SZVGJ v Minister for Immigration
[2018] FCCA 1297
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGJ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1297 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal complied with s.424A and s424AA of the Migration Act 1958 (Cth) – whether information was the reason or part of the reason for the Tribunal’s decision – s.438 certificate – invalid certificate – Tribunal did not act on the documents – no practical injustice – valid certificate – whether the documents formed a part of the Tribunal’s consideration – non disclosable information – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act 1955 (Cth), s.55 Migration Act 1958 (Cth), ss.5, 424AA, 424A, 425, 427, 438, 476 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) ALJR 1190 |
| Applicant: | SZVGJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2812 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 8 September 2016 and 27 November 2017 |
| Date of Last Submission: | 27 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience |
Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application made on 10 October 2014 and amended on 26 June 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2812 of 2014
| SZVGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 October 2014, and amended on 26 June 2017, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 12 September 2014, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is the following:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Winnie David, of Legal Transcripts Pty Ltd, made on 9 January 2015, annexing a copy of the transcript of the interview with the delegate (“T1”) and a transcript of the hearing before the Tribunal (“T2”). The Minster did not oppose the admittance of the transcript of the Tribunal hearing, but objected to the transcript of the interview with the delegate on the basis of relevance. The transcript of the interview with the delegate was admitted but made the subject of submissions by the parties.
c)The affidavit of Thomas Galvin made on 19 July 2017, annexing two certificates said to be issued pursuant to s.438 of the Act (“TG01” and “TG02”) and identifying confidential exhibits (“TG03” and “TG04”) that contain the documents covered by those certificates.
Background
The applicant is a citizen of Pakistan, and of Afghan Pashtun ethnicity. He arrived in Australia as the dependent of his now former wife, who held a student visa, on 23 March 2012 (CB 5) He applied for the protection visa on 13 March 2013 (CB 1 to CB 47). He provided a handwritten statement in support of his application which was received by the Minister’s department on 21 May 2013 (CB 80 to CB 86).
The applicant claimed to fear harm from his former wife’s family and his own family, because both families had opposed their marriage. Further, the applicant claimed to fear harm from the Pakistani government, other Pakistani authorities, and Islamic extremist groups due to his association with “Lar Au Bar Afghanistan”. Further, the applicant claimed to “strongly oppose the state of Pakistan for its ties with the extremist Taliban”, and also claimed that he does not consider himself Pakistani, and fears harm on return for these reasons (CB 84 to CB 86).
The applicant attended an interview with the delegate on 28 August 2013 (CB 117.9). The delegate refused the grant of the visa on 18 November 2013 (CB 96 to CB 125). The applicant applied for review to the Tribunal which was received on 9 December 2013 (CB 126 to CB 132). The applicant was invited to, and attended, a hearing before the Tribunal on 6 June 2014 (CB 151 to CB 157 and CB 172 to CB 174).
Prior to the hearing, the applicant’s representative sent various documents to the Tribunal that included the applicant’s Statutory Declaration dated 30 May 2014 (CB 160 to CB 171). They also provided various country information which was received by the Tribunal on 11 June 2014 (CB 183 to CB 235). The Tribunal affirmed the delegate’s decision on 12 September 2014. The applicant was notified by letter of the same date sent by facsimile to his representative (CB 236 to CB 269).
Given ground one of the amended application, it is important to note that the applicant advanced further claims to fear harm both at the interview with the delegate, and before the Tribunal.
These included that he feared harm because of his membership of the Awami National Party (“ANP”) a political party in Afghanistan, and because of visits to his house by Inter-Services Intelligence (“ISI”) (Pakistan intelligence agency).
The Minister has filed written submissions in this matter on 1 September 2016 that summarise the relevant Tribunal decision (“the Minister’s first written submissions”). I am satisfied on the evidence before the Court, that they are an accurate summary of the Tribunal’s decision, and for the purposes of this judgment I adopt the relevant paragraphs as follows ([7] – [11] of the Minister’s first written submissions):
“[7] The Tribunal was concerned that the applicant's claims had changed over time. The Tribunal noted that details of the applicant's claims as set out in his original application, as explained to the delegate at the delegate interview, and as explained at the Tribunal hearing were inconsistent and changeable. The Tribunal also had difficulty accepting the applicant's claims because important elements had been omitted from the original application, while the applicant only raised other aspects of his claims at the Tribunal hearing that he had made earlier after being prompted by the Tribunal. The Tribunal also considered some of the applicant's claims to be implausible.
[8] The Tribunal considered the documentary evidence supplied by the applicant, but found that the documents were fabricated for the purposes of the applicant's protection visa application. The Tribunal's concerns with the applicants 'membership cards' stemmed from the applicant's own evidence that they had been specifically created to be produced to the Tribunal to prove his claims. The Tribunal's concern with the letter from 'Mr Arshad Khan' to the applicant was due to the fact that the letter was written in English, when both correspondents were Urdu speakers and the Tribunal expected that they would correspond in their own language.
[9] The Tribunal noted that the applicant said that the Tribunal could call Mr Arshad Khan, but also noted the applicant's evidence was that Mr Arshad Khan was in hiding and the applicant had not spoken to him by phone. The Tribunal also noted that the applicant said that the Tribunal could call the leader of the ANP, Mr Asfandyar Wali Khan (a different Mr Khan), but that this leader would just ask Mr Arshad Khan and Mr Arshad Khan would respond to the Tribunal. However, the Tribunal was prepared to accept that Mr Arshad Khan was a close friend of the applicant and wrote the letter to help him. However, the Tribunal was more concerned with the difficulties with the applicant's own evidence, and therefore did not consider it necessary to call Mr Arshad Khan to give evidence.
[10] Due to its concerns with the applicant's evidence, the Tribunal rejected the applicant's material claims for protection relating to political opinion. With respect to the applicant's claims relating to his and his ex-wife's families, the Tribunal noted that these claims were based on pure speculation and were not founded on any evidence.
[11] The Tribunal also considered and rejected a claim (made in the applicant's statutory declaration) that he feared harm as a 'person returning from the West', but found no evidence that individuals are subject to discrimination or violence for having spent time in Western countries. Finally, the Tribunal considered a claim made to the delegate at interview, and again at the Tribunal hearing, that the applicant feared harm because one of his cousins who was involved in the polio vaccination campaign had been killed, but the Tribunal found that there was insufficient evidence that he would be targeted merely because his cousin was involved in that vaccination campaign.”
