SZUSY v Minister for Immigration and Border Protection
[2019] FCA 1666
•11 October 2019
FEDERAL COURT OF AUSTRALIA
SZUSY v Minister for Immigration and Border Protection [2019] FCA 1666
Appeal from: SZUSY v Minister for Immigration [2019] FCCA 915 File number: NSD 618 of 2019 Judge: PERRAM J Date of judgment: 11 October 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing application for judicial review of decision of Administrative Appeals Tribunal – whether documents the subject of certificate issued under Migration Act 1958 (Cth) s 438 material to decision of Tribunal – where Appellant submitted s 438 certificate invalid Legislation: Migration Act 1958 (Cth) ss 417, 437, 438, 440 Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
SZUSY v Minister for Immigration and Border Protection [2015] FCCA 1138
Date of hearing: 1 October 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms A Wong Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 618 of 2019 BETWEEN: SZUSY
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
11 OCTOBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
The Appellant is a Buddhist monk from Bangladesh who is 35 years old. He is ethnically Baruan. The Barua are a predominantly Buddhist Bengali-speaking group native to the Chittagong region of Bangladesh (they are also found in India and Myanmar). The Appellant was dissatisfied with life in Bangladesh and left there coming first to India in October 2008. In India he obtained a false Indian passport. Three years later he travelled on this false passport to Thailand where he arrived on 26 December 2011. He remained in Thailand until January 2013. Whilst in Thailand he made several trips to Malaysia, Cambodia and Laos. On 7 January 2013 he returned to India for a few months until 26 April 2013 when he travelled to Australia on a temporary business entry visa on the false Indian passport. A month after he arrived he applied for a protection visa on 23 May 2013 under his real name (i.e. not on the false Indian passport). Whilst that application was being processed he was granted, and continues to hold, a bridging visa. Consequently, at the time of the hearing in this Court he was not in immigration detention.
The present appeal concerns the manner in which the Appellant’s application for a protection visa was processed. Initially, a delegate of the First Respondent (‘the Minister’) determined that the Appellant’s application for the protection visa should be refused. This occurred on 29 November 2013. The Appellant then applied for a review of that determination before what was then the Refugee Review Tribunal (‘the first Tribunal’) which, on 25 June 2014, affirmed the delegate’s earlier refusal decision. However, the Appellant was then successful in persuading the Federal Circuit Court to quash that decision which it did by orders made on 5 May 2015: SZUSY v Minister for Immigration and Border Protection [2015] FCCA 1138. The matter was remitted to the Tribunal for reconsideration (‘the second Tribunal’). It conducted a hearing on 3 September 2015 which the Appellant attended and on 1 October 2015 it concluded that it should once again affirm the delegate’s decision of 29 November 2013.
Dissatisfied with that discouraging outcome the Appellant commenced a fresh judicial review proceeding in the Federal Circuit Court. This he did on 20 October 2015. On 19 April 2018, the Appellant’s application for judicial review was heard and on 9 April 2019 dismissed: SZUSY v Minister for Immigration [2019] FCCA 915.
It was from that dismissal order of 9 April 2019 that the Appellant then appealed to this Court by means of a notice of appeal filed on 26 April 2019. On 6 May 2019 a Registrar made procedural directions for the preparation of the appeal and on 11 July 2019 the appeal was listed for hearing before me on 1 October 2019.
The Appellant submits that the Court below made two unrelated errors. The first error involved a contention that an aspect of the reasoning of the second Tribunal should be understood as having been legally unreasonable. The Court below had considered this submission but had rejected it. The Appellant’s argument was that it had erred in law in reaching that conclusion.
The aspect of the Tribunal’s reasoning which is in issue concerns an apparent inconsistency between the evidence given to the first Tribunal and the evidence given to the second. Before the first Tribunal the Appellant had apparently claimed that if he were returned to Bangladesh his mother wanted him to do something with his family’s land in his village. The concern was that if the Appellant utilised the land in the way in which his mother desired him to, then he would be attacked by Muslims.
At the hearing before the second Tribunal a different tack was taken. Evidence was now led that the Appellant’s mother had returned to the village in 2013 to cultivate the land. Whilst doing so she was attacked and attempts were made by Muslims to take over the land.
The second Tribunal was curious as to why the Appellant had not mentioned to the first Tribunal that his mother had returned to cultivate the family’s land in the village in 2013. The first Tribunal’s hearing was conducted on 18 June 2014 and the Appellant gave evidence to the second Tribunal that he was in regular contact with his mother after he arrived in Australia. It made some sense that he might have told the Tribunal at that time. The answer, according to the Appellant, was that his mother had not told him about her return to the village in 2013 because he had high blood pressure and his mother did not wish to alarm him.
The Tribunal reasoned this way at [74]-[76]:
74.In the written response provided by the applicant’s adviser following the hearing it was stated that the applicant was unwell, and his mother was always distressed when he spoke with her, thus causing a lack of clear communication. In the further written submission provided by the applicant following the hearing, the applicant indicated that his mother did know that he was seeking a Protection visa, but she did not understand what this was. She did not tell the applicant about the issues because she did not want to worry him. It was only after the previous Tribunal asked for an explanation as to what was happening with the family that the applicant asked his mother to tell him.
75.The Tribunal does not find these explanations satisfactory. As indicated, the Tribunal considers that the applicant’s mother would have informed her son that he was moving back to the home village. It also considers it most likely she would have mentioned the attacks. Given the crucial nature of the Protection visa application process to be [sic] applicant’s future, the Tribunal considers that his mother would have known, and her son would have told her, that it would be important to inform the applicant of circumstances happening at home that would increase the risk to him of returning.
