FEDERAL COURT OF AUSTRALIA

SZTYV v Minister for Immigration and Border Protection [2018] FCA 1076

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The appellants are a mother and daughter who are citizens of Lebanon. They arrived in Australia on 17 August 2012 with a Sponsored Family Visitor (UL-679) visa. On 16 November 2012, they applied for a Protection (Class XA) visa and a delegate of the first respondent (the “Minister”), refused this application on 8 August 2013. An application for review of this decision was made to the second respondent, then known as the Refugee Review Tribunal (the “RRT”), which then affirmed the Minister’s decision. An application for judicial review of that decision was made in the Federal Circuit Court of Australia (the “FCC”), which was dismissed on 23 January 2018. The appellants now appeal that decision to this Court.

2    The essential basis for the claim for protection is that the appellants are Sunni individuals from the city of Tripoli, Lebanon who fear persecution by the Alawites living in that city. The appellants claim that, when in Australia, their house in Lebanon was damaged and robbed by Alawites and their family had to escape to live elsewhere.

THE RRT DECISION

3    The RRT did not accept the appellants’ factual claims concerning the location of their home in Tripoli. It relied, in part, on the contents of a letter sent anonymously to the Department of Immigration and Border Protection (the “Department”) from Lebanon, which claimed that the mother had made false statements in her visa application about her residential address in Tripoli (the “Adverse Letter”). It found as follows at [32], [34] and [35]:

32    I do not accept that the applicant lives in Jabal Mohsen, that the house was attacked or that it has been occupied by an Alawite family. To begin with, she was quite vague and inconsistent regarding the location of her house, claiming that the whole area of Qubbeh (sometimes written as Kobbe) incorporated the area of Jabal Mohsen, which is where she was from. She claimed that her parents1ived in a village called Hilan, near Zgharta (about 10 km from Tripoli proper).

…

34    Given the applicant’ s lack of credibility, I lend weight to the anonymous information provided to [the Department of Immigration and Border Protection] (folio 43) that the applicant had two houses in Lebanon; one in Hilan and one in Tripoli next to the al-Hakumi (Government) Hospital that she had packed up prior to coming to Australia. There is a Tripoli Government Hospital in Kobbe, and I am satisfied that the applicant has houses in Hilan (as she outlined in her application) and in Qubbeh. The information given also included detailed and accurate personal information relating to the applicant and her daughter.

35    I do not accept that the applicant lives in Jabal Mohsen, as maps indicate that Qubbeh and Jabal Mohsen, while adjacent, are separate. While I accept that there are periodic periods of conflict in Jabal Mohsen, given that the applicant does not live there she would be unaffected by them. And even if there was a possibility of fighting in the future spilling over into Qubbe[h], she has a residence in Hilan to which she could move. The fact that she has not done so would indicate that she feels in no danger in Qubbe[h].

(Footnotes omitted)

4    As will be seen, the last sentence at [34], supra, assumed great prominence before me.

5    The RRT also did not accept the appellants’ claim that there had been an attack on what they said was their home. It found this assertion to have been a fabrication. It said at [38] and [39]:

38    I do not accept that the applicant’s house has been taken over by an Alawite family. There is no independent country information available to the Tribunal, nor was any provided by the applicant despite being invited to do so, that indicates there have been any instances where people have been evicted from their residences and Alawite families moved in. I lend little weight to the post-hearing provision of what were claimed to be Facebook posts confirming that tens of houses had been confiscated. They are untranslated in Arabic, there is no context relating to them such as who posted them or when they were posted, nor is there an indication of the background of the Tripoli or Jabal Mohsen News Networks whose accounts they were allegedly on.

39    Her family appears to have done nothing to try to rectify the situation, or to evict the illegal tenants. She claimed that her husband had complained to a committee but was unable to name the committee. She was also asked to ascertain the name of the committee from her husband and to provide a copy of the complaint/application post-bearing however she did neither. I am satisfied that the lack of any corroboratory county information or evidence relating to the complaint is because the incident never occurred.

