SZWBV v Minister for Immigration
[2017] FCCA 1924
•18 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBV v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1924 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in significant respects and other fears found not to be well-founded – whether the Tribunal erred in its complementary protection assessment concerning the intentional infliction of harm, or whether the Tribunal erred in asking itself the wrong question or overlooking an element of the applicant’s claims or by breaching s.425 of the Migration Act 1958 (Cth) considered – consideration of the implications of an invalid certificate purportedly issued under s.438 of the Migration Act considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 91R, 424AA, 424A, 425, 438 |
| Cases cited: ApplicantWAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 AVO15 v Minister for Immigration Protection [2017] FCA 566 Minister for Immigration v Singh & Anor [2017] HCATrans 107 |
| Applicant: | SZWBV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3446 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 21 December 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3446 of 2015
| SZWBV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 December 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 1 August 2012.[1] On 11 December 2012, he lodged an application for a protection visa.[2] On 20 August 2013, the delegate refused to grant the visa.[3]
[1] Court Book (CB) 115
[2] CB 19 – 104
[3] CB 109 – 135
On 22 August 2013, the applicant applied to the former Refugee Review Tribunal (RRT) for review of the delegate’s decision.[4] On 4 December 2014, the applicant appeared before the RRT to give evidence and present arguments. On 20 January 2015, the RRT affirmed the delegate’s decision.[5]
[4] CB 136 – 144
[5] CB 214 – 229
On 9 February 2015, the applicant sought judicial review of the RRT’s decision. On 5 June 2015, this Court ordered a writ of certiorari, quashing the RRT’s decision and a writ of mandamus remitting the matter to the Tribunal for reconsideration according to law.[6]
[6] CB 230, SZWBV v Minister for Immigration & Anor [2015] FCCA 1543
On 23 July 2015, the Tribunal sent to the applicant a notice of reconsideration of application for review.[7] On 9 November 2015, the applicant appeared before the Tribunal, with the assistance of his representative and a Tamil interpreter, to give evidence and present arguments.[8] On 4 December 2015, the Tribunal affirmed the delegate’s decision.[9]
[7] CB 232 – 234
[8] CB 299
[9] CB 318 – 348
Applicant’s claims for protection
The applicant claimed to fear harm on the basis of his Tamil ethnicity (being a young male Tamil from the Northern province of Sri Lanka), an imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE), and his situation as a victim of extortion, a failed asylum seeker and a person who had left Sri Lanka illegally.
In support of his claims to fear harm, the applicant made a number of factual claims, which may be summarised as follows:[10]
a)his father had worked as a driver for the LTTE and was taken by the Sri Lankan Army in 1995. His father was either missing or dead;
b)his family home in Jaffna was destroyed and his family relocated to a refugee camp in Mannar, before resettling in Chilaw in 2002;
c)in 2009, the applicant was taken and questioned by police relating to suspected LTTE links. He was detained, but later released. He subsequently experienced frequent police questioning;
d)in 2010, the applicant was beaten by the police for his failure to put up a flag to celebrate the killing of a local LTTE leader;
e)he was forced to assist a Sinhalese politician in a local election in 2011. The applicant and his family were threatened, robbed and assaulted on a number of occasions by Sinhalese men at the behest of the politician’s opponent; and
f)after leaving Sri Lanka, he was informed that the Sinhalese men had visited his family home and searched for him. His brother was assaulted by the Sinhalese men and subsequently sought refuge in a UNHCR refugee camp.
