FEDERAL COURT OF AUSTRALIA

ALD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    Leave is refused to the appellant to rely on grounds 3 and 4 of the amended notice of appeal filed on 7 June 2018.

3.    The appeal is dismissed.

4.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Backround

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) made on 17 May 2018 dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister to refuse to grant the appellant a Protection (Class XA) visa: ALD16 v Minister for Immigration and Border Protection [2018] FCCA 1185.

2    The appellant (or ALD16) is a citizen of India. He first arrived in Australia on 13 June 2009 as the holder of a student visa. On 26 August 2013, the appellant lodged an application for a subclass 572 dependent student visa, which was refused on 6 November 2013. After an unsuccessful application for review of that decision to the then Migration Review Tribunal, on 14 March 2014 the appellant lodged his application for a protection visa.

3    The FCCA Judge summarised ALD16’s claims to protection (as contained in his application for a protection visa) at J[6] as follows:

(a)    the Applicant was a member of the Chauhan caste and his family was the only family of that caste in his home village. The rest of the village was of the Malhi caste. The Applicant fell in love with a girl of the Malhi caste with whom he had an affair before being married to her. The family of the Applicant’s wife, that is, his in‑laws, were extremely hostile about their relationship and threatened to kill the Applicant if the relationship continued;

(b)    when the Applicant’s in-laws discovered the marriage, they began looking for the Applicant. They went to the house of the Applicant’s parents and threatened to kill him. The Applicant went into hiding at a relative’s house in a different city. The Applicant’s in-laws continued to look for him, offering a reward for information about his whereabouts;

(c)    the Applicant’s parents organised student visas for him and his wife to travel to Australia. The couple arrived in Australia on 13 June 2009 to “save [their] lives and future”;

(d)    the Applicant continued to live in fear that he would be subject to an honour killing for the reason of his inter-caste marriage. The Applicant’s in-laws learnt of the Applicant’s whereabouts in Australia, and began to threaten him over the phone and pressured his wife to leave him. According to the Applicant “[t]his caused a lot of tension in our family, and my wife got depressed and scared all the time. I don’t know what happened, and one day, my wife went away, and I lost all contact with her.” He tried his best to find her, but failed. This made him “go into depression as [his] love was lost, and [he] did not have any other reason to live”;

(e)    he was emotionally shattered, and he decided to go to India in November 2012 to find her and get her back. He tried to find her but did not succeed. He said: “my in-laws got to know that I am in India, and they attacked me,” and injured the back of his head;

(f)    his mother and relatives tried to save him from his in-laws. He fell on the ground unconsciously, and he was hospitalised. He reported the incident to the police, but no action was taken. His in-laws attacked him a second time, and the Applicant hid until such time as he could return to Australia. He does not know where his wife is, or what happened to her;

(g)    the Applicant’s in-laws are very powerful and influential people, and he fears for his life if he returns to India. His in-laws: “… have got contacts with the police and the politicians and will either kill [the Applicant] or get [him] behind bars without any reason… They can get [him] killed within seconds from anyone”;

(h)    the Applicant’s in-laws’ family are powerful and politically connected, and they will kill him, or have him falsely imprisoned if he goes back.

4    On 23 October 2014, the delegate refused to grant the appellant a protection visa. The delegate noted that the appellant did not attend the scheduled interview despite having been invited to attend by letter.

5    On 17 November 2014, the appellant lodged with the then Refugee Review Tribunal an application for review of the delegate’s decision. On 21 December 2015, the Administrative Appeals Tribunal (into which the Refugee Review Tribunal had been merged) wrote to the appellant inviting him to appear before the Tribunal at a hearing on 10 February 2016, noting that it had considered all material before it but was unable to make a favourable decision on that information alone. The appellant did not respond to the Tribunal’s correspondence, nor did he appear at the Tribunal hearing, or attempt to contact the Tribunal regarding his non-appearance. On 10 February 2016, the Tribunal affirmed the decision under review.

Application to FCCA

6    On 29 February 2016, the appellant filed an application for judicial review of the Tribunal’s decision in the FCCA, relying on three grounds:

(1)    The Tribunal erred in making final decision. The RRT adopted harsh approach to judge the application criteria.

(2)    The Tribunal made decision in hurry based on incomplete and unrelated information.

(3)    The Tribunal did not provide sufficient opportunity to provide the required information.

