FEDERAL COURT OF AUSTRALIA

BSV15 v Minister for Immigration and Border Protection [2019] FCA 1499

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary, leave to appeal is granted to the appellant.

2.    Leave is granted to the appellant to amend to add ground 2 as set out in the document entitled amended notice of appeal dated 7 July 2017.

3.    The appeal is dismissed.

4.    The appellant pay the first respondent’s 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

ROBERTSON J:

Introduction and procedural history

1    This appeal is from orders made by the Federal Circuit Court of Australia on 30 August 2016. The primary judge held that the grounds of an application to amend raised no reasonably arguable case: BSV15 v Minister for Immigration and Border Protection [2016] FCCA 2461. The application was dismissed, with costs. The application before the primary judge was for judicial review of a decision of the Administrative Appeals Tribunal, made on 24 July 2015, affirming the decision of a delegate of the Minister made on 8 July 2014 refusing the applicant a protection visa.

2    Ground 1 is no longer pressed. I shall grant the appellant leave to rely on ground 2 of his proposed amended notice of appeal, that ground relating to a certificate under s 438 of the Migration Act 1958 (Cth) of which the appellant was unaware at the time of the hearing before the primary judge. To the extent necessary, that is if the judgment of the Federal Circuit Court remains interlocutory, I grant the applicant leave to appeal. This was not opposed.

3    The appellant is a citizen of Pakistan who arrived on Christmas Island on 17 July 2012. He is a Pashtun, Shia Muslim from Noor City, Parachinar and claimed to fear harm from the Taliban, Pashtun Sunnis, Lashkar-e-Jhangvi (LeJ) and insurgent groups because he is a young male Shia Muslim. He claimed the government is unable to control the Taliban or Pashtun Sunni activities against Shia Muslims or safeguard the general population from bombing and killings of the Shia Muslim communities.

4    He applied for a protection visa in an application dated 30 October 2012 and lodged on 7 November 2012. As I have said, the delegate refused the visa on 8 July 2014. The appellant applied to the Tribunal for review and the Tribunal held a hearing on 15 July 2015.

5    The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The appellant was represented in the review by his registered migration agent who attended the hearing by telephone. Also as I have said, the Tribunal affirmed the delegate’s decision on 24 July 2015. The appellant sought review of that decision in the Federal Circuit Court and now seeks to appeal from orders of the primary judge dismissing that application.

6    It appears that on 31 January 2017 the hearing of the matter in this Court was adjourned to the first available date following the High Court’s determination of the Minister’s special leave application in proceedings M12/2017 (Minister for Immigration and Border Protection v Avtar Singh & Anor) and judgment being handed down in any subsequent appeal arising from the High Court’s determination of the special leave application. On 12 May 2017, the Minister’s application in those proceedings for special leave to appeal was refused.

7    On 6 June 2017, the matter was listed for hearing before a judge of this Court on 17 August 2017 but that hearing date was vacated by order made on 14 July 2017, on which occasion the appellant was ordered to file and serve an amended notice of appeal and affidavit evidence limited to the issue arising from the decision of the Full Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; 244 FCR 305, or from the decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1, by 13 July 2017, later varied to 28 July 2017.

8    On 5 February 2018, the matter was then listed for hearing on 24 July 2018. This was vacated by order made on 3 July 2018 and the matter was ordered to be listed for hearing at the first available date after the determination of the Minister’s appeals in the High Court in SZMTA v Minister for Immigration and Border Protection (S36/2018), CQZ15 v Minister for Immigration and Border Protection (M75/2018), and BEG15 v Minister for Immigration and Border Protection (S135/2018). Those appeals were decided on 13 February 2019.

The reasons of the Administrative Appeals Tribunal

9    In light of the fact that ground 1 is not pressed, it is not necessary to go into the detail of the reasons of the Tribunal.

