FEDERAL COURT OF AUSTRALIA

MZAFZ v Minister for Immigration and Border Protection [2019] FCA 1894

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant, a citizen of Pakistan, applies for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (Rules) to file a notice of appeal from a decision of the Federal Circuit Court of Australia (Circuit Court). The Circuit Court dismissed the applicant’s application for judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa.

2    This is the second time the applicant has sought judicial review in this Court. The first decision under review, that of the Refugee Review Tribunal on 15 May 2014 refusing to grant the applicant a protection visa, was overturned by this Court on the basis that a certificate under s 438 of the Migration Act 1958 (Cth) (Act) was invalid and therefore the material covered by it ought to have been shown to the applicant: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1. The matter was remitted and reheard by a different member of the Tribunal. It is this decision from which the applicant seeks to appeal.

3    For the reasons below, the application for an extension of time is dismissed. Even though the applicant’s delay in seeking to appeal was relatively minor, and was apparently due to her lack of legal representation, there is insufficient merit in her proposed appeal to warrant the granting of an extension of time.

Applicant’s claims

4    The applicant’s claims for protection were summarised as follows in the decision record of the Tribunal:

23.     … The applicant was born in 1982 in Chakwal, Punjab state. She has trained and worked in the nursing profession since 2001. Her core claims relate to her 'un-lslamic' relationship with a married man, [A], whom she met while working at a hospital in 2011.

24.     The applicant received threats from [A’s] family, namely his brother in law [R] who contacted the applicant's family and advised them to poison her so that their name would not be tarnished. [A’s] car was fired upon on two occasions, including one where the applicant was present and during which [A] was injured. Maulanas came to see the applicant at the hospital where she worked and issued a fatwa that she was no longer a Muslim due to her relationship with a married man, which was not allowed in Islam. The applicant's family members forced her to return home, where they drugged and physically abused her on several occasions and were planning to kill her, but she managed to escape. With [A’s] help, she was in hiding until she left Pakistan on 11 February 2013 and entered Australia on a visitor visa arranged for her by an agent on 12 February 2013.

25.     As a result of this relationship the applicant claims she fears harm from her family, [A's] family, extremists/Taliban and others including in the form of honour killing.

26.     The applicant also fears harm at the hands of the maulanas and community in general due to the fatwa that she is no longer a Muslim. She has also referred to problems she faced as a nurse, has raised claims in relation to religion and has raised sur place claims in relation to the Pakistani community in Melbourne.

Tribunal’s decision

5    On 30 June 2017, the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa (AAT Reasons).

6    The Tribunal, like the delegate before it, did not find the applicant to be a credible witness: AAT Reasons at [28]-[33]. In particular, the Tribunal expressed the following at [28]:

28.     The tribunal has significant and serious concerns about the applicant's credibility due to significant changes in the nature of her claims, inconsistencies in key aspects of her claims and the addition of significant new claims throughout the protection process, including before the current tribunal. These concerns were discussed with the applicant in detail during her hearing, where the tribunal explained that it may not accept any of her evidence about what occurred in Pakistan due to its concerns. The tribunal found the applicant evasive at times and unable to address the concerns put to her at hearing. As a result of its numerous concerns, the tribunal does not accept that the applicant is a credible witness.

7    The Tribunal continued to examine various inconsistencies in the applicant’s evidence. At [34]-[37], the Tribunal considered potential mental health issues that were said by the applicant to have impacted upon her ability to give evidence. The Tribunal found at [34] that “the applicant was able to understand and appropriately respond to questions and was able to meaningfully participate in the hearing” and, at [36], did not accept that the applicant’s mental health symptoms explained or overcame the Tribunal’s adverse credibility findings.

8    The Tribunal examined and dismissed at [40]-[117] a number of incidents that were said to found the applicant’s claims for protection. The Tribunal then concluded as follows:

118.    Having considered the applicant’s claims cumulatively, including her religious views, as a nurse and woman, the tribunal does not accept that she faces a real chance of serious harm for any Convention-related reason.