Before the Court
The applicant made the application to the Court on 10 October 2014. On 4 November 2014, orders were made, by consent, for the progress of the matter. Subsequently, the matter was set down for final hearing on 8 September 2016. The applicant filed written submissions on 25 August 2016 (“the applicant’s first written submissions”) and, as mentioned above, the Minister filed his first written submissions on 1 September 2016. On that date, the applicant and the Minister were represented by solicitors. At the conclusion of the hearing, the matter was reserved.
Subsequent correspondence from the parties to my Associate on 14 November 2016, indicated that the matter was potentially affected by the Minister’s appeal in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”). The reserved judgment was vacated on this date, and the matter adjourned pending the outcome of that appeal.
The judgment in Singh was handed down on 19 December 2016, and the Minister was unsuccessful. On 7 February 2017, orders were made in this matter, by consent, that included that the matter remain adjourned pending the Minister’s application for Special Leave to appeal to the High Court of Australia from the Full Federal Court judgment in Singh. That application was refused on 12 May 2017, and the matter was listed for further directions on 21 June 2017.
On that date, orders were made that allowed the applicant the opportunity to file an amended application containing an additional ground of review concerning the s.438 certificates, and the applicant and the Minister were to file any further evidence by way of affidavit in this regard. The applicant filed an amended application on 26 June 2017, and the Minister filed the relevant affidavit on 19 July 2017. The parties were also required to file written submissions before the resumed hearing which was subsequently listed on 27 November 2017. The applicant filed written submissions on 21 November 2017 (“the applicant’s second written submissions”) and the Minister filed written submissions on 22 November 2017 (“the Minister’s second written submissions).
The Application to the Court
The amended application to the Court contains the following grounds:
“1. The Tribunal failed to comply with the requirements of ss 424A or 424AA of the Migration Act 1958.
Particulars
The Tribunal had information that it considered would be part of the reason for affirming the decision under review which had been given to the Minister's delegate orally. Such information was not exempt from the requirements of s 424A but the Tribunal did not provide particulars of that information to the Applicant in the way required by that section or by s 424AA.
2. The Tribunal erred in dealing with certificates purportedly issued under s438 of the Migration Act 1958.
Particulars
A delegate of the Minister gave the Tribunal two certificates purportedly under s438. If either certificate was valid under that section, the Tribunal denied the Applicant procedural fairness by not revealing its existence to the Applicant at any time before the Tribunal made its decision.
If either certificate was invalid:
(a) the Tribunal erred by acting upon it as if it were valid; or
(b) the Court may infer that the Tribunal did not properly turn its mind to whether:
(i) it ought to have made disclosure under s 424AA or s 424A; or
(ii) the documents supported the application; or
(iii) disclosure should have been made under ss 425 or 427(1)(c).”
Consideration
Ground one of the amended application asserts jurisdictional error on the part of the Tribunal because it “failed to comply with the requirements” of s.424A or s.424AA of the Act.
The particulars to the ground assert that the Tribunal “had information” which it considered would be “part of the reason” for affirming the delegate’s decision. The applicant asserts that this information was not exempt from the obligation in s.424A(1) of the Act. Further, the Tribunal did not provide this information to the applicant in the way “required by” s.424A(1) or s.424AA of the Act.
Before the Court, the applicant explained that there were three pieces of information which he says the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision. These are as follows (see also [14] of the applicant’s first written submissions).
Item one was identified with reference to [10] (at CB 245) of the Tribunal’s decision record and “Transcript p 9” [T1:8], and was that the applicant had made contradictory statements at the interview with the delegate about when he had joined the ANP.
Item 2 was identified with reference to [15] (at CB 245) of the Tribunal’s decision record and “Transcript p 19” [T1:18], and was that the applicant had made contradictory statements at the interview with the delegate about when the ISI had come to his house in Swabi.
Item 3 was identified with reference to [20] (at CB 246) of the Tribunal’s decision record and “Transcript pp 23 – 24” [T1:22 to T1:23], and was that the Tribunal stated that the applicant sought admission to the United Kingdom (“UK”) in 2011, then after “much prevarication he conceded” that he had also applied for a visa to the UK in 2009.
Each of the matters identified by the applicant with reference to the Tribunal’s decision record, appear in the Tribunal’s report of what it said occurred at the applicant’s interview with the delegate (“[the applicant]’s evidence at the Departmental interview” see [7] at CB 244 to [20] at CB 246). I note that item 3 also appears to contain some evaluation (“after much prevarication”) (see further below).
It cannot be said that in this part of the Tribunal’s decision record ([7] at CB 244 to [20] at CB 246), the Tribunal made any findings dispositive of the review.
However, the applicant’s argument before the Court was that the relevant parts of the decision record were part of what the Tribunal considered to be the reason, or a part of the reason, for affirming the delegate’s decision. Namely, that the Tribunal considered that these matters (amongst others), undermined the applicant’s credibility, which led to findings which were the reasons for affirming the delegate’s decision. In this light, these items were “adverse” to the applicant.
In his submissions, the Minister set out a number of propositions which he said derived from the relevant authorities as to what does, and does not, constitute “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) ALJR 1190 (“SZBYR”), VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 123 (“VAF”) and Minister for Immigration and Citizenship SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”)).
The Minister submitted as follows ([17](a)-(e) of the Minister’s first written submissions):
“Before considering the three items in detail, the first respondent submits that the following general propositions arise from the case law:
(a) to constitute 'information' for the purposes of subsection 424A(1), the putative information must contain in its terms a rejection, denial or undermining of the applicant's claims to be a person to whom Australia owed protection obligations: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ;
(b) for the purposes of subsection 424A(1), 'information' is 'related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence': SZBYR at [18];
(c) for the purposes of subsection 424A(1), 'information' is 'does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc': VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (VAF) at [24] per Finn and Stone JJ; SZBYR at [18];
(d) section 424A 'depends on the [Tribunal's]"consideration", that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review': Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (SZLFX) at [24] per French CJ, Heydon, Crennan, Kiefel and Bell JJ. It is necessary to scrutinise the Tribunal's reasons for decision to consider 'what counted against the [applicant]': SZLFX at [26]. Where the Tribunal's reasons reveal that the Tribunal did not regard an item of potential information as materially adverse to an applicant, then obligations under section 424A will not arise, even if the information could or might be the reason or part of the reason for affirming the decision under review: SZLFX at [25]–[26];
(e) for the purposes of paragraph 424A(3)(b), an applicant can incorporate material by reference so that it becomes part of the information given by him or her 'for the purpose of the application for review': SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 and VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271. This includes information contained in the delegate's decision record where that record has been provided to the Tribunal appended to an application for review: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (You) per Sundberg J. This is so even if the applicant does not intend to 'rely' on that information for the purpose of the Tribunal's review. By giving the Tribunal the delegate's decision record, an applicant gives the Tribunal all of the information in that record. That includes the delegate's summary of what the applicant said to the delegate.”
