FEDERAL COURT OF AUSTRALIA

SZUJT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 612

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (FCC) dismissing an application for judicial review of a decision of the then Refugee Review Tribunal (now the second respondent, the Administrative Appeals Tribunal) (the Tribunal). By its decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to grant the appellant a Protection (Class XA) visa (protection visa).

2    The appellant, who was represented by pro bono counsel, Mr Prince SC, initially raised nine substantive grounds of appeal with ground 1 simply asserting the existence of jurisdictional error in general terms. Those grounds were classified by the parties into four groups of issues, namely, that the primary judge erred:

(1)    in finding the Tribunal had not conflated s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) (Ground 2);

(2)    in finding the Tribunal took the correct approach to relocation (Grounds 3 and 4);

(3)    in finding the Tribunal did not impose a requirement on the appellant to prove the existence of targeting (Ground 5); and

(4)    in respects relating to the Tribunal’s rejection of corroborative letters (Grounds 6-10);

3    Subsequently leave was granted to raise a further three grounds (1A, 1B and 1C), each of which relate to a non-disclosure certificate issued by the Minister under s 438 of the Act (the s 438 Certificate). As I explain below, the significant delay in resolving this appeal was due in large part to orders deferring judgment pending the resolution of various appeals in the Full Court and the High Court dealing with the impact of a failure to disclosure to an applicant the existence of a s 438 certificate.

4    For the reasons that follow, the appeal must be dismissed.

2.    PROCEDURAL HISTORY

5    Given the complex procedural background and consequential delays in finalising this appeal, it is helpful to set out the procedural history. This appeal was originally heard on 2 August 2016 where judgment was reserved. However, by an email on 21 November 2016, the parties communicated jointly with my chambers advising that the recent decision of Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 108 (MZAFZ) may apply as a non-disclosure certificate was issued by the Department under s 438 of the Act. While no application for special leave to appeal was made by the Minister from the decision in MZAFZ, the parties advised the Court that the Minister was seeking to argue that MZAFZ was plainly wrong before a Full Court in Minister for Immigration and Border Protection v Singh (VID 1202 of 2016). As such, delivery of judgment on the appeal was deferred by agreement pending the Full Court’s decision in Singh, in common with many other matters also potentially affected by the outcome of that appeal.

6    In due course on 30 May 2017, the NSW Appeals Unit wrote to the parties following the High Court’s decision on 12 May 2017 to refuse the grant of special leave to appeal to the Minister from the Full Court’s decision in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183; 244 FCR 305 (Singh (FCAFC)). The email further advised that:

In the circumstances, her Honour seeks an indication from the Minister as to whether he intends now to oppose the application. In the alternative, if the Minister is not yet able to indicate his position, her Honour requests an indication from the Minister as to the likely timeframe within which the Minister will be able to advise as to his position. Pending these inquiries her Honour does not propose to re-list the matter for hearing.

7    A response was received from the Minister on 20 July 2017 advising that the Minister intended to argue that the decision in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183 was distinguishable on the facts in the event that the appellant wished, and was given leave, to file an amended notice of appeal to raise a ground based on Singh (FCAFC).

8    At a case management hearing on 28 March 2018, the Minister agreed that the appellant should have leave to file and serve an amended notice of appeal in order to crystallise the issue arising from Singh (FCAFC). The appellant also sought to defer the hearing of the appeal pending the decision of the High Court of Australia in Minister for Immigration and Border Protection v SZMTA (S36/2018). Orders were made granting leave to re-open the appeal, with the appellant to file and serve any amended notice of appeal by 25 April 2018 limited to the issues arising from Singh (FCAFC) and the pending High Court appeal from the decision in SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055; (2017) 255 FCR 215. The appeal in SZMTA (S36/2018) before the High Court was listed to be heard together with the appeals against the decisions in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 (CQZ15 (FCAFC)) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36 (BEG15 (FCAFC)), each of which concerned the legal consequences of a failure by the Tribunal to disclose a notification given to the Tribunal under s 438 of the Act.

9    On 11 April 2018, the Minister filed and served an affidavit affirmed by Ms Sharon Anne Burnett affirmed on the same day (the Burnett affidavit). Annexure SB1 to that affidavit comprised the s 438 Certificate dated 16 August 2013. In addition, Confidential Exhibit SB1 to Ms Burnett’s affidavit exhibited various documents over which Ms Burnett explained the Minister made a claim for privilege and sought confidentiality orders. Confidential Exhibit SB1 was placed by Ms Burnett in a sealed envelope in accordance with the statement of the Full Court in Singh (FCAFC) at [67].