10    It is sufficient to say two things. First, the Tribunal disbelieved the appellant in respect of a number of matters. For example, the Tribunal said at [14]-[16] of its reasons that the appellant fabricated some of his claims such that it put his credibility generally in doubt. At [16], the Tribunal said:

While the Tribunal accepts that bomb blasts and suicide attacks occurred in the applicant’s hometown and near where he worked, he has not been personally harmed. While the Tribunal accepts a minibus in front of him was shot at, the applicant was not harmed. In any event the Tribunal finds it was a random event and he was not targeted specifically. The Tribunal does not accept his relatives killed Sunnis, or they were part of community clashes or that the Sunnis retaliated against his family or relatives or that he is a direct enemy or threat. The Tribunal considers he fabricated those claims.

11    Second, the decision of the Tribunal to affirm the decision not to grant the appellant a protection visa turned in the end on the finding of the Tribunal that the appellant could relocate to Lahore. The Tribunal said, at [61], it was satisfied the appellant did not have a well-founded fear of persecution for any of his claimed reasons in Lahore, and then went on to consider whether it was not reasonable for the appellant to relocate to Lahore.

12    The Tribunal dismissed various claims by the appellant going to whether or not it was reasonable for him to relocate to Lahore. Those claims included that he could not find a job or employment, he had no social networks, he could not re-establish a business, no one would rent to him and high rents and shortage of accommodation would create further hardship. He claimed he only spoke Pashto and did not speak Punjabi or Urdu, but the Tribunal did not accept this claim.

13    At [72]-[73] the Tribunal said that on the basis of the evidence it was not satisfied that the level of chance that the appellant would suffer harm in Lahore for reasons of his being a Bangash Pashtun Shia from his home region or any political opinion or membership of a particular social group would make it unreasonable for him to relocate to Lahore.

The reasons of the primary judge

14    What is now ground 2 was not a ground before the primary judge and the certificate under s 438 of the Migration Act was not in evidence before him. It is therefore unnecessary to set out the reasons of the primary judge which concerned only ground 1, which is no longer pressed.

The certificate

15    The certificate under s 438 was sent to the District Registrar, Refugee Review Tribunal on or about 8 July 2014. It was in the following terms:

CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s 438 OF THE MIGRATION ACT 1958

I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 80 to 84 of file number CLF2012/229744. The disclosure of this information would be contrary to the public interest because:

(a)    folios 80 to 84 contains information of an internal working document.

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.

16    Folios 80 to 84 comprised a Document Examination Report prepared by an Assistant Director of the Document Examination Unit, Department of Immigration and Citizenship. It recorded a request that the following documents be examined to determine authenticity:

1.    Pakistan Identity Card No. [Ending in 1]

2.    Pakistan Identity Card No. [Ending in 6]

3.    Pakistan Character Certificate bearing No. [Ending in 9] in the name [the appellant]

4.    Pakistan Police Clearance Certificate in the name [the appellant]

5.    Pakistan Death Certificate issued in the name [XXX]

6.    Death Certificate bearing wet stamp of Agency Headquarter Hospital, Parachinar and issued in the name of [XXX]

17    As to Document 1, the opinion in the Document Examination Report was as follows:

This document conforms to available reference information about Pakistan Identity Cards in relation to substrate, print and issuing security. It is produced in the manner expected for a document of this type and the examination reveals no evidence of fraud.

It is my opinion that the card is a genuine document but my examination does not extend to comment about the legitimacy of its issue.

(Original emphasis.)

18    As to Document 2, the opinion in the Document Examination Report was as follows:

It is my opinion that this is not an original document and exhibits none of the security expected in identity cards of this type.

If it was presented as an original Pakistan Identity Card, then it is considered to be counterfeit.

If it was produced as a copy, the examination is inconclusive because the poor quality of the copy severely limits any practical assessment.

(Original emphasis.)

The statutory provision

19    Section 438 was in the following terms:

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.