The applicant did not disagree with the Minister’s expression of these propositions at [17](b) - (e) of the Minister’s first written submissions. However, the applicant disagreed with the Minister’s “interpretation” of what the High Court said in SZBYR, and as expressed at [17](a) of the Minister’s first written submissions (see [25] above).
The “dispute” between the parties arose from what the applicant asserted the Federal Court said in SZVJY v Minister for Immigration and Border Protection [2016] FCA 618 (“SZVJY”).
The proposition in [17](a) of the Minister’s first written submissions, is that to be “information” for the purposes of s.424A(1) of the Act, the material must contain in its terms a “rejection, denial or undermining” of the applicant’s claims to protection. So much is clear from SZBYR at [17].
The applicant argues that the important point for current purposes is how the words “rejection”, “denial” or “undermining”, are to be understood (or “interpreted”).
The applicant referred to SZVJY where the Federal Court, on a matter on appeal from this Court (and therefore binding on this Court), said that the relevant “information” in that case, was (SZVJY at [20]):
“not information reflecting the Tribunal’s thinking process, and it was adverse to the appellant. It was not, therefore, excluded from the concept of information by the judgments in SZBYR or SZLFX”.
The applicant’s argument was that even though “entirely” on their own, the three items of information were neutral, they still came within the meaning of “information” in s.424A of the Act, because the Tribunal considered that the information undermined the applicant’s claims to protection (and relying on SZVJY).
On one view, the applicant’s submission seeks to conflate the very distinction that, in my respectful view, is made clear in SZBYR and SZLFX. That is, the distinction between the “information” on the one hand, and separately, what the Tribunal makes of the information in its evaluation, on the other. Further, in relation to the information itself, the High Court also made clear that to be “information” for the purposes of s.424A of the Act, it must be information which “in its terms” is a “rejection, denial or undermining” of the applicant’s claims to fear harm.
The parts of SZVJY relied on by the applicant now, were obiter dicta. Nonetheless, the Court in SZVJY is a superior Court, in a matter on appeal from this Court. The Court’s obiter dicta cannot be ignored simply for reason of not being part of the ratio decidendi in disposition of the appeal.
However, the circumstances in SZVJY, were, in my view, distinguishable from the current circumstances. This distinction makes clear why the Court in SZVJY observed that the information in that case was “adverse” to the applicant. In short, it was “adverse” because of its actual terms (SZBYR at [17]).
In SZVJY, the applicant in that case claimed to fear harm because he was homosexual. In support of this claim, he told the Tribunal that he had attended a venue called “the Toolshed”, where the applicant said attendees could “buy drinks and dance” (SZVJY at [6]).
The Tribunal in that case made its own enquiries through the internet, and other sources, and obtained information that the Toolshed, was the name of an “adult shop” and not a bar (SZVJY at [6]).
This was the “information” which the Court in SZVJY found the Tribunal considered to be a reason, or a part of the reason, for affirming the delegate’s decision. This “information”, which the Tribunal obtained through its own efforts, was not put to the applicant.
Plainly, that “information”, in its terms and in context, was adverse to the applicant. It was in this circumstance, that the Court said the Tribunal fell into jurisdictional error. That circumstance does not exist in the current case.
Taking each of the items in turn. Item 1 refers to what the Tribunal reported the applicant told the delegate at the interview about when he joined the ANP, and when he joined Lar Au Bar Afghanistan. The relevant paragraph is as follows ([10] at CB 245):
“[The applicant] initially said that he had joined the ANP in 2006. He said that the ANP wanted unification with Afghanistan and it wanted to get rid of the Taliban. He said that a lot of important ANP leaders had been killed by the Taliban. The primary decision-maker referred to his claims regarding the Lar Au Bar Afghanistan association. [The applicant] said that this was a new organisation which wanted to unite the Pashtuns in Afghanistan and Pakistan. He said that he had been an ‘old member’ of the ANP and then in 2006 he had joined this new organisation. He said that in 2007 he had become the leader of the student union in his college. He then said that he had only joined the ANP in 2007. He said that the ANP was a big party and that he had joined it to put forward the ideas of the Lar Au Bar Afghanistan association. He said that he had been the vice-president of the Lar Au Bar Afghanistan association in Swabi.”
The applicant’s submission before the Court was that one of the elements that the Tribunal found (as expressed subsequently to [10] (at CB 245)), was that the applicant had not been involved with these organisations, and that he had given “contradictory” information about when he joined the ANP.
That submission alone, and the reference to “contradictory information” reveals the weakness in the applicant’s case. As was made clear in SZBYR (and there is, in my respectful view, nothing inconsistent with this in SZVJY), the Tribunal’s disbelief of the applicant’s evidence arising from inconsistencies (or “contradictions” as the applicant describes it now), is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]).
Further, whether the applicant joined the ANP in 2006 or 2007, each in its terms is not a “rejection, denial or undermining” of the applicant’s claims to protection (SZBYR at [17]). Therefore, this is not “information” for the purposes of s.424A(1) of the Act.
Further, in the current case, the Tribunal’s relevant evaluation of the ANP claim is set out at [71] (at CB 258) and [72] (at CB 259) of the Tribunal’s decision record.
The applicant had claimed to fear harm, amongst a number of other reasons, because of his political involvement, including with the ANP. The Tribunal rejected that claim. It set out its reasons at [71] (at CB 258) and [72] (at CB 259), where it addressed the applicant’s claims to fear harm which arose as a consequence of his claimed political involvement.
There is nothing in that analysis at [71] (at CB 258) and [72] (at CB 259), to reveal that the Tribunal considered any “contradiction” between the dates the applicant said he had joined the ANP. There is nothing in this analysis to reveal that the Tribunal considered any such “contradiction” to be a part of the reason for affirming the delegate’s decision.
In SZLFX (at [24]) the High Court explained that:
“…s424A depends on the RRT's ‘consideration’, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had ‘considered’ or had any opinion about the file note.”
