant made in her (two sets of) written submissions. I decided to hear the matter. I heard submissions from counsel for the Minister, both on the grounds specified in the application, and on public interest immunity. I indicated to counsel for the Minister that I proposed to give a judgment on 11 November 2016 on the grounds raised in the application. I also indicated I would consider whether there is any arguable case that the Tribunal did not comply with s.424A(1) of the Act in relation to the Adverse Letter, my intention being that if I were to find there was no arguable case, that would be the end of the matter so far as s.424A of the Act is concerned but if, on the other hand, I were to conclude there was an arguable case, I would set out in my reasons for judgment what I consider to be the arguable case, and invite the parties to make further submissions about that issue. I also indicated that I would consider whether counsel was correct in his submission that it is necessary to have the Adverse Letter formally before the Court before I could assess whether there was an arguable case that the Tribunal did not comply with s.424A of the Act. I also said that if I agreed with counsel’s submission, I would also consider the Minister’s claim for public interest immunity over the Adverse Letter.
On 4 November 2016 my chambers received an email from the Minister’s solicitors which included the following:
This matter has been listed for judgment in the Federal Circuit Court at 9:30 am on Friday, 11 November 2016 before his Honour.
We write to advise the Court that a notification that s 438(1)(b) of the Migration Act 1958 applied to certain documents in the applicant’s file was issued by the Department to the, then, Refugee Review Tribunal (now the Administrative Appeals Tribunal). Accordingly, the matter is affected by the recent judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ).
We contacted the applicant on 26 October 2016 and advised her of the above issue.
Recently, the first respondent appealed the judgment of the Federal Circuit Court in Singh v Minister for Immigration and Border Protection [2016] FCCA 2464, which followed MZAFZ, and the appeal will be heard by a Full Court of the Federal Court of Australia on 17 November 2016 (VID 1202/2016) (Singh). The grounds of appeal in that matter invite the Court to find that the reasoning in MZAFZ was wrongly decided and accordingly, is likely to partially or fully resolve the issues raised in MZAFZ.
A request has also been made by the first respondent to the Federal Court that two other matters which also raise MZAFZ related issues be listed for hearing before a Full Bench (SANDHU (VID1034/2016) and MZAPC (VID605/2016)). The Federal Court has listed these matters for a directions hearing on 21 November 2016.
Subsequently and having regard to section 37M of the Federal Court Act 1976 (Cth), we have received instructions to inquire whether judgment in this matter could be reserved until after the appeal matter, Singh, is conclusively dealt with by the Full Federal Court.
I note that given the short time frame the first respondent has not advised the applicant prior to this correspondence with the Court that we are requesting for the judgment to be reserved pending Singh. The applicant has also not been copied in to this email, as they have not provided an email address to the Court. The first respondent will nevertheless ensure a copy of this correspondence is provided to the applicant, and that the applicant is advised of his Honour's decision.
After I became aware of this email, on 4 November 2016 I made orders in chambers that included the following:
a)The listing of the matter for delivery of judgment at 9.30am on 11 November 2016 is vacated.
b)Subject to any further order of the Court, the delivery of judgment in this matter will be adjourned until after the appeal from the decision of Judge Jarrett in Singh v Minister for Immigration and Border Protection [2016] FCCA 2464 is determined.
On 17 January 2017 my chambers received the following email from the Minister’s solicitors:
I confirm that the Minister has applied for special leave to the High Court in Singh (VID1202/2016) and I have subsequently received instructions to request that the judgment in this matter be adjourned pending the outcome of special leave application, and any subsequent appeal.
On 12 May 2017 the High Court dismissed the Minister’s application for special leave in Minister for Immigration and Border Protection v Singh & Anor.[48] My chambers received no further communication from the solicitors for the Minister. In those circumstances, I decided to proceed to prepare and deliver judgment in the matter. In these reasons for judgment, therefore, I consider the grounds of application contained in the application and the contentions contained in the applicant’s written submissions filed on 27 September 2016 (first set of submissions). I will then consider the issues that arise in relation to the Adverse Letter.