7    The appellant appeared in at the hearing of his application on 23 April 2018. He did not file written submissions nor did he file any evidence as provided for in orders made by a Registrar of the FCCA on 24 March 2016.

8    The FCCA Judge summarised the review conducted by the Tribunal and its decision record (or DR) at J[10]-[24] as follows:

The Tribunal’s review and decision

10.    The Applicant provided a street address and an email address as his correspondence details in his application for review lodged with the Tribunal on 17 November 2014. On 18 November 2014, by email, the Tribunal acknowledged the receipt of the application.

11.    By letter dated 21 December 2015 and addressed to the Applicant at his email address, the Tribunal invited the Applicant to appear before it to give evidence and present arguments. The letter stated that the Tribunal was unable to make a favourable decision on the information contained in the material before it. The invitation specified a date, 10 February 2016, a time, 9.30 am (NSW time), a location – level 11, 83 Clarence Street, Sydney New South Wales 2000 – and indicated that if the Applicant required an interpreter, he advise the Tribunal at least seven days before the hearing. The invitation also set out the following note:

If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

12.    The Applicant did not attend the Tribunal hearing. There is no evidence before the Court of any explanation having been provided to the Tribunal by the Applicant, or of any request for an adjournment. As indicated, on 10 February 2016, at 4:14 pm, the Tribunal affirmed the Delegate’s decision.

13.    In its reasons for decision, the Tribunal commenced by recording that the Applicant had not appeared at the Tribunal hearing. It summarised his claims. It also referred to the fact that the Applicant had failed to attend the scheduled interview with the Delegate. It stated that he had provided no further information.

14.    The Tribunal found that the Applicant is a Punjabi Sikh and can read, write and speak in Punjabi, Hindi and English. He completed 10 years of education in India.

15.    The Tribunal recorded that by letter dated 21 December 2015, it had advised the Applicant that it had considered all the material before it, but was unable to make a favourable decision on that information alone and that it invited him to give oral evidence and present arguments at a hearing before the Tribunal on 10 February 2016. As I have noted, that letter contained a statement of the consequences if he did not attend the hearing. The Tribunal recorded that the Applicant did not respond to the letter, did not appear before the Tribunal on the day and at the time and place at which he had been invited to appear, nor did he contact the Tribunal about the failure to attend. He did not nominate a person to be an authorised recipient for him.

16.    The Tribunal found that the invitation was sent to the last address for service provided in connection with the review. Although the Tribunal did not expressly state it, I am satisfied that the address for service was the email address specified in the Applicant’s application to the Tribunal.

17.    In these circumstances, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.

18.    The Tribunal noted the Applicant’s claim that if returned to India he would be subjected to serious harm by or on behalf of the family of his wife because of their marriage. It is noted that the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the alleged fear, or that it is “well founded”, or that it is for the reason claimed.

19.    The Tribunal observed that the Applicant’s claims were lacking in detail in significant respects, and that he did not provide detailed information regarding the particular allegations he made. He had not provided detailed information to support his claim that he belongs to the Chauhan caste and that his family are the only members of that caste in their village. He had not provided detailed information to support his claim that all the other people in his village belong to the Malhi caste and do not like his family, nor to support his claim to have married a woman from the Malhi caste in his village, nor his claim that her family objected to their relationship and did not know about their marriage before they were married. He had not provided detailed information about the circumstances of how her family threatened him and his wife in India, or how they were able to locate them in Australia, or about the detail of the threats he claimed they made to both of them in Australia.

20.    He had not provided detailed information about the circumstances in which he claims his wife left him in Australia or about his claims that he has had no contact with her since that time. He had not provided detailed information to support his claim that when he returned to India he was attacked on two occasions, that he suffered injuries and was hospitalised, nor his claim that he reported one of the attacks to the police. He had not provided any detailed information to support his claims that his wife’s family are powerful and politically connected.

21.    The Tribunal stated that without more evidence from or on behalf of the Applicant than the evidence presently before it, the Tribunal could not be satisfied about why he left India or whether he cannot or will not return to India because he fears harm there, as he claims. The Tribunal said that if the Applicant had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity and it would have sought further information from him in relation to the matters the Tribunal raised.

22.    The Tribunal observed that although the Applicant had provided a number of documents, which on their face, support aspects of his claims, it did not have the opportunity to test the credibility of his claims or his reliability as a witness through his participation in a hearing, nor did the Tribunal have the opportunity to ask the Applicant to explain the particular details of what he fears would happen if he returns to India now or in the reasonably foreseeable future and the reasons why it would happen.