119.    Having undertaken a cumulative assessment of the applicant’s claims, the tribunal also does not accept that the applicant faces a real risk of significant harm including as a woman, a nurse and her religious views.

120.    Having considered the applicant’s claims, the tribunal does not accept that she faces a real chance of serious harm for reasons of her religion, membership of a particular social group or any Convention-related reason if she were to return to Pakistan. The tribunal therefore does not accept that the applicant faces a well-founded fear of persecution.

121.    Having also assessed the applicant’s claims under the complementary protection criteria, the tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.

122.    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

123.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

124.    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

9    As will become relevant, the Tribunal also considered in the course of its reasons (at [111]-[117]) that two certificates issued under s 438 of the Act (a provision discussed further below) in relation to the applicant’s departmental file were invalid. The Tribunal considered the information the subject of these certificates and found that the information was either irrelevant to its review or was adverse to the applicant’s interests.

Federal Circuit Court’s decision

10    The applicant applied to the Circuit Court for judicial review of the Tribunal’s decision. The applicant’s grounds for judicial review were as follows:

  (1)    I am not satisfied with AAT decision.

  (2)    I have no legal assistance throughout my case;

(3)    There is legal error in my AAT decision – That’s why I need a time to detail grounds of the appeal will be provided once I get a legal representation.

11    The applicant also asserted before the Circuit Court that she was not listened to by the Tribunal and disputed the merits of the outcome by the Tribunal.

12    On 25 March 2019, the Circuit Court dismissed the application for judicial review and ordered that the applicant pay the respondent’s costs: MZAFZ v Minister for Immigration and Border Protection [2019] FCCA 2016. The Circuit Court held that the applicant’s grounds of review could not succeed: ibid at [20]-[22].

13    The Circuit Court’s reasons also recorded at [9] that the applicant raised issues at the hearing before that court “relating to how the Tribunal dealt with information that had previously been covered by the s.438 certificate”. The Circuit Court at [12] expressed concern as to the effect of the s 438 certificates that were found by the Tribunal to be invalid. However, the Circuit Court ultimately held that the issues raised by the applicant did not give rise to a ground for judicial review.

Application to this Court

14    On 2 May 2019, the applicant filed an application for an extension of time to file a notice of appeal. Pursuant to r 36.03 of the Rules, any appeal from a decision of the Circuit Court must be filed within 21 days of the date on which the judgment was pronounced or the order made. As the Circuit Court’s decision was made on 25 March 2019, the deadline for filing a notice of appeal from that decision was 15 April 2019. The applicant’s proposed notice of appeal was 17 days late.

15    The applicant’s draft notice of appeal set out the following proposed grounds of appeal:

1.    The tribunal constructively failed to exercise its jurisdiction by failing to consider, properly or at all.

2.    Judgement by FCC in my grounds of protection was not considered, as I have not been given enough time to explain my ground of fear of prosecution.

3.    The tribunal erred by failing to have regard to the corroborating psychiatric assessment of the appellant.

4.    The appellant had no legal representation at the federal circuit court and in AAT. She represented herself with no legal knowledge whereas on the other hand the opposition were having well experienced and senior lawyers.

5.    The appellant does not have her work rights, due to which she could not afford a lawyer. It is requested to grant her probono assistance .

6.    Detailed grounds of appeal will be provided once the appellant get a legal representation.

16    The application was heard on 6 November 2019. The applicant appeared in person with the aid of an interpreter. I asked the applicant various questions about her application for an extension of time and her proposed grounds of appeal. The applicant said that the reason for her late application was that she was not “financially prepared” to engage lawyers to assist with her appeal and that, once the deadline to lodge an appeal had elapsed, she was unable to obtain pro bono assistance from the Asylum Seeker Resource Centre.

17    In addition to elaborating her proposed grounds of appeal extracted above, the applicant also raised, in broad terms, that:

(a)    she had not been provided with a “CD” containing a transcript or an audio recording of the hearing before the Tribunal; and

(b)    she had been misled in relation to the relevance of the s 438 certificates that was held to be invalid as a result the applicant’s first judicial review application to this Court.

