FEDERAL COURT OF AUSTRALIA

SZVGJ v Minister for Immigration and Border Protection [2019] FCA 1475

ORDERS

THE COURT ORDERS THAT:

1.    The appeal filed on 12 June 2018 is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court (FCC) which dismissed the appellant’s application for judicial review of a decision of the second respondent (the former Refugee Review Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.

Background

2    In summarising the background to the matter to give context to what follows I draw heavily on the primary judge’s summary, in particular at paragraphs [3]-[9] of his Honour’s reasons for judgment.

3    The appellant is a citizen of Pakistan and of Afghan Pushtun ethnicity. He arrived in Australia in March 2012 as the dependent of his now former wife, who held a student visa. He applied for a protection visa in March 2013.

4    The appellant claimed to fear harm from his former wife’s family and his own family, because both families had opposed their marriage. Further, the appellant claimed to fear harm from the Pakistani government, other Pakistani authorities and Islamic extremist groups due to his association with “Lar Au Bar Afghanistan”. Further, the appellant claimed to “strongly oppose the state of Pakistan for its ties with the extremist Taliban”, and also claimed that he does not consider himself Pakistani, and fears harm on return for these reasons.

5    The appellant attended an interview with the delegate on 28 August 2013. The delegate refused the grant of the protection visa on 18 November 2013. The appellant applied for review to the Tribunal. He was invited to, and attended, a hearing before the Tribunal on 6 June 2014.

6    Prior to the hearing, the appellant’s representative sent various documents to the Tribunal that included a statutory declaration by the appellant dated 30 May 2014. They also provided further country information. The Tribunal affirmed the delegate’s decision on 12 September 2014.

7    The appellant advanced further claims to fear harm at the interview with the delegate and before the Tribunal. These included that he feared harm because of his membership of the Awami National Party (ANP), a political party in Afghanistan, and because of visits to his house by the Inter-Services Intelligence (ISI), a Pakistan intelligence agency.

8    Relevantly, prior to the Tribunal making its decision, a delegate of the Minister issued two certificates to the Tribunal under s 438(1) of the Migration Act 1958 (Cth) covering certain information that was furnished by the delegate to the Tribunal. I shall return to the certificates and that information.

9    The Tribunal affirmed the decision of the delegate because it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations. The Tribunal found that the appellant does not satisfy the criteria for a protection visa set out in paragraphs (a) or (aa) of s 36(2) of the Act.

10    The principal reasoning underlying the conclusion of the Tribunal is that it did not believe the appellant’s claims. The Tribunal noted inconsistencies in information and evidence given by the appellant at different times. It considered that documentary evidence supplied by the appellant was fabricated for the purposes of his protection visa application.

The FCC

11    The appellant based his review of the decision of the Tribunal on two grounds before the FCC. Those grounds are mirrored by the second and third appeal grounds asserted before me. It is therefore convenient to consider each separately. I will return to the first ground of appeal thereafter.

FCC review ground 1 / FCA appeal ground 2: ss 424AA and 424A

12    The appellant’s first ground of review before the FCC asserted that the Tribunal failed to comply with the requirements of ss 424AA or 424A of the Act. It was said that the Tribunal had information that it considered would be part of the reason for affirming the decision under review, which had been given (by the appellant) to the Minister’s delegate orally. It was said that such information was not exempt from the requirements of s 424A but the Tribunal did not provide particulars of that information to the appellant in the way required by that section or by s 424AA.

13    Section 424AA provides that if an applicant is appearing before the Tribunal because of an invitation under s 425 (as occurred in this case), 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”.

14    Section 424A provides that the Tribunal must 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”. Subsection (2A) provides that the Tribunal is not obliged under s 424A 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 s 424AA.

15    It is thus apparent that ss 424AA and 424A operate in tandem. If there is “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”, then the Tribunal must either give clear particulars of that information to the applicant in an interview or hearing, convened under s 425, or it must do so in the manner provided for in s 424A.

16    The meaning of the critical phrase in both sections, i.e. “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”, albeit specifically in the context of s 424A, was considered by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609. The Court per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, relevantly held the following:

    Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review: at [15].

    The operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case: at [17].