The High Court also stated (SZLFX at [25]):
“As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which ‘would’, not which ‘could’ or ‘might’, be the reason or part of the reason for affirming the decision under review.”
I agree with the Minister’s submissions that in the current case, the question of what the Tribunal “considers would be the reason or a part of the reason for affirming the delegate’s decision”, is to be determined with reference to the Tribunal’s decision record in each case (see also SZLFX at [26]).
In the current case, the applicant argued that what is set out at [10] (at CB 245) of the Tribunal’s decision record, was a part of the Tribunal’s “consideration”, and therefore it was information, which in the Tribunal’s opinion, was information which was a reason, or a part of the reason, for affirming the delegate’s decision.
To make good this proposition, the applicant referred to what was stated at [10] (at CB 245), and the fact that this was set out in the Tribunal’s decision record under the heading of “Consideration of Claims and Evidence” (see the heading at CB 243.5).
I accept what was implicit in the applicant’s submission. That is, that such a heading cannot be ignored. Plainly, by including it in its decision record, the Tribunal must have meant to convey something relevant to its reasoning.
However, it is the case that Tribunal decisions are meant to be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
The heading on which the applicant relies is at Court Book 243.5 and is in bold and capital text. However, what must also be taken into account is that the heading “Consideration of Claims and Evidence”, is further divided into various subheadings.
The first subheading is “[the applicants]’s original claims” (CB 243.5). The second subheading, under which [10] (at CB 245) appears, is “[the applicant’s] evidence at the Departmental interview” (CB 244.5).
Each of the following three subheadings refer to a stage of the application for the protection visa and of the process of the review. These were as follows (see CB 246.9, CB 248.1 and CB 256.3):
“[The applicant’s] statutory declaration made on 30 May 2014
…
[The applicant’s] evidence at the hearing before me
…
[The applicant’s] representatives’ submission handed to the Tribunal after the hearing.”
The Minister submitted that the actual language used by the Tribunal revealed a “narrative” of what was said, for example, at the Tribunal hearing, and did not contain findings made by the Tribunal.
I agree with the Minister in that his submission is a fair reading of this part of the Tribunal’s decision record. These sections, in my view, can be contrasted with what the Tribunal set out under the heading of “Conclusions” (at CB 257.5). At this part of the decision record, the language, tone and style is analytical, rather than discursory. It can be fairly read, as being an evaluation of the claims and evidence set out above.
However, the applicant drew attention to [80] (at CB 261) to submit that this represents the critical findings made by the Tribunal. That is, the Tribunal there expressed its findings on the issue of a real risk of harm in relation to the claims made by the applicant concerning his political beliefs and activities.
The applicant submitted before the Court that the words “[s]ince I do not accept for the reasons given above…” as they appear at the beginning of [80] (at CB 261), refer to everything under the initial heading of “Consideration of claims and evidence” (at CB 243.5).
Of course it is the case that headings in Tribunal decisions must be given appropriate consideration. They provide a framework such as to provide the reader with an indication of what the Tribunal member is seeking to set out. That is, headings can provide the context for what is subsequently discussed.
However, this does not mean that what is actually said under the headings is to be ignored. Put bluntly, a heading is just a heading.
In any event, in the current case, while the Tribunal member could have structured the use of headings in a different way, I do not see that, on a fair reading, the structure and headings actually used provides assistance to the applicant now.
As mentioned above, the heading (at CB 243.5) is in bold and capital text. The subsequent subheadings are in lower case and not in bold. The last subheading under the main heading is “Conclusions” (at CB 257.5).
Thus, in my view, what the Tribunal member sought to do, was to set out under one “bold” heading, the applicant’s “claims and evidence”, and the “consideration” of the claims and evidence. Each of the subheadings, that is, the subsequent six subheadings can, with reference to the character of the language used, be understood as follows. The first five subheadings set out the claims and evidence. The last subheading (“Conclusions”) sets out the Tribunal’s “consideration” of those claims and evidence.
Plainly, the Tribunal’s analysis cannot be presented in a vacuum. It must arise from, and be probative of, the claims and evidence before it.
However, what I respectfully understood from SZBYR and SZLFX, is that the word “considers” as it appears in s.424A of the Act, is as was said in SZLFX at [24]. That is, “considers” (or “considered”) is whether the Tribunal had “any opinion about” the information (see above at [46]).
In the current case, that “opinion” is expressed by the Tribunal at [67] (at CB 257) to [88] (at CB 263) under the heading of “Conclusions”.
I do not agree with the applicant’s submission that what appears at the beginning of [80] (at CB 261), serves to change the character of what precedes it from [67] (at CB 257) to [79] (at CB 260 to CB 261) from a presentation of the various iterations of the applicant’s claims, into the Tribunal’s analysis of those claims for the purposes of s.424A of the Act.
The Tribunal’s “reasons”, that is, its intellectual consideration of the applicant’s claims and evidence, begins at [67] (at CB 257).
Therefore, the applicant’s reliance on [10] (at CB 245), does not assist in his argument that what is set out there, is the Tribunal’s “consideration” of his claims and evidence.
It is to be remembered that item 1 is part of the applicant’s claims and evidence concerning his claimed political involvement in the ANP. Before the Court, the applicant described item 1 as “the fact” that the applicant made contradictory statements at the delegate’s interview about when he joined the ANP.
The Tribunal’s “consideration”, in the requisite sense, of the applicant’s claimed political involvement with the ANP appears at [71] (at CB 258) (under the heading of “Conclusions”).
The Tribunal did not accept that the applicant had such a political involvement with the ANP. Its reasons were that the applicant made no reference to such political involvement in his protection visa application, or his written statement of 13 May 2013 ([71] at CB 258).
Rather, the applicant raised this claim for the first time at the interview with the delegate. That is, the reason for the Tribunal’s adverse finding was that he raised this claim, for the first time, at the delegate’s interview. There is no reference in this part of the Tribunal’s analysis, or “reasoning”, to the matter of the inconsistent dates as to when the applicant claimed to have joined the ANP. Therefore, I agree with the Minister that item 1 was not a part of the reason for affirming the delegate’s decision (SZLFX at [24] – [26]).
In short therefore, I agree with the Minister that item 1 is not “information” for the purposes of s.424A of the Act. First, it does not in its terms contain a “rejection, denial or undermining” of the applicant’s claims to protection. Second, it is not the reason, or a part of the reason, for the Tribunal affirming the delegate’s decision.
