FEDERAL COURT OF AUSTRALIA

SZSZT v Minister for Home Affairs [2019] FCA 1920

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal is dismissed.

3.    The appellant to pay the costs of the first respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia in June 2012 and applied for a protection visa on 9 September 2012. The appellant appeals from a judgment of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal): SZSZT v Minister for Immigration and Border Protection [2018] FCCA 1663. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa.

2    On 18 October 2012, a delegate of the Minister refused to grant the appellant a protection visa. The appellant sought review of that decision by the then Refugee Review Tribunal, which affirmed the delegate’s decision on 17 May 2013. On 31 July 2015, the Federal Circuit Court quashed that decision and remitted the matter to the Tribunal for review. On 18 February 2016, the Tribunal again affirmed the delegate’s decision. This appeal relates to the second decision of the Tribunal.

3    This appeal relates to the purported issue of a certificate pursuant to s 438(1)(a) of the Migration Act 1958 (Cth) (Migration Act) by the Minister’s delegate on 13 August 2015. There was no certificate in the proceedings before the previously constituted Tribunal. The existence of the certificate and the material it covered was not drawn to the attention of the appellant at any relevant stage.

4    In that context, the appeal grounds are as follows (with any errors in the original):

1. The Federal Circuit Court erred in failing to find that the Tribunal committed a jurisdictional error by failing to afford the appellant procedural fairness in respect for the information the subject of a certificate issued by the first respondent to the second respondent pursuant to s438(1)(a) of the Migration Act 1958 on 13 August 2015.

2. The Federal Circuit Court erred in failing to find the Tribunal committed a jurisdictional error by receiving and/or acting on a certificate invalidly issued under s438(1)(a) of the Migration Act 1958 because it followed a procedure contrary to law.

3. The Federal Circuit Court erred in [93] in findings that the Tribunal's discretion under s438(3)(b) did not apply because the certificate was invalid.

5    Given the nature of the appeal grounds the hearing of this appeal was not listed until after the High Court had delivered its decision of Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 (SZMTA).

6    The appellant appeared unrepresented but assisted by an interpreter and support persons. No written submission was filed by the appellant, however he made some oral submissions at the hearing.

7    For the reasons below, the appeal ought to be dismissed.

The Tribunal

8    The appellant raised the following matters in support of his claim, which are summarised at the outset of the Tribunal’s reasons:

(1)    he is of Tamil ethnicity and the Hindu religion;

(2)    in April 1998, he was injured by shrapnel from a bomb blast, and remained in hospital for two weeks. The Sri Lankan Army (SLA) questioned him about his involvement in the blast. After his release from hospital, he was taken to the police station, beaten and held for three days;

(3)    he was subsequently taken to court in February 1999 and required to report to the police whenever summonsed and did so on 11 occasions over 11 years;

(4)    he remained scared of the SLA, so decided to leave Sri Lanka; and

(5)    on return to Sri Lanka, he fears being arrested and killed by the police, CID, EPDP and SLA as they have previously sought him over the 1998 incident. He will also not be protected because he is a Tamil.

9    The Tribunal accepted that the appellant was suffering from anxiety and depression, but did not accept that he was unable to provide evidence to the Tribunal or that his ability to do so was affected by those conditions.

10    The Tribunal did not accept that the appellant had given a truthful account of his experiences in Sri Lanka or of his reasons for leaving Sri Lanka.

11    The Tribunal accepted that he was the victim of a bomb blast in 1998 and that while in hospital in 1998, the army or police questioned him about the explosion. However, the Tribunal did not accept it to be credible that after routine questioning, the appellant continued to be suspected of involvement in the bomb blast and that this resulted in him being beaten, charged, released on bail and required to report to the authorities for 11 years. It also did not accept that the authorities would have considered it necessary to monitor the appellant over 11 years, or that they would have had such a long standing interest in him because he was present and a victim of a bomb blast. It did not accept that the authorities would have released him if he were under continued suspicion of LTTE involvement. It did not accept that the appellant had any adverse political profile because he is Tamil or as a result of the bomb. Nor did it accept that the appellant had satisfactorily explained why, after 11 years of similar treatment by the authorities, he decided that he suddenly had to leave his family in Sri Lanka and flee. The Tribunal considered that the appellant’s evidence as to why he decided to leave Sri Lanka after some 11 years of questioning was vague and unpersuasive. It considered his evidence in relation to the incidents after the bomb explosion was confused and inconsistent.

