FEDERAL COURT OF AUSTRALIA

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal is from a decision of the Federal Circuit Court of Australia (FCC) in BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778; 315 FLR 196. The single ground of appeal is that the primary judge erred in failing to find that a decision of the then Refugee Review Tribunal (the Tribunal) was affected by jurisdictional error because the Tribunal failed to find that a certificate issued under s 438 of the Migration Act 1958 (Cth) (the Act) was invalid and that there was a consequential failure by the Tribunal to put the material covered by the certificate to the appellant for comment, which constituted a denial of procedural fairness. It should be noted at the outset that the FCC’s decision was handed down prior to the Full Court’s decision in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; 244 FCR 305 (Singh), but after Beach J’s decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 (MZAFZ).

2    The s 438 certificate related to folios 142-144 of the file of the Department of Immigration and Border Protection (Department) and they were said to be covered by that provision because they “contain information relating to an internal working document and business affairs”. The certificate was invalid on its face and the proceeding below was conducted on that basis. The documents to which the certificate related included an email from a legal officer within the Department to an officer of the Tribunal. In it, the lawyer provided a summary of the findings of an earlier decision of the Tribunal, including in respect of independent country information. The report included the statement that the Tribunal in its first decision had made reference to specific items of country information, but did not make any express reference to a country information report on Sri Lanka prepared by the Department of Foreign Affairs and Trade (DFAT). Neither the certificate nor the related documents were provided to the appellant prior to the filing of an affidavit in the FCC proceedings on 6 October 2016. The appellant represented himself in the FCC proceeding. The Minister raised the possible application of MZAFZ.

Summary of background facts

3    Drawing primarily upon the primary judge’s findings of fact, which were not disputed, the relevant background facts may be summarised as follows. The appellant is a Sri Lankan citizen. He arrived in Australia on 11 April 2012. His application for a protection visa was rejected by a delegate of the Minister. He sought a review in the Tribunal. The Tribunal’s decision affirming the delegate’s decision was set aside by the FCC in earlier proceedings. On reconsideration of his review application, the Tribunal made a second decision to affirm the delegate’s decision. It is this decision which was the subject of the appellant’s judicial review application in the FCC. The primary judge found that there was no jurisdictional error and that, alternatively, he would refuse relief in the exercise of the Court’s discretion.

4    It unnecessary to set out in any detail the appellant’s claims, other than to note that he claimed to fear harm if he were returned to Sri Lanka because of his race (Tamil), his imputed political view (because of his family’s financial support of the Liberation Tigers of Tamil Eelam (LTTE)), because he failed to comply with the demands of the Karuna Group and because of his membership of a particular social group, namely failed Tamil asylum seekers who had fled Sri Lanka illegally. In brief, he claimed that he feared that he would be beaten, tortured or killed by the Karuna Group and their associated groups if he returned to Sri Lanka, having regard to the matters described above.

5    In its second decision, the Tribunal found that the appellant’s evidence lacked credibility, that the appellant had fabricated most of his claims and was not a witness of truth.

6    Relevantly, the Tribunal also rejected the appellant’s claim that he would be harmed because he would be imputed with a pro-LTTE or anti-government political opinion. This finding was based on the combination of country information before the Tribunal which suggested that anyone who had been suspected of LTTE support was detained and sent to a rehabilitation camp at the end of the conflict in Sri Lanka, but the appellant had not been so detained. The Tribunal viewed this as supporting its finding that the appellant was of no interest to the authorities or perceived to be of interest now or in the future.

7    The second ground of judicial review in the FCC was that the Tribunal erred in failing to consider the definition of degrading treatment or punishment in the context of being placed in remand in conditions which are cramped, uncomfortable and unsanitary for up to a fortnight. This ground related to the Tribunal’s reasons concerning s 36(2)(aa) of the Act and the requirement that, for complementary protection, the visa applicant must face a real risk of “significant harm” if returned to Sri Lanka.

