FEDERAL COURT OF AUSTRALIA

SZQOA v Minister for Immigration and Border Protection [2018] FCA 512

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

(Revised from the transcript)

LEE J:

A    Relevant Background

1    This proceeding was commenced by way of an application for an extension of time as long ago as November 2016. By consent, in May 2017, the then applicant was granted an extension of time to bring his appeal. Hence, before the Court is an appeal (in the form that was previously the draft notice of appeal). The determination of the appeal was delayed on the basis that the present matter could conceivably have given rise to similar issues to those considered by the Full Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305. When the matter was initially listed for hearing, there was an extant special leave application in relation to Singh and the Minister submitted that this matter should be adjourned pending the outcome of the special leave application and, if that application was successful, the outcome of the appeal to the High Court.

2    In May 2017, the High Court refused the Minister’s application for special leave (Minister for Immigration and Border Protection v Singh [2017] HCATrans 107). Further delay then arose because by August 2017, it became apparent that the Full Court was to hear several appeals, each of which concerned a non-disclosure certificate. The matter was adjourned to the end of 2017 for those hearings to take place and for judgment in those matters to be delivered. I will return to those Full Court judgments below.

3    Having explained the procedural history, I now turn to the background to the claims made by the appellant. He is a citizen of Nepal who entered Australia in October 2010, travelling on a false passport. In January 2011, the appellant applied for a protection visa which was refused by a delegate of the Minister in March 2011 (2011 Decision). The appellant’s subsequent applications for merits and judicial review in respect of this first protection visa application were unsuccessful.

4    In May 2013, the appellant made a further application for a protection visa and in April the following year, a delegate of the Minister refused to grant the protection visa. The decision record of the delegate is before the Court and identifies, in section 5, the material said to be before the delegate. It reads as follows:

5. MATERIAL BEFORE THE DECISION-MAKER

1. Departmental file CLF 2013/98194 relating to the applicant.

2. Departmental ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.

3. The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Re-edited, Geneva, January 1992 (the UNHCR Handbook).

4. Australian case law as relevant.

5. Country information as cited.

(Uncorrected, bolding in original)

5    I pause to note that the material before the decision-maker, at least as recorded by the decision record, did not include the file held by the Minister in relation to the 2011 Decision.

6    In May 2014, the appellant applied to the second respondent (Tribunal) for review of the delegate’s decision and in May 2015, the Tribunal affirmed the decision under review.

7    Before the Tribunal, the appellant claimed to fear harm in Nepal because:

(a)    he was a supporter of the Rastriya Prajatantra Party Nepal (RPPN) and the Nepalese Monarchy;

(b)    Maoists, including a student wing associated with the communists, had targeted him due to his political opinion;

(c)    he was a homosexual and could not reveal his homosexuality in Nepal because of that country’s social norms; and

(d)    he could not obtain State protection due to the influence of the Maoists.

8    The Tribunal regarded several matters as impacting upon the credibility of the appellant and, in summary, did not accept the appellant was a member of the RPPN from the time he claimed; did not accept he was a person of some profile within that party given his youth; did not accept an allegation that he had been attacked by radicals (noting that there were no reports or evidence of such an event occurring at the time indicated by the appellant); and did not accept the claim that the appellant was a homosexual or that his related claims were true.

9    In short, the Tribunal found the appellant to be a less than credible witness and considered that he had fashioned his claims to suit the circumstances of his claim for a protection visa. In particular, the Tribunal found that the appellant’s claim of homosexuality was opportunistic and was only advanced following the rejection of the appellant’s prior protection claims. It followed the Tribunal was not satisfied the appellant was a person to whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

B    The Primary Judgment

10    Before the primary judge, three grounds were advanced which, as summarised and reformulated by his Honour, were described as follows:

(a)    Was the decision made by the Tribunal arbitrary?

(b)    Did the findings made by the Tribunal amount to a denial of procedural fairness?

(c)    In the light of the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1, did the certificate purporting to be made under s 438 of the Act infect the Tribunal’s decision with jurisdictional error?

11    With regard to the first of these issues, the primary judge held that the decision of the Tribunal could not be described as arbitrary. In doing so, his Honour referred to paragraphs of the Tribunal’s reasons which demonstrated that the findings turned on matters of credit and were reached by reference to reasoning which could be described as logical. In those circumstances, his Honour rejected the first contention.