[48] [2017] HCATrans 107
Grounds of application
The application contains four grounds of application. The first ground is as follows:
The Member of the Tribunal misunderstood my claim and based his decision on [an] assumption without verifying the document submitted and contrary to his finding that I am not reliable, credible or truthful witness and that I fabricated my claim, the Member is unreasonable and his mind is affected by bias.
This ground makes various claims. First, it is said the Tribunal misunderstood the applicant’s claim. The ground does not state, however, the manner in which the Tribunal misunderstood the applicant’s claim. In my opinion, the Tribunal did understand the applicant’s claim; it was a claim principally based on the assertion that the applicant’s residence was attacked and occupied by Alawites. The Tribunal considered that claim.
Second, it is claimed the Tribunal made its decision on the basis of assumption “without verifying the document submitted”, and ignored the evidence the applicant submitted. The grounds on which the applicant relies for this claim are contained in the applicant’s first set of submissions.
a)First, the applicant submits the Tribunal member had “no right to attack” the applicant’s credibility.[49] I do not accept the Tribunal attacked the applicant’s credibility. The Tribunal, as it was entitled to do, asked the applicant questions that were relevant to her credibility. The Tribunal was not obliged to accept the applicant’s evidence and it was entitled to test the credibility of her evidence.
b)Second, the applicant submits the Tribunal member “failed to understand the location of Jabal Mohsen”. The applicant refers to the purported title deed the applicant submitted in support of her claims. The applicant submits the “title deed in my name located at Zaytoun – Tripoli (olive), which is Jabal Mohsen”. This submission goes no further than manifesting the applicant’s disagreement with the Tribunal’s not accepting the purported title deed the applicant submitted as evidence that the applicant resided in Jabal Mohsen. That does not disclose jurisdictional error. The purported title deed does not refer to “Jabal Mohsen”.[50] It was reasonably open to the Tribunal not to be satisfied that the purported title deed did not prove the applicant lived in Jabal Mohsen because the title deed did not mention “Jabal Mohsen”.
c)Third, it is claimed the Tribunal acted unreasonably in finding the applicant was not credible, and had fabricated her claims. I also do not accept that claim. The Tribunal’s findings were reasonably open to it on the material that was before it and for the reasons it gave.
d)Finally, it is claimed the Tribunal member was biased. That is an allegation of actual bias; and it appears to be based on nothing more than the Tribunal’s findings that the applicant was not credible, and that she had fabricated her claims. Those matters do not raise, and are incapable of rationally raising, any inference of actual bias.
[49] Applicant’s First Set of Submissions, [2(a)]
[50] CB12-13
The second ground of application is as follows:
I ask the Honourable Court to take into account my previous application before the Court which was quashed.
This ground refers to orders made by this Court by consent on 3 March 2015 quashing the decision of a previous Tribunal made on 12 February 2014.[51] The orders attach a note that described the error the Minister conceded the previous Tribunal made. The error consisted in the former Tribunal’s having indicated at the hearing that it would write to the applicant about information contained in the applicant’s application for a visitor visa, but the previous Tribunal made its decision without writing to the applicant.
[51] The orders are attached to the applicant’s first set of submissions.
In her first set of submissions the applicant simply says that she “draw[s] to the Honourable Court’s attention” her previous application to the Court, and to the consent orders, and identifies the reasons the decision of the previous Tribunal was quashed.[52] It appears that the applicant referred to the previous order simply to say, as she does in the paragraph immediately following the paragraph in which she refers to the Court’s order, that the Tribunal’s decision which is the subject of this application for review “is also affected by error of law”.[53] The applicant, however, then states the errors of law she claims the Tribunal made, which do not include the error of law identified in the note to the orders made by the Court on 3 March 2015 that quashed the previous Tribunal’s decision.
[52] Applicant’s First Set of Submissions, [1]
[53] Applicant’s First Set of Submissions, [2]
In my opinion, therefore, the fact the Court quashed the decision of the previous Tribunal does not disclose any jurisdictional error by the Tribunal in the case before me.
Ground 3 is as follows (errors in original):
The Member’s decision is affected by error of law as he failed to look at the evidence submitted which is genuine contrary to his finding he failed to contact the proper authority to verify the genuine evidence as original copies were submitted to the previous Federal Circuit Court hearing in September 2014.
