FEDERAL COURT OF AUSTRALIA

ATT17 v Minister for Immigration and Border Protection [2019] FCA 1821

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The first and second appellants must pay the first respondent's costs of the appeal, to be assessed if not agreed.

3.    The first and second appellants have liberty to apply in relation to costs within 14 days of the date of these orders.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse protection visas to the appellants. They are a family unit comprised of a father, mother and five children. All are citizens of Malaysia.

2    The appellants were unrepresented before the Federal Circuit Court and on this appeal. The father and husband in the family, who is the first appellant and whom I will call the Appellant, spoke for all of them, with the assistance of an interpreter. As members of the Appellant's family unit, the visa applications of the Appellant's wife and children depend entirely on the outcome of his application.

Background

3    The Appellant first arrived in Australia in 2002. During that year his wife (the second appellant) applied for a protection visa listing the Appellant as her dependent. That application was refused. The Appellant departed Australia in 2006, but he returned on 4 September 2014. He went back to Malaysia on 2 December 2014 and returned to Australia on 21 December 2014.

4    The Appellant applied for a protection visa on 20 March 2015. In it, he made claims that he had been a supporter of the former deputy Prime Minister of Malaysia, Anwar Ibrahim, who was arrested in 1998 for reasons that many consider to have been politically motivated. The Appellant claimed that he had been involved in political activities on behalf of Anwar and that this led to him being arrested many times, and sometimes tortured. He claimed that the authorities demolished a restaurant he ran, for political reasons. It is not necessary to go into detail. The Tribunal found that the Appellant was not a credible witness and did not believe his claims of persecution. A significant reason why the Tribunal took that approach was that the Appellant's various accounts of relevant events were undermined by a large number of inconsistencies.

The primary judge's decision

5    There were seven grounds of review. The primary judge interpreted three of them (grounds 1, 3 and 6) as alleging that findings of fact made by the Tribunal were unreasonable or illogical. His Honour found that those grounds had no substance. There was a logical basis for the Tribunal's findings, namely the numerous inconsistencies in the Appellant's various accounts of relevant events. His Honour found that these three grounds of review did not rise above agitation for impermissible merits review.

6    Two of those three grounds attacked alleged findings which do not figure in the Appellant's grounds of appeal in this court. It may be that the Appellant agitates the subject of the third ground of review, which concerned an alleged acceptance by the Tribunal that the Appellant 'may face hardship if decision be affirmed' (all errors in quotes from the grounds of review, the grounds of appeal, and the Appellant's affidavit filed in this proceeding appear in the originals). There is a ground of appeal which also refers to hardship, which I will address below.

7    Ground of review 2 alleged that the Tribunal 'denied the applicant procedural fairness by reaching adverse conclusion'. The primary judge found there was nothing before the court to indicate that the Tribunal breached its procedural fairness obligations. His Honour noted that those obligations are stated exhaustively in Part 7 Div 4 of the Migration Act 1958 (Cth). The Appellant was given a real and meaningful opportunity to put his case. To the extent that the ground of review took issue with the Tribunal's adverse credibility findings, they were open on the evidence and are not susceptible to judicial review. The Appellant has repeated this ground in his grounds of appeal.

8    The remaining grounds of review are not relevant to the grounds of appeal, although I will briefly mention them at the end of the reasons when I deal with an affidavit which the Appellant has filed.

9    The Minister also raised with the primary judge the subject of a certificate and notification under s 438 of the Migration Act which a delegate of the Minister had issued in respect of certain information (438 Notification). This had been given to the Tribunal on 17 May 2016, purportedly on the basis that disclosure of certain information would be contrary to the public interest because it was information relating to 'an internal working document and business affairs'.

10    The Minister conceded before his Honour that the 438 Notification was not validly issued. However the primary judge found that this did not result in jurisdictional error on the part of the Tribunal. That finding is the subject of two grounds of appeal, and will be addressed further below.

11    The grounds of appeal raise various different claims of error. The appellants did not file any written submissions. At the hearing I gave the Appellant the opportunity to tell me why the primary judge made errors, but he declined to take up that opportunity. I have therefore received no submissions, written or oral, from the appellants. I will turn to consider each ground of appeal now.

Ground of appeal 1 - the 'money shark'

12    Ground of appeal 1 alleges that the Tribunal 'erred in its judgment in consideration applicants evidence regarding danger from money shark in Malaysia'.

13    There is no reference to a 'money shark' in the reasons of the Department, the Tribunal or the primary judge. It is not mentioned in any of the materials that were before the Tribunal. The appearance of the ground in the notice of appeal can only be explained on the basis of indiscriminate copying of a ground in some other appeal, or perhaps of generic grounds of appeal that were available to the Appellant.