23.    The Tribunal found that there was insufficient evidence before it to be satisfied that the events and circumstances the Applicant raised were factual. The Tribunal went through each of the claims of the Applicant, as I have summarised above, and, on the evidence before it, did not accept any of them. On the evidence before it, the Tribunal was not prepared to, and did not, accept that the Applicant was separated from his wife, or that he did not know where she is or what had happened to her. On the evidence before it, the Tribunal did not accept that there was a real chance the Applicant would suffer harm from or on behalf of his wife’s family for reasons of their relationship and marriage, or any related reason, if he returned to India then or in the reasonably foreseeable future.

24.     For the reasons given, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations. The Tribunal affirmed the Delegate’s decision not to grant the Applicant a protection visa.

9    Addressing the first ground of the application, the FCCA Judge accepted that it raised two contentions, the first that the Tribunal erred in exercising its discretion to proceed under s 426A of the Migration Act 1958 (Cth) and the second that the Tribunal applied “a harsh approach” to judge the application criteria.

10    Noting that s 426A confers a discretionary power, the FCCA Judge found that there are two conditions to be met in order for that discretion to be exercised: first, the Tribunal must invite the applicant to appear at a hearing before it pursuant to s 425 of the Migration Act, in compliance with the notice requirements under s 425A of the Migration Act, and second, the applicant must fail to appear. The FCCA Judge found that both conditions had been met, finding that the invitation complied with the s 425A notice requirements, it was sent approximately six weeks before the hearing date and it contained a statement to the effect of s 426A. Noting that ALD16’s email address to which the Tribunal had sent the invitation was the same as that indicated on his application to the FCCA and that to which the Tribunal had sent its decision, the FCCA Judge found that it was not unreasonable for the Tribunal to proceed under s 426A in circumstances where the appellant had been properly invited to attend the Tribunal hearing.

11    In relation to the second contention, that the Tribunal was “too harsh” in its approach, the FCCA Judge found that it was “well established” that the Tribunal is not required to accept uncritically any and all claims made by an applicant, nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out. Her Honour, at J[44], said that it was for ALD16 to satisfy the Tribunal that his claims were made out and that the Tribunal did not unthinkingly reject his claims out of hand. Rather, the Tribunal said that it did not have enough information to be satisfied that the protection criteria of the Migration Act was made out. Her Honour found that it was open to the Tribunal to reach that conclusion and, in light of the paucity of the evidence before it, and noting the matters the Tribunal identified that it had wished to ask ALD16 about and get more information from him, there is no error apparent in the Tribunal being unable to accept his claims.

12    The FCCA Judge considered the second ground to be similar to the first ground. To the extent the second ground asserted that the Tribunal had before it “incomplete and unrelated information”, the FCCA Judge found that that was a matter for ALD16 to remedy by attending a Tribunal hearing and putting information before the Tribunal substantiating his claims. Given ALD16’s failure to attend the Tribunal hearing, for the same reasons that were given in relation the first ground of the application, the FCCA Judge found that no jurisdictional error was established.

13    The FCCA Judge understood the third ground, “not provide sufficient opportunity to provide the required information”, to be a complaint about a lack of procedural fairness in the conduct of the Tribunal’s review. The FCCA Judge noted that s 422B of the Migration Act prescribes that Div 4 of Part 7 is an exhaustive statement of the requirements of procedural fairness to be afforded in relation to the matters specified in that division and part of the Migration Act. Stating that it is clear that the Tribunal invited ALD16 to a hearing and the invitation complied with s 425A, the FCCA Judge found there was nothing in the evidence which suggested that ALD16 had not been afforded procedural fairness. It was for ALD16 to avail himself of the opportunity to attend the Tribunal hearing and provide evidence and submissions. He did not do so nor did he provide any explanation of any inability to do so. In those circumstances, and in the absence of particularisation of the ground, the FCCA Judge did not find any want of procedural fairness.

14    The FCCA Judge also dealt with a matter which was raised by the Minister, being a certificate which was purportedly issued under s 438 of the Migration Act. The FCCA Judge gave leave to the Minister to read an affidavit to which a copy of the certificate was annexed and to which redacted copies of the documents referred to were exhibited. That matter is raised by the sixth ground of the amended notice of appeal and the FCCA Judge’s consideration of it will be considered under that ground.