18    Ms Jackson, a solicitor, appeared on behalf of the Minister. Ms Jackson submitted that, whilst the applicant’s delay in initiating an appeal was relatively short and that there was no real prejudice to the Minister if the Court were to grant an extension of time, the Court should not grant the extension in this case because the proposed appeal had no prospect of success.

Relevant principles – Application for extension of time to appeal

19    The principles relevant to determining whether to grant an extension of time within which to file a notice of appeal were summarised as follows by Perry J in DEC16 v Minister for Immigration and Border Protection [2019] FCA 1285 at [15]-[16]:

The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. …

… in considering the merits of the proposed appeal, the draft grounds of judicial review should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)).

See also Singh v Minister for Immigration and Border Protection [2019] FCA 633 at [16] per Anastassiou J.

Consideration

Ground 1 – Tribunal constructively failed to exercise its jurisdiction

20    The applicant’s first ground of appeal is wholly unparticularised in her draft notice of appeal and fails to identify any specific error of the Tribunal. At the hearing, the applicant explained that two related forms of error founded this ground:

(a)    upon remittal of her application for a protection visa, the Tribunal failed to have a fresh look at her application, and instead considered evidence provided in the course of her previous hearing in the Tribunal; and

(b)    as a result, the Tribunal had failed to have regard to changes in her circumstances since her first hearing in the Refugee Review Tribunal (for simplicity, referred to below as the previous Tribunal).

21    As a general statement, where a matter is remitted to the Tribunal for consideration, the Tribunal, so long as it does not abdicate its statutory task of exercising its review of the relevant administrative decision, is entitled to have regard to evidence presented to the previous Tribunal in the same matter. This was explained by Gray J, with Keely J agreeing, in Blackman v Commissioner of Taxation (1993) 43 FCR 449 at 455-6:

If, as is usually the case, the remitted matter is heard and decided by a tribunal differently constituted from the tribunal whose decision was the subject of the successful appeal, the differently constituted tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the tribunal may decide to act on the findings of fact made by the earlier tribunal, or some of them. It may decide, as the learned senior member did in the present case, to rely upon evidence which was before the earlier tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the tribunal. The order of the court may limit the ambit of the issues with which the tribunal is to deal upon a case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the tribunal which ultimately decides the case to determine for itself the facts.

(Emphasis added.)

22    Likewise, the Full Court, constituted by Black CJ, Burchett and Tamberlin JJ, expressed the following in Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; 82 FCR 374 at 390:

In our view, the essentially administrative nature of the Tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard among other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.

23    Any reconsideration of a matter by the Tribunal must be untrammelled by the previous determination: Cheung v Administrative Appeals Tribunal [2009] FCA 241; 176 FCR 20 (Chueng) at [43] per Bennett J, quoted in Commonwealth v Snell [2019] FCAFC 57; 370 ALR 1; 164 ALD 22 (Snell) at [72] per Allsop CJ, Reeves and Derrington JJ. And “there is no statutory requirement on the Tribunal to take into account any previous determinations or reconsideration decisions when reviewing a reviewable decision”: Cheung at [43]. However, as was observed by the Full Court in Snell at [72]:

In general … the Tribunal is required to consider the relevant and probative material which the parties place before it or which it acquires for itself. It would only be in the most exceptional cases that it will exclude reliance on seemingly probative material: Re Tarrant and Australian Securities and Investments Commission (2013) 62 AAR 192; [2013] AATA 926 at [77].

24    In Snell, the Full Court held that the Tribunal in that case, which was considering a review of an employer’s determination in accordance with s 78 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth), erroneously limited the evidence that it would evaluate by starting from the general position that the Tribunal ought not allow the re-litigation of issues already decided by a previous Tribunal. In reaching that conclusion, the Full Court relevantly expressed the following about the manner in which the Tribunal could take into account findings by a previous Tribunal:

In undertaking that reconsideration, … the Tribunal [is] required to make a decision in accordance with the Act which necessitates assessing all material relevant to the issues to be decided. As Bennett J [in Cheung] observed, the power in s 78 is untrammelled and there is no requirement to consider or take into account the earlier decision or to apply it. An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.