This ground makes two claims.
a)The first is that the Tribunal failed to look at evidence the applicant submitted. The ground does not identify the evidence the applicant claims the Tribunal failed to consider. It may be that the evidence this ground claims the Tribunal did not consider is the document the applicant, in her first set of written submissions, claims was provided to the Tribunal after the applicant’s hearing before it. I will consider that claim when I consider the applicant’s first set of submissions. In any event, it appears from the Tribunal’s reasons that the Tribunal was aware of the documents the applicant had provided, and did consider that material, although, for the reasons it gave, the Tribunal gave the documents little weight.[54]
b)The second claim is that the Tribunal failed to contact the “proper authority”. The ground does not identify the authority, but it appears the ground intends to refer to the authority that is referred in the document the applicant, in her first set of written submissions, claims was provided to the Tribunal after the hearing. I will consider that claim later. As stated in ground 3, however, the claim the Tribunal failed to contact any authority does not disclose any jurisdictional error by the Tribunal. There is nothing to suggest that the enquiry the applicant claims the Tribunal ought to have made was “an obvious enquiry about a critical fact, the existence of which is easily ascertained”.[55]
[54] CB245, [36], [37]
[55] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]
The fourth ground of application does not state any ground, but only reserves the applicant’s right “to lodge copy [sic] of the transcript to show that the Member was unfair”.
All of the grounds, as stated in the application for review, therefore, fail.
The applicant’s first set of submissions
In her first set of submissions the applicant makes a number of submissions. First, the applicant refers to her previous application to this Court. [56] I have already dealt with the applicant’s reliance on this Court’s quashing the previous Tribunal’s decision.
[56] Applicant’s First Set of Submissions [1]
Second, the applicant submits the transcript of the hearing before the Tribunal indicates the Tribunal member had “no right to attack my credibility and failed to understand the location of Jabal Mohsen as well as the evidence which appears in Court Book pages 12 and 13 (title deed in my name located at Zaytoun—Tripoli (olive), which is Jabal Mohsen)”.[57] I have already considered the applicant’s submissions to this effect.
[57] Applicant’s First Set of Submissions, [2(a)]
Third, the applicant submits it was not open to the Tribunal “to come to a conclusion which is not based on facts”.[58] The applicant refers to page 14 of the transcript of the hearing before the Tribunal and submits the Tribunal did not understand the geographical area in which she claimed she lived. This discloses no jurisdictional error by the Tribunal because it goes no further than expressing disagreement with the Tribunal’s findings.
[58] Applicant’s First Set of Submissions, [2(b)]
Fourth, the applicant complains the Tribunal did not comply with the applicant’s request made in her letter to the Tribunal dated 10 May 2015 that the Tribunal “write back to me and put specific questions if you are unable to accept my claim”.[59] That request was made in a letter the applicant sent to the Tribunal after the hearing before the Tribunal but before the Tribunal published its decision. There was no obligation on the Tribunal to comply with the applicant’s request, and, therefore, it made no jurisdictional error by not asking the applicant further questions before the Tribunal published its decision affirming the delegate’s decision.
[59] CB197
Fifth, the applicant submits she was denied procedural fairness because during the hearing she informed the Tribunal that one week was not enough time for her to provide additional documents. I do not accept this complaint. The transcript of the hearing before the Tribunal reveals the applicant said one week was not enough because she assumed the information the Tribunal gave the applicant an opportunity to provide had to be obtained from Lebanon. The Tribunal, however, informed the applicant that it was not necessary for her to provide information from Lebanon. The Tribunal described the documents it asked the applicant to provide as “objective country information like media reports, academic studies”, and that “they’re all available on the internet”.[60] When informed of this the applicant did not again state that one week was insufficient time for her to provide the information; and she did provide additional information under cover of a letter to the Tribunal dated 10 May 2015.[61] In these circumstances I am not satisfied the Tribunal denied the applicant procedural fairness or that it acted unreasonably in requiring the applicant one week within which to provide to it additional country information.