15    The FCCA Judge noted that there was no evidence that ALD16 was notified in any way about the certificate or the documents the subject of the certificate. Her Honour commented that that was unsurprising as he had not attended the Tribunal hearing.

Appeal

16    The appellant filed an amended notice of appeal in this Court on 7 June 2018, containing the following grounds (as written):

1.    The Tribunal erred in making final decision. The AATT adopted very harsh approach to judge the criteria

2.    The Tribunal made decision in hurry based on incomplete and unrelated information and does not gave much consideration to Complementary protection

3.    The Tribunal did not provide me any translator and I was not able to understand the AAT Member fully

4.    The decision fail to assess the risk to my life if I returned to India

5.    The primary Honourable judge erred in making the judgement in this matter

6.    The primary judge failed to calculate the risk of non disclosure of the certificate to me by AAT

17    The appellant did not file any written submissions. He appeared in person and the only oral submissions he made went to the merit of his claims to protection.

18    The Minister filed written submissions and appeared by his legal representative.

19    The proceedings were conducted with the assistance of an interpreter.

Ground 1

20    The Court accepts the Minister’s submission that this ground essentially repeats the first ground in the FCCA.

21    The FCCA Judge characterised this ground as containing two distinct contentions:

(a)    the Tribunal erred in exercising its discretion to proceed pursuant to s 426A of the Migration Act; and

(b)    the Tribunal applied “a harsh approach” to judge the application criteria.

22    There is no dispute that the appellant was advised that the Tribunal was unable to make a decision favourable to the appellant on the material before it alone and he was invited to attend the hearing scheduled for 9:30 am on 10 February 2016 to give evidence and present arguments by letter dated 23 December 2015. That letter was sent by email to the email address which he had provided for receipt of correspondence. The letter warned that, if he did not attend the scheduled hearing, the Tribunal might proceed to determine the matter without taking any further action. The invitation required by s 425 was therefore given by one of the methods specified in s 441A of the Migration Act (that is, s 441A(5)(d)), as s 425A requires. Section 441C of the Migration Act provides that a person is deemed to have received a document given by one of the methods so specified. The FCCA Judge therefore correctly concluded that ss 425 and 425A of the Migration Act had been complied with. The appellant does not contend that he did not receive the invitation. There is also no dispute that the appellant did not appear before the Tribunal at the scheduled hearing time, he did not seek an adjournment or otherwise communicate with the Tribunal concerning obtaining another hearing date. As a result, the relevant statutory prerequisites to the exercise of the Tribunal’s power under s 426A were met.

23    The statutory power given by s 426A is in the nature of a discretion, one which involves a decision by the Tribunal as to the course which it will take. Like any statutory discretionary power, it is subject to the presumption of the law that the legislature intends the power to be exercised reasonably. Section 426A is directed to the aims of efficiency contained within the broader objectives of the Migration Act requiring the Tribunal to provide a mechanism of review that is fair, just, economical, informal and quick. Consistently with those aims, the Tribunal has a degree of latitude in determining what is fair and just in a given case: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [12], [13] (Kiefel CJ).

24    The Tribunal’s decision record demonstrates that it did turn its mind to the exercise of its power under s 426A:

8    By letter dated 21 December 2015 the Tribunal advised him that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited him to give oral evidence and present arguments at a hearing at 9:30am on 10 February 2016. He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. He did not respond to the letter.

9    The applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear, nor did he contact the Tribunal about the failure to attend. He did not nominate a person to be an authorised recipient for him. The Tribunal finds that the invitation was sent to the last address for service provided in connection with the review. The Tribunal is satisfied that the applicant was offered the opportunity to appear before the Tribunal but that he did not do so. He failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

25    As the FCCA Judge observed at J[41] and J[42], the Tribunal gave reasons for exercising its discretion which give an evident, transparent and intelligible justification for the Tribunal proceeding to exercise its discretion pursuant to s 426A of the Migration Act. While the decision was, from the appellant’s perspective, “very harsh”, he has not said why he did not attend the hearing or what further evidence he might have presented. Indeed, as observed by the FCCA Judge, apart from filing the application for review, the appellant did not engage with the Tribunal’s review process at all, as he did not engage with the process before the delegate. While someone else might have taken steps to allow the appellant another opportunity to attend a hearing, the Tribunal’s decision to proceed under s 426A was within its “area of decisional freedom”: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] (French CJ).