25    Returning to the facts of this case, it is clear that the evidence relied on by the Tribunal included that provided by the applicant to the previous Tribunal. To start, the current Tribunal identified the evidence it was to consider at [22] of its reasons:

The applicant has provided a large amount of evidence regarding her claims for protection, which are variously set out in her protection visa application, her two departmental interviews, her two hearings before the previous tribunal, a statement provided by her to the current tribunal prior to hearing as well as her oral evidence taken at hearing before the current tribunal. The applicant has also provided documents in support of her claims including various news and country information articles, a psychological report and medical documents.

(Emphasis added.)

26    The current Tribunal’s reasons subsequently contained various references to evidence given by the applicant in her departmental interviews and before the previous Tribunal. The first purpose of doing so was to assess the substance of the applicant’s claims. However, the Tribunal also did so for the purposes of comparing the evidence provided before the previous Tribunal with that evidence provided to the current Tribunal and, in doing so, highlighting any inconsistencies that undermined the credibility of her claims. An example is found at [43] of the AAT Reasons:

At her hearing before the current tribunal, the applicant repeated her claims of two incidents during which shots were fired at [A]’s car however her evidence about the sequence and timing of these events was reversed. She claimed that [A] called her in September 2011 and told her that someone had attacked his car, and accused her family (this is consistent with her initial evidence to the departmental delegate but not consistent with what she told the previous tribunal). In contrast to her evidence at the previous tribunal hearing, she claimed that the second firing incident was the one in which she was present and when [A] was injured. The applicant’s evidence was that this incident happened in October 2011, within a month or so of the previous firing incident. She also told the tribunal that on the night of ‘that shooting’ (ie the shooting at [A]’s car during which he was injured), [A]’s brother in law [R] and a group of people fired shots in front of her family’s home, although the account in her written statement is that [A]’s family went to see her family and had a fight the next day after the shooting. The applicant has not mentioned any such incident in her evidence to the previous tribunal or to the department.

27    Having considered the reasons of the Tribunal, there is, in my view, nothing to suggest that the Tribunal unduly constrained itself by anything determined in the previous Tribunal decision and, in doing so, abdicated its statutory responsibility. The evidence before the previous Tribunal was information or material with which the Tribunal was entitled to inform itself and give weight to. There is nothing in the previous reasons of this Court remitting the matter back to the Tribunal that renders this approach impermissible. Although the previous Tribunal had acted unlawfully by proceeding and acting on the basis of an invalid s 438(1)(a) certificate in respect of certain information, this did not impugn the validity or cogency of the evidence presented to the previous Tribunal.

28    Moreover, to the extent that the applicant raised before the Tribunal evidence or claims not before the previous Tribunal, the current Tribunal considered those additional matters. There is accordingly no substance in the applicant’s submission that the Tribunal failed to have regard to her change in circumstances since the previous Tribunal’s decision. By way of example, there are instances in the Tribunal’s reasons of the Tribunal considering information provided by the applicant shortly prior to the current Tribunal’s hearing in December 2016. This includes consideration at [34] of the AAT Reasons of a psychological report dated 30 November 2016. The Tribunal also had regard in its reasons to various claims advanced for the first time by the applicant at the hearing: ibid at [104]-[110].

29    It is evident from the Tribunal’s reasons that it considered the applicant’s claim in detail. The Tribunal rejected her claims because of significant inconsistencies and omissions in her evidence. Those findings were open to the Tribunal.

30    There is insufficient merit in the applicant’s first proposed ground of appeal.

Ground 2 – Inadequate opportunity to explain fear of persecution

31    There is also no substance to the applicant’s argument that she was not provided an adequate opportunity by the Tribunal to explain her fear of persecution. The applicant has been afforded two hearings; one before the Refugee Review Tribunal in April 2014 and another before the current Tribunal on remittal in December 2016. The applicant has accordingly had significant time to properly prepare her case and advance her claims. And there is nothing to suggest the applicant was not given an opportunity by the Tribunal to give evidence and present arguments.