The notice of appeal and leave to amend

20    As I have said, the amended notice of appeal dated 7 July 2017 originally propounded two grounds, but only ground 2 is pressed. That ground is as follows:

Ground 2: Jurisdictional Error: Re the certificate and notification regarding the non­disclosure of information under section 438 of the Migration Act 1958 (Cth)

1.    The non-disclosure of certain information under section 438 of the Migration Act 1958 (Cth) by the delegate to the Minister on 8 July 2014, in relation to the Department file CLF2012/229744, folios 80-84, was (a) not a process according to law or alternatively (b) constituted a denial of procedural fairness.

Particulars

Invalidity – Failure to disclose the certificate under section 438 of the Migration Act 1958 (Cth)

a)    The delegate to the Minister failed to issue a certificate under section 438 of the Migration Act 1958 (Cth) to the applicant notifying the applicant that his application was affected by the non-disclosure of information under section 438 of the Migration Act 1958 (Cth) and failed to include the certificate in Court Book before the Federal Circuit Court of Australia, as required by law.

Invalidity – the form of the section 438 of the Migration Act 1958 (Cth) was invalid

b)    The section 438 certificate did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that it was invalid. For the AAT to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error.

Denial of procedural fairness

c)    Alternatively, if the AAT proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was (sic) been a denial of procedural fairness and accordingly a jurisdictional error is established.

The evidence

21    Because the Minister did not oppose leave being granted to rely on ground 2, and to do so out of time, the appellant did not read any affidavit evidence.

22    The Minister read an affidavit sworn by Ms Ada Wong dated 1 May 2017. It exhibited the s 438 certificate and the document the subject of that certificate. That document was also reproduced in the Appeal Book, it, but not the certificate, having been before the primary judge.

23    The Minister did not read paragraph 4 of that affidavit, concerning a claim for privilege.

The parties’ submissions

24    In written submissions filed on behalf of the appellant, dated 9 August 2019, in relation to ground 2, the appellant submitted that the s 438 certificate issued in the present case was invalid because the only reason cited in the certificate as to why the disclosure of the Document Examination Report was contrary to the public interest was that it “contains information of an internal working document”. (The invalidity of the s 438 certificate was common ground.)

25    The appellant submitted that in the present case, the existence of the s 438 certificate had not been disclosed to the appellant by the Tribunal during the conduct of the review and as such, the appellant did not have the opportunity to make arguments seeking the disclosure of the s 438 certificate itself, or the materials that were subject to it. (This too was common ground.)

26    The appellant submitted that the Document Examination Report concluded that Document 1, being one of the appellant’s two Pakistani identity cards, was a genuine document. The report was inconclusive as to the genuineness of Documents 3, 4, 5 and 6, which were a character certificate, a police certificate, and two death certificates. However, in respect of Document 2, which counsel for the second of the appellant’s two Pakistani identity cards, the report stated what is extracted at [18] above. The appellant emphasised the following words: “If it was presented as an original Pakistan Identity Card, then it is considered to be counterfeit.”

27    The appellant submitted that the Tribunal’s failure to disclose the existence of the s 438 certificate to the appellant amounted to a denial of procedural fairness, relying on Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; 244 FCR 305 at [51]-[52].

28    The appellant submitted that this was material to the outcome of the review, for the following reasons.

29    First, the appellant submitted, it was apparent from the correspondence between the delegate and the appellant’s then representative that Document 2 was treated as an original Pakistani identity card. As such, Document 2 would have been regarded by the Document Examination Unit and by any person who read the opinions expressed in the report as a counterfeit document. On this basis, the appellant would have been regarded by any person who had read the report as a person who had provided a counterfeit document in support of his protection visa application.

30    Second, the appellant submitted, the Tribunal either knew or ought to have known about the contents of the report, as it was part of the material that was before the Tribunal at the time of conducting its review. The Document Examination Unit’s opinion regarding the counterfeit or otherwise questionable nature of Document 2 (and the other documents which were unable to be conclusively verified as genuine) was capable of contributing to the Tribunal’s perception of the appellant as a witness who lacked candour. As such, the report could not be considered to be entirely immaterial to the fact-finding exercise undertaken by the Tribunal, in circumstances where the Tribunal first found that the appellant’s claims of past harm and his claimed level of education and literacy were fabricated, and went on to reject his claims regarding the reasonableness of relocating within Pakistan.