[10] CB 261 – 273; 306 – 314
Tribunal's findings
The Tribunal did not accept the applicant as credible or truthful, noting that he had a “considerable tendency to alter his evidence” [11] and that he appeared to manufacture and embellish his claims.[12]
[11] CB 325 at [17] and 331 at [31]
[12] CB 330 – 331 at [31]
Whilst accepting several of the applicant’s claims, the Tribunal rejected the majority of them. In summary, the Tribunal accepted that:
a)the applicant may have been initially viewed with suspicion when he moved from Jaffna to a predominantly Sinhalese area in Chilaw[13] and that there may have been ongoing resentment directed towards Tamils residing there;[14]
b)the applicant was questioned in 2009 and may have been approached by the authorities on other occasions;[15]
c)the applicant assisted in an election campaign;[16]
d)the applicant’s father may have assisted the LTTE as a driver from time to time[17] and that he died or became missing in 1995[18];
e)on return to Sri Lanka, the applicant may be questioned at the airport and held on remand in overcrowded and unsanitary conditions and would be known to have failed at seeking asylum in a foreign country;[19] and
f)the applicant’s brother was registered with UNHCR.[20]
[13] CB 332 at [35] and 340 at [56]
[14] CB 333 at [39]
[15] CB 330 at [31]
[16] CB 333 at [38] and 340 at [55]
[17] CB 337 at [51]
[18] CB 331 at [32]
[19] CB 341 at [58] and 341 – 344 at [60] – [66]
[20] CB 334 at [40] and 337 at [48]
However, the Tribunal was not satisfied that the evidence established that Tamils were at risk of serious harm on the basis of their ethnicity alone, or because they were from a particular part of Sri Lanka.[21] The Tribunal did not accept that the applicant was the subject of ongoing harassment by the authorities since 2003.[22] Further, it had doubts that the applicant was harmed during questioning by police and that he was interrogated or tortured.[23]
[21] CB 339 – 340 at [55]
[22] CB 333 – 334 at [39]
[23] CB 331-332 at [34]
The Tribunal did not accept that the applicant was forced to assist in the election campaign, that he was assaulted by Sinhalese men or that these men searched for him after he left Sri Lanka.[24] It did not accept that the applicant’s father was a driver for the LTTE on anything other than a limited basis or that the applicant’s family were viewed as LTTE sympathisers as a result.[25]
[24] CB 333 at [38] and 337 – 338 at [51]
[25] CB 331 – 332 at [32], [34]
The Tribunal did not accept that the applicant would be mistreated by authorities on return to Sri Lanka as it found that he did not have an adverse profile and would not be suspected of LTTE involvement.[26] It also was not satisfied that the poor conditions in remand would amount to systematic and discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958 (Cth) (Migration Act).[27]
[26] CB 341 at [58] – [60]
[27] CB 343 – 344 at [66]; Note that the substance of s.91R is now found in s.5J of the Migration Act.
Noting the applicant’s evidence to the Tribunal that he had not come to Australia for economic reasons and that his family owned a successful prawn farm, the Tribunal did not accept the applicant’s claim to fear harm on the basis of a denial of social and economic rights.[28] Further, it noted that the applicant had not provided any evidence of his claimed involvement in LTTE events in Australia, despite being invited to do so. The Tribunal considered it unlikely that he had attended these events, and noted that even if he had, it was unlikely that this would be known by anyone in his village or by the Sri Lankan authorities.[29]
[28] CB 329 at [27] and 333-334 at [39]
[29] CB 340 at [56]
In considering the applicant’s claims with respect to his illegal departure and status as a failed asylum seeker, the Tribunal found that the applicant would not be imputed with a pro-LTTE opinion because he had applied for asylum overseas.[30] The Tribunal considered the processes that the applicant would be required to go through upon return to Sri Lanka under the Immigrants and Emigrants Act,[31] finding that the Immigrants and Emigrants Act was a law of general application which did not contain any element of persecution for the purpose of s.91R(1)(c) of the Migration Act.[32]
[30] CB 341 at [58] and [60]
[31] CB 342 at [62]
[32] CB 344 at [66]
Further, the Tribunal did not consider that the short-term nature of the imprisonment that the applicant would likely face as part of the return process amounted to serious harm.[33] In relation to the likelihood that the applicant would have to pay a fine under the Immigrants and Emigrants Act, the Tribunal noted that there was no evidence before it to suggest either that the applicant would be unable to pay it, or that he was without any relative able to provide surety.[34] The Tribunal had regard to post-hearing submissions which stated that it had failed to enquire whether the applicant would be able to raise the bail for his release. In this respect, the Tribunal noted that the applicant had not claimed that he would be unable to pay or raise money for the bail and that such a claim was inconsistent with his evidence that his family owned a successful prawn farm.[35]