In any event, the fact that the applicant raised this claim at the interview with the delegate was a matter also recorded in the delegate’s decision (see CB 118.4). The applicant gave a copy of the delegate’s decision to the Tribunal when he made his application for review (CB 132.3 and see the second box under the heading of “Attachments”).
Therefore this “information” was given by the applicant to the Tribunal for the purposes of the review. The obligation in s.424A(1) of the Act was not engaged, given the exemption in s.424A(3)(b) of the Act (SZTGV v Minister for Immigration and Border Protection[2015] FCAFC 3; (2015) 229 FCR 90 (“SZTGV”)).
In all, item 1 does not provide a basis on which ground one can be made out.
Item 2 (see [19] above), directs attention to [15] (at CB 245) of the Tribunal’s decision record which is as follows:
“[The applicant] said that the ISI had come to his house in Swabi a few times although he had not been in Swabi. He said that this had been in 2006, then he said that it had been 2011. He said that his father had told him to cease his political activities because they had been continually being harassed by the ISI visiting his home. [The applicant] said that the Taliban had also been sending threatening letters saying that the Lar Au Bar Afghanistan association had to stop enlightening the girls or encouraging the girls to undertake further education.”
The reasoning set out in relation to item 1 above applies equally to item 2.
Specifically, the applicant’s argument in relation to item 2 was that the Tribunal found that he “had changed his story”, as to when the ISI came to his home. That is, whether the ISI came to his house 2006 or 2011. The applicant drew attention to the discussion at the interview with the delegate (at T1:19). The applicant submitted that the only reference in the delegate’s decision is to “2011”. Therefore, the Tribunal’s reference to 2006 could only have come from listening to the audio of the delegate’s interview, and not the decision record itself.
Drawing on what is set out above, I agree with the Minister that the applicant’s statement that the ISI came to his house in 2006, is not in its terms a “rejection, denial or undermining” of the applicant’s claims to fear harm. Nor is the statement that ISI first came to his home in 2011 (SZBYR at [17]). This is not information for the purposes of s.424A(1) of the Act.
Before the Court, the applicant noted that the Tribunal had recorded that he had made contradictory statements. Here again, the Tribunal’s view of the applicant’s evidence (whether or not it was “contradictory”), is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]).
However, similar to the situation set out above, the Tribunal’s dispositive findings, that is, its consideration in relation to the matter of the ISI visit, is to be found at [74] (at CB 259). This is also under the heading of “Conclusions” (at CB 257.5).
At [74] (at CB 259), the Tribunal refers only to the applicant’s statement that the ISI came to his house in 2011. For current purposes, there is no reference there, whatsoever, to the ISI visiting his home in 2006.
In that context, the Tribunal expressed doubts (“casts doubt”) about whether the applicant was telling the truth about the visits of the ISI to his house in 2011.
This is because the applicant, at the hearing before the Tribunal, did not mention that the ISI also came to his family home on a few occasions in 2011, until the Tribunal prompted him with what he had told the delegate at the interview.
There is no reference here to any visit by the ISI in 2006, let alone any contradiction in the applicant’s evidence as between 2006 and 2011, to say that the Tribunal relied on his statement to the delegate that the ISI visited in 2006.
In this light, I agree with the Minister that the statement made by the applicant to the delegate concerning the ISI visit in 2006, was not a part of the reason for the Tribunal’s affirmation of the delegate’s decision. Therefore, the obligation in s.424A(1) of the Act was not engaged (SZLFX at [24] – [26]).
For the sake of completeness I note that the statement made by the applicant to the delegate that the ISI visited his house in 2011, appears in the delegate’s decision record (CB 118.5). As the delegate’s decision record was given to the Tribunal by the applicant for the purpose of the review, even if this was “information” for the purposes of s.424A(1) of the Act, it was exempt from the operation of s.424A(1) of the Act, by virtue of s.424A(3)(b) of the Act (Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 and SZTGV).
Item 2 also does not assist the applicant’s ground one in revealing jurisdictional error.
Item 3 makes reference to [20] (at CB 246) of the Tribunal’s decision record which is as follows (see also [14](c) of the applicant’s first written submissions):
“[The Applicant] said he had asked for admission to the UK in 2011. After much prevarication he conceded that he had also applied for a visa to travel to the UK in 2009.”
Unlike items 1 and 2, item 3 does not appear in the delegate’s decision record. On the evidence before the Court, what the Tribunal set out at [20] (at CB 246), must have come from the interview with the delegate (that is, from the audio of the interview), and not as recorded in the delegate’s decision record.
The transcript of that interview is in evidence before the Court (T1:22 to T1:23):
“[Member]: Have you ever applied for visas to the United Kingdom before?
[Applicant]: I just ask for an admission.
[Member]: When was that?
[Applicant]: That was in 2011.
[Member]: Have you --
[Applicant (no interpreter)]: 2011.
[Member]: 11?
[Applicant (no interpreter)]: Yeah.
[Member]: Have you ever made application for visas to the UK from Abu Dhabi?
[Applicant]: No I didn’t because I don’t leave four hours there – eight hours, I went out for four hours and then came back. This was the responsibility of the airlines company, they provide us a hotel there.
[Member]: We have information before us that you applied for visas to the UK from Abu Dhabi in 2009, I was wondering if you could respond to that?
[Applicant]: This was before our marriage, are you talking about the incidents before our marriage or after our marriage?
[Member]: I’m talking about 2009.
[Applicant]: You are just talking about me individually or about me and my wife together?
[Member]: No, you.
[Applicant (no interpreter)]: Okay, yes.
[Applicant]: Yes I did apply because in 2009 at that time I was not married, I apply for a student visa.
[Applicant (no interpreter)]: Yes, correct.
[Member]: What were you doing in Abu Dhabi?
[Applicant]: Because the all (sic) documentation from Pakistan goes to Abu Dhabi and then they are stamping it in Abu Dhabi. There’s a embassy (sic) there.
[Member]: So you applied in Pakistan?
[Applicant]: Yes Pakistan has got a small office there, we apply in Pakistan and then the application goes from Pakistan to Abu Dhabi. In 2011 application was for me and my wife that we applied by we didn’t get.
[Member]: What sort of visa was that?
[Applicant]: That was also a student visa.”