[60] T24.35
[61] CB197
Sixth, the applicant submitted the Tribunal had no basis for doubting the applicant’s claims about the location of her house and that her house had been occupied by Alawites;[62] and the applicant objected to that part of the Minister’s written submissions which referred to the Tribunal’s finding the applicant was not a credible witness.[63] These submissions go no further than expressing disagreement with findings the Tribunal made which it was reasonably open to it to make for the reasons on which it relied.
[62] Applicant’s First Set of Submissions, [3]
[63] Applicant’s First Set of Submissions, [5]
Seventh, the applicant submitted the Tribunal acted contrary to the information the applicant provided to the Tribunal by her letter dated 10 May 2015.[64] The applicant attached to her submissions an “official report dated 15 September 2014” (Purported Report).[65] At the hearing before me on 23 September 2016 the applicant claimed she had provided the Purported Report to the Tribunal. Because the Minister did not accept this was the case, the applicant, at my invitation, gave evidence. In answer to my questions the applicant claimed she had provided the Purported Report to the Tribunal. In response to my question whether the applicant could tell the Court when and how she provided the Purported Report to the Tribunal, the applicant said she could not remember, but it was probably at the Tribunal hearing. In cross-examination the applicant accepted she did not give the Purported Report to the Tribunal during the hearing before the Tribunal. She then said she remembered sending the Purported Report to the Tribunal. When asked whether she had any record of providing the Purported Report to the Tribunal, the applicant said she did not know. The applicant said she had another file that she wanted to check, but she did not bring that file with her. Counsel for the Minister called for the production of the file to which the applicant referred. I informed the applicant that when the matter was to be next before the Court, she had to produce the file to which she referred in her evidence. As I have already noted, the applicant did not appear at the hearing of 25 October 2016. Further, although the applicant filed the second set of submissions, she did not forward to the Court any file or any other documents. In these circumstances I am not satisfied the applicant provided the Purported Report to the Tribunal.
[64] Applicant’s First Set of Submissions, [6]. The letter is at CB197
[65] This document was is attached to the Applicant’s First Set of Submissions and was marked “MFI1”
Eighth, the applicant submits the Tribunal did not “properly” consider the documents the applicant provided to the Tribunal under cover of her letter dated 10 May 2015.[66] Although the Tribunal did not specifically refer to the applicant’s letter dated 10 May 2015, the Tribunal had taken into account documents the applicant had provided, but lent them little weight.[67] In those circumstances, I am not prepared to find the Tribunal did not consider the applicant’s letter dated 10 May 2015 or the information referred to in that letter.
[66] Applicant’s First Set of Submissions, [7]
[67] CB245, [36]
Finally, the applicant submits that the transcript of the Tribunal hearing contains “many mistakes in spelling”. This by itself discloses no jurisdictional error by the Tribunal.
Issues arising in relation to Adverse Letter
As I have already noted, the applicant does not in her application claim the Tribunal failed to comply with s.424A of the Act. As I have also already noted, the applicant filed the second set of submissions in which the applicant requested I read the Adverse Letter to see whether there is any adverse material that had not been disclosed to the applicant, and to consider whether the matters contained in the Adverse Letter that had not been disclosed provided necessary context to those that were disclosed for the purpose of s.424A of the Act. It is also reasonable to interpret, and I do so interpret, the applicant’s second set of submissions as a call on the production of the Adverse Letter with a view to its being tendered into evidence. In these circumstances, the first question I must consider is whether, as the Minister submits, the Adverse Letter is subject to public interest immunity.