12    The Tribunal accepted that the appellant was a Tamil from the north-east and who resided in an LTTE controlled area, that he left Sri Lanka illegally and that, on return, it would become known that he is a failed asylum seeker. The Tribunal did not accept, on the basis of country information before it, that Tamils were at serious risk of harm on the basis of their ethnicity or because they are from an LTTE occupied area. It was also not satisfied that the appellant would be imputed with a pro-LTTE opinion on return, and found that he did not otherwise have a profile which would attract any adverse attention. The Tribunal accepted that the appellant would be questioned at the airport and bailed or possibly held for a limited period on remand. He would also be required to pay a fine, but the Tribunal did not accept that this amounted to serious harm. It also was not satisfied that any questioning, arrest, or exposure to poor conditions, in remand amounted to systematic and discriminatory conduct, but instead applied on a non-discriminatory basis under a law of general application.

13    The Tribunal was not satisfied that the appellant faced a real chance of serious harm on return to Sri Lanka, or that the appellant faced a real risk of significant harm. The Tribunal accordingly affirmed the delegate’s decision.

Federal Circuit Court

14    There were two grounds of appeal before the Court below, which are relevantly the same as grounds one and two pressed in this Court.

15    These grounds alleged that the Tribunal fell into jurisdictional error by acting on an invalid s 438 certificate, or otherwise by failing to afford the appellant procedural fairness in relation to the documents covered by the certificate. The primary judge found that the certificate purportedly issued under s 438(1)(a) of the Migration Act (the Certificate) was invalid. The primary judge found that the only document covered by the Certificate which was relevant to the Tribunal’s review was the appellant’s entry interview. His Honour found that the Tribunal made no mention of the Certificate and did not find for itself whether it was valid or not.

16    The primary judge was satisfied that the Tribunal’s decision turned on adverse credibility findings, and that while the Tribunal was concerned about inconsistencies in the appellant’s evidence, it was by reason of inconsistency between what the appellant put to the Tribunal and the earlier Tribunal (whose decision had been set aside), and that the only reference the Tribunal made to the entry interview was in paragraph [7] of its reasons when it listed out the evidence before the department. The primary judge found that no practical unfairness arose in relation to the entry interview, including because the appellant had previously been given access to the document as part of his first judicial review proceeding in the Federal Circuit Court in relation to the first Tribunal’s decision. His Honour concluded that no jurisdictional error occurred by reason of the Tribunal not disclosing the existence of the invalid Certificate, and also concluded that the Tribunal did not act on the Certificate in any way, or the entry interview covered by it.

Consideration

17    During the hearing of the appeal the appellant made submissions which addressed the merits of the case.

18    Given the appellant was unrepresented, that approach is understandable. However, in that context it is timely to note the limited role of the Federal Circuit Court, and this Court on appeal: see the summary in BRQ18 v Minister for Home Affairs [2019] FCA 319 at [15]-[17]. The Federal Circuit Court could only have disturbed the decision of the Tribunal under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This Court’s appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court.

19    In any event, as the respondent submitted, the particular factual matters raised by the appellant during the hearing, were expressly dealt with by the Tribunal where it rejected those factual assertions.

20    Although the appellant was unrepresented at the hearing, he was represented in the Court below, and at the time the grounds of appeal were filed. Those grounds reflect the application made in the Federal Circuit Court.

Ground 1: The Federal Circuit Court erred by failing to find that the Tribunal committed jurisdictional error by failing to afford the appellant procedural fairness in respect for the information the subject of a certificate issued by the first respondent to the second respondent pursuant to s 438(1)(a) of the Migration Act on 13 August 2015

Ground 2: the Federal Circuit Court erred in failing to find the Tribunal committed a jurisdictional error by receiving and/or acting on a certificate invalidly issued under s 438(1)(a) of the Migration Act because it followed a procedure contrary to law

21    These grounds may be appropriately addressed together.

22    As noted above, the primary judge found that the Certificate was invalid and that finding is not challenged by the respondent. The primary judge also found that the only document with any possible relevance to the Tribunal’s review was the record of the entry interview. There were four documents covered by the Certificate. Those documents were before the Court below and this Court. The factual finding by the primary judge that of those four documents only the entry interview was of any relevance to the review, is correct. These grounds of appeal are to be considered in that context.