The FCC’s reasons summarised

8    The primary judge rejected both grounds of judicial review. His Honour rejected the first ground for the following two reasons:

(a)    at a factual level, the ground was misconceived because the Tribunal did not arrive at its decision simply on the basis of a choice between the country information relied upon by the appellant and DFAT reports relied upon by the Tribunal. Rather, as [69] of the Tribunal’s reasons for decision revealed, the primary judge found that the Tribunal considered and assessed all the country information but gave more weight to certain information than other country information provided by the appellant. In essence, the primary judge found that the Tribunal did not disregard the appellant’s country information but instead gave greater weight to the DFAT reports; and

(b)    in any event, the choice between competing country information and the weight to be given to it was a matter for the Tribunal, citing inter alia MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154 at [19].

9    As noted above, the second ground of the judicial review application concerned the Tribunal’s reasons in respect of the complementary protection provision in s 36(2)(aa). It is unnecessary to set out in any detail the primary judge’s reasons for rejecting the second ground other than to note that his Honour applied the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556 in concluding that the Tribunal had adopted the correct approach by proceeding on the basis that the intentional infliction of harm, as referred to in the various relevant definitions in s 5(1) of the Act, meant actual subjective intention by the actor to bring about the victim’s pain and suffering by the actor’s conduct. It might be noted that, subsequently, the High Court dismissed the appeal from the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 275.

10    In [40] of his reasons for judgment, the primary judge addressed the Minister’s submission that MZAFZ might apply to the certificate issued under s 438. It is desirable to set out the terms of that provision:

s 438    Tribunal's discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

11    The primary judge summarised Beach J’s reasons in MZAFZ in [41]-[52]. The primary judge noted how the issue concerning the validity of the s 438 certificate arose. The bundle of relevant documents provided by the Minister to the FCC did not include any s 438 certificate, nor any documents to which the certificate related. The bundle was provided in advance of any FCC order being made. The bundle was provided prior to judgment in MZAFZ being handed down on 7 September 2016. Subsequently, and in the light of that decision, the Minister filed an affidavit to which were annexed a s 438 certificate and the documents to which it related. The primary judge noted at [56] that the appellant, who appeared in person, encouraged the FCC to review and consider both the certificate and the related documents. His Honour stated at [56] that although Beach J had refused an application to tender the documents the subject of the certificate in MZAFZ, the primary judge considered that the documents were relevant to the question of what opportunity might have been lost by the Tribunal’s failure to notify the appellant of the existence of the certificate, as well as to the question of whether relief should be refused in the Court’s discretion.

12    The primary judge noted that the basis for the certificate was the view of the Minister’s delegate that disclosure of the information in relevant folios of the appellant’s departmental file would be contrary to the public interest because the folios “contain information relating to an internal working document and business affairs”. The Minister conceded that, on the authority of MZAFZ, such a certificate was invalid.

13    The primary judge noted in [59] that the Minister submitted that there was no evidence as to whether the documents themselves, or the fact of the existence of the certificate, had been disclosed to the appellant, nor was there any evidence to infer that the Tribunal had acted on the certificate. Moreover, the Minister submitted that the relevant folios the subject of the certificate did not contain any information relevant to the outcome of the appellant’s claims, in contrast to the position in MZAFZ at [47] and [55].

14    The primary judge noted that the certificate-affected folios consisted of three notifications about proceedings brought by the appellant in the FCC in respect of the Tribunal’s first decision. The first recorded the fact that consent orders were made after receiving counsel’s advice that the Tribunal had probably fallen into error of law. The second, which was dated the day after the first folio (20 November 2014) included a statement that the Department had withdrawn from the proceeding on the basis that the Tribunal failed to apply the correct test for complementary protection and also failed to consider the most recent DFAT country information, but that the latter reason was not used as a basis for the withdrawal. The third folio bore the same date as the second folio and noted that the matter would now be referred to the Tribunal for reconsideration.

15    The primary judge found at [63] that, with one exception, the appellant would have known all of the information in these three folios in circumstances where it was his judicial review application that was successful. The only exception related to the statement that the Tribunal had not considered the most recent DFAT country information report but this was not relevant to the Tribunal’s reconsideration save that the Tribunal needed to avoid a repetition of the omission.

16    The primary judge concluded that, in these circumstances, nothing in the three folios was either adverse to the appellant, relevant or significant to the decision and did not need to be disclosed to him. Furthermore, as there was nothing in the material which was adverse to the appellant, s 424A of the Act did not apply.