32    With regards to the applicant’s related submission that the Circuit Court did not consider her grounds for protection, and only was interested in hearing her in relation to the errors she alleged were made by the Tribunal, the Circuit Court correctly held at [20] of its reasons that it is not open to the Court to review decisions of the Tribunal on their merits and that only judicial review is available: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36 per Brennan J.

Ground 3 – Failure to have regard to psychiatric assessment

33    Although the applicant’s third proposed ground of appeal referred to the Tribunal having failed to have regard to a “psychiatric assessment” of the applicant, no evidence was provided to the Tribunal by a psychiatrist, and this proposed ground should be read as referring to a psychological report dated 30 November 2016 that was provided by the applicant to the Tribunal.

34    This ground is factually incorrect and without foundation. It is clear that the Tribunal had express regard to and considered the psychological report at [34]-[37] of its reasons. The weight to be placed on that report, and the findings about the applicant's evidence flowing from that report, were squarely within the fact finding domain of the Tribunal. For completeness, the Tribunal’s conclusions in respect of the applicant’s mental health issues were as follows:

36.    Given that the tribunal has rejected the overwhelming majority of the applicant’s evidence, it does not accept that the applicant’s mental health symptoms explain or overcome the tribunal’s adverse credibility findings, which are based on multiple discrepancies, inconsistencies and omissions over a number of interviews.

37.    The tribunal discussed with the applicant whether she had any concerns regarding access to mental health treatment in Pakistan but she referred to having bad dreams at night including about people being killed on a train. She did not indicate reasons why she would be unable to access mental health services available in Pakistan. The tribunal does not accept on the evidence before it that the applicant would face a real chance of serious harm in Pakistan for reasons of her mental health. On the evidence before it the tribunal also does not accept that a real risk of significant harm in Pakistan arises for the applicant based on her mental health.

35    There is no merit in the applicant’s third proposed ground of appeal.

Grounds 4 to 6 – Lack of legal representation

36    Proposed grounds of appeal 4 to 6, which relate to the applicant’s lack of legal representation before the Tribunal, the Circuit Court and this Court, may be addressed collectively.

37    There is no right to legal representation in proceedings of this kind. An applicant does not have a right to publicly funded legal representation as an aspect of the requirements of procedural fairness: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [51]-[52] per Flick, Griffiths and Perry JJ; Singh v Minister for Immigration and Border Protection [2016] FCA 942 at [36] per Charlesworth J. Moreover, to the extent that the applicant was seeking an adjournment of the application before this Court to obtain legal advice representation, my view is that an adjournment would not be justified in the circumstances of the case, in particular because the applicant has had ample time to seek legal assistance in years during which this matter has traversed the Tribunal, Circuit Court and this Court.

38    There is no merit in the applicant’s fourth, fifth and sixth proposed grounds of appeal.

Failure to provide “CD”

39    As noted above, the applicant also raised at the hearing before this Court that she had not been provided with a “CD” containing a transcript or an audio recording of the hearing before the Tribunal. Her submission was that, without that information, she was not in a position to put forward a detailed case to this Court.

40    This complaint was not raised in the applicant’s proposed grounds of appeal, nor in the affidavit that she filed on the same date as commencing her application to this Court. There was also no reference to in the reasons of the Circuit Court to the applicant raising any such complaint before that court.

41    According to the following paragraphs of the AAT Reasons, however, it appears that a similar complaint was raised by the applicant and dismissed by the Tribunal:

29.    At the start of the hearing the applicant told the tribunal that she had either lost or did not receive her court book (relevant documents related to her protection application submitted in her judicial review) and that she did not have copies of CDs containing her application under FOI. She reiterated this in a post-hearing email on 15 December 2016 and believes her documents and CDs were lost in the post (discussed further below under the heading of ‘sur place claims’). The applicant did not, however, request a postponement of her hearing either prior to or at the tribunal hearing. While the applicant claims that the barrister representing her sent her documents in the post and the post office claims to have no record of ever receiving the documents, she has not provided any evidence to substantiate these claims. Given this, the tribunal’s negative assessment of the applicant’s credibility for a variety of reasons, and noting that she made no reference to not having received her documents in her statement to the tribunal dated 1 December 2016, nor has she requested further access to copies of her tribunal or departmental files at any time during the current review process, the tribunal is not prepared to accept that the applicant did not receive her court book or CDs or that they were lost in the post.