26    The appellant’s complaint that the Tribunal’s approach to the criteria (for grant of a protection visa) was “very harsh” is ultimately cavilling with the result. The FCCA Judge noted the paucity of the evidence before the Tribunal and the matters the Tribunal identified about which it wished to get more information in concluding that there was no error in the Tribunal being unable to accept the appellant’s claims. The FCCA Judge relied on well-established authority for the proposition that the Tribunal is not obliged to accept uncritically the claims made by the appellant and it was for the appellant to satisfy the Tribunal that his claims were made out: see J[43]-[45]. The Court finds no error in the FCCA Judge’s approach or the finding that it was open to the Tribunal to reach the conclusion that it was not satisfied that the criteria for grant of a protection visa had been met.

27    This Court discerns no error in the FCCA Judge’s reasoning in the disposal of this ground.

Ground 2

28    This ground overlaps with the first ground insofar as it appears to allege error in the Tribunal deciding to make its decision on the review pursuant to s 426A. To that extent, for the same reasons as given above in relation to the first ground, this ground is not made out.

29    The ground also raises the adequacy of the Tribunal’s consideration of the complementary protection criteria, a matter not explicitly raised before the FCCA Judge. The Minister took no objection to this element, on the basis that it fell within the ambit of the second ground of the application to the FCCA. The Tribunal dealt with the complementary protection criteria as follows at DR[16]:

The Tribunal has also considered the alternative criteria in regards to complementary protection and has had regard to the ‘PAM3 Refugee and Humanitarian – Complementary Protection Guidelines’. For the same reasons as set out above, on the evidence before it, the Tribunal is unable to satisfy itself in this regard. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

30    The Court accepts the Minister’s submission that, where the Tribunal had rejected the factual basis of the appellant’s claims to protection under s 36(2)(a), it was open to the Tribunal to rely on its anterior findings in forming the view that it was not satisfied that Australia owed the appellant protection under the complementary protection criteria in s 36(2)(aa) of the Migration Act in the circumstances of this case, relying on SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246].

31    This ground is not made out.

Ground 3

32    This ground complains that the appellant was not supplied with an interpreter. This is a new ground and the Minister opposed leave being granted to it being raised for the first time on appeal on the basis that it is entirely without merit. It must fail on the facts since the appellant did not attend the hearing to which he was invited. The Court accepts those submissions and notes that the appellant also did not, in accordance with the letter of invitation, make a request to the Tribunal (at least seven days before the hearing) to provide an interpreter at the hearing.

33    The Court refuses leave to the appellant to raise this ground for the first time on appeal.

Ground 4

34    The fourth ground is that the “decision” failed to assess the risk to the appellant’s life if he returned to India. The Minister objected to this ground, which is also new, being raised on the appeal, again on the basis that it is unparticularised and, as advanced, it rises no higher than seeking merits review. The Minister says that the Tribunal clearly did consider the appellant’s claims to fear harm, finding that it was unable to accept his claims in light of the paucity of evidence before it (at DR[13]-[14]) and that finding was open to the Tribunal to make, so that no jurisdictional error by the Tribunal has been demonstrated. On the basis that the “decision” referred to in the ground was the Tribunal’s decision, the Court accepts those submissions. Further, it demonstrates no error in the FCCA Judge’s reasoning.

35    The Court refuses leave to the appellant to raise the fourth ground on the appeal.

Ground 5

36    The Minister submitted that this ground is a broad assertion that the FCCA Judge erred, which is meaningless without particulars. The Court agrees that this ground must fail. As I observed in EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12]:

While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J.

37    The Court finds that this ground is not made out.

Ground 6

38    The sixth ground takes issue with the FCCA Judge’s consideration of the non-disclosure of the material attached to a certificate issued under s 438 of the Migration Act by the delegate. Documents covered by the certificate included a decision record of a delegate of the Minister dated 17 January 2013 in which the appellant’s ex-wife was refused a Student (Temporary)(Class TU) visa, a letter sent by the appellant’s ex-wife to the Department under cover of an email dated 28 November 2012 and an application for the visa lodged by the appellant’s ex-wife on 30 October 2012. The visa application form indicated that the appellant’s ex-wife’s “Spouse/De Facto Partner” was born two years after the appellant and that he was not an Indian national.