17    The primary judge also found at [66] that he was not satisfied that the Tribunal had “acted on” the certificate in the sense described in MZAFZ at [40], [47] and [48]. That was because:

(a)    the Tribunal here did not state that it had had regard to the whole of the Department’s file, in contrast with the position in MZAFZ;

(b)    having regard to the findings of fact in the Tribunal’s reasons and the absence of any reference to the folios covered by the certificate, the primary judge inferred that the Tribunal did not base any of its findings on that material; and

(c)    in any event, the information could not have provided a logical basis for any of the Tribunal’s findings and the Tribunal’s reasons were otherwise generally cogent.

18    After noting that the second error in MZAFZ was a denial of procedural fairness, the primary judge noted that this only arose if the certificate complied with s 438 and was valid. Since it was conceded that the certificate here was invalid there was no need to consider the procedural fairness argument. His Honour added, however, that if he was wrong in this respect, MZAFZ was indistinguishable and he would have to conclude that there was a denial of procedural fairness. Nevertheless, he added that he would have refused relief in the exercise of his discretion. Why this was so was explained in [68] of the primary judge’s reasons for judgment:

I cannot see how knowledge of the existence of the certificate could make, or could have made, any difference to the outcome of the review (that is, on either a backward or forward looking view of the exercise of discretion: see Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151; [1996] FCA 807). At the highest and looking back, the applicant would have asked the Tribunal to consider whether to disclose the information under sub-s. 438(3)(b), the Tribunal might have disclosed the information, and the applicant might then have had the opportunity to suggest to the Tribunal that it should not make the mistakes that the previously constituted Tribunal had made. It did not make those mistakes. The same reasoning applies if one looks to what a newly constituted Tribunal would do. There would simply be no utility in granting the relief sought.

The appeal

19    The sole ground of appeal relates to the appellant’s claim that the primary judge erred in failing to find that the s 438 certificate was invalid and that the consequential failure to put to the appellant for comment the folios affected by it constituted procedural unfairness. The appellant claimed that the primary judge erred in not following MZAFZ.

20    The parties’ submissions may be summarised as follows. The appellant was critical of the primary judge for not taking into account [3] of the Tribunal’s reasons which indicate that the Tribunal had had regard to the certificate and related documents. That is because, otherwise, the Tribunal could not have been aware of the outcome of the judicial review challenge to the first Tribunal decision. The appellant also submitted that the absence of any express reference to the certificate in the Tribunal’s reasons was because an erroneous view had been taken that the appellant should not know of the certificate or its contents. The appellant submitted that the primary judge erred and did not properly apply MZAFZ (or Singh) because he speculated on the impact that the certificate may have had on the outcome of the Tribunal’s decision. This was the incorrect test. The appellant submitted that the correct test was to focus on the fact that the Tribunal had acted on an invalid certificate, which involved a procedure contrary to law, and infected the process or procedure of the Tribunal. In circumstances where the s 438 certificate was invalid, it was a jurisdictional error for the Tribunal to act upon it. Moreover, this gave rise to procedural unfairness because the appellant was denied an opportunity to challenge the validity of the certificate. Applying MZAFZ, acting on an invalid certificate involves jurisdictional error on the part of the Tribunal.

21    Moreover, the appellant submitted that, applying MZAFZ and now also Singh, procedural fairness required the Tribunal to:

(a)    disclose the existence of the certificate to the appellant;

(b)    give the appellant an opportunity to make submissions on the validity of the certificate;

(c)    disclose the extent to which the Tribunal would take the information into account; and

(d)    give the appellant an opportunity to seek a favourable exercise of the discretion of s 438(3)(b).

22    The appellant submitted that if he had had access to the documents, he could have contended that the communication between the Department’s legal officer and the Tribunal regarding alleged inconsistencies in his evidence, which was relevant to the issues on the remitter, “was highly inappropriate and could be seen to compromise the independence of the Tribunal from the Department”.

23    The Minister’s submissions may be summarised as follows. The Tribunal has a discretion under s 438 as to whether to take a document or information into account to which that provision applies and as to whether or not to disclose the document or the information to the review applicant. The Minister submitted that the mere provision of an invalid certificate to the Tribunal would not, of itself, have any consequences for the validity of the Tribunal’s decision. The Tribunal might, for example, ignore the material. Alternatively, it might exercise its discretions under s 438(3). In those circumstances, the Tribunal would err in law in relying on an invalid certificate but the error would not be material. On this basis, the Minister submitted that MZAFZ was distinguishable because of Beach J’s finding that the Tribunal had acted in some way on an invalid certificate.