[33] CB 343 at [63]
[34] CB 343 at [65]
[35] CB 434 at [65]
In respect of the complementary protection criterion, the Tribunal referred to its anterior findings in concluding that there was no real risk that the applicant would face significant harm in relation to any of his claims.[36] In considering the treatment that the applicant might receive as a result of his illegal departure, the Tribunal did not accept that the applicant’s questioning by the authorities, the bail conditions, and any detention on remand or fine would involve significant harm as defined in s.5(1) of the Migration Act. Further, the Tribunal was not satisfied on the evidence before it that the pain or suffering caused by overcrowding and other prison conditions in Sri Lanka was “intentionally inflicted” on prisoners as required by the relevant definitions in the Migration Act.[37]
[36] CB 344 – 345 at [68] – [70]
[37] CB 345 at [73]
Considering the applicant’s claims individually and cumulatively, the Tribunal found that he did not satisfy the criteria in ss.36(2)(a) or 36(2)(aa) of the Migration Act.[38]
[38] CB 346 at [77]
The present proceedings
These proceedings began with a show cause application filed on 21 December 2015. The applicant continues to rely upon that application. There are four grounds in the application:
Ground 1
1. The Tribunal erred failing to assess for complementary protection whether period of detention of up to “a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and unsanitary conditions is intentionally inflicted” (RRT at [73]) in consider of complementary protection for consequences of illegal departure and/or failed asylum application. The Tribunal engaged in jurisdictional error by failing to ask itself the right questions and misconstruing the provisions when addressing (RRT at [73]) whether Sri Lankan law concerning illegal departure could attract protection under the complementary protection provisions
Particulars
(i) The Tribunal accepted that the Applicant would be charged for illegal departure (RRT dec);
(ii) The Tribunal found that the Applicant could be detained upon return to Sri Lanka;
(iii) The Tribunal found that the condition in the prison is likely to be poor, overcrowded and insanitary (RRT dec at [73) The Tribunal accepted that the Applicant could be held in custody pending determination of bail in poor conditions. The Tribunal failed to assess whether this constituted significant/ “serious harm” pursuant to (s 91R(2)(a)-(c)) of the Act.
(iv) The Tribunal failed to address and/or misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.
(v) For purposes of complementary protection the length of detention is immaterial.
(vi) did not expressly consider Directions 56.
(vii)The Tribunal applied the incorrect test thereby committed jurisdictional error
Ground 2
2. The Tribunal accepted that the Applicant’s brother had been issued with UNHCR card in Malaysia but was not satisfied of the claimed harm. The Tribunal committed jurisdictional error when it asked the wrong question and failed to ask the correct question.
Particulars
The Tribunal should have addressed whether the issue of UNHCR card posed any risk to failed to the Applicant. The Tribunal did not ask itself whether the [issue] of UNHCR card would impute the Applicant with the Applicant being anti-government.
Ground 3
3. The Tribunal accepted that the Applicant's father was missing. The Applicant claimed LTTE connections through father’s involvement in transportation. The Tribunal did not address key element of risk of “association”.
Particulars
The Tribunal should have addressed whether the claim of father’s involvement in LTTE would impute him with LTTE connections. The Tribunal also did not address what the consequences of the outcome would be..
Ground 4
4. The Tribunal denied the Applicant procedural fairness and thereby breached s 425 and or/424AA of the Act when it failed to put determinative issues to the Applicant. The Tribunal committed jurisdictional error. The Tribunal misapprehended the Applicant's claims.
Particulars
The Tribunal failed to put the Applicant on notice of dispositive/ determinative issues - delegate did not make adverse findings about the various incidents claimed by the Applicant; the Tribunal proceeded make adverse finding without giving the Applicant chance to be heard on issues.
(errors in original)
The asserted breach of s.424AA of the Migration Act in Ground 4 was not pressed. The asserted breach of s.425 in that ground was pressed.
In addition to the court book filed on 7 March 2016, I have before me as evidence the affidavit of Tom Hillyard made on 21 July 2017 and the annexures to that affidavit. Further, exhibited to the affidavit was a sealed envelope containing folios 141 to 145 from the Minister’s departmental file. There was no issue of confidentiality of those documents.