12    Turning to the second issue, his Honour made the observation that procedural fairness does not concern the outcome of the administrative process but rather the process adopted. It was clear, the primary judge held, that the appellant was on notice that his credibility was a live issue at the hearing as the delegate had not accepted the appellant’s factual claims, especially his claim as to his homosexuality. Further, the primary judge regarded the decision record as reflecting the fact that the appellant was given every opportunity to give evidence and present arguments with respect to his credibility. Consequently, his Honour accepted that the Tribunal had complied with its relevant obligations under s 425 of the Act and that no procedural unfairness was occasioned.

13    It is convenient to leave the basis upon which his Honour dealt with the third of the issues until later in these reasons.

C    Consideration of The Appeal

14    The appeal to this Court advances three grounds of error on the part of the primary judge. Grounds 1 and 2 both assert that the primary judge fell into error in failing to find that the Tribunal breached procedural fairness requirements in that it failed to identify the “adverse issue or material” regarding other applicants who did not claim to be homosexual in their original applications but then made such a claim at a later stage. As would have been evident from the characterisation of the issues by the primary judge, the issue of procedural fairness was raised in the Court below, but it was not particularised in quite the same way as before me. Be that as it may, the question of the ‘adverse issue or material’ is inextricably linked to the appellant’s credibility in relation to his claim of homosexuality which, in the way I have explained, was dealt with expressly by the primary judge. No error is demonstrated in this regard. As the primary judge explained (and as is clear from the Tribunal’s decision record at [18]-[29]), the relevant adverse issue was put to the appellant in more than sufficient detail for the appellant to respond.

15    Ground 3 has two aspects: first, it alleges error is demonstrated by reason of the fact that the primary judge failed to find that the Tribunal failed to consider the appellant’s claim of harm from the Maoists in finding he had no political interest or opinion; secondly, that it was irrational or unreasonable for the Tribunal to rely on the material in concluding that Maoists did not harm or try to harm the appellant. As I have indicated above, this was an argument advanced before the primary judge in the context of a contention made that the decision was arbitrary. In relation to the first aspect, it is evident that the Tribunal considered the appellant’s claims of harm from Maoists (see [15]-[17] and [22]-[25] of the decision record) and moreover, the Tribunal stated that it had carefully considered the appellant’s claims and evidence regarding the alleged harm from the Maoists, but on the basis of country information and its findings as to credibility, rejected the appellant’s contention that the attacks took place. There is no error demonstrated in the primary judge’s rejection of the argument that the decision was arbitrary. The credibility findings revealed a logical basis.

16    As to the second aspect, the primary judge was correct in rejecting the notion that arbitrariness was demonstrated by the way the Tribunal dealt with the appellant’s contention that he was attacked. The decision record at [23] and [37] notes that there was no reporting of any incidents as alleged by the appellant.

17    This leaves the one matter which might at least be thought to have some more substance, namely, that the primary judge fell into error by reason of his consideration as to whether the s 438 certificate issued in relation to this matter caused a jurisdictional error.

18    Reference has already been made above to MZAFZ, which is well known as a case in which Beach J accepted that the Tribunal had committed jurisdictional error based on the legality of the procedure adopted by it in relation to a s 438 certificate. It is unnecessary, yet again, to traverse the details of MZAFZ save to note that the Minister accepts that the s 438 certificate relevant to the appellant is invalid.

19    It is also well known that in Singh, the Full Court (Kenny, Perram and Mortimer JJ) considered whether the Tribunal is required, as a matter of procedural fairness, to disclose the existence of a certificate issued pursuant to s 375A of the Act (which, at least in relevant respects, is in similar terms to s 438 of the Act).

20    The Full Court identified why, when a certificate is issued, procedural fairness is enlivened within the scheme of the Act and observed as follows at 315 [42]:

The effect of the certificate, if valid, is to require the Tribunal to conduct the review without disclosing the documents or information the subject of the certificate to an applicant. It is possible, as Wilcox J was inclined to think in Burton (at [40]), that the Tribunal may be able to provide particulars of the confidential material sufficient to satisfy the requirements of s 359A whilst not infringing those of s 375A. But even where this occurs, the fact remains that the extent of an applicant’s participation in the review is circumscribed by the existence of the certificate which, even with particulars, denies access to relevant material. In that sense, the certificate has the immediate effect of diminishing an applicant’s entitlement to participate fully in the review process. That is a sufficient interest to enliven an obligation of procedural fairness.