24    Similarly, no procedural unfairness would arise if the Tribunal recognised a certificate to be invalid and ignored it. Nor would there be procedural unfairness if the Tribunal failed to give the review applicant a hearing where that failure did not deprive the applicant of the possibility of a successful outcome. The Minister submitted that MZAFZ and Singh were both predicated on acceptance that the documents in each case were relevant to the review. Those cases do not apply where the documents are shown to be of no, or only peripheral, relevance.

25    In the present case, the Minister conceded in the FCC that the certificate was invalid. The Tribunal’s reasons do not refer to the certificate. There is nothing in the reasons to suggest that the Tribunal considered any of the documents the subject of the certificate and those documents were not included in the list of documents which the Tribunal said it had considered. Moreover, as is evident from the documents which were admitted into evidence in the FCC, they contain nothing which was capable of affecting any analysis of whether the appellant was a person in respect of whom Australia owed non-refoulement obligations.

26    Having regard to the contents of the documents, the Minister submitted that it was highly unlikely that the Tribunal gave the documents any weight at all. For these reasons, the Minister submitted that there was no error by the primary judge to find that the Tribunal had not “acted on” the certificate.

27    As to the appellant’s submission that an inference could be draw that the Tribunal did have regard to the documents in order for it to be aware of the outcome of the earlier judicial review proceedings, the Minister submitted that this overlooks the fact that the Tribunal was a party to those proceedings. In any event, knowledge of the outcome of those proceedings could have no possible adverse implications for the appellant.

28    In the light of Singh, the Minister did not submit that the invalidity of the certificate of itself affects the existence of procedural fairness obligations. But it was submitted that procedural fairness only required the Tribunal to hear from the appellant if it proposed to rely upon the certificate and related documents in a way that would adversely affect the appellant’s rights or interests, which is not the case here having regard to the contents of those materials.

29    The Minister sought leave to file a notice of contention in which it was claimed that, for the reasons given above, there was no denial of procedural fairness. The appellant did not oppose the application and leave was granted.

Disposition of the appeal and the notice of contention

30    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.

31    In this proceeding it was common ground that the s 438 certificate was invalid and had not been disclosed to BEG15 by the Tribunal. Nor had the documents covered by the certificate been provided.

32    The primary judge examined the documents and made the findings of fact which we have summarised above at [16] and [17]. These findings led him to the conclusion that the documents did not contain any material which was prejudicial to BEG15’s interests, that the Tribunal had not acted on the material and that, in the circumstances, he would have, in any event, exercised his discretion to refuse relief.

33    These findings and conclusions were, in our view, open to the primary judge in the circumstances of this case. Neither the invalidity of the certificate nor the failure by the Tribunal to provide BEG15 with a copy of it or the documents referred to in it gave rise to any practical injustice to him for the reasons given by the primary judge.

34    The appellant’s submission that the communication between the Department’s legal officer and the Tribunal was “highly inappropriate” because of a reference to inconsistencies in the appellant’s evidence cannot be accepted. The reference appears in one of the documents which was the subject of the s 438 certificate. The departmental lawyer wrote to an officer of the Tribunal to explain why the Minister had decided not to defend a judicial review application relating to the Tribunal’s first decision. Before explaining the reasons for the Minister’s decision and, under the heading “Background”, the officer summarised BEG15’s claims and the reasons why the Tribunal had rejected some of them. One of these reasons was a finding by the Tribunal that BEG15 had given “inconsistent evidence”. That was a fair summary of the first Tribunal’s reasons. A full re-hearing took place before a second (and differently constituted) Tribunal. It made its own assessment of the appellant’s evidence. The previous Tribunal’s reasons would have been available to the member who conducted the second review but there is nothing in her reasons to suggest that she had in any way been influenced by the reasons for the first decision assuming that she read them.

35    We do not consider that any appealable error has been established.

36    Having regard to this conclusion it is not necessary that we deal with the Minister’s notice of contention.

Conclusion

37    The appeal must be dismissed.

Associate:

Dated:    29 November 2017