39    The letter under cover of the email dated 28 November 2012 relevantly said (as written):

Firstly, my loving dad passed away at the end of 2009 shortly after my arrival to Australia which caused tremendous impact on my personal life …

Secondly, at the same time my mother had a big accident. She fell down from motorcycle and broke her legs and arms. ... I am the oldest child of my parents so naturally all the responsibilities for the family fell to my shoulders. …

There were two major hurdles which stopped me from progressing in my studies.

At the critical time my ex husband was the only one whom I knew. But unfortunately our relation did not work out because of our personal and family problems, miscommunications and different ideology which finally ended up this relation and ultimately led me for a divorce. …

However I tried to start my studies again in November 2011 even got admission in a college but because I was undergoing bitter divorce procedures I couldn’t go through with it. …

But luckily one of my friends (my current Husband) motivated me to get back on track with positive attitude and outlook … Then I got married last month now I would like to go for higher level studies and that’s bachelor degree which I have now started. …

40    Section 438 provides as follows:

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.

41    As the FCCA Judge noted (at J[53]-[54]), there is no evidence that the appellant was informed in any way about the certificate or the documents the subject of the certificate and concluded that it was necessary to consider whether the Tribunal fell into jurisdictional error because there was no disclosure of the certificate or notification of any information in it to ALD16.

42    The FCCA Judge accepted (at J[56]) that the certificate was validly issued on the basis that the documents relate to the appellant’s ex-wife’s visa application and it its non-disclosure was in the public interest because the document contained information affecting personal privacy. The FCCA Judge also noted that the documents had relevance, at least to the question of the appellant’s difficulties with his marriage and its ending.

43    The FCCA Judge found (at J[58]-[59]) that the documents are supportive of the difficulties that the appellant had with his marriage (saying the documents were neutral as to whether the difficulties were for the reasons he claimed) and that the marriage had ended, which would have enabled the Tribunal to accept the appellant’s claim to have separated from his wife. However, the documents did not address the questions the Tribunal wished to raise with the appellant as to the likelihood of harm should he return to India, now or in the foreseeable future, and the Tribunal remained faced with a lack of opportunity to have that explained to him by the appellant. The appellant was on notice from the letter of invitation dated 21 December 2015 that the Tribunal was unable to make a favourable decision on the information before it.

44    The FCCA Judge noted (at J[60]), the Tribunal’s decision record is silent about whether it had regard to the material the subject of the s 438 certificate and it does not say whether it had any regard to the Departmental file. It mentions the invitation sent to the appellant by letter dated 21 December 2015 in which the Tribunal had advised that it “had considered all the material before it”. However, given that the Tribunal did not accept the appellant’s claim that he had separated from his wife, the FCCA Judge inferred that the Tribunal did not base any of its findings on the documents the subject of the s 438 certificate or information contained in them, finding that there was nothing in the documents capable of affecting the Tribunal’s analysis of whether the appellant was a person in respect of whom Australia has protection obligations.

45    The FCCA Judge said (at J[61]) that she was unable to find that the information contained in the s 438 certificate was of adverse relevance to the Tribunal’s reasons for decision. The Court takes that to mean that the FCCA Judge was of the view that the Tribunal did not have regard to the material the subject of the certificate because her Honour then went on to consider the consequences if she was wrong “and the Tribunal had regard to the material the subject of the certificate”. The FCCA Judge found that it could be inferred that there was nothing in the material that the Tribunal considered adverse to the decision to be made, such as to indicate that the appellant was denied an opportunity that might have affected the outcome of the review, such as to give rise to an obligation of disclosure under ss 424A or 424AA of the Migration Act, or whether disclosure should have been made under s 425 or pursuant to s 427(1)(c), relying on AGY16 v Minister for Immigration and Border Protection [2017] FCCA 1897 at [37], MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 at [40]-[43] and BEG15 v Ministry for Immigration and Border Protection [2017] FCAFC 198.

46    The FCCA Judge found (at J[-62]-[63]) that there was no lack of procedural fairness in the Tribunal’s decision to not disclose the certificate (if it made such as decision) or to notify the appellant of the documents or information conveyed in them where the appellant did not attend the hearing. The Tribunal had no opportunity to inform the appellant of those matters at the hearing. On the facts, there was no basis to suggest that the Tribunal ought to have delayed its decision to attempt to inform the appellant in relation to the certificate. Relying on AGY16 at [42], the FCCA Judge found that if there was a technical jurisdictional error by reason of breach of disclosure obligations, there was no practical injustice apparent, whether or not the certificate was valid and there was no utility in granting the relief sought in the circumstances so that the application should be dismissed.