    In the context of a protection visa application the criterion for which is found in s 36(1) of the Act, the “reason, or a part of the reason, for affirming the decision that is under review” was that the applicant was not a person to whom Australia owed protection obligations under the Convention; the relevant reason, or part of a reason, is not the reasoning process of the tribunal or the tribunal’s published reasons: at [17].

    The information in question, in order to qualify, must contain in its terms a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations: at [17].

    Disbelief by the tribunal of the applicant’s evidence arising from inconsistencies therein does not constitute “information”: at [18].

    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. – affirming VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471 at 477 per Finn and Stone JJ: at [18].

    However broadly “information” is 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: at [18].

    Because s 424A operates prior to the tribunal reaching its decision, it is not engaged by any material that contains or tends to reveal inconsistencies in an applicant’s evidence: at [19].

17    The High Court again considered s 424A in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507. The Court, per French CJ, Heydon, Crennan, Kiefel and Bell JJ, held as follows:

    Section 424A depends on the tribunal’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review – affirming SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198; 164 FCR 578 at [33] per Dowsett, Bennett and Edmonds JJ: at [24].

    Section 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review – affirming MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; 166 FCR 483 at [29] per Heerey J: at [25].

    The reasons of the tribunal can be scrutinised to ascertain what information actually counted against the applicant in the review undertaken by the tribunal: at [26].

18    The primary judge recorded (at [30]-[38]) that the appellant had relied on SZVJY v Minister for Immigration and Border Protection [2016] FCA 618 where information obtained by the Tribunal and which tended to count against the applicant because it was inconsistent with the applicant’s claim and therefore led to the applicant’s evidence being rejected was found to be information within the meaning of s 424A(1). However, the primary judge rejected that reliance because in SZVJY the information in question was said (at [20]) not to be “information reflecting the tribunal’s thinking process”. The primary judge reasoned that the appellant’s submission conflated the distinction between “information”, on the one hand, and what the Tribunal makes of the information in its evaluation, on the other. Further, for the purposes of s 424A the information must be information which “in its terms” is a “rejection, denial or undermining” of the appellant’s claims to fear of harm.

19    Before the FCC, the appellant relied on three items of information which he said the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision. The same items of information were relied on in this appeal.

20    The first item of information identified by the appellant was with reference to paragraph [10] of the Tribunal’s reasons. It was that the appellant had made contradictory statements at the interview with the delegate about when he had joined the ANP. Paragraph [10] of the Tribunal’s reasons is as follows:

[The appellant] initially said that he had joined the ANP in 2006. He said that the ANP wanted unification with Afghanistan and it wanted to get rid of the Taliban. He said that a lot of important ANP leaders had been killed by the Taliban. The primary decision-maker referred to his claims regarding the Lar Au Bar Afghanistan association. [The appellant] said that this was a new organisation which wanted to unite the Pashtuns in Afghanistan and Pakistan. He said that he had been an ‘old member’ of the ANP and then in 2006 he had joined this new organisation. He said that in 2007 he had become the leader of the student union in his college. He then said that he had only joined the ANP in 2007. He said that the ANP was a big party and that he had joined it to put forward the ideas of the Lar Au Bar Afghanistan association. He said that he had been the vice-president of the Lar Au Bar Afghanistan association in Swabi.

21    The primary judge reasoned (at [40]-[41]) that what the Tribunal found to be contradictions or inconsistencies between the accounts given by the appellant was not “information” within the meaning of the relevant sections.

22    The primary judge also reasoned (at [42]) that the items of information given by the appellant relied on by the Tribunal in this paragraph did not contain in their terms “a rejection, denial or undermining” of the appellant’s claims (SZBYR at [17]). Moreover, contradictory dates given by the appellant were found (at [43]-[74]) not to have been relied on by the Tribunal and therefore could not have been “considered” by the Tribunal to undermine the appellant’s claims.

23    Finally, the primary judge identified (at [76]-[77]) that the relevant “information” identified by the appellant had been given by him to the Tribunal for the purposes of the review. Therefore, it was in any event information excepted from s 424A(1) by s 424A(3)(b), i.e. it was information that the appellant gave for the purpose of the application for review.