6    It followed that the RRT found that the appellants did not satisfy the criteria for the grant of a protection visa under either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

7    I should add that an earlier RRT decision reviewing the same matter had been quashed by consent orders made by the FCC on 3 March 2015.

THE FCC DECISION

8    The application for judicial review in the FCC relied upon the following three grounds:

The Member of the Tribunal misunderstood my claim and based his decision on [an] assumption without verifying the document submitted and contrary to his finding that I am not reliable, credible or truthful witness and that I fabricated my claim, the Member is unreasonable and his mind is affected by bias.

I ask the Honourable Court to take into account my previous application before the Court which was quashed.

The Member’s decision is affected by error of law as he failed to look at the evidence submitted which is genuine contrary to his finding he failed to contact the proper authority to verify the genuine evidence as original copies were submitted to the previous Federal Circuit Court hearing in September 2014.

9    A fourth ground was the reservation of a right to file the transcript of the proceedings before the RRT.

10    The first ground was rejected by the learned primary judge on the basis that it did not disclose jurisdictional error and was an attack on findings which were open to be made by the RRT. The second ground was rejected on the basis that the quashing of the first RRT decision did not mean that the second RRT decision had also been infected with jurisdictional error. The third ground was rejected as an attempt to review the merits of the facts found.

11    These grounds of review were, it would seem, the subject of further submissions, each of which the learned primary judge also rejected. It is unnecessary for me to set out the detail of those submissions as they were not pursued on appeal. However, an issue arose below concerning compliance with ss 424A and 424AA of the Act. Section 424AA provides:

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so--the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

12    Section 424A provides:

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

13    Relevant contents of the Adverse Letter had been disclosed by the RRT to the appellants in the following terms:

... another document which was a piece of information that was given to the Department of Immigration in which it says you have two houses in Lebanon. You have one house in Hilan, which is where you[r] husband and your children currently live, and you also have a house in Tripoli next to Al Hakumi Hospital…

…

---and that you have moved your furniture out of that house in Tripoli and placed it in storage; and that you were falsely applying for a protection visa by saying that your house in Tripoli had been destroyed, when this was not the case; and that you have submitted documents from overseas that allegedly certified your situation, but that they were false documents not for [sic] your house but for a different house; and that you had previously unsuccessfully applied for a carer visa that hadn’t been successful and was, therefore, now applying for a protection visa using false information.

Now, the combination of both of those pieces of information may lead me to believe that you primary residence is in Hilan and that you may have – and that if you do have a house in Tripoli, that is not damaged and is perfectly habitable, and your family has moved out while you seek a reason to stay in Australia. Now, because of this, the tribunal may find that you are fabricating your account of your house in Tripoli having been taken over by an Alawi family, and you are motivated in this by trying to find a way to gain residency in Australia. Now, you may have additional time to respond to that, but I would ask for you to comment on that information.

14    The foregoing information is reflected in the contents of [34] of the RRT reasons, supra. However, as the primary judge observed, the RRT did not disclose the entire contents of the Adverse Letter, and in particular, did not disclose the matters described in the last sentence of [34], viz, the “detailed and accurate personal information relating to the applicant and her daughter”. The hearing before the learned primary judge was then adjourned to permit further submissions to be filed.

15    Just before delivering judgment, the FCC was sent an email by the Minister’s solicitors informing it that s 438(1)(b) of the Act applied to certain documents, and that the proceeding could be affected by the judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and the decision of Full Court of this Court in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305.

16    Section 438 of the Act relevantly provides:

(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.

17    Following the dismissal of the application for special leave to appeal to the High Court in Singh, the learned primary judge delivered his judgment, dismissing the application for judicial review. In that respect, any possible application of s 438(1)(b) played no role in the reasons given; indeed, the information said to have been received “in confidence” would appear to have not been before the FCC.