14    Leave is required to raise the ground in this appeal because it was not raised before the primary judge. Whether the point has merit is relevant to the exercise of the discretion to grant leave: see e.g. Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19]-[20]. The Minister did not object to leave being granted in relation to this ground. I nevertheless refuse leave, because at least in this appeal, the ground is entirely baseless.

Ground 2 - procedural fairness

15    By this ground of appeal the appellants claim that the Tribunal 'denied the applicants procedural fairness by reaching adverse conclusion that the applicant claims were not made out and not enough'.

16    This is, as I have said, a repetition of a ground of review raised with the primary judge. I will interpret it as alleging that his Honour erred in the way he dealt with that ground of review.

17    I find that there was no such error. As his Honour said, there was nothing in the material to indicate that the Tribunal breached its procedural fairness obligations. His Honour found, correctly, that the Tribunal gave the Appellant a real and meaningful opportunity to present arguments and evidence, and to comment on inconsistencies between his evidence to the delegate and his evidence to the Tribunal. I will only add that the Tribunal was meticulous and comprehensive in the way that it put those inconsistencies to the Appellant, both at the hearing and in a letter that it sent to him on 21 December 2016 in discharge of its obligations under s 424A of the Migration Act.

18    To the extent that the Appellant challenges the Tribunal's findings, as distinct from any lack of fairness in the process by which it reached them, that is impermissible merits review.

19    I do not uphold ground of appeal 2.

Ground of appeal 3 - degree of hardship

20    By ground of appeal 3, the appellants claim that the Tribunal 'erred in its judgment that the degree of hardship that may be caused to the family of 8 including young children are at risk by not considering this aspect and made factual and legal error'.

21    Ground of review 6 in the Federal Circuit Court was that the Tribunal 'made legal error even after accepting that the applicant may face hardship if decision be affirmed'. So I will proceed on the basis that ground of appeal 3 was agitated before the primary judge. The Minister did not contend otherwise.

22    As I have said, his Honour interpreted the ground raised with him as a contention that the Tribunal's findings were unreasonable, and rejected it on that basis. It is true that when he quoted the ground, his Honour used the word 'persecution' in place of 'hardship' but there is nothing to indicate that error materially affected his findings. His Honour was correct to reject the ground of review, for the reasons he gave.

23    In any event, there was no acceptance before the Tribunal that the Appellant or his family would suffer hardship if they returned to Malaysia. The essential basis of the Tribunal's decision was that it did not accept that the Appellant had experienced any persecution in the past or that there was a real chance that he would be persecuted for any Convention reason in the reasonably foreseeable future. It found a suggestion by the Appellant that he 'might end up stealing' to be speculative only (paragraph 19). In relation to the complementary protection criterion, the Tribunal was not satisfied that there was a real risk that the Appellant would suffer any harm, let alone significant harm.

24    To the extent that ground of appeal 3 alleges that the Tribunal did not consider the possibility of the Appellant being persecuted on return to Malaysia, and suffering hardship in that sense, that is plainly incorrect. The Tribunal did consider it, as it was obviously required to do on the review of a decision to refuse protection visas.

25    To the extent that this ground of appeal alleges that the Tribunal failed to consider hardship, not amounting to persecution, that the Appellant and his family might face on return to Malaysia, that was not something the Tribunal was required to take into account as a basis for the grant of a protection visa. Indeed, it could not take it into account. The grant of a protection visa is not discretionary: see BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [48]-[49] (Bromberg and Mortimer JJ). Under s 65(1)(a) of the Migration Act, if the Minister (or his delegate) is satisfied that the criteria set out in s 65(1)(a)(i) and s 65(1)(a)(ii) are satisfied, that none of the matters in s 65(1)(a)(ii) prevent the grant of a visa, and that any required fee has been paid, he is required to grant the visa.

26    The criteria relevant to the grant of a protection visa are found in s 36. They are similarly non-discretionary and do not require the Minister or the Tribunal to consider the question of hardship to an applicant separately from the questions of a well-founded fear of persecution in order to determine whether the applicant is a refugee (s 36(2)(a) and s 5H) or faces real risk of significant harm (s 36(2)(aa)). If the Tribunal, after finding that the criteria in s 36(2)(a) and s 36(2)(aa) were not satisfied, had gone on to consider a claim of hardship as some sort of discretionary basis to grant a protection visa anyway, that would have been an error.

27    In any event, the only hint in the materials before the primary judge that a claim of hardship was raised separately to the claims of persecution, is the reference to the Appellant's speculation that he might end up stealing.

28    I do not uphold ground of appeal 3.

Ground of appeal 4 - country information

29    By ground of appeal 4, the appellants claim that the Tribunal 'did not consider country information in context of applicants circumstance under Australian Migration Act and Migration Regulation accordingly made legal error'. The ground is not particularised and, as I have indicated, the Appellant made no submission which might identify the country information which the Tribunal failed to consider.