24    I can find no fault in the primary judge’s analysis of the authorities and the conclusion that the first item of information in question is not “information” for the purposes of s 424A. It is apparent from what I have set out above (at [16] and [17]), that the primary judge’s analysis closely follows the construction of s 424A that has been laid down by the High Court.

25    The second item of information was identified with reference to paragraph [15] of the Tribunal’s reasons. It was that the appellant had made inconsistent statements at the interview with the delegate about when the ISI had come to his house in Swabi.

26    Paragraph [15] of the Tribunal’s reasons is as follows:

[The appellant] said that the ISI had come to his house in Swabi a few times although he had not been in Swabi. He said that this had been in 2006, then he said that it had been 2011. He said that his father had told him to cease his political activities because they had been continually being harassed by the ISI visiting his home. [The appellant] said that the Taliban had also been sending threatening letters saying that the Lar Au Bar Afghanistan association had to stop enlightening the girls or encouraging the girls to undertake further education.

27    The primary judge (at [80]) applied the reasoning in relation to item 1 in also rejecting the contentions in relation to item 2. More specifically, the primary judge (at [82]) found that the appellant’s statement that the ISI came to his house in 2006, or that the ISI first came to his home in 2011, is not in its terms a “rejection, denial or undermining” (SZBYR at [17]) of the appellant’s claims to fear harm. It is therefore not information for the purposes of s 424A(1).

28    Further, the primary judge held (at [83]) that the fact that the appellant had made contradictory statements is not information for the purposes of s 424A(1). Also, the primary judge held (at [84]-[90]) that the Tribunal had not “considered” the appellant’s statement that the ISI came to his house in 2006 in its reasoning leading to the rejection of his claim, and the information identified by the appellant was in any event excluded from being information for the purposes of s 424A(1) on account of the exception in s 424A(3)(b).

29    From what I have set out above with regard to the applicable principles, it is apparent that the primary judge’s rejection of the submission that the information identified as item 2 was information within the meaning of s 424A(1) of the Act. I can find no error in the primary judge’s treatment of this issue.

30    The third item was identified with reference to paragraph [20] of the Tribunal’s reasons. It was that the Tribunal stated that the appellant sought admission to the United Kingdom in 2011, then after “much prevarication he conceded” that he had also applied for a visa to the UK in 2009.

31    Paragraph [20] of the Tribunal’s reasons is as follows:

[The appellant] said he had asked for admission to the UK in 2011. After much prevarication he conceded that he had also applied for a visa to travel to the UK in 2009. He said that he had applied for a student visa. He said that in 2011 he and his wife had applied for a student visa for his wife. [The appellant] said that he had not applied for protection when he had first come here in March 2012 because he had been thinking that the situation in Pakistan would settle down and they would get rid of the Taliban. He said that things had in fact got worse day by day. [The appellant] said that on 2 January 2013 one of his female cousins who had been involved in polio vaccination had been killed by the Taliban.

32    The primary judge identified (at [97]) that the appellant identified three aspects from that paragraph as constituting “information” for present purposes: one, the appellant had asked for admission to the UK in 2011; two, the appellant had also applied for a visa to travel to the UK in 2009; and, three, the appellant only “conceded” the second point, after what the Tribunal said at [20] was, “much prevarication”.

33    Applying the principles that had been identified in relation to item 1, the primary judge rejected the submission that any of these elements constituted information for the purposes of s 424A(1). There is no error in the primary judge’s analysis. The appellant’s statement concerning asking for admission to the UK in 2011 does not, in its terms, constitute a “rejection, denial or undermining” of the appellant’s claims for protection (SZBYR at [17]). The same is true of the statement concerning his application for a visa to travel to the UK in 2009.

34    In the circumstances, appeal ground 2, which equates with review ground 1 before the FCC, fails.

FCC review ground 2 / FCA appeal ground 3: s 438 certificate

Introduction

35    Review ground 2, which essentially equates with appeal ground 3, was that the Tribunal erred in dealing with certificates purportedly issued under s 438 of the Act. Appeal ground 3 adds the following particular:

It is respectfully submitted that the Federal Circuit Court erred in finding that the Tribunal had not been influenced by the ‘dob-in’ letter from the applicant’s ex-wife and therefore, there was no practical injustice caused for its failure to advise it to the applicant. It is respectfully submitted that the applicant should have been given the opportunity to provide his response to oblige with procedural fairness. (Sic)

36    As will become apparent, the ‘dob-in’ letter is a reference to email communications from the appellant’s former wife to the Department of Immigration and Citizenship that was the subject of a s 438 certificate.