18    Amongst other matters, his Honour decided that there had been compliance with s 424AA. At [73] the judge said:

When considering this question it is necessary to refer to three items of information: what the Tribunal said to the applicant during the hearing (which I have set out in paragraph 12 of these reasons); what the Tribunal said about the contents of the Adverse Letter (which I have set out in paragraph 19 of these reasons); and the contents of the Adverse Letter. On the basis of these three items, I infer that the only parts of the Adverse Letter on which the Tribunal relied are those which it disclosed to the applicant during the hearing before it, and which it set out in its reasons for decision. In my opinion, there can be little doubt that the information from the Adverse Letter the Tribunal disclosed to the applicant during the hearing (which I have set out in paragraph 12 of these reasons) was information the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision, and that by disclosing that information the Tribunal gave clear particulars of the information that it considered would be the reason or a part of the reason for affirming the delegate’s decision. And there can be little doubt that all but the emphasised portion of the passage from the Tribunal’s reasons I have set out in paragraph 19 of these reasons repeated the substance of the information the Tribunal disclosed to the applicant at the hearing.

19    The primary judge also found that the material comprising the “detailed and accurate personal information relating to the applicant and her daughter” did not need to be disclosed because it did not constitute “information” for the purposes of s 424AA. In SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1, the plurality decided that “information”, for the purposes of that provision, meant documentary or other material which constitutes a rejection, denial or undermining of an applicant’s claim. On this basis, the primary judge concluded as follows at [75]:

The omitted information does not in its terms constitute a rejection, denial or undermining of the applicant’s claims to be persons to whom Australia owes protection obligations. Stated another way, although the Tribunal considered the omitted information to be relevant to assessing the credibility of the information contained in the Adverse Letter, the omitted information was not capable of serving as an immediate premise for the Tribunal’s not accepting the applicant’s claims. The immediate premise or premises on which the Tribunal relied was or were constituted by the particulars of information which the Tribunal disclosed to the applicant during the hearing before it. Thus, although the Tribunal relied on the omitted information, that information was not “information” within the meaning of s.424A of the Act; and the Tribunal, therefore, made no jurisdictional error by not providing to the applicant clear particulars of the omitted information.

20    Before the FCC, the Minister also made for the first time a claim of public interest immunity in relation to the Adverse Letter pursuant to s 130 of the Evidence Act 1995 (Cth). That application was upheld by the primary judge and that finding was not challenged on appeal.

APPEAL

21    On appeal, the appellants were represented by Mr Godwin of counsel who appeared on a pro bono basis. The Court is grateful to him for his assistance. There were, in essence, two grounds of appeal. Each was new. Leave, with the consent of the Minister, has been given by me to rely upon both grounds.

22    Ground one was in these terms:

1.    The Tribunal failed to comply with s 424A of the Migration Act.

Particulars

(1)    The Tribunal did not comply with s 424A in respect of the following information it used as a part of a reason for affirming the decision under review:

(a)    information in a letter from an anonymous source date[d] December 2018;

(b)     that in her visitor visa application the appellant said that she lived in Rahbat Street Kobb;

(2)    In relation to Particulars 1(b) above the Tribunal attempted but failed to comply with s 424AA because he did not tell the applicant that she could seek additional time to comment or respond to the information.

23    The second ground was raised for the first time at the hearing of the appeal as a possible new ground. It was a new point concerning s 438 of the Act, not dealt with below. As ultimately composed in submissions filed following the hearing (as to which see below), it comprised seven sub-grounds and was in these terms:

1.    The Tribunal failed to afford the appellants procedural fairness as it did not inform them that the Minister had provided the Tribunal with a certificate under s 438 of the Migration Act 1958 (the Act).

2.    The Tribunal failed to afford the appellants procedural fairness as it did not inform them of the content of the certificate under s 438 of the Act that the Minister had provided to the Tribunal.