The applicant’s particular focus is on [20] (at CB 246) of the Tribunal’s decision record which is as follows:
“[The applicant] said that he had asked for admission to the UK in 2011. After much prevarication he conceded that he had also applied for a visa to travel to the UK in 2009. He said that he had applied for a student visa. He said that in 2011 he and his wife had applied for a student visa for his wife. [The applicant] said that he had not applied for protection when he had first come here in March 2012 because he had been thinking that the situation in Pakistan would settle down and they would get rid of the Taliban. He said that things had in fact got worse day by day. [The applicant] said that on 2 January 2013 one of his female cousins who had been involved in polio vaccination had been killed by the Taliban.”
The applicant’s submissions appear to focus on three aspects of what is set out at [20] (at CB 246).
One, the applicant had asked for admission to the UK in 2011. Two, the applicant had also applied for a visa to travel to the UK in 2009. Three, the applicant only “conceded” the second point, after what the Tribunal said at [20] (at CB 246) was, “much prevarication”.
None of these elements, are “information” for the purposes of s.424A(1) of the Act. Again, drawing generally on what is set out above, the following provides the answers to the applicant’s particulars.
The applicant’s statement concerning asking for admission to the UK in 2011 does not, in its terms, constitute a “rejection, denial or undermining” of the applicant’s claims to protection (SZBYR at [17]). Nor does the statement concerning his application for a visa to travel to the UK in 2009. Neither is information for the purpose of s.424A(1) of the Act (SZBYR at [17]).
Any inconsistency about what the applicant said, which may be read as implicit in what the Tribunal reported (at [20] at CB 246), is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]).
Before the Court, the applicant emphasised the word “prevarication” as it appears at [20] (at CB 246). However, this description of the applicant’s evidence is an evaluation of that evidence. It can also only be understood as a subjective appraisal of that evidence. It is therefore not “information” for the purposes of s.424A(1) of the Act (VAF at [24] as referred to in SZBYR at [18]).
However, drawing on what is set out above as to the “structure” of the Tribunal’s decision record, I also agree with the Minister that none of these elements either on their own, or in combination (that is, the entirety of item 3), feature in the Tribunal’s actual analysis and consideration of the applicant’s claims.
There is no reference in that actual analysis to the applicant having sought admission to the UK in 2011 or 2009. Nor does the description of “prevarication” feature in that analysis. In that light, item 3 was not the reason, or a part of the reason, for affirming the delegate’s decision. Section 424A(1) of the Act was not engaged (SZLFX at [24] – [26]). Item 3 does not assist the applicant’s ground.
In all, ground one is not made out.
Ground two of the amended application asserts that the Tribunal “erred in dealing with certificates purportedly issued under s.438” of the Act (“the s.438 certificates”) by a delegate of the Minister.
The ground asserts that the delegate gave the s.438 certificates to the Tribunal. If either was a valid certificate, then the applicant asserts that the Tribunal denied him procedural fairness by not revealing their existence to him before a decision was made. If either was invalid, then the Tribunal erred by acting upon either one as if they were valid.
As noted above, the Minister filed the affidavit of Mr Galvin, which annexes copies of the two s.438 certificates issued by delegates of the Minister’s department, and which were subsequently given to the Tribunal.
The first s.438 certificate (see annexure “TG01” to the affidavit of Mr Galvin) was said to have been issued pursuant to s.438(1)(a) of the Act. It referred to two folios in the Minister’s departmental file relating to the applicant, and given to the Tribunal in connection to the review.
The second certificate (see annexure “TG02” to the affidavit of Mr Galvin) was said to have been issued pursuant to s.438(1)(b) of the Act. It referred to two other folios in the Minister’s departmental file relating to the applicant and given to the Tribunal.
All four folios were provided to the Court in a sealed envelope in accordance with Singh (at [67]).
At the hearing, the parties relied on arguments derived variously from MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”), Singh,SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 (“SZMTA”), WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; (2014) 316 CLR 389 (“WZARH”) and AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”).
Before the Court, the applicant relied on SZMTA as well as MZAFZ. The applicant submitted that the Court in SZMTA proceeded on the same basis as MZAFZ. That is, that the Court took the view that it was entitled to assume that the Tribunal “acted in some unspecified way” on the documents covered by the certificate (MZAFZ at [40]).
Following the hearing, the Full Federal Court handed down three judgments in relation to the “certificate issue” (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”)). These judgments considered, in particular, MZAFZ and Singh. The following consideration has taken into account what was said in those judgments by which this Court is plainly and obviously bound.
The evidence of Mr Galvin, that is, the annexures to his affidavit (“TG01” and “TG02”) and the exhibits (“TG03” and “TG04”), were admitted into evidence for the purposes of the Court’s consideration of the applicant’s ground. That is, whether the Tribunal denied the applicant procedural fairness. Therefore, to succeed, the applicant would need to establish that he lost an opportunity to advance his case. As such, the documents were admitted pursuant to s.55 of the Evidence Act 1995 (Cth) (see CQZ15 at [62] – [65], BJN16 at [62] – [69] and BEG15 at [30]).
The parties agreed that the first s.438 certificate was invalid for the reasons given in MZAFZ (at [35] - [37]). The parties also agreed that the second s.438 certificate “appeared” to be valid.
Further, there was no dispute between the parties that the Tribunal did not refer to the s.438 certificates in its decision record, or raise them with the applicant.
Before the Court, the applicant asserted that Singh stood as authority for the proposition that a failure by the Tribunal to reveal the existence of the s.438 certificates to the applicant, was itself a denial of procedural fairness.
That proposition is not now available to the applicant in light of what the Full Federal Court said in BEG15 at [30] (citing BJN16) as follows:
“In Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, a decision published today, the Full Court, as presently constituted, reviewed MZAFZ and Singh and other related authorities. Having done so we rejected submissions that these authorities supported rigid and unqualified propositions of the kind advanced by BEG15 on this appeal. In particular we found nothing to support the view that it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant. We concluded (at [62]) that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
We also said (at [69]) that:
We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Secretary has issued a certificate and that the documents identified in the certificate had been provided to it.
We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court’s discretion to grant relief. This was so whether or not the certificate was invalid.”
I agree with the parties that the first s.438 certificate is invalid. In its decision record, the Tribunal did not refer to the first s.438 certificate, nor the documents to which it related. In light of the relevant authorities, the question now is whether, in the circumstances, the Tribunal fell into jurisdictional error.
The first of the two documents relevant to the s.438 certificate is headed “Sensitive”. However, having regard to the actual content of this document, it appears to be either a checklist, or instructions, to the Minister’s departmental officers. There is nothing on its face, or otherwise on the evidence before the Court, to indicate that it relates specifically to the applicant.