Public interest immunity
I begin with s.130(1) of the Evidence Act 1995 (Cth) (Evidence Act) which provides:
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
The "matters of state” to which s.130(1) of the Evidence Act refer are circumstances that would arise if the evidence in question were to be adduced. Subsection 130(4) of the Evidence Act identifies six sets of circumstances that, for the purposes of s.130, are to be taken to relate to “matters of state”. Relevant to the matters before me is s.130(4)(e) of the Evidence Act which provides that the evidence in question is to be taken to relate to “matters of state” if adducing it would:
disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State
This reflects a class of cases to which the common law principles of public interest immunity have been held to apply. That class includes evidence that, if adduced, would reveal sources of confidential information provided to law enforcement officers.[68] An example of the application of the principle is provided by the circumstances Lehane J considered in Gilson v Minister for Immigration & Multicultural Affairs.[69] In that case the Immigration Review Tribunal had before it documents it did not disclose to the applicant containing allegations made against the applicant by an informant or informants and departmental documents regarding investigations of those allegations. His Honour found the documents were subject to public interest immunity:[70]
The description of the documents in Ms Godwin's affidavit is, in my view, accurate, and I accept that the release of the documents would be likely to reveal the identity of an informant or informants. In those circumstances there is, in my view, undoubtedly a public interest in maintaining the confidentiality of the documents: that is clearly so in the case of police informers . . . ;it seems to be equally so in the case of those giving information, in confidence, to other bodies charged with the enforcement of the law . . . . There is also a public interest in the unimpaired administration of justice. Whether that latter interest prevails, where disclosure of the material which will reveal an informer's identity, only where disclosure may help to show that an accused person is innocent of an offence . . . or whether, on the other hand, a less constrained “balancing exercise” is called for . . . it is clear at least that the considerations relating to the administration of justice must be powerful indeed if the policy against revealing an informer's identity is to be overcome . . . .
[68] See, for example, Sankey v Williams (1978) 142 CLR 1 at pages 65-66
[69] [1997] FCA 642
[70] Cases omitted
Although these observations were made in relation to public interest immunity under the common law, they apply to s.130 of the Evidence Act.
Once the court is satisfied that the evidence in question relates to a matter of state, s.130(1) of the Evidence Act requires the court to consider whether the public interest in admitting the evidence in question is outweighed by the public interest in preserving secrecy or confidentiality in relation to the evidence in question. Subsection 130(5) of the Evidence Act provides a non-exclusive list of matters the court may take into account when considering whether to make a direction under s.130(1) of the Evidence Act. These matters include the following:
a)the importance of the evidence in the proceeding;
b)the nature of the offence, cause of action or defence to which the evidence relates, and the nature of the subject matter of the proceeding;
c)the likely effect of adducing the evidence, and the means available to limit its publication; and
d)whether the substance of the evidence has already been published.
Subsection 130(3) of the Evidence Act provides that, in deciding whether to give a direction under s.130(1), the court “may inform itself in any way it thinks fit”. Further, s.133 of the Evidence Act provides that, if a question arises under “this Part” (being Part 3.10 of the Evidence Act which contains s.130) “in relation to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question”.
The first question I must consider is whether the Adverse Letter relates to a matter of state. In his written submissions counsel for the Minister relies on an affidavit made by Ms Lynn Moore who holds the position of Assistant Secretary in the Department. In her affidavit Ms Moore identifies the Adverse Letter as having been annexed to an affidavit made by Ms Monument affirmed on 17 March 2016.[71] Ms Moore deposes as follows:
a)The Department is often provided with information (community information) from third parties that is relevant to a non-citizen’s eligibility to meet particular visa requirements, and that it is common for such third parties to withhold their identity or to request that it be concealed from the non-citizen.
b)The Department relies on community information when administering the Act and that the candour of persons who provide such information would be undermined if the Department’s ability to keep confidence is compromised.
c)The disclosure of the Adverse Letter may reveal the identity of the author of the letter (Author), and may therefore potentially found an action by the Author of a breach of confidence against the Department.
d)Disclosure of the Adverse Letter may result in repercussions to the Author should he or she be identified and may jeopardise the Author’s safety.
e)Ensuring informant anonymity helps maintain confidence in community reporting channels which is an important source of information for the Department and ultimately helps maintain the integrity of the visa process. Disclosure of community information would undermine the confidence of the community members to continue to provide information to Department, as they could not be assured that their information and identity would be protected. Disclosure of community information would accordingly be detrimental to the functions of the DIBP.
[71] This affidavit was made in support of the non-publication order I made on 21 July 2016. Ms Monument’s affidavit was not formally read on the Minister’s application for a direction under s.130 of the Evidence Act; but I will treat Ms Monument’s affidavit as read.