3.    The Tribunal followed a procedure contrary to law in excess of its jurisdiction by acting in compliance with a certificate which had been invalidly issued by the Minister purportedly pursuant to s 438 of the Act.

4.    The Tribunal constructively failed to exercise its jurisdiction by not properly turning its mind to whether the information in the documents identified in the certificate which had been invalidly issued by the Minister purportedly pursuant to s 438 of the Act ought to have been disclosed to the appellants pursuant to s 424AA or s 424A of the Act.

5.    The Tribunal failed to afford the first appellant procedural fairness as it did not give the appellants the opportunity to make submissions on the validity of the certificate.

6.    The Tribunal failed to afford the appellants procedural fairness as it did not disclose the extent to which the Tribunal would take into account information covered by the certificate.

7.    The Tribunal failed to afford the appellants procedural fairness as it did not give the applicant an opportunity to seek a favourable exercise of the Tribunal’s discretion under section 438(3) of the Act.

24    Before me, the appellants sought an adjournment on the basis, amongst other things, that the High Court had just granted special leave to appeal the decisions of BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 and Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1. The correctness of these cases, together with MZAFZ, was, I was told, a matter which might be potentially relevant to the new grounds concerning s 438. I declined to adjourn the hearing but gave the appellants time to consider this new point and further granted leave to the parties to file additional written submissions (if any) concerning s 438. I was then urged to defer the giving of final judgment until the final determination of BEG15 and CQZ15. For reasons which follow, I have not considered it necessary to defer the delivery of my judgment.

THE FIRST GROUND

25    There were two parts to the appellants’ first ground of appeal. The first, was that the RRT had failed to comply with s 424AA of the Act (the actual ground of appeal refers to s 424A, but the parties proceeded on the basis that it should have referred to s 424AA) when it did not disclose the contents of the final sentence of [34] of its reasons, supra, to the appellants, namely, the “detailed and accurate personal information relating to the applicant and her daughter.” The second, was that there had been a failure to comply with s 424AA because the RRT did not tell the appellants that they could seek additional time to comment on an allegation that the mother had nominated a different residential address in Tripoli in the appellants’ Visitor visa application.

26    As to the first part, the learned primary judge was of the view that the statement in question was not “information” for the purposes of s 424AA as it went solely to the credit worthiness of the mother. The appellants disagreed and relied upon a decision of Flick J in SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505. In that case, the RRT had disclosed the existence and contents of a letter, expressed in very similar terms to one relied upon by the applicant in that case, but which had surfaced in an unrelated application. It declined, however, to identify the author of the letter, or the organisation on whose behalf it had been sent. Flick J decided that these matters constituted “information” for the purposes of s 424A. His Honour said at [23]:

There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to “comment... or respond...” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.

27    Here, the appellants submitted that the “detailed and accurate personal information” should have been disclosed so that its accuracy could have been checked. In the appellants’ submission, they were given no opportunity to check the correctness of this information in circumstances where, inferentially, it was relied upon by the RRT to bolster the credibility of the information which was disclosed. In that respect, it was argued that this material was bound up with that which was a rejection, denial or undermining of the appellants’ claims, namely the statements which were disclosed pursuant to s 424AA concerning where the appellants were said to live in Tripoli. To use the language of Flick J, it formed part of the “surrounding context” which should have been disclosed.

28    The Minister disagreed. He put his case in different ways. He emphasised that ss 424A and 424AA imposed an obligation of disclosure that was narrower than the common law obligation of procedural fairness. Here, it was said, one should not assume that the contents of the last sentence of [34] were relied upon by the RRT to bolster the probative strength of what was otherwise said in the Adverse Letter about where the appellants lived. The contents, it was claimed, were merely descriptive of the letter. But even if that was not so, nonetheless, in isolation the contents of the last sentence did not constitute “information” in the required sense. For that purpose, the Minister relied upon [17] of SZBYR, where the plurality said:

Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

(My emphasis)

29    The Minister, in particular, emphasised the words “in their terms” in the foregoing passage as suggesting that the information must, unconnected to anything else, constitute a rejection, denial or undermining of a claim made. In that respect, I also note that the plurality had earlier said at [15]:

Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.