37    At the time of the proceedings before the Tribunal, the appellant was not advised that a delegate of the Minister had issued certificates purportedly under s 438. In the proceeding before the FCC, the Minister filed an affidavit by a solicitor which annexed copies of the two certificates. The first certificate was said to have been issued pursuant to s 438(1)(a) of the Act, i.e. on the basis that disclosure of the information would be contrary to the public interest. It referred to two folios in the Minister’s departmental file relating to the appellant, and was given to the Tribunal in connection with the review. The other certificate was said to have been issued pursuant to s 438(1)(b) of the Act, i.e. on the basis that the information covered by the certificate had been given to the Department in confidence. It referred to two other folios in the Minister’s departmental file relating to the appellant and given to the Tribunal.

38    Before the FCC, the parties agreed that the first certificate was invalid for the reasons given in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1080; 243 FCR 1 at [35]-[37] and that the second certificate “appeared” to be valid, and that neither was raised with the appellant or referred to in the Tribunal’s reasons.

The applicable test

39    Since the decision of the primary judge, the decision of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 has been handed down. Indeed, the present appeal was delayed pending that decision.

40    SZMTA (particularly at [2], [27], [29], [38] and [45] per Bell, Gageler and Keane JJ) establishes that a Tribunal’s failure to disclose to the visa applicant that it has been notified by the Secretary of a s 438 certificate constitutes a breach of the Tribunal’s obligation of procedural fairness. However, this constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal, and thereby deprives the applicant of the possibility of a successful outcome, i.e. if it could realistically have resulted in a different outcome.

41    Where the certificate that is notified to the Tribunal is invalid, that constitutes a breach of the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review: SZMTA at [44].

42    Such a breach will amount to jurisdictional error if it deprived the applicant of the possibility of a successful outcome in the sense that there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account: SZMTA at [3] and [48].

43    The question of the materiality of the breach is an ordinary question of fact in respect of which the appellant bears the onus of proof; like any ordinary question of fact, it is to be determined by inferences drawn from the evidence adduced on the application: SZMTA at [46].

44    The Tribunal can be expected in the ordinary course to treat a notification by the Secretary that s 438 applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. The Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision: SZMTA at [47].

45    Although the primary judge did not have the benefit of SZMTA available to him, in reliance on BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 his Honour applied a materiality test. That test was whether the Tribunal “acted on” the certificate. In the light of SZMTA, that test was incorrect.

The first (invalid) certificate

46    The primary judge identified (at [120]) the first document to be a checklist, or instructions, to the Minister’s departmental officers. I would add that it is generic in nature, i.e. it applies to all visa applications of a particular type and is not in any way specific to the appellant. The primary judge found (at [121]) that the document had no relevance to the Tribunal’s assessment of the appellant’s claims for protection. There is no error in that finding; disclosure of the document to the appellant, or consideration of the document by the Tribunal, could not realistically have resulted in a different outcome before the Tribunal.

47    The primary judge identified (at [122]) the second document as relating to the appellant’s identity but found that since the appellant’s identity was never at issue before the Tribunal the document had no relevance to the Tribunal’s reasons for affirming the delegate’s decision.

48    It is to be observed that the document in question identifies information obtained from other countries through the Five Country Conference. It provides an image of the appellant’s passport that was obtained when an application was withdrawn and refused in Abu Dhabi in 2010 and when a visa was refused in Islamabad in 2008.

49    Although those facts might be regarded as being negative to the appellant, they do not feature at all in the Tribunal’s reasons and I do not consider that had they been disclosed to the appellant that could realistically have resulted in a different outcome. Also, if the Tribunal had considered them that could not possibly have resulted in a decision more favourable to the appellant.

50    There is therefore no error in the primary judge’s conclusion with regard to that document.

The second (valid) certificate

51    The primary judge identified the documents that were the subject of the second certificate as constituting email correspondence between the delegate and the appellant’s former wife. The parties were agreed that the emails from the appellant’s former wife contained “serious allegations” against the appellant.