31    Third, the appellant submitted, as he was not put on notice of the existence of evidence that was prejudicial to his case, he could not possibly have addressed the Document Examination Unit’s concerns, as they related to the Tribunal’s assessment of his credibility.

32    On one view, the appellant submitted, and noting that s 425 of the Act was not to be narrowly construed (referring to SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390; 168 FCR 1 at [23]), this could be considered a breach of s 425 of the Migration Act as the appellant was not put on notice of an issue that was dispositive to the review, being the fact that he had provided an apparently counterfeit document to the Department as part of his visa application: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; 228 CLR 152 at [36], [44], [47]. Against the background outlined above, it was submitted that the Tribunal’s failure to disclose the existence of the s 438 certificate and the material in the report resulted in a denial of procedural fairness to the appellant that was material to the outcome of the review.

33    In written submissions dated 30 July 2019 and filed before the appellant’s written submissions, in relation to ground 2 the Minister submitted that the s 438 certificate was conceded to be invalid. It was not in evidence before the primary judge, but a redacted version of the Document Examination Unit report that the certificate referred to was in evidence before him.

34    The Minister submitted that since the judgment of the primary judge in this matter the High Court had held that the issuing of an invalid s 438 certificate to the Tribunal was a breach of a limitation on the statutory task of the Tribunal, but would not establish a jurisdictional error unless the breach is material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [44]. That required that the appellant satisfy the Court that there was a realistic possibility of a different outcome if the Tribunal had taken into account the material covered by the certificate: SZMTA at [45]-[48]. The material in the report did not appear to have any relevance to the appellant’s claims as his identity was not in issue, the Minister submitted. The appellant had not established that there was a realistic possibility that the Tribunal could have come to a different decision if it had taken the report into account. Accordingly the second ground failed, the Minister submitted.

35    In oral submissions, the Minister referred especially to SZMTA at [47], [48] and [70]-[72]. He submitted that the ordinary inference was that the Tribunal had not taken into account material the subject of a s 438 certificate. He submitted that the Document Examination Report was not germane to the Tribunal’s reasons as there was no issue as to the appellant’s identity. There was not a realistic possibility that the Tribunal could have come to a favourable decision, to grant the appellant a protection visa, it was submitted.

Consideration

36    In relation to ground 2, in my opinion, the primary issue is materiality, that is, whether the breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review, by reason of the invalidity or non-disclosure of the notification, could realistically have resulted in a different decision. SZMTA requires the appellant to show that legal force should be denied to the Tribunal’s decision in the conduct of which there has been a breach of that limitation. Bell, Gageler and Keane JJ said in SZMTA at [45] that materiality was essential to the existence of jurisdictional error. A breach was material to a decision only if compliance could realistically have resulted in a different decision.

37    At [46], the majority said that where materiality was an issue, the question of the materiality of the breach was an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, the majority said, it is to be determined by inferences drawn from evidence adduced on the application.

38    I infer from the statement of the Tribunal’s reasons for decision that the Tribunal paid no regard to the notified document or information in reaching its decision. The identity of the appellant was not in issue before the Tribunal. Further, the findings of the Tribunal as to whether or not the appellant was “credible” turned on other matters.

39    There was however before the Tribunal the Document Examination Report. I have set out the material parts of it at [16]-[18] above.

40    In my opinion, the appellant’s case seeking to establish materiality fails because it is not apparent from the correspondence between the delegate and the appellant’s then representative that Document 2 was treated as an original Pakistan Identity Card. It is not apparent to me that Document 2 is the appellant’s Pakistan Identity Card: indeed it appears from the version of that document which appears in the appeal book at AB 183-184 that it is the identity card of a woman.