I have read the Adverse Letter. It purports to reveal detailed information about the applicant and her family, about the circumstances in which the applicants arrived in Australia, and about other matters. From this it is reasonable to infer that, assuming the contents of the Adverse Letter are true, the Author is a person who is known or likely to be known to the applicant. That, in turn, renders it reasonable to infer that, if the Adverse Letter were disclosed to the applicant, the applicant would readily be able to identify at least the class of persons who would know her well enough to have knowledge of the information contained in the Adverse Letter. To that extent, therefore, it may be accepted that disclosure of the Adverse Letter could lead the applicant to identify the Author. It is also reasonable to infer that, by not identifying himself or herself, the Author desired that he or she be anonymous. I am satisfied, therefore, that the Adverse Letter relates to a matter of state for the purposes of s.130 of the Act and there is, therefore, a public interest in maintaining the confidentiality of the Adverse Letter by directing that it not be adduced into evidence.
I next consider whether the public interest of maintaining the confidentiality of the Adverse Letter outweighs the public interest in the Adverse Letter being adduced into evidence. The first matter to consider is the importance of the Adverse Letter in the proceeding before me. I have already set out the submissions the applicant made in her second set of submissions in relation to the Adverse Letter. Of particular relevance is her request that I consider “whether the matters not disclosed provide necessary context to those that were disclosed for the purpose of s.424A”.[72] The applicant relies on the judgment of Flick J in SZNKO v Minister for Immigration and Citizenship[73] to which she refers in her second set of submissions.[74]
[72] Applicant’s Second Set of Submissions, [2]
[73] [2010] FCA 297
[74] Applicant’s Second Set of Submissions, [7]
In SZNKO the Tribunal relied on what it found was a substantial similarity between a letter given to it in an unrelated application and the letter on which the applicant before it relied in finding that the applicant had not given a truthful account of his past experiences. The Tribunal informed the applicant of the existence of the letter, and that the similarity of that letter with a letter on which the applicant relied gave rise to concerns about the applicant’s credibility; but the Tribunal did not disclose to the applicant the identity of the person who wrote the letter, the organisation on behalf of whom the letter was purportedly written, or its date. Flick J found that the content of the two letters and the similarity of their content “would be … part of the reason, for [the Tribunal’s] affirming the decision” to refuse the visa, and that the similarity in the two letters was, at the very least, part of the basis upon which the Tribunal member expressed the concern that the letters may have been “made to order”.[75] His Honour, however, further found that ““information” for the purposes of s 424A in the present proceeding is not to be so confined”.[76] His Honour said:[77]
There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it [sic] which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that s 424A and s 424AA require the disclosure of so much as to ensure that the opportunity to “comment… or respond…” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.
[75] [2010] FCA 297 at [20]
[76] [2010] FCA 297 at [21]
[77] [2010] FCA 297 at [23]. This passage was reproduced with approval by the Full Federal Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3
His Honour in SZNKO concluded that the information the Tribunal did not disclose to the applicant was ““information” relied upon by the Tribunal – at least in part – for the purposes of its decision affirming the decision under review”.[78]
[78] [2010] FCA 297 at [32]
There are a number of observations that may be made in relation to Flick J’s judgment in SZNKO. First, in the passage I have set out in paragraph 66 of these reasons, his Honour referred to the requirement of giving information. Section 424A of the Act, however, does not require the Tribunal to give information; it requires it to give clear particulars of information. Second, s.424A of the Act does not oblige the Tribunal to give particulars of all information on which it relies for affirming a decision under review; the section only obliges it to give 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”. The meaning of “information” has been explicated by the High Court in SZBYR v Minister for Immigration and Citizenship.[79] There the High Court held that “information” for the purposes of s.424A of the Act denotes documents or other evidential material which “in their terms” constitute “a rejection, denial or undermining of” an applicant’s claims to be a person to whom Australia owes protection obligations.[80] As I have observed elsewhere,[81] the High Court’s judgment in SZBYR suggests that before “evidentiary material or documentation” can be characterised as “information” the Tribunal “considers would be the reason or part of the reason for affirming the decision under review”, there must be a direct inferential link between the information and the Tribunal’s intention to affirm the decision under review.