…

107.    In her post-hearing email to the tribunal on 15 December 2016, the applicant stated that she fears someone in the community has gotten hold of her court book and CDs which were lost in the post, that this individual knows all about her case and that it could get back to her family in Pakistan. The tribunal has not accept that the applicant’s documents were lost in the post and therefore does not accept that her protection-related documents are in the hands of an unknown member of the community.

42    At the hearing of this application, counsel for the Minister confirmed that the Minister had not received any request for the “CDs” referred to by the applicant.

43    In the circumstances where:

(a)    the Tribunal dismissed a similar complaint by the applicant;

(b)    the applicant apparently failed to raise this complaint before the Circuit Court;

(c)    the applicant failed to specify this complaint in the proposed grounds of appeal set out in the draft notice of appeal;

(d)    counsel for the Minister confirmed that the Minister had received no request for the “CDs” referred to by the applicant; and

(e)    the applicant had not provided any evidence substantiating the making of any such request,

there is insufficient merit in the applicant’s complaint raised at the hearing that she had not received a “CD” containing a transcript or audio recording of the Tribunal hearing.

Section 438 certificates

44    As noted above, this is the second time the applicant has sought judicial review in this Court. The first decision under review, that of the Refugee Review Tribunal on 15 May 2014 refusing to grant the applicant a protection visa, was overturned by this Court on the basis that a certificate under s 438 of the Act was not a valid certificate and therefore the material covered by it ought to have been shown to the applicant: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 per Beach J. The matter was remitted and reheard by a different member of the Tribunal, resulting in the decision now under review.

45    For context, s 438 of the Act provides the following:

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.

46    The applicant raised at the hearing of this application a complaint about, apparently, being misled in relation to the relevance of the s 438 certificate that was held to be invalid as a result of the applicant’s first judicial review application to this Court. Her complaint at the hearing was expressed as follows:

THE INTERPRETER: And also, there was a certificate that was in question and that was the reason why my case was sent back to the AAT. When I asked the AAT about that certificate and its relevance, they said that that certificate was not relevant to my case but the questioning in that interview had a lot of reference to that certificate, so I find that that’s important. So, also, my credibility was put into question because of that certificate and constantly, my evidence was not being given the same weight that it should have been, despite having mentioned that the certificate is not relevant. So I rely on those things.

HIS HONOUR: All right.

THE INTERPRETER: And also, the lawyers in the previous – the Federal Circuit Court hearing told me that I had been informed of the certificate in the AAT hearing when, in fact, that wasn’t true. If I had – if I was given an opportunity to comment on that certificate, maybe I would have had a different outcome.

HIS HONOUR: All right.

THE INTERPRETER: I was emailed a copy of one of the certificates and I believe that was the basis on which AAT had refused my hearing – my case and if I had been given an opportunity to comment or to defend myself based on that certificate, I might have had a different outcome. …

47    It is not clear what the applicant is specifically referring to when she says that she was not given an opportunity by the Tribunal to comment on the certificate. However, it may be recalled that, as briefly noted above at [9], the current Tribunal also held that two s 438 certificates on the applicant’s departmental file were invalid. The Tribunal’s approach was then subsequently considered by the Circuit Court upon judicial review. As such, although the applicant’s complaint at the hearing appeared to refer to the s 438 certificate previously held invalid by this Court, she may have been seeking to criticise the current Tribunal for its approach to the s 438 certificates that it found invalid. To consider further, it is necessary to set out the Tribunal’s approach to the certificates, and the Circuit Court’s review of that approach.