52    The primary judge again applied a materiality test. Ultimately his Honour concluded (at [146]) that the Tribunal made no reference whatsoever to the emails; none of the Tribunal’s findings depended on any reasoning from which it can be said that the Tribunal relied on, drew on, or was influenced by, what was said in the emails.

53    In order to apply the SZMTA materiality test it is necessary to consider the documents and the Tribunal’s reasoning in more detail.

54    In fact, the documents subject to the second certificate constituted emails as identified by the primary judge as well as a departmental file note. The file note and the emails are from February 2013. That was from a time when the appellant was lawfully in Australia as a dependent of his wife who held a valid student visa. As indicated, the appellant first applied for a protection visa in March 2013.

55    The file note is first in time. It is dated 5 February 2013 and records that forms were received from the appellant’s former wife advising that she and the appellant were divorced in June 2012 which was recorded in a divorce certificate dated in December 2012. The file note states that the forms were sent to the Student Integrity Unit.

56    There is then an email a few weeks later from the appellant’s former wife to an officer in the Student Integrity Unit that opens with an apology for the “late reply”, thereby implying that there was earlier correspondence from the officer to the appellant’s former wife. The earlier correspondence was not produced. It would appear that the appellant’s former wife had been asked for an address for the appellant in Pakistan and that the appellant was due to return to Australia, where his former wife was, from Pakistan where he had visited for a period. In any event, relevantly, the email is in the following terms:

i have an request please don’t let him come, because he was threatning me before going back to pakistan, he is coming back tomorrow, and he told me after coming he will not leave me, he was a very bad husband, he used to beat me alot in pakistan, actually it is my love marriage, before marriage he behaves very sweetly, but after marriage he suddenly changed.

he is very desperate to live in australia either legal or illegal, he forced me a lot to put a REFUGEE visa, in fact he forcefully take me to a lawyer to get into a refugee visa, he told me if i will not apply for refugee he will kill me, i am in great trouble sir, only you people can help me because i do not want to apply for a visa which i am not entiltle to, in fact he goes back to pakistan for making some fake documents for his refugee visa. please sir do not allow him to come here, otherwise i will be in danger. the main reasons for our divorce is that he did not tell me that he was ALREADY MARRIED and he did qot even tell me that he is married, when i come to know about his first marrige i was in shock, that was the worse time of mine. i saw him many times with alot of girls, that’s y we divorced, and as i told you before he is very desperate to live in australia, after divorce he called me and threat me that he will not let me stay in australia, he told me that he will give australian immigration a fake reason that i was not his wife, and then immigration will not allowed me to live in Australia and when i will go back to pakistan he will not gonna leave me, … please sir save my life, it is in your hands. please do not let him come, he has a flight tomorrow night from pakistan to sydney, please cancel his visa and save me i request you.

57    There was a follow-up email a few days later, as follows:

Dear …

…

Before 2 days my ex-husband calls me from pakistan and ask me that did i submit the divorce certificate to immigraion? i replied him yes i did, n he told me if immigration will cancel my visa , i will kill you and your whole family in pakistan, i told him dont try to threat me otherwise i will complaint against u to the police station.

58    On any view, the emails contain very serious allegations against the appellant. They include that the appellant is desperate to live in Australia, whether legally or illegally, that he forced his former wife to make an application for a refugee visa to which she was not entitled, that he threatened her with death if she did not apply for the refugee visa, that he was planning on providing fake reasons to the Australian immigration authorities, that he was preparing or obtaining fake documents in Pakistan, and that he threatened her and her family with death if his (student dependent) visa was cancelled on account of her having submitted their divorce certificate to the Australian immigration authorities.

59    Section 418(3) required the Secretary to provide to the Tribunal each document, or part of a document, in the Secretary’s possession or control and considered by the Secretary to be relevant to the review of the decision. It was the operation of that provision that caused the documents that are covered by the second s 438 certificate to be given to the Tribunal, which is why s 438(2) required the Secretary to notify the Tribunal of the fact of the certificate. Section 438(3)(a) then gave the Tribunal the discretion to “have regard to any matter contained in the document, or to the information” covered by the certificate.