[79] [2007] HCA 26
[80] [2007] HCA 26 at [17]
[81] Vo v Minister for Immigration & Anor [2017] FCCA 1170 at [31]
Third, the passage I have quoted in paragraph 66 of these reasons may suggest that Flick J was of the view that, at least where the Tribunal considers information contained in a document would be the reason or part of the reason for affirming the decision under review, the Tribunal is obliged to disclose what his Honour described as the “surrounding circumstances” of the information contained in the document which the Tribunal considered would be the reason or part of the reason for affirming the decision under review, at least where such surrounding circumstances would be relevant to enabling the applicant to meaningfully respond or comment on the particulars of the information the Tribunal gives to the applicant. I do not, however, read his Honour’s judgment as stating any such principle because any such principle is not supported by the text of s.424A of the Act.
Section 424A of the Act is directed to information the Tribunal considers would be the reason or part of the reason for affirming the decision under review. That directs attention to what the Tribunal in fact considers would be the reason or part of the reason for affirming the decision under review (relevant information). Thus, the first step in assessing a claim that the Tribunal failed to comply with s.424A of the Act is to identify the relevant information. That is a question of fact which is to be answered having regard to all the circumstances of the case including what the Tribunal said either in a letter it may have sent to an applicant before or after the hearing, or during the hearing before the Tribunal, or in its reasons for decision. And here a number of examples may be given:
a)The Tribunal may in a letter to an applicant, or during a hearing, identify to an applicant information which the Tribunal represents to the applicant is relevant information. The Tribunal’s representation would be evidence that it did in fact consider such information to be relevant information, and, in relation to that information, the Tribunal would come under the obligations imposed by s.424A of the Act.
b)It may be that the Tribunal does not do any of the matters referred to in (a), but, in its reasons for decision, the Tribunal identifies information which the Tribunal concludes is the reason or part of the reason for affirming the decision under review. In these circumstances it would be open to infer that, at some point before it made its decision, the Tribunal considered such information to have been relevant information, and thus came under the obligations imposed by s.424A in relation to such information.
c)Another example is where the Tribunal identifies to an applicant information which the Tribunal obtained from a document which the Tribunal represents to the applicant is relevant information, but the Tribunal does not disclose to the applicant all of the information contained in the document. In these circumstances, the question may arise whether the Tribunal only considered the information it identified to the applicant to be relevant information or whether, contrary to what it represented to the applicant, the Tribunal also considered as relevant information other information contained in the document which the Tribunal did not disclose to the applicant.
In my opinion, the facts, as found by Flick J in SZNKO are in substance those I have given in the third example. In other words, in SZNKO Flick J held the Tribunal failed to comply with s.424A of the Act, not because it failed to provide contextual information to the applicant, but because it did not disclose to the applicant particulars of information the Tribunal considered was part of the reason for affirming the decision under review.
I return to the importance of the Adverse Letter to the proceeding before me. Its principal potential importance is that, if admitted, the Adverse Letter may afford evidence that the Tribunal considered relevant information contained in the Adverse Letter without giving to the applicant clear particulars of the relevant information. The applicant does not claim the Tribunal did consider any such information; the applicant has gone no further than to request that I consider “whether the matters not disclosed provide necessary context to those that were disclosed for the purpose of s.424A”.[82] Given my analysis of s.424A of the Act, and my interpretation of SZNKO, I will take the applicant’s request to be an invitation for me to consider whether the Tribunal considered information contained in the Adverse Letter would be the reason or part of the reason for affirming the delegate’s decision which the Tribunal did not disclose to the applicant.