48    The Tribunal’s consideration of the s 438 certificates on the applicant’s departmental file was as follows:

Other matters (including s438 certificates)    

111.     As discussed with the applicant during the hearing, her departmental file contains information which is the subject of two separate certificates under s438 of the Migration Act 1958. The tribunal finds that, for different reasons, both certificates are invalid.

112.     It is more convenient to deal with the certificate located at folio 122 of the departmental file first. That document states that certain information is the subject of a s438 certificate on the basis that discloser of this information would be contrary to the public interest because it contains internal working documents. On the evidence before it, the tribunal does not consider that the release of internal working documents is contrary to the public interest and does not find the certificate to be valid.

113.     The tribunal has considered the information to which the above-described certificate relates. The first piece of information purportedly covered under the certificate is a departmental document containing a dob-in by a third party that the applicant’s claims are false and that she was attending a mosque in Fawkner. This dob-in was raised with the applicant at the previous tribunal and by the present tribunal. The complete version of the dob-in appears to be anonymous, but the document contains a second, incomplete version of the dob-in that is incomplete but which does contain an email address and name of an individual who appears to be the sender.

114.     The tribunal finds the above information to be relevant to the review given the nature of the information contained in the dob-in. However, as discussed at hearing, the tribunal has consistently been of the view that, as the motivation of the third party who has provided this information is unclear, the tribunal has given no weight on this information and has not relied on the dob-in or information contained therein in the making of any findings or its decision. The tribunal acknowledges the applicant’s evidence that this information has come from [A], the man she claims assisted her with making her application because he demanded payment from her for helping prepare her application. As the tribunal has not relied on the information contained in the dob-in, it has not considered the applicant’s evidence regarding [A] further.

115.     The second piece of information purportedly covered under the above-described certificate are departmental electronic notes regarding the applicant’s visitor visa application including the applicant’s reasons for visiting Australia (a visit to her pregnant sister), documents provided as part of that application and reference to the applicant leaving a husband and two children behind in Pakistan. The tribunal finds that this information is relevant as it contradicts the applicant’s claims for protection. However, the applicant has consistently admitted to paying an agent in Pakistan to prepare her application and to providing false information in that application including a false Family Registration Certificate (FRC), a ‘sponsorship letter’ and another letter showing that she was married and had children. She has also consistently claimed that she does not have a pregnant sister in Australia, as indicated in her visitor visa application. The tribunal accepts the applicant’s consistent evidence on this matter and has not relied on discrepancies between the applicant’s visitor visa application and protection claims. Nor has it relied on the applicant’s provision of false documents and information in that visitor visa application, given that the tribunal has rejected the applicant’s claims for reasons described throughout this decision.

116.     The certificate contained in folio 121 of the applicant’s departmental file, asserts that s438(1)(b) of the Act applies to certain information contained on the file and that this information should not be disclosed because it contains information affecting the personal privacy of third parties. However, s438(1)(b) refers to the tribunal’s discretion in relation to disclosure of certain information as it applies to a document, matter contained in a document or information given to the Minister or an officer of the department in confidence. The information or documents that this certificate purports to cover are printouts from the department’s own internal database regarding personal details (including address and visa history) of an individual referred to in the applicant’s visitor visa application and that individual’s spouse. There is nothing contained in those documents to indicate that any information contained within was given to the Minister or a departmental delegate in confidence.

117.     The tribunal has considered whether the information to which the certificate relates is relevant to the review. The tribunal does not find the contact and other personal details of the individuals named in the documents to be relevant to the review. The applicant has consistently stated that she provided false information in her visitor visa application and that she does not have a sister in Australia.

49    The applicant’s grounds of review before the Circuit Court did not raise the s 438 certificates. However, it is apparent from the reasons of the Circuit Court that the applicant raised a complaint about the certificates which was considered by that court:

Section 438 Certificate matters

8.     When the matter came before me on the first occasion I ascertained from the applicant that she claimed that the Tribunal had failed to take into account new claims which she would particularise and that she also raised issues relating to how the Tribunal dealt with information that had previously been covered by the s.438 certificate.