60    Given the Secretary’s view of the relevance of the documents, and their obvious relevance to key issues before the Tribunal, I infer that the Tribunal considered, in the sense of read, the documents. For it not to have done so would have been to fall short in its obligation to review the decision of the delegate as required by s 414(1). Moreover it needed to do so in order to decide whether or not to exercise the discretion in s 438(3)(a) to have “regard” to the documents for the purpose of its decision: see MZAOL v Minister for Immigration and Broder Protection [2019] FCAFC 68 at [58].

61    It should also be assumed that the Tribunal proceeded on the basis that the certificate and the notification of it were valid and that it was constrained to deal with the documents covered by the certificate in the manner required by s 438(3): SZMTA at [47].

62    Given the absence of any mention of the documents (or the information in the documents) in its reasons, I infer that the Tribunal intended them to have no bearing on its reasoning process. It presumably decided to have no “regard” to the documents and it therefore faced no question of whether or not and in what fashion to disclose any matter, or information, in the documents to the appellant under s 438(3)(b).

63    In MZAOL the Court dealt with similar circumstances to the present, i.e. highly prejudicial information having been furnished to the tribunal under cover of a (purported) s 438 certificate which was not disclosed to the visa applicants and the tribunal did not expressly take the prejudicial information into account in its reasons.

64    The Court (at [53] per Bromberg, Farrell and Davies JJ) reasoned that the appellants (being the visa applicants) could not establish materiality unless they could demonstrate that the impugned information was “taken into account” by the tribunal. Given that there was no reference to the impugned information in the tribunal’s reasons, and the appellants had submitted that the inference should be drawn that the tribunal had been “influenced” by the impugned information (see [48]), I understand the Court’s use of the phrase “taken into account” to cover the question whether the tribunal was influenced by the information.

65    The question in this case then becomes whether, having read the documents, the Tribunal successfully put the serious allegations and the information in the documents out of its mind in reaching its decision. If it did put them out of its mind, then there is no need to go on and consider whether there could have been a different result if the notification of the certificate had been disclosed to the appellant. But, if the Tribunal did not successfully put the documents out of its mind, then that question must still be answered.

66    There are many parts of the Tribunal’s reasons (TR) to which the information in the file note and the emails from his former wife is relevant, even though the Tribunal did not expressly rely on that information. They include the following.

67    It is recorded by the Tribunal that the appellant claimed that his ex-wife divorced him after he returned to Australia in February 2013 from a visit to Pakistan (TR at [1]), which is contradicted by the file note and the emails.

68    It is recorded by the Tribunal that the appellant stated to the delegate that he had returned to Pakistan in January 2013 because there had been some problems in his marriage and because some of his friends had been arrested and he had wanted to visit them (TR at [7]), which is contradicted by the first email with regard to his reasons for returning to Pakistan.

69    It is recorded by the Tribunal that the appellant said that he had only been separated from his wife for two or three months at the time of the interview, which was on 28 August 2013 (TR at [7] and [9]), which is contradicted by the information in the file note.

70    It is stated by the Tribunal that the appellant said that it had only been when he had returned from Pakistan in 2013 that his former wife had started behaving differently (TR at [22]), which is contradicted by the file note and the emails.

71    It is stated by the Tribunal that the appellant confirmed that it had only been after he had received the notice of intention to cancel his student dependant visa on 7 March 2013 because he was no longer a member of her family unit that he had decided to apply for a protection visa (TR at [4] and [22]), which is contradicted by the first email.

72    It is recorded by the Tribunal that the appellant had told the Tribunal that he and his wife had separated only after he had returned to Australia from Pakistan in February 2013 and that they were divorced only at that time which was at the end of February (TR at [37]), which is contradicted by the information in the file note.

73    It is is recorded by the Tribunal that the appellant referred to a letter from the Department dated 7 March 2013 notifying him of an intention to cancel his visa because he was no longer a member of his wife’s family unit which caused him to telephone his wife who told him that she had already filed an application for divorce (TR at [38]), which is contradicted by the information in the file note.