47    The Court does not discern appellable error in the FCCA Judge’s approach to this matter.

48    The Court accepts that the certificate was validly issued under s 438(1)(b) of the Migration Act in light of the nature of the documents covered by the certificate and the information in them. Those documents were submitted to (or issued by) the Department in relation to the appellant’s ex-wife’s application for a visa and contained information personal to her and her second husband. The precondition in s 438(1)(b) is met if the document in question or the information in question was given to the Minister, or to an officer of the Department, in confidence. The circumstances in which the document or information was given need not be such as would give rise to an equitable obligation on the part of the recipient to keep the document, matter or information confidential: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [20] (Bell, Gageler and Keane JJ).

49    In SZMTA at [22]-[24], the plurality of the High Court found that, where a valid notification under s 438 is made by the Secretary to the Tribunal:

(1)    The Tribunal has a discretion under s 438(3)(a) to have regard to the information or to any matter contained in the document for the purpose of exercising its powers, including for the purpose of making a decision on the review. Implicit in the conferral of that discretion is that the Tribunal has no power to have regard to the information or to any matter contained in the document for the purpose of making a decision on the review unless the discretion is affirmatively exercised.

(2)    The Tribunal has a discretion under s 438(3)(b), after taking account of such advice as the Secretary may have given to the Tribunal under s 438(2)(b), to disclose to the applicant the information or any matter contained in the document. Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under ss 424AA, 424A or 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised. The discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion.

50    The FCCA Judge did not err in her view (discerned from J[61]) that the Tribunal did not have regard to the documents attached to the s 438 certificate. There is no reference to the s 438 certificate in the Tribunal’s decision record and its finding that, on the evidence, it did not accept that the appellant and his wife had separated, is contrary to the appellant’s ex-wife’s letter which was included in the s 438 certificate. Accordingly, there is no evidence that the Tribunal affirmatively exercised its discretion under s 438(3)(a) to have regard to the information notified to it by the Secretary. Absent any indication in the Tribunal’s reasons or in the evidence that the Tribunal gave active consideration to the affirmative exercise of the discretion in s 438(3), there is justification (derived from the expectation of regular administration of the Migration Act) for inferring that the Tribunal paid no regard to the information in the documents the subject of the s 438 certificate in reaching its decision: see SZMTA at [47]. It would be wrong to infer from the fact that the documents attached to the certificate are relevant that the Tribunal had regard to it: see MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [75].

51    In the Court’s view, that is sufficient to dispose of this ground. For completeness, the Court notes two submissions made by the Minister.

52    The Minister submitted that, to establish jurisdictional error on the basis that the appellant was not notified of the s 438 certificate and the material covered by it, the appellant must have been denied an opportunity to make submissions and present evidence which is material to the Tribunal’s decision: see SZMTA at [38] (Bell, Gageler and Keane JJ). He submitted that where, as here, the appellant did not attend the hearing, that could not be established. The Court accepts that argument on the facts of this case, where the appellant has not engaged in the review proceedings at all after he made his application and the claims are assertions with a paucity of evidence to support them.

53    The Minister also submitted the FCCA Judge was correct to conclude that the certificate could not have materially affected the Tribunal’s decision. He submitted that the finding that the documents support the appellant’s claim to have separated from his wife but did not address the concerns raised by the Tribunal in relation to the likelihood that he would face harm upon his return to India was correct and there was accordingly no realistic possibility that the documents could have affected the Tribunal’s decision.

54    The appellant’s ex-wife’s letter did support his claim that they had separated, but it also raised an issue as to the appellant’s credibility because it said their divorce proceedings had been bitter, which would indicate that the appellant had (at least) not been forthcoming in relation to that matter and it might indicate that his risk of harm upon return to India had been alleviated, being matters which the Tribunal might have sought to raise if the appellant had attended the hearing. The conclusion that the letter could not realistically have affected the Tribunal’s decision is likely right but such conclusions should be approached cautiously and, ultimately, this issue does not require resolution because the Tribunal did not exercise its discretion to take the letter into account.

55    Her Honour’s conclusion on the issues raised by the s 438 certificate is not affected by appellable error. This ground must be dismissed.

Conclusion

56    As the appellant has not made out any of the grounds of his appeal, the appeal should be dismissed with costs.

Associate:

Dated:    16 August 2019