23    As noted above, this appeal was listed at a time after the High Court had delivered its judgment in SZMTA. That case concerned the issuing of certificates by the secretary of the department under s 438 of the Migration Act. The High Court concluded that, in the case of a valid s 438 notification, failure by a tribunal to disclose the fact of the notification to an applicant constituted a breach of the tribunal’s implied obligation of procedural fairness, however that such a breach will only amount to jurisdictional error if there is practical injustice. The Court also found that an invalid certificate constitutes a breach of a limitation within the statutory procedures which condition the performance of the tribunal to conduct a review, but that such a breach must be material to amount to jurisdictional error. As the plurality of the Court (Bell, Gagelar and Keane JJ) explained at [38]:

Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.

And later, at [44]-[46] (citations 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, 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.

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.

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

24    As the respondent submitted, the appellant has not advanced any argument as to why the breach was material. Again, that is not surprising given the nature of the argument made at the hearing and that the appellant was unrepresented.

25    Nonetheless, the respondent contended that there was no error in the primary judge’s conclusion. The respondent’s submissions should be accepted.

26    First, the primary judge was correct to find that the Tribunal did not act on the invalid Certificate. This can be inferred from the fact the entry interview was expressly referred to by the Tribunal at paragraph [7] of its reasons, and that there is nothing in its reasons that suggests the Tribunal acted on the invalid certificate.

27    Further, the reasons also state that the Tribunal had regard to the appellant’s “written claims and oral evidence to both the Department and the Tribunal,” which would encompass the entry interview, which is a written record of an oral interview with the department.

28     Second, there is no practical injustice by the non-disclosure of the Certificate. As the primary judge found, the Tribunal did not refer to, or use, any of the documents covered by the Certificate in any way adverse to the appellant.

29    This is in the context where the primary judge concluded that the Tribunal’s decision turned on adverse credibility findings, which arose from a comparison of what the appellant put to the Tribunal and what the appellant had put to the earlier Tribunal. The Tribunal concluded that aspects of the appellant’s evidence were unpersuasive, vague, and confused. I note that the Court below analysed the reasoning of the Tribunal by reference to the entry interview and concluded that the appellant’s account in the entry interview was potentially relevant to the Tribunal’s analysis of his credibility, although the Tribunal did not refer to it in its analysis. The Court found that hypothetically the appellant might have referred to the entry interview to point to general consistency with what he told the first Tribunal, however he did not do so even though the interview was available to him. In this context, the primary judge concluded that he was not deprived of access to the document and no practical unfairness arose.

30    Third, the entry interview was available to be used by the appellant, as it had been disclosed to him during the course of his first judicial review proceeding in the Federal Circuit Court. The appellant could have deployed that document in support of his claims, but he did not do so.

31    Accordingly, although the Certificate was invalid, it has not been established that this invalidity had any effect on the Tribunal’s review or that the Tribunal’s decision “could realistically” have been different.

Ground 3: the Federal Circuit Court erred in [93] in findings that the Tribunal’s discretion under s 438(3)(b) did not apply because the certificate was invalid

32    The primary judge was correct to conclude that as the Certificate was invalid, s 438(3)(b) did not apply. In SZMTA at [39], the plurality held:

If neither of the preconditions in s 438(1) is met in relation to a document or information, the section has no application to that document or information. The Secretary has no duty and no authority under s 438(2)(a) to notify the Tribunal that s 438 applies in relation to it. And the Tribunal has no need and no authority to exercise either of the powers conferred by s 438(3) in relation to it.

33    Consequently, as the Certificate was invalid, the preconditions in s 438(1) are not enlivened and s 438 has no application to that document or information.

34    This ground is not established.

Conclusion

35    As none of the grounds of appeal have been established the appeal is dismissed.

Associate:

Dated:    20 November 2019