30    The Minister also placed reliance on a decision of the Full Court of this Court in SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109. In that case, the RRT did not disclose independent material published on the internet about the religion known as Falun Gong. This material was compared with the applicant’s answers in that case about the history of this religion, to justify the conclusion that that applicant had fabricated her claims to be a follower of Falun Gong who feared persecution in China. The applicant contended that there had been a breach of s 424A. Buchanan J, with whom Spender and Perram JJ relevantly agreed, rejected that submission and said at [104]:

I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant’s answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.

31    Gageler, Keane and Nettle JJ recently approved this passage in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [9].

32    In my view:

(1)    I do not accept the Minister’s submission that the last sentence of [34] of the reasons given by the RRT is simply descriptive of the contents of the Adverse Letter. I agree with the appellants that the last sentence is part of the explanation for why the RRT considered that it was appropriate to “lend weight to the anonymous information”. It was appropriate precisely because the personal information was both “detailed” and “accurate”.

(2)    However, being an explanation for why the anonymous information was creditable, it did not otherwise, in its terms, constitute a rejection, denial or undermining of the appellants’ claims. In SZBYR, the plurality also said at [18]:

Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 236 FCR 549] that the word “information”:

…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…

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

(Footnotes omitted)

(3)    I consider the contents of the last sentence of [34] to form part of the RRT’s “subjective appraisals, thought processes or determinations” to use the language of VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549, supra, as approved in the foregoing passage by the plurality in SZBYR. The sentence constituted a revelation about why the RRT had assessed the information about where the appellants lived from the Adverse Letter to be a matter to “lend weight” to.

(4)    This conclusion does not involve any conflict with the decision of Flick J in SZNKO. His Honour was well aware of, and applied, the reasoning of the plurality in SZBYR. The conclusion reached by the Court in that case turns upon its particular facts.

33    This leaves for consideration the second part of this first ground. The appellants agreed that the RRT had disclosed to them the fact that the mother had used a different residential address in the appellants’ Visitor visa application. They contended, however, that the RRT had failed to advise the appellants “that [they might] seek additional time to comment on or respond to” that information for the purposes of s 424AA(1)(b)(iii).

34    The transcript records that the RRT member below understood his obligations under s 424AA. Having made the disclosure set out at [13] hereof, the member then said:

Now, you may have additional time to respond to that, but I would ask for you to comment on that information.

35    Then, the member disclosed the information concerning the Visitor visa application. He said:

Also, under section 424AA, I have a copy of your visa application to come to Australia, and, first of all, it says that you had previously been refused a visa twice in 1998.

….

Okay. Now, the other issue is – sorry – the other issue is, on this visa application, you gave your residential address as Arandat Street, Obai, whereas you said that you needed to give them an address just for the postal – just for the information that they sent by post. But there’s a - - -

…

Which is my point, because there’s a separate section for your postal address where they send you correspondence. So my concern is that Arandat Street, Obai may be your permanent address because this is what you put in your protection – in your visitors visa application. And if you have lived somewhere but just want the mail sent to that address, you would have written your residential address, and Arandat Street as your postal address. So that’s a – there’s inconsistency between what you said before about the reason why you put this address and what you have actually put on this visitors visa application. This inconsistency may call into question your credibility about your residential location and you residential circumstances back in Lebanon.

36    There was then no expression by the member of the appellants’ right to seek additional time to comment upon this particular information.

37    The Minister submitted that the RRT was wrong to consider that it was ever obliged under s 424AA to disclose to the appellants the address given by them in their Visitor visa application. Accordingly, it was said, there was no need to inform the appellants that they could seek additional time to comment.