[82] Applicant’s Second Set of Submissions, [2]
When considering this question it is necessary to refer to three items of information: what the Tribunal said to the applicant during the hearing (which I have set out in paragraph 12 of these reasons); what the Tribunal said about the contents of the Adverse Letter (which I have set out in paragraph 19 of these reasons); and the contents of the Adverse Letter. On the basis of these three items, I infer that the only parts of the Adverse Letter on which the Tribunal relied are those which it disclosed to the applicant during the hearing before it, and which it set out in its reasons for decision. In my opinion, there can be little doubt that the information from the Adverse Letter the Tribunal disclosed to the applicant during the hearing (which I have set out in paragraph 12 of these reasons) was information the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision, and that by disclosing that information the Tribunal gave clear particulars of the information that it considered would be the reason or a part of the reason for affirming the delegate’s decision. And there can be little doubt that all but the emphasised portion of the passage from the Tribunal’s reasons I have set out in paragraph 19 of these reasons repeated the substance of the information the Tribunal disclosed to the applicant at the hearing.
The Tribunal, however, did not disclose to the applicant the information to which the Tribunal referred in the emphasised portion of the passage from the Tribunal’s reasons I have set out in paragraph 19 of these reasons, namely, the “detailed and accurate personal information relating to the applicant and the daughter” (omitted information). The question is whether it is reasonably arguable that the omitted information was information the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision. In my opinion it is not reasonably arguable.
The omitted information does not in its terms constitute a rejection, denial or undermining of the applicant’s claims to be persons to whom Australia owes protection obligations. Stated another way, although the Tribunal considered the omitted information to be relevant to assessing the credibility of the information contained in the Adverse Letter, the omitted information was not capable of serving as an immediate premise for the Tribunal’s not accepting the applicant’s claims. The immediate premise or premises on which the Tribunal relied was or were constituted by the particulars of information which the Tribunal disclosed to the applicant during the hearing before it. Thus, although the Tribunal relied on the omitted information, that information was not “information” within the meaning of s.424A of the Act; and the Tribunal, therefore, made no jurisdictional error by not providing to the applicant clear particulars of the omitted information.
As I have already noted, in the second set of submissions the applicant also complains that the Tribunal did not disclose to the applicant all of the contents of the Adverse Letter. That by itself, however, does not disclose any arguable jurisdictional error. The Tribunal was under no duty to disclose all of the contents of the Adverse Letter. The Tribunal’s obligation to disclose information contained in the Adverse Letter was limited to particulars of information contained in that letter which the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision.
The consequence of what I have so far considered is that I am of the opinion that the Adverse Letter is not important to the case before me because it is not capable of supporting a reasonable claim that the Tribunal did not comply with s.424A of the Act. I appreciate I have arrived at this conclusion without having received the benefit of any submissions from the applicant based on the applicant’s having had access to the Adverse Letter. That, however, is a consequence of the procedure by which the question of the application of s.130 of the Evidence Act to the Adverse Letter is to be approached. It could hardly be the case that when determining whether a direction under s.130 of the Act should be made in relation to a document, its contents must be disclosed to the person seeking to adduce the document.
My conclusion that the Adverse Letter is not important is a factor in favour of my making a direction under s.130 of the Evidence Act. There is another matter, however, to which I should briefly refer, and that is the matter identified in s.130(5)(e) of the Evidence Act, namely, whether the substance of Adverse Letter has already been published. This is relevant because the Tribunal did disclose to the applicant information contained in the Adverse Letter. In my opinion, the Tribunal disclosed to the applicant the substance of a substantial part, if not most, of the information contained in the Adverse Letter. That is a factor weighing against my making a direction under s.130 of the Evidence Act. On balance, however, I am satisfied that the public interest in maintaining the confidentiality of the Adverse Letter outweighs the public interest of admitting into evidence the Adverse Letter. I propose, therefore, to make a direction under s.130(1) of the Evidence Act that the Adverse Letter not be adduced into evidence.
Arguable case of failure to comply with s.424A?
Whether or not there is arguable a case that the Tribunal failed to comply with s.424A of the Act to the extent it relied on information contained in the Adverse Letter is to be determined without reference to the contents of that document. In those circumstances, I am of the opinion there is no arguable case that the Tribunal failed to comply with s.424A of the Act to the extent it relied on the contents of the Adverse Letter. Even if, however, I were to consider that question on the assumption that the Adverse Letter had been adduced into evidence, I would conclude there would be no arguable case the Tribunal failed to comply with s.424A of the Act case for the reasons I have concluded that the contents of the Adverse Letter are not important to the case before me.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 23 January 2018
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