For current purposes, the immediate question is whether it could have had any impact on the Tribunal’s assessment of the applicant’s claims for protection. This document had no relevance to that assessment. No substantive issue arises in relation to this document from the Tribunal’s nondisclosure of it (AVO15 at [85] and BJN16 at [75]).
The second document relating to the first s.438 certificate does appear to relate to the applicant’s identity. However, that was never at issue before the Tribunal. It is implicit in the Tribunal’s decision record that it accepted who the applicant said he was, and his claimed nationality. The Tribunal’s acceptance of the applicant’s identity, means that the document had no relevance to its reasons for affirming the delegate’s decision.
Therefore, in respect of both documents, it is the case the Tribunal did not “act on” the s.438 certificate (MZAFZ at [40]). No jurisdictional error is revealed in the current circumstances.
In any event, and as the Minister also submits, the applicant did not suffer any practical injustice from any failure by the Tribunal to refer to the certificate given the contents of the documents (WZARH at [60] and see AVO15 at [85] and BJN16 at [69]).
I agree with the parties that the second s.438 certificate is valid. The documents to which it relates are copies of email correspondence between the delegate, and the applicant’s former wife.
Before the Court, the applicant argued that the Tribunal “must have considered [these documents] in some fashion”. That is, I understood the argument to be (given MZAFZ), that the Tribunal had “acted on” the documents in some way. The applicant sought to make good this proposition as follows.
The email from the applicant’s former wife made reference to the applicant being “very desperate to live in Australia”. Further, it was alleged that he went back to Pakistan to make some “fake documents” for his protection visa.
At [50] (at CB 253) to [52] (at CB 253 to CB 254) of the Tribunal’s decision record, the Tribunal states that it put to the applicant, at the hearing, that it might conclude that certain “membership cards” referring to his attendance at college, “had been fabricated solely to support his claims in relation to his political involvement”.
Further, at [78] (at CB 260), the Tribunal concluded that the “membership cards” had been fabricated solely to support the applicant’s claims to protection, as had a letter he had provided in support of these claims.
In short, the Tribunal did not accept that the applicant was telling the truth in relation to these documents, in circumstances where (in the applicant’s words before the Court), there was a “direct allegation” before the Tribunal that “he faked documents”.
The applicant’s submission was that in light of this, it is not possible to say that this was not relevant, or was not an “issue” in the review.
There was no dispute between the parties that the emails from the applicant’s former wife contained “serious allegations” against the applicant.
The questions for current purposes however, are whether the Tribunal “acted on” that information, or whether that information was a part of the reason for the Tribunal’s adverse conclusion as to the applicant’s credibility in relation to the membership cards, or whether the Tribunal had regard to these documents which were the subject of the s.438 certificate.
There is no reference to those documents, or the allegations contained in them (from the applicant’s former wife), in the Tribunal’s decision record.
Notwithstanding this, the applicant argues that the documents were before the Tribunal. Therefore, in “some way” they must have been a part of the Tribunal’s consideration, or had some effect on the Tribunal’s reasoning. This is particularly so given the serious allegations, and the “coincidence” of the allegations, to the adverse findings made by the Tribunal as referred to above.
The Minister submitted that given the relevant dates, the emails were received by the Minister’s department some nine months before the date of the delegate’s decision (which was 18 November 2013).
Further, the emails were not addressed to the delegate. The names of the delegate and recipient of the emails are different. They were sent, as is clear on their face, to the “Student Integrity Unit”.
Nonetheless, the emails were with the Minister’s department at the time of the delegate’s decision. However, there is no reference to them in the delegate’s decision. The import of this was that the date of the s.438 certificate (annexure “TGO2” of the affidavit of Mr Galvin) is 18 November 2013. This is the same date as the delegate’s decision. Therefore, up to that date, there was no restriction on the delegate giving that information to the applicant.
The Minister submitted that in all the circumstances, an inference may, and in the circumstances, should, be drawn, regarding the absence from the Tribunal’s decision record of any reference to the documents, that therefore the Tribunal did not consider the documents. Further, they were not material to, and were not a part of, the reason for affirming the delegate’s decision (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323).
I agree with the Minister that the circumstances of this case can be distinguished from such authorities as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, where the subject of the document led to a different conclusion being made by the Tribunal in that case. That is, it was clear that the Tribunal had “acted on” the information in the documents.
It is clear that the character of the emails in the present case are in the nature of a “dob in letter”. Certainly what the applicant’s former wife stated, was, and would have been, adverse to the applicant.
However, in the current case, the applicant was unable to point to any part of the Tribunal’s decision record where the Tribunal can be seen to have relied on what was said in those emails.
Rather, the argument was that the Tribunal found adversely to the applicant’s credit, and specifically with reference the documents provided by the applicant.
In this light, the applicant submits that the emails must have “played some part” in the Tribunal’s consideration of the credibility of the applicant’s documents, and his claims generally. The Minister described the applicant’s position as being that the emails had some “subconscious effect” on the Tribunal’s consideration and reasoning.
The relevance of the omission of any reference to the emails in the delegate’s decision is that it allows a reasonable inference to be drawn that the “dob in letter” was not part of any issue in the review, as from the time of the delegate’s decision (with reference to SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)). In that sense, there was no failure of procedural fairness pursuant to s.425 of the Act, unless it can be otherwise shown that the emails were an issue in the review before the Tribunal.
The Tribunal made no reference whatsoever to the emails. However, it is at this point that the weakness in the applicant’s argument is revealed. None of the Tribunal’s findings depended on any reasoning on which it can be said that the Tribunal relied on, drew on, or was influenced by, what was said in the emails.
The Tribunal made a large number of findings adverse to the applicant’s claims and his credit. For each one of those findings, the Tribunal gave cogent reasons probative of the material before it and to which it said it had regard. Nothing in its consideration, or reasoning, or what can be described as the “intelligible justification” for its decision, can be reasonably said that the Tribunal had regard to, or acted in some way on, the emails.
Specifically with reference to the applicant’s former wife, the applicant claimed, amongst other things, to fear harm from his former wife’s family. The applicant’s representative before the Tribunal also made submissions on this matter. The applicant’s claims in this regard were variously, that her family “were not happy” because they had married without their permission and that he had brought her to Australia (I note that on the evidence before the Tribunal he was granted a student visa as his wife’s dependent – see [4] (at CB 243 to CB 244)). Further, in Australia, the applicant and his wife divorced. The applicant’s representative submitted to the Tribunal that her family might harm him because he had “damaged” her “dignity”.