Both the applicant and the Minister filed written submissions and made oral submissions at the trial of this matter through their counsel.
Consideration
Ground 1
I agree with the Minister’s submissions on this ground. It was conceded by the applicant at the trial that he cannot succeed on this ground on the basis of current legal authority but he reserves his rights on appeal.
Ground 1 broadly contends that the Tribunal erred in failing to assess the period and conditions of detention arising under the Sri Lankan Immigrants and Emigrants Act against the complementary protection criterion, and further, that it misconstrued the relevant statutory provisions. This ground contains seven particulars which contend, in essence, that the Tribunal misapplied various definitions in s.5(1) of the Migration Act, that it failed to consider whether detention in poor conditions amounted to serious or significant harm and that it did not expressly consider Ministerial Direction No. 56.
Contrary to the contention in Particular 3 extracted at [18] above, it is clear from the Tribunal’s reasons that it did consider the applicant’s risk of facing both serious and significant harm as a consequence of his detention upon return, referring in each instance to the correct statutory test.[39] Further, the Tribunal’s reasoning does not indicate a misunderstanding or misapplication of the definitions of “intentionally inflicted”, “intended to cause”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” in s.5(1), as asserted in Particular 4.
[39] CB 343 at [64] and 345 at [69]
In the present matter, the Tribunal found that there was no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant.[40] The Tribunal’s reasoning under the complementary protection limb accords with the decision of the High Court in SZTAL v Minister for Immigration,[41] in which their Honours Kiefel CJ and Nettle and Gordon JJ held that the expressions “intentionally inflicted” or “intended to cause” require actual subjective intention.
[40] CB 345-346 at [73]
[41] [2017] HCA 34
Insofar as the applicant contends, by the fifth particular, that the length of any detention as a result of the Immigrants and Emigrants Act is immaterial and that any such detention must invariably constitute significant harm, this assertion is unsustainable in light of the High Court authority in Minister for Immigration v WZAPN.[42] As the High Court made clear in that case, the Tribunal does not fall into error in undertaking a qualitative assessment of loss of liberty, including by reference to its length. The Tribunal’s findings in this regard were open to it on the evidence before it and for the reasons it gave. As such, the contention in Particular 5 cannot be made out.
[42] (2015) 254 CLR 610.
Finally, the contention at Particular 6 that the Tribunal did not expressly consider Direction No. 56 fails at a factual level. The Tribunal expressly referred to the Direction and its obligation to comply with it.[43] Further, it made explicit reference to, and took into account, both the relevant DFAT country information and the PAM3 Guidelines, as required by Direction No. 56 (see, for instance, footnote 1 at CB 328 and CB 345-346 at [73]).
[43] CB 323 at [5] and “Attachment – Relevant Law” at CB 348 at [5]
I reject Ground 1.
Ground 2
I agree with the Minister’s submissions concerning this ground.
By Ground 2, the applicant contends that the Tribunal “asked the wrong question” in relation to his evidence about his brother’s UNHCR card, in that it did not ask itself whether this would result in the imputation of the applicant with anti-government sentiment. The card is reproduced at CB 212-213 and appears to be nothing more than an “appointment card”, indicating that the applicant’s brother may have been engaged in some UNHCR process. In any event, the claims relating to UNHCR status of the applicant’s brother were identified and adequately addressed by the Tribunal.[44]While the Tribunal accepted that the applicant’s brother had registered with the UNHCR in Malaysia, it did not accept that he had done so because he was sought by the authorities or because of any perceived or actual links with the LTTE. Further, the Tribunal did not accept that his brother’s registration with the UNHCR “corroborated” the applicant’s claims.[45] Contrary to the applicant’s submissions, no jurisdictional error is revealed by this finding. The Tribunal did not accept that the brother left Sri Lanka for any reason connected with the applicant’s claims, including his own LTTE links, “perceived or otherwise”[46]. That was a factual finding which was open for the Tribunal to make, given its finding concerning the applicant’s claims.