30    This ground was not raised before the primary judge. The Minister objected to the appellants having leave to agitate it now. I refuse leave, because the ground is without merit.

31    In its reasons the Tribunal referred to its obligation to consider relevant country information to the extent that it considered the information to be relevant (paragraph 7). Other than one piece of country information which was relevant to the Appellant's credibility (see paragraphs 17 and 47), the Tribunal did not refer to any country information in its reasons. It is easy to see why. The Tribunal's findings (at paragraph 18) that the Appellant had not engaged in the alleged political activity, did not have any political profile, had never been detained, arrested, harassed or tortured disposed of the Appellant's protection claims. There was no need to consider any further country information.

32    In any event, the choice as to the country information on which to rely was a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]; Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45].

Grounds of appeal 5 and 6 - the 438 Notification

33    The Minister conceded that the 438 Notification was invalid, and that the Tribunal had not notified the appellants that the 438 Notification had been given to the Tribunal.

34    If the 438 Notification had been valid, its effect would have been to authorise the Tribunal to have regard to the information for the purpose of the exercise of its powers, and to give the Tribunal a discretion as to whether to disclose the information to the appellants: s 438(3); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [24].

35    As I have said, the primary judge dealt with this in his reasons. His Honour held that the invalidity of the 438 Notification and the fact that the Tribunal did not disclose its existence were not by themselves denials of procedural fairness. But he went on to find that in any event the non-disclosure of the 438 Notification and of the information that was the subject of the 438 Notification made no difference to the outcome of the review.

36    The primary judge found that the information to which the 438 Notification attached was a disclosure checklist, identification documents relating to the appellants, and movement records for the Appellant. There is no suggestion in the materials that the Tribunal disclosed the disclosure checklist or the identification documents to the appellants. However the primary judge held that they could not have made any difference to the Tribunal's decision. The disclosure checklist was not relevant to the decision, or adverse to the appellants. Nor was there any issue about the identification of the appellants, and the identification documents were not adverse to them.

37    The only information covered by the 438 Notification that was of any possible relevance to the Tribunal's decision was that contained in the movement records for the Appellant. Relevantly, these showed him entering Australia on 4 September 2014, departing Australia on 2 December 2014, and re-entering Australia on 21 December 2014. That was relevant because at paragraphs 14 to 15 of its reasons the Tribunal found, in effect, that the fact that the Appellant returned to Malaysia in December 2014 indicated that he did not fear going back to that country because of the Malaysian government. The Tribunal thus appears to have referred to the movement records at paragraphs 14 and 17 of its reasons.

38    It is true there is nothing to suggest that the Tribunal showed the records themselves to the appellants. However the delegate had referred to the specific dates of these movements in its reasons. And on 21 December 2016 the Tribunal sent the appellants a letter under s 424A of the Migration Act. That provision required the Tribunal to give clear particulars of any information that it considered would be the reason or part of the reason for affirming the decision under review, and to ensure as far as is reasonably practicable that they understood why it was relevant to the review and the consequences of it being relied on in affirming the decision, and to invite the appellants to comment on or respond to it. The relevant part of the letter said:

Returning to Malaysia after your alleged fear

Movement records indicate you arrived in Australia in September 2014 and departed and returned [sic] December 2014.

This is relevant because your return to Malaysia after you came to Australia in September 2014 may not be consistent with your alleged fear of the Malaysian government.

If the Tribunal finds that your return to Malaysia is not consistent with your alleged fear of the Malaysian government, then subject to your comments, the Tribunal would affirm the decision under review.

39    The Appellant took up the Tribunal's invitation to comment on that information.

40    Section 438(4) required the Tribunal to give a direction under s 440 (restricting publication or disclosure of relevant information) if it disclosed any matter to an applicant under s 438(3). The primary judge held that, since the Tribunal did not make any such direction, an inference was open that it did not act on the invalid 438 Notification.

41    His Honour also held that in any event, the only information material to the review that was the subject of the 438 Notification was disclosed to the appellants, and their comment on it was invited and received. So the failure to disclose the 438 Notification could not have affected the way the appellants conducted their case, and no opportunity to advance the case, or other detriment, was shown: at [41]. The information in the movement records was not in dispute: at [42]. Knowing about the notification could not have made any difference to the outcome of the review: at [43].

42    By grounds of appeal 5 and 6 the appellants claim:

Federal Circuit Court Hon. Jude made legal error even Minister concedes that the certificate was not validly issued.

The Administrative Appeal Tribunal letter to the applicants under s424A of the Migration Act does not preclude certificate under s438 of the Migration Act.

43    The first of these grounds displays a misunderstanding of what the primary judge did. In fact, his Honour accepted the Minister's concession, proceeded on the basis that it was correct, and did not find or assume that the 438 Notification was validly issued. Ground 5 discloses no error, legal or otherwise.