38    With respect, the Minister’s submission should be accepted. Examining the information “by its terms”, there is nothing about the nomination of the particular address in the visa application which constituted a rejection, denial, or undermining of the appellants’ claims. It is only when that address is compared with the residential address which now formed part of the appellants’ case, that the address assumes importance. To use the language of Buchanan J in SZJBD, supra, the visa application address only has “significance when matched with” the address now contended for by the appellants, but otherwise “shorn of the analytical context” it is a “neutral” fact. Accordingly, it did not constitute “information” for the purposes of s 424AA, and the obligation to invite the appellants to have more time to consider it never arose.

THE SECOND GROUND

39    The new sub-grounds of review relate to a failure on the part of the RRT to refer to the existence of what the appellants describe as the Minister’s certificate. The validity of that certificate is also impugned. Two matters arise. First, what was said to be a certificate was not a certificate at all. Rather, it was a “notification”, made on 8 August 2013, which was expressed in these terms:

I notify the Refugee Review Tribunal that paragraph 438(l)(b) of the Migration Act 1958 applies to the information in folio 89 of file number … This information was given to an officer of the Department of Immigration and Citizenship in confidence.

In my view, this information should not be further disclosed to the applicant or the applicant’s representative because it breaches the privacy of the individual who had provided the information in confidence.

The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.

40    The information said to be confidential was not produced by the Minister to the RRT. Rather, secondary evidence of the information was produced in the form of a Departmental note expressed as follows:

Allegation received that client has made false statements on her PV application.

41    Both the notification and the Departmental note were only produced to the appellants for the first time following the hearing before me. As the appellants submit, it would appear that the allegation noted by the Department is different from the accusations made in the Adverse Letter.

42    The Minister’s notification here is not like the “certificate” that was the subject of the decision of this Court in MZAFZ. That is not surprising. The relevant legislative provision said to be engaged here – s 438(1)(b) – was not the one considered by the Court in MZAFZ, and the language it uses does not refer to any certificate or process of certification. Section 438(1)(b), by its terms, applies when a document, or matter in a document, or information was given to a Minister, or to an officer of the Department, “in confidence”. In my view, the provision calls for the application of relevant equitable principles concerning the existence of a duty of confidentiality to the facts of the production of a document or matter. Thus, to be satisfied, the information or matter would need to have the necessary quality of confidence and have been received in circumstances importing an obligation of confidence: Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281 at [39]; Coco v AN Clark (Engineers) Ltd [1969] RPC 41. No part of that enquiry turns upon the opinion of the Minister, or upon the contents of any document, or certificate, created by the Minister or the Department. If a document or matter is found to have been given “in confidence”, s 438(3) will be engaged, and will require the Administrative Appeals Tribunal to consider whether to disclose that document or matter to the applicant.

43    Here, if it matters, the notification made by the Minister and the sentence, set out above, concerning the allegation made against the appellants, falls far short of what is required to demonstrate that the material here was received “in confidence”. The description of the allegation says nothing about the need for any confidentiality. And I would not otherwise infer the presence of an obligation of confidence from the circumstances of its anonymous production. It follows, again if it matters, that the Minister was not obligated to give his notification: s 438(2) was not engaged.

44    The foregoing may be contrasted with s 438(1)(a), considered by Beach J in MZAFZ, which does turn on the issue of a certificate by the Minister which states that disclosure would be contrary to the public interest “for any reason specified in the certificate”. It follows that the submission made by the appellants concerning the “validity” of the certificate, and the reliance upon MZAFZ, is misconceived. There is no certificate for the purposes of s 438(1)(b) which may or may not be valid. And the notification required to be given under s 438(2) is just that: notice of a view that a document or matter was received in confidence. Whether, for the purposes of s 438(1)(b) the document or matter was impressed with the necessary quality of confidence required is, as I have said, a matter for the RRT, or now the Administrative Appeals Tribunal, to decide on the merits.