[44] at [11], [40], [45] and [48]
[45] CB 334 at [40]
[46] CB 334 at [40]
Contrary to this ground, the applicant did not submit that he would be imputed with a link to the LTTE because his brother had been issued with a UNHCR card. Rather, this was put forward as corroborating the applicant’s own claims,[47] which the Tribunal rejected at [40]. In any event, the Tribunal’s comprehensive findings of greater generality[48] are sufficient to infer that the Tribunal rejected any suggestion that the applicant feared harm because of perceived LTTE links for any reason. These were, namely, its findings regarding the family’s actual and perceived links with the LTTE,[49] the rejection of the claimed basis for the brother’s departure from Sri Lanka and the authorities’ interest in him,[50] the rejection of the claim regarding the authorities’ continuing interest in the applicant’s family,[51] the Sri Lankan authorities’ attitude to the seeking of asylum by their citizens,[52] and the finding that the particular circumstances of the applicant would not attract the adverse attention of the authorities[53].
[47] CB 197.6, 307.5
[48] ApplicantWAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630
[49] at [31], [32], [34], [37], [39], [56] and [60]
[50] CB 334 at [40]
[51] CB 333 at [36] and CB 340-341at [56]
[52] CB 341 at [58]
[53] CB 341 at [58]
Ground 3
I also agree with the Minister’s submissions concerning this ground.
Ground 3 contends that the Tribunal did not address the risk of “association” in relation to the LTTE connections of the applicant’s father and failed to address whether his father’s claimed involvement with the LTTE would impute him with pro-LTTE political opinion. On a fair reading of the decision record, the Tribunal found that, at best, the applicant’s father drove a vehicle for the LTTE on nothing more than a limited basis[54] and that this occurred over 20 years ago.[55] The Tribunal did not accept that this would result in the applicant and his family being viewed as LTTE sympathisers.[56] I accept that the Tribunal addressed this claim, but found that on the basis of the limited involvement of the applicant’s father with the LTTE, there was no risk of imputed association arising from this. Such a finding was open to the Tribunal. Ground 3 does not reveal any jurisdictional error in the Tribunal’s reasons.
[54] CB 331 at [32]
[55] CB 339-340 at [55]
[56] CB 331-332 at [34]
The assertion in the applicant’s submissions that his father’s role may be “discovered” in some “process of interrogation” of the applicant are contrary to the Tribunal’s findings at [55] which assume that the authorities may be aware of the father’s role. Further, the suggestion in the applicant’s submissions that the applicant may be harmed or imputed with a LTTE profile when questioned is contrary to the Tribunal’s findings at [58]. This case can be readily distinguished on its facts from SZQPA v Minister for Immigration & Anor [2012] FMCA 123, affirmed on appeal in Minister for Immigration v SZQPA [2012] FCA 1025, on which the applicant relies.
Ground 4
By Ground 4, the applicant contends that the Tribunal denied him procedural fairness and breached s.425 of the Migration Act when it failed to put determinative issues to him. While those issues are not particularised in the application, it is apparent from the applicant’s submissions that the relevant issue concerns the applicant’s claim of injury to his foot by assailants. The applicant relies upon the decision of the High Court in SZBEL v Minister for Immigration,[57] in particular at [41]-[43].
[57] (2006) 228 CLR 152
In oral submissions, counsel for the applicant put that the RRT had accepted the applicant’s claim while the Tribunal had not, thereby giving rise to a new issue which should have been put to the applicant.
It is true that this incident was dealt with somewhat differently by the RRT and the Tribunal. The RRT stated as follows about the claim at [35] of its reasons:[58]
On one occasion, in January 2011, when the applicant refused to give the Sinhalese some money, a knife was thrown which cut his left foot. While I accept that this incident took place, I do not accept that this incident in itself was a particular motivating factor in the applicant deciding to come to Australia. This is because he did not actually leave Sri Lanka for another 15 months, and because he told the delegate that it was after an incident in April 2012 that his parents decided to send him to Australia in order to avoid further attacks.