44    It is difficult to understand exactly what ground 6 is saying, but I interpret it to be alleging that the s 424A letter cannot cure the Tribunal's failure to disclose the existence of the purported 438 Notification to the appellants, or the information to which it related.

45    The primary judge's view that the invalidity of the 438 Notification and the fact that the Tribunal did not disclose its existence were not by themselves denials of procedural fairness was inconsistent with SZMTA, which was handed down after the primary judge's decision (directions were made adjourning this appeal pending the High Court's decision in SZMTA). In SZMTA, it was held that non-disclosure of the existence of a certificate and notification under s 438 does, without more, constitute a denial of procedural fairness: see SZMTA at [38] (Bell, Gageler and Keane JJ) and [78] (Nettle and Gordon JJ). The High Court was also unanimous that the issue of an invalid certificate and notification was capable of amounting to jurisdictional error, albeit that was not put in terms of procedural fairness: SZMTA at [41], [44] and [76].

46    However the plurality went on to hold that for non-disclosure of a s 438 notification to constitute a jurisdictional error, it would need to give rise to 'practical injustice', meaning they must result in a denial of an opportunity to make submissions that must be material to the Tribunal's decision: SZMTA at [38]. And at [44] their Honours held (footnotes omitted):

The Secretary's provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection [[2018] HCA 34; (2018) 359 ALR 1 at [29]-[31]], however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.

47    And at [45], they explained the concept of materiality as follows:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

48    Where materiality is in issue then, unless the decision made was the only one legally available to be made, the question is an ordinary one of fact on which the applicant bears the onus of proof: SZMTA at [46]. Evidence of the content of the information to which the s 438 certificate and notification applied is relevant to the question of whether the Tribunal's decision could realistically have been different: SZMTA at [50].

49    Let it be assumed that the Tribunal here had disclosed the existence of the 438 Notification, and that that may have led to submissions, with the consequence that the Tribunal exercised its discretion to disclose to the appellants the information that was the subject the notification. Or it may be assumed that the invalid 438 Notification was never given, so the information was disclosed to the appellants as a matter of course. Could disclosure resulting from either of those two chains of events have realistically resulted in a different decision by the Tribunal here?

50    I find that it could not have. I agree with the primary judge that the disclosure checklist and the identification records could have made no conceivable difference to the review. The checklist was a bureaucratic record with no relevance at all to the Appellant's protection claims, and the identification of the appellants was not contentious. In contrast the Appellant's movements were relevant, in the way that I have described. But there was nothing relevant in the movement records that were the subject of the invalid 438 Notification that was not, in substance, disclosed to the appellants. Only the movements in 2014 were material. Each departure and arrival in that year, and the month in which it took place, was set out in the s 424A letter. There is no reason to think that the specific day of the month mattered at all. But if it did, it was set out in the delegate's decision which the Tribunal was reviewing, so the appellants were on notice that the Tribunal might take the specific dates into account.

51    In any event, as the primary judge said, the Appellant responded to and engaged with the s 424A letter, including in relation to the relevance of his movements in 2014. He did not seek to deny the fact or timing of his return to Malaysia, but rather sought to explain how it was consistent with his claimed fear of persecution. Had he had access to the movement records, it could not have realistically made any difference to the submissions he made or to the Tribunal's decision on review.

52    While the primary judge's decision predated the High Court's decision in SZMTA, it is broadly consistent with the approach to materiality which the plurality took, and is more closely consistent with the approach the Full Court took in BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36, which the High Court affirmed in SZMTA.

53    Contrary to what I understand to be alleged in Ground 6, the disclosure of the Appellant's movements that was made in the s 424A letter does mean that the Tribunal did not fall into jurisdictional error. I do not uphold ground of appeal 6.

Other claimed errors

54    An affidavit which the Appellant filed in this court asserts that the Tribunal 'made factual and legal error by not properly applying provision of UN Refuge Convention and Complimentary Protection Provision under Australian Migration Act - 1958'. That bare assertion is not developed anywhere. No error of law has been identified or is apparent on the face of the Tribunal's reasons. There was a ground of review before the Federal Circuit Court to the effect that the Tribunal did not properly apply the relevant law. The primary judge found, correctly, that the Tribunal properly set out the relevant law and applied it to the Appellant's claims, and that the Tribunal's findings reveal no misapplication of the law.

55    The affidavit also asserts that the Federal Circuit Court 'failed to consider my judicial review application'. That is plainly incorrect. The primary judge gave the application full consideration.

Conclusion

56    The appeal is dismissed. Counsel for the first respondent indicated that the Minister would only seek costs from the first and second appellants, so I will order costs against them only.

Associate:

Dated:    7 November 2019

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