The Tribunal set out this claim at [55] (at CB 254) to [56] (at CB 254 to CB 255). It reported its discussion with the applicant at the hearing at [57] - [59] (at CB 255). It considered the claim at [81] (at CB 261) to [84] (at CB 262). In essence, the Tribunal’s finding in this regard was that, on the applicant’s own evidence, he had not claimed that anything had actually happened to him while he and his wife remained in Pakistan.
Further, that contrary to the applicant’s claim that he had brought his former wife to Australia, she had brought him to Australia as her dependent. Even further, it was his own evidence that she had divorced him. The Tribunal also found on the evidence before it, that it was “mere speculation” that the wife’s family thought him to be the cause of the marriage breakdown ([84] at CB 262).
The Tribunal’s findings were reasonably open to it. None of the Tribunal’s reasoning reveals the emails had any “subconscious” effect on the Tribunal’s reasoning. The Tribunal found adversely to the applicant on this point, based on its assessment of his own evidence.
As set out above, the Tribunal also did not accept the applicant’s claim to fear harm for political reasons. The Tribunal reported that it told the applicant that it found “it difficult to accept his claims regarding his political involvement” ([71] at CB 258).
The Tribunal set out its reasons for this at [71] (at CB 258) to [80] (at CB 261). It is this part of the decision record, on which the applicant’s relevant submissions focused.
Any fair reading of the Tribunal’s decision record reveals that the Tribunal’s consideration, its analysis, was focused on the applicant’s own evidence, both oral and written, the submissions made to it by his representative, and documents submitted by him.
Specifically in relation to the documents submitted by the applicant, including the membership cards and the photographs on them, and the letter from Pakistan, the Tribunal had regard to the applicant’s own evidence that “the membership cards had been specifically created to be produced to the Tribunal” (at [78] at CB 260), and the language used in the letter.
Ultimately, the Tribunal gave greater weight to the concerns it had with the applicant’s “own evidence as outlined above” ([79] at CB 260 to CB 261), than to the membership cards or the letter. This was reasonably open to the Tribunal in the circumstances presented.
The Tribunal’s reasons are detailed and comprehensive of the claims made, and evidence given to it, by the applicant. There are, as the Minister also submits, no “gaps in the reasoning” such as to suggest some other influence in its approach.
It may be unpalatable for the applicant to accept, but ultimately it was his own evidence, and his own presentation of his claims, that, as the Tribunal cogently demonstrated, led to the affirmation of the delegate’s decision. It was not as a result of anything said or done by his former wife.
The particulars to the applicant’s ground also assert a denial of procedural fairness with specific reference to three sections of the Act.
Regarding s.425 of the Act, as set out above, there is nothing in the evidence before the Court to indicate that the applicant was denied a meaningful opportunity to give his evidence and arguments in relation to the issues in the review (SZBEL and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494).
Regarding s.427(1)(c) of the Act, the applicant did not explain this particular before the Court. In any event, the disclosure of information, while a power of the Tribunal (as is made clear by s.427(1)(c) of the Act) is properly governed, for current purposes, by s.424A(1) of the Act.
Regarding s.424A(1) or s.424AA of the Act, the document described as exhibit “TG04” (to the affidavit of Mr Galvin) was, on the evidence, provided to the Minister’s department “in confidence”. As the Minister submits, the disclosure of such documents could have founded an action “by a person” for breach of confidence. The documents fell within the definition of “non-disclosable information” (s.5 of the Act).
In this light, even if the documents could otherwise be said to be a part of the reason for affirming the delegate’s decision, s.424A(1) of the Act (and therefore s.424AA of the Act) would not be engaged, given the exception set out at s.424A(3)(c) of the Act.
At the conclusion of the hearing, the applicant (through his solicitor) submitted that in relation to “non-disclosable information”, it is “only those parts of the information that would breach the confidence that are not non-disclosable”.
The applicant’s solicitor made reference to a case which he said the High Court handed down in 2010 (a reference was made to a case called “Kumar”). He had no citation for the case, let alone a copy as required by orders made by the Court.
In any event, it appears that the applicant’s solicitor sought to refer to Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448; (2009) 107 ALD 1; (2009) 253 ALR 219 (“Kumar”).
The applicant did not satisfactorily explain before the Court how the authority he possibly sought to rely on assisted his case in the current circumstances.
In any event, in Kumar, the High Court had before it circumstances different to the current case. In that case, the Tribunal asked the applicant, in writing, to comment on information that it had received in confidence, which stated that the applicant’s marriage had been contrived for the sole purpose of migration to Australia. In that case, the applicant had applied for residence in Australia on the basis of a spousal relationship (see Kumar at [7] – [10]).
The issue before the High Court arose from the appeal by the Minister from a finding of jurisdictional error by the Full Federal Court because the Tribunal failed to disclose to him “the identity of the informant and the full nature of the information” (Kumar at [12]).
The question for the High Court was (Kumar at [30]):
“Let it be assumed, without further entering upon the question, that the precisely identified information supplied to the migration authorities by the informant indicated that Mr Kumar or another person or persons may have committed offences against the laws of the Commonwealth. The question then is whether on its proper construction s 359A obliges the Tribunal, in affording procedural fairness to Mr Kumar, to break the confidence of the informant by revealing that information and the identity of the informant.”
It was in that context that the High Court found (Kumar at [34]):
“The Tribunal was obliged by s 359A(1) to give ‘particulars of any information that the Tribunal considers would be ... part of the reason, for affirming the decision’ of the delegate. The ‘information’ there spoken of did not include the non-disclosable information (s 359A(4)). The Tribunal complied with s 359A(1) by notifying Mr Kumar that it had received information, in confidence, which stated that his marriage was contrived for the sole purpose of his migration to Australia, and inviting his response.”
The circumstances of this case are different. The Tribunal plainly did not write to the applicant. In any event, in the current case, the applicant did not explain how, if it had been minded to do so, the Tribunal could have meaningfully provided particulars of any information in the emails, without breaching the confidence attaching to the email as a whole.
However, and further, it is to be noted in the current case, that the applicant’s primary submission was that the emails acted in some unspecified way to influence the Tribunal. The absence of any reference whatsoever in the Tribunal’s decision record to the emails, reinforces the view I have taken, that the emails were not a part of the reason for the affirmation of the delegate’s decision.
Ground two is not made out.
Conclusion
There is no jurisdictional error arising from the grounds of the amended application. It is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 25 May 2018
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