9.     The applicant at the hearing before me today said that the Tribunal did go through everything with her again, and that the decision covers everything. The applicant identified that in her additional dot points that she claims she had a fractured forehead as a result of abuse when she received a scar to her forehead. Only the scar and not the fracture is detailed in a doctor’s report that she provided to the Tribunal (which appears at CB p.257) and this was taken into account by the Tribunal: see [22] of the reasons.

10.     There is no transcript of the Tribunal hearing before me, nor a recording. The applicant says she telephoned the Tribunal and was told that it had been lost, but there is no evidence to that effect, nor does it appear that she made the request of the solicitors for the Minister. The matters detailed in the doctor’s report do appear to have been considered by the Tribunal: see [62] of their reasons. Whilst the Tribunal do not articulate that they have seen the cigarette burns referred to specifically, they do discuss them in the decision.

11.     The applicant attempted to show me the cigarette burns in Court that were said to appear on her arm. At the distance from the bar table to the bench one could not discern any marks on the applicant’s arms. That is not to say that there are not marks there but they are certainly not obvious. The cause of those burns is the relevant factor, not simply whether or not they exist. On the material before the Tribunal, it does appear that they have dealt with this issue as counsel for the Minister points out. I am not persuaded that this matter is such as to give rise to an arguable ground for judicial review.

50    The Circuit Court outlined the Tribunal’s discussion on the s 438 certificates, as extracted above at [48], before continuing as follows:

13.     It appears clear that the Tribunal did not rely upon any of this evidence against the applicant in making its decision. It is appropriate that the Tribunal nonetheless mentioned the material as it was material that was before them and it is important that the Tribunal state how they deal with such material.

14.     The fact that the Tribunal did not use the material against the applicant, however, did not appear to me to be the end of that issue as it was possible that the material may have contained information that would have been of assistance to the applicant in putting her case. As a result, and bearing in mind that the applicant is unrepresented, I had the lawyers for the Minister provide a copy of the relevant information which appears annexed to an affidavit of Mr Brown.

15.     That affidavit identifies all of the documents that are contained within the applicant’s file that relate to these certificates and identifies that the substance of that information was also contained within the Court Book, although not the entirety of the pages.

16.     The applicant has now had the opportunity to peruse every one of those folio pages that were previously covered by the certificate. The applicant does not argue that there is something within those that would assist her case. It is not apparent to me, that the contents of that material could assist the applicant in her case.

17.     In these circumstances, it seems that the substance of the material was known to the applicant from the previous Court Book. In any event, the Tribunal has not relied upon any of this information against her.

18.     In these circumstances this does not give rise to a ground for judicial review.

51    I agree with the submission of the Minister in this Court that where:

(a)    the Tribunal did not rely on any of the information against the applicant’s interests;

(b)    the Circuit Court was satisfied that there was no information to which the certificates related that could have assisted the applicant’s case; and

(c)    the applicant, having reviewed the information, did not argue in the Circuit Court that there was an aspect of that information that would assist her case,

the Circuit Court was correct to conclude that the circumstances surrounding the s 438 certificates did not give rise to a ground for judicial review.

52    The reason the Circuit Court’s approach was correct is because, to the extent that there was any error committed by the Tribunal in misleading the applicant about the relevance of the certificates, or in not permitting her to review the information the subject of the certificates, that error was not material to the Tribunal’s decision because, even assuming the error was not committed, it would not have realistically resulted in a different outcome: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252; 363 ALR 599; 75 AAR 75; 163 ALD 38 at [45] per Bell, Gageler and Keane JJ.

53    As such, my view is that there is no merit in the applicant’s complaints regarding the s 438 certificates.

Conclusion

54    For the above reasons, even if I were to accept that there is an adequate explanation for the applicant’s delay in initiating an appeal to this Court, my view is that there is insufficient merit in her proposed grounds of appeal to warrant an extension of time in which she could commence an appeal. Her application for an extension of time should accordingly be dismissed with costs.

Associate:    

Dated:        19 November 2019