76.The Tribunal considers that the applicant’s failure to mention these events at the previous Tribunal hearing casts significant doubt as to the truth of these new claims made to the Tribunal.
The Federal Circuit Court concluded that a challenge to the rationality of this conclusion was not available since, on the basis of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649-650 [135], the decision of the second Tribunal was open on the evidence which was before it. I would accept that it was possible that the second Tribunal could have come to a different view. It was possible that it could have accepted that the mother’s concern about her son’s health and the need not to alarm him unduly had caused her not to disclose to him that she had returned to the village to work the land. But accepting that to be so, I have to say that the opposite conclusion is also open on the evidence and that it is equally possible that the mother’s evidence was false and that the reason she did not raise her return to the village with her son is because she had not returned to the village at all or that the events which were said to have happened there did not actually occur. No doubt this would involve disbelieving aspects of the Appellant’s account and much of the mother’s. But neither of those results can be said to be unavailable. The short fact is that the way in which the first hearing appears to have been run was inconsistent with the way in which the second was run. There are competing hypotheses to explain why the inconsistency occurred: the mother’s concern not to alarm the Appellant; or the Appellant’s and his mother’s account being fabricated. In my opinion, either conclusion was open to the second Tribunal. It cannot be said that in arriving at the conclusion it did that the Tribunal reasoned irrationally. The first ground must therefore be rejected.
The second ground of appeal concerns a certificate issued by the Minister under s 438 of the Migration Act 1958 (Cth) (‘the Act’). To understand this point it is necessary to know that the review process being conducted by both the first and the second Tribunal was a review under Pt 7 of the Act. Such reviews are known, perhaps unimaginatively, as ‘Part 7 Reviews’. Once a review application is lodged with the Tribunal the Tribunal is obliged to notify the Secretary of the Department that an application has been made: s 418(1). Once that has occurred s 418(2) requires the Secretary of the Department (in practice, the Department itself) to produce a statement which sets out the findings of fact, the evidence to which those findings relate and the reasons for the decision. This is to occur within ten working days of the making of the application. The Secretary of the Department is also obliged to hand over to the Tribunal, by s 418(3), as soon as is practicable ‘each other 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.’ In practical terms, these provisions are usually satisfied by the delegate handing their file over to the Tribunal.
There are limits to this. If a document, or information, is in the possession of the Secretary and the Minister certifies that disclosure of it would prejudice the security, defence or international relations of Australia or if it would involve the disclosure of Cabinet deliberations, then s 437 requires the Secretary not give the document or information to the Tribunal (despite s 418(3)). This kind of certificate is known as a s 437 certificate and its effect is to prevent the Tribunal even coming into possession of such a document (or information).
Section 438 deals with a less stringent regime which allows documents or information which may be sensitive nevertheless to be provided to the Tribunal. Section 438 contemplates the issue by the Minister of a certificate in relation to a document but unlike a s 437 certificate, a s 438 certificate relates to a document which has been or will be provided to the Tribunal. Such a certificate can be issued in two circumstances. The first is where the Commonwealth would be entitled to claim public interest immunity in any curial proceeding. The second is where the information was provided to the Department in confidence. In either case, the issue of the certificate does not prevent the Department from providing the certified document to the Tribunal. Subsections 438(2)-(5) provide:
438 Tribunal's discretion in relation to disclosure of certain information etc.
…
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
Section 440 authorises the Tribunal to make non-publication orders. It will be observed that s 438 does not prevent the Tribunal from providing a certified document to an applicant in a proceeding before the Tribunal.
In this case, the Minister produced a s 438 certificate dated 13 May 2015. It certified that disclosure of folios 132-134A of the Departmental File No CLF2013/129884 would be contrary to the public interest. Folios 132-134A were in evidence before the Federal Circuit Court and they are also in the appeal papers in this case. They contain a legal analysis of the first decision of the Federal Circuit Court in SZUSY v Minister for Immigration and Border Protection [2015] FCCA 1138. For example, there is a discussion as to whether the Minister should appeal the first decision.
There is nothing in folios 132-134A which has any relevance to the Appellant’s case that he should be granted a protection visa. For that reason, there is no mention of them in the second Tribunal’s reasons.
The Appellant’s submission is that the s 438 certificate was invalid and that the Tribunal erred in acting upon it. Without expressing a view on whether the certificate was valid or not, the short answer is that the Tribunal did not act on either the certificate or on folios 132-134A to which it related. Neither it nor they were related to any issue which was before the Tribunal. This too was the conclusion of the primary judge which was, with respect, correct. Consequently, I would reject this ground of appeal.
Other matters
At the hearing the Appellant, who appeared for himself assisted by an interpreter, sought to impress upon me his sincere belief that as a member of an ethnic minority he will be badly treated if he is returned to Bangladesh. Much of the material he directed me towards post-dated the hearing in the second Tribunal and is strictly therefore legally irrelevant. I accept that that material is apt to show that ethnic minorities are at risk in Bangladesh. However, it is not this Court’s role to decide whether the Appellant is, or is not, entitled to a visa. That function is conferred on the Tribunal and the judiciary’s role is only to superintend the process. Accordingly, whilst I accept the sincerity of the Appellant’s submissions to me about this, I am unable to give any effect to that. The Appellant has failed to demonstrate any error in the reasons of the Court below and accordingly I must dismiss the appeal with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 11 October 2019
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