[58] CB 222-223
The Tribunal dealt with the claim in the following way at [38] of its reasons:[59]
Although the Tribunal accepts that the applicant assisted in the election campaign, as evidenced by the letter he provided from the Sinhalese candidate, the Tribunal does not accept that the letter indicates that he was forced to do so or that this resulted in his stepfather being beaten after the election, or the applicant being sought and harmed in April 2012, several months after the election or people coming to look for him in February 2014, some 18 months after he had left Sri Lanka, or in September 2014, more than two years after he had left Sri Lanka. The applicant’s evidence indicates that he was known in his village and that is why he was asked to assist the candidate in securing votes. The Tribunal does not accept it would not also have been known that he had left Sri Lanka for Australia several months earlier. The Tribunal does not accept that the people have been looking for the applicant or that his involvement in door knocking and assisting the candidate was so important that he would have been sought for his assistance in the next election. Nor does the Tribunal accept that the applicant was assaulted by Sinhalese supporters of a Sinhalese candidate when he lost the election or that he was assaulted and mugged by Sinhalese men or had a knife thrown at him or that his uncle and stepfather were assaulted in their homes. The Tribunal accepts the medical document showing that the applicant’s leg was injured, but does not accept that this occurred when he had a knife thrown at him by Sinhalese people. The Tribunal considers that the applicant has attempted to rely on an unrelated incident where he was injured in an attempt to establish claims for protection.
(emphasis added)
[59] CB 333
In my view, the applicant should have been aware, having regard to the terms of the RRT’s decision, that the injury claim was at least partly an issue. The distinction between the two decisions is somewhat subtle. The Tribunal accepted the fact of the injury but not the asserted cause of it. The RRT accepted that there had been an attack but did not accept the motivation for the attack. In either case, the credibility of the applicant’s explanation for the injury (as opposed to the fact of the injury) was an issue of which the applicant should have been aware.
In any event, in the absence of a transcript of the Tribunal hearing, I am unable to say that the issue was not discussed at that hearing. The asserted breach therefore lacks the necessary evidentiary foundation.
Section 438 certificate
A certificate was issued pursuant to s.438 of the Migration Act in relation to certain documents on the file held by the Minister’s Department in respect of the decision under review by the Tribunal. The certificate covers folio numbers 141 – 145 of the Department file CLF2012/246331, being documents relating to the remittal of the matter to the current Tribunal.[60]
[60] Affidavit of Tom Hillyard affirmed on 21 July 2017
There is no evidence before the Court to suggest that the Tribunal invited the applicant to comment on the s.438 certificate. Nor does the Tribunal’s decision record address the certificate. On that basis, the matter raises the issues addressed in Minister for Immigration vSingh[61] and MZAFZ v Minister for Immigration.[62] The Minister concedes that the certificate is invalid for the reasons set out by Beach J in MZAFZ. However, the Minister contends that the present matter is distinguishable from both MZAFZ and Singh. I accept that contention.
[61] (2016) 244 FCR 305. The Minister unsuccessfully sought special leave to appeal from the Full Court’s decision: Minister for Immigration v Singh & Anor [2017] HCATrans 107
[62] [2016] FCA 1081
The documents covered by the certificate were plainly irrelevant to the issues for determination by the Tribunal and were not in any way adverse to the applicant.[63] Further, I infer that the Tribunal had no regard to the documents as “on any view, they can have been of no, or only passing contextual, relevance to the application”.[64] Accordingly, it could not be said that the applicant was denied any opportunity that might have affected the outcome of his application for review, nor did the material enliven the obligation under s.424A.[65] Likewise, there is no basis to infer that the documents led the Tribunal to act on the invalid certificate. In those circumstances, there can be no practical injustice and so no denial of procedural fairness due to the Tribunal not disclosing the existence of the certificate itself.[66]
[63] See BIE15 v Minister for Immigration & Anor [2016] FCCA 2978; BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 and AVO15 v Minister for Immigration [2017] FCA 566
[64] AVO15 v Minister for Immigration [2017] FCA 566 at [87]
[65] BEG15 v Minister for Immigration [2016] FCCA 2778 at [64]; AVO15 v Minister for Immigration [2017] FCA 566 at [91]
[66] AVO15 v Minister for Immigration [2017] FCA 566 (Barker J) at [84]-[91]
Conclusion
The applicant is unable to demonstrate that the Tribunal decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 September 2017
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