45    The second matter is that whilst the Minister notified the RRT of his opinion under s 438(1)(b) on 8 August 2013, the decision of the RRT made no reference to that opinion or to the allegation noted by the Department. It is unclear to me whether the RRT knew about the notification and/or the Departmental note. On the one hand, in CQZ15, the Full Court of this Court said at [64] and [65]:

64    It may be observed that, as a general rule, the documentary material before a decision-maker is treated as being relevant, in the broad sense, for the purposes of judicial review: see Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 (Lockhart J); compare also SZRCI v Minister for Immigration and Citizenship (No 2) [2012] FCA 1291 at [13]. We, therefore, accept that, as the Minister submitted, the Documents (as exhibited to the first Murano affidavit) were prima facie relevant to the judicial review proceeding in the FCC.

65    Further, in the absence of evidence to the contrary, it may be assumed, as Beach J did in MZAFZ, that the Tribunal has had regard to (or, in his Honour’s words “acted in some unspecified way on”: MZAFZ at [40]) any document said to be covered by a s 438 certificate in coming to its decision. To say this, however, is to allow for the possibility that evidence may be led to show that the decision-maker could not in fact have had regard to such a document in coming to his or her decision. In this context, to say a decision-maker has had ‘regard’ to or ‘acted on’ a document is to say that the decision-maker has treated the document as material in some way to the decision on review.

46    In contrast, and on the other hand, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said that s 430 of the Act entitled a court to infer that any matter not mentioned in the s 430 statement was not considered by the RRT to be material. Thus, at [69], their Honours said:

Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution.

(Footnotes omitted)

47    Here, it may, for the moment, be accepted that the Minister’s notification and Departmental note were probably received by the RRT and were thus “before” it. However, it would appear that the actual evidence referred to in the note was not before the RRT. Was the Tribunal obliged to raise this secondary evidence with the appellants? Was it obliged to address it in its reasons for decision?

48    In relation to the issue of disclosure, having regard to:

(1)    the fact that it would appear that the underlying evidence was not before the RRT, but only secondary evidence of it, and even then, secondary evidence of the most general kind made anonymously, thus lacking any real probative weight; and

(2)    the fact that in the context of the Adverse Letter, disclosure was made by the RRT of the very same substantive allegation, namely that the appellant’s mother had falsely applied for a Protection visa,

in my view, the RRT was not obliged to disclose the notification made by the Minister and the secondary evidence pursuant to s 424AA or s 424A. The Departmental note added nothing to the more specific allegations of falsity in the Adverse Letter which were disclosed. The appellants were, accordingly, given a proper opportunity to refute the allegation that the mother had made false statements in the visa application. Moreover, I accept that the content of the secondary evidence could only have been a matter going to the credit-worthiness of the mother. Because the allegation of falsity was never particularised, it could not, by its terms, evidence or prove any fact or material that constituted a rejection, denial or undermining of the appellants’ claims. It did not address any of those claims because it did not identify what “false statements” had been made. As such, it was not “information” the purposes of s 424AA or s 424A.

49    For similar reasons, I find that the RRT was not obliged to refer to the Minister’s notification and the Departmental note in its reasons for decision. As is well known, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 the Full Court of this Court said at [46]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

50    I am not satisfied that the contents of the Departmental note were relevant to the RRT’s consideration of the appellants’ claims in circumstances where the RRT had before it the more specific Adverse Letter. If it did have notice of it, in my view, I should infer from the contents of its reasons that it was not considered because it was either found to be irrelevant or to lack any probative weight. By so acting, the RRT did not err.

51    No part of the foregoing reasoning requires me to consider or resolve the analysis of MZAFZ by the Full Court in CQZ15 or BEG15. The only part of the reasoning of CQZ15 I have relied upon above is, in my view, in agreement with MZAFZ.

CONCLUSION

52    The appeal is dismissed with costs as agreed or assessed.

Associate:

Dated:    20 July 2018