41    I am also not persuaded that the appellant was asked to provide, or did provide, the original of Document 2. The letter on which the appellant relies refers to “your original Pakistani National ID Card.” It follows that, contrary to the appellant’s submissions, I am not satisfied Document 2 would have been regarded by the Document Examination Unit and by any person who read the opinions expressed in the report as a counterfeit document. On this basis, the appellant would not have been regarded by the Tribunal as a person who had provided a counterfeit document in support of his protection visa application.

42    I should add that although it is clear that the Document Examination Report, dated 30 July 2013, included a report on Document 2, the circumstances in which that document was then in the decisional papers is not clear. The copy in the appeal book appears to have been received at the hearing before the Tribunal in July 2015. Document 2, although included in the Document Examination Report, does not appear to be separately listed by the delegate. This is in contrast to the National ID Card referred to in the appellant’s application for a protection visa, that document being reproduced elsewhere in the appeal book.

43    In summary, whether the Tribunal either knew or ought to have known about the contents of the report, I would not infer that the Tribunal paid any regard to the document or information in reaching its decision. Secondly, the Document Examination Report was not capable of contributing to the Tribunal’s perception of the appellant as a witness who lacked candour because I am not persuaded that Document 2 was presented as an original Pakistan Identity Card.

44    In SZMTA, the majority said:

[48]     In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

[49]     Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals.

(Footnotes omitted)

45    Applying what the majority said in SZMTA at [48], in the case of an invalid notification, I find that the Tribunal did not take the notified document or information, including Document 2, into account in reaching its decision. I also find that there is not a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. Objectively evaluated, the document or information was of such insignificance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

46    What the majority said in SZMTA at [49] appears to have been predicated on a valid certificate having been issued, the fact of that notification not having been disclosed to the applicant before the Tribunal, whereas here it is common ground that no valid certificate was issued. Nevertheless, applying what the majority said there, on the assumption that non-disclosure of the notification has resulted in a denial of procedural fairness, for the same reasons I conclude that there is not a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the appellant a full opportunity to make submissions.

47    Another aspect of the appellant’s complaints concerns not the Tribunal’s failure to disclose the fact of the certificate or to take into account the material to which it relates but its failure to disclose that material to him and provide him an opportunity to make submissions with respect to it: see [31]-[32] above. This aspect appears to turn on ordinary principles of procedural fairness, involving an obligation to disclose adverse information which is credible, relevant and significant, which operate through ss 424AA, 424A and 425 of the Migration Act to the extent permitted by the requirements of s 438: see, eg, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88; SZMTA at [24]. As I have said, it is common ground that no valid certificate was issued under s 438 in the present case which could engage s 438 and thereby curtail the application of those principles: compare VEAL at [11]-[13].

48    If the adverse information was credible, relevant and significant, it may not be an answer to this complaint that the adverse information was not given, at least explicitly, any weight or that the Tribunal reached its decision on other bases: VEAL at [17]-[18]. But for the reasons I have already given, the potentially adverse material contained in the Document Examination Report in respect of Document 2 was not relevant to the issues which arose in the Tribunal’s review: see [45] above; compare VEAL at [20]. Its relevance was conditional in the sense that it was if Document 2 was presented as an original Pakistan Identity Card, then it was considered to be counterfeit. As I have said at [41] above, I am not persuaded that Document 2 was so presented. It does not seem to me to have been presented as the appellant’s Pakistan Identity Card.

49    The obligations of procedural fairness (including as provided for by ss 424AA, 424A and 425) did not, therefore, require its disclosure and, in any event, its disclosure could not realistically have affected the result so as to give rise to jurisdictional error.

50    For completeness, I would not draw the inference that the original of Document 2 was before the Tribunal from the mere fact that what appears to be a copy of it was received at the Tribunal hearing.

51    In my opinion, the appellant has not established jurisdictional error and ground 2 fails.

Conclusion and orders

52    The appeal should be dismissed, with costs.

Associate:

Dated:    11 September 2019