21    I made reference above to the fact that this matter was adjourned pending the delivery of a number of Full Court decisions dealing with the issue of certificates. They are Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. Each of these cases concerned whether a Tribunal breached procedural fairness obligations in circumstances where a s 438 certificate had not been disclosed and whether evidence could be admitted for the purpose of establishing whether a denial of procedural fairness had taken place.

22    Importantly for present purposes, the Full Court in CQZ15 considered whether the non-disclosure of a s 438 certificate must inevitably lead to a finding of procedural unfairness, noting at [68]-[69]:

[68] It may be accepted that the non-disclosure by the Tribunal of the existence of a notification under s 438(2) of the Act may give rise to a denial of procedural fairness, as decided in MZAFZ. The Minister did not contend to the contrary. It does not, however, follow that the non-disclosure of such a notification will always give rise to a denial of procedural fairness. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined.

[69] If, as the Minister contended, the contents of documents covered by the certificate or the notification in this case were found on inspection to be incapable of having any bearing on the decision of the Tribunal, then one would likely conclude that the non-disclosure of the certificate and the notification could not have deprived the applicant before the Tribunal of an opportunity to advance his or her case. This would be the case, whether or not the certificate or the notification was valid.

23    Further reference was made by the Full Court at [72]-[73] to the considerable forensic difficulties which might arise in relation to particular cases, particularly where it was necessary for the reviewing court to speculate as to what an applicant might or might not have done. Despite this, as is clear from CQZ15, it is necessary for regard to be had to the particular circumstances of the individual case in order to understand the consequences of non-disclosure.

24    At [4] above, I made reference to the materials which were before the delegate of the Minister, based on the decision record. It is apparent that the decision record does not reveal that the delegate had access to the file for the 2011 Decision, which becomes apparent when one has regard to the documents in the appeal book. The certificate itself (AB143) identifies that the information, the disclosure of which was asserted to be contrary to the public interest, was what was described as “folios 102-101” which, using the familiar formulation, were said to “contain information relating to an internal working document and business affairs”. Before the primary judge was an affidavit affirmed on 27 October 2016 by an employed solicitor of Sparke Helmore, the solicitors for the Minister, in which the deponent deposed at paragraph 5 that:

The reference in the s 438 certificate to certain “folios” is a reference to certain documents included in the Department’s files relating to an earlier application for a protection visa by the [appellant] (CLF2011/6547).

25    Those folios were annexed to the affidavit and the evidence was admitted by the primary judge: see [23] of the primary judgment.

26    The primary judge concluded that there was no error in the Tribunal’s decision of the kind identified in MZAFZ for two reasons: first, it was not apparent that the Tribunal had acted upon the invalid certificate; and secondly, that in the circumstances, there was no unfairness to the appellant because the documents were not before the Tribunal (at [22]). At [23], his Honour went on to note that:

The documents referred to in the certificate were in evidence before me. The first page of the document appears to be a printout from an electronic system recording movements and visa details for the applicant and two other people described as the applicant’s parents. The second document is a pro forma document described as “General File Closure Notice” dated 21 July 2011. Neither of those documents could have been relevant or significant to the decision to be made by the Tribunal and so any regard paid to them could not, in my view, have affected the outcome of the application.

27    In my view, the primary judge was correct in adopting an approach which was not dissimilar to the approach taken in BEG15 in respect of which the Full Court found no fault. In that case, the Full Court noted at [32]-[33]:

[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.

28    This case represents an example where the documents referred to in the certificate were irrelevant to the issues which fell for the Tribunal’s decision, and it is evident that the Tribunal had no regard to the documents the subject of the certificate. The primary judge was, with respect, correct to find that this was the case and find that the circumstances were distinguishable from those which arose in MZAFZ. No appellable error is demonstrated.

D    Conclusion

29    It follows that no error on the part of the primary judge is identified and the appeal must be dismissed with costs.

Associate:

Dated:    30 April 2018