74    The Tribunal put to the appellant that it might conclude that certain membership cards that had been produced by him had been fabricated solely to support his claims in relation to his political involvement and that he had procured a letter for the same reason (TR at [52]), which is corroborated by information in the first email.

75    The Tribunal concluded (at [78]) that the membership cards were fabricated solely to support the appellant’s claims in relation to his political involvement and that he procured the letter for the same reason. This conclusion is obviously supported by the statements from the appellant’s former wife in the first email.

76    Notably, the Tribunal also reached a conclusion that is inconsistent with the evidence in the emails and file note. This is that the Tribunal accepted (at [84]) that the appellant had not returned to Pakistan since the breakdown of his marriage. This is notable because it tends to show that the Tribunal genuinely did not take account of, in the sense of being uninfluenced by, the impugned information.

77    Ultimately, the Tribunal rejected much of the appellant’s evidence and concluded (at [88]) that he does not have a well-founded fear of being persecuted for one or more of the five Refugees Convention (Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967) reasons if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal also did not accept (at [92]) that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act. On those grounds, the decision of the delegate was affirmed.

78    It is significant that the serious allegations amongst the impugned information, being those contained in the emails from the appellant’s ex-wife, come from a non-independent and non-verifiable source. Moreover, their source, being the appellant’s ex-wife, has her own axe to grind in relation to the appellant; she and he were clearly in conflict. The appellant submitted that his ex-wife had been motivated by revenge in writing the emails making false allegations against him. In my view, the seriousness of the allegations is substantially offset by the limited credibility of their source. Moreover, this is likely to be how the Tribunal would have seen the allegations. This is a significant consideration against those allegations having influenced the Tribunal in some way.

79    That source of information can be contrasted with that in MZAOL. The Court (at [70]) accepted that the impugned information would have been perceived by the tribunal as credible – it emanated from official sources being either an educational institution or the New South Wales police. Notwithstanding that, the Court concluded (at [76]) that there is good reason for thinking that a fair-minded tribunal member in the regular administration of the Act and acting on the basis that s 438 had application would not have affirmatively exercised the discretion to have regard to the impugned information without good reason. Additionally, absent any contrary indication in the tribunal’s reasons or elsewhere in the evidence that the tribunal gave active consideration to the affirmative exercise of the s 438(3)(a) discretion, there is further justification for inferring that the tribunal paid no regard to the impugned information in reaching its decision. On the same reasoning, it cannot be said that in the present case the Tribunal was influenced by the information in the appellant’s ex-wife’s emails.

80    I also take into account that the onus is on the appellant to establish that the impugned information was taken into account by the Tribunal. On the available evidence, and for the reasons given, I am unable to conclude that the Tribunal took the information into account. The indications are to the contrary.

81    In the circumstances, the Tribunal’s failure to inform the appellant of the notification that it received that certain information provided to it was covered by a certificate under s 438 did not constitute jurisdictional error by the Tribunal because even had the appellant been informed that could not as a realistic possibility have resulted in a more favourable decision to the appellant.

FCA appeal ground 1: failure to properly consider the claims

82    The first appeal ground is that the primary judge “erred in finding that the Administrative Appeals Tribunal had failed to properly consider the Appellant’s claims under s 36(2)(a) and s 36(2)(aa) of the [Act]” (sic). In the appellant’s favour, I assume that this ground is intended to assert that the error by the primary judge was that he failed to find error by the Tribunal, rather than that he did find such error.

83    This ground was not asserted as a ground of review before the FCC. That would ordinarily preclude it from being asserted on appeal unless leave was granted. That would depend on an evaluation of the prospects of success of the new ground and any prejudice to the Minister. It is, however, not necessary to decide the ground on that basis.

84    No particularity is given in the notice of appeal. I sought particularity from the appellant at the hearing, but he was unable to assist in this regard. I have independently scrutinised the reasons of the Tribunal to see whether there is jurisdictional error in its consideration of the appellant’s claims with reference to the requirements of paragraphs (a) and (aa) of s 36(2) of the Act. I have been unable to find such error.

85    In the circumstances, ground of appeal 1 fails.

Conclusion

86    For the above reasons, each of the appeal grounds fails and the appeal falls to be dismissed with costs.

Associate:

Dated: 9 September 2019