10    On 2 May 2018, the appellant’s pro bono barrister wrote to my Associate attaching a copy of the amended notice of appeal (filed the following day by the appellant) challenging the Tribunal’s decision on the basis of non-disclosure of the s 438 Certificate, in line with orders made on 28 March 2018 and 23 April 2018. He also advised that the appellant continued to seek the adjournment of the resumed hearing pending the High Court’s hearing of the appeal in SZTMA. In that email he explained that “[t]his is so because, even though the more narrow ground described in BEG15 [(FCAFC)]are relied upon, the broader grounds from SZMTA (together with the invalidity issue raised by the Notice of Contention) are also relied upon, thus continuing to raise the issues canvassed at the hearing of the adjournment application …”.

11    On 8 May 2018, I made orders that the resumed hearing of the appeal be deferred pending the resolution of the appeal in SZMTA (S36/2018) by the High Court and vacating the case management hearing listed for 9 May 2018. The orders noted that the parties were to notify my Associate upon the High Court delivering its decision in that appeal.

12    The decisions in SZMTA, CQZ15 and BEG15 were handed down by the High Court on 13 February 2019: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (SZMTA (HCA)).

13    On 5 March 2019, my Associate wrote to the parties for the matter to be listed for a case management hearing. The case management hearing on 20 March 2019 was vacated upon the making of orders by consent on 19 March 2019 setting a timetable for the filing of further written submissions and listing the matter for hearing on 12 June 2019.

14    Pursuant to the orders made on 19 March 2019, supplementary submissions were filed by the Minister on 5 June 2019 and by the appellant two days later. The Minister also filed an affidavit of Mr David Anthony Vosnakes, a Commonwealth officer employed by the Department of Home Affairs, affirmed on 6 June 2019 in support of non-disclosure orders with respect to the documents exhibited at Confidential Exhibit SB1 (the first Vosnakes affidavit).

15    On 12 June 2019, the hearing of the appeal was resumed with part of the argument relating to the documents the subject of the claim of public interest immunity being presented in camera. Judgment was reserved subject to the Minister leading any further evidence necessary on the claim for public interest immunity and the receipt of further submissions in order to ensure that the respondent could fairly respond to the appellant’s case given apparent differences between the appellant’s case as presented orally from his written submissions (at least in part due to the appellant being able to present arguments in closed court as opposed to what he described as “an open written submissions document”) (T12/6/19 at p. 77.40). I also made orders by consent pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) and s 91X of the Migration Act suppressing from publication in any transcript of any hearing before the Court, the information, documents and contents of the documents contained in the Confidential Exhibit SB1 to the Burnett affidavit. The orders were made on the express basis that they were necessary:

a.    To prevent prejudice to the proper administration of justice, within the meaning of s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth); and

b.    To protect the safety of persons, being the persons who submitted material to the Department of Immigration and Citizenship in respect of the Appellant contained in [Confidential Exhibit SB1] … within the meaning of s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth).

16    On 12 July 2019, Mr Vosnakes, affirmed a second affidavit (the second Vosnakes affidavit) also in support of orders sought by the Minister that the documents exhibited at Confidential Exhibit SB1 not be disclosed to any person other than the Court and the Appellant’s counsel, Mr Prince. Mr Vosnakes deposed that the Minister claimed privilege over the Confidential Documents (with the exception of a handwritten note to Ms Moonie) on the basis of public interest immunity. As I later explain, a copy of a handwritten note was also exhibited to that affidavit as Confidential Exhibit DV1 over which the Minister both claimed public interest immunity and relied upon it in further support of his claim for public interest immunity over Confidential Exhibit SB1.

17    Subsequently on 22 July 2019, the Minister filed an outline of submissions in support of his claim for privilege, relying upon the affidavit of Ms Burnett and the two affidavits of Mr Vosnakes.

18    On 2 August 2019, I made orders that the parties file and serve supplementary submissions and made an order (Order 3) that pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) and s 91X of the Migration Act suppressing from publication in any transcript of any hearing before the Court, the information, documents and contents of the documents contained in the exhibit marked Confidential Exhibit DV1.

19    On 7 August 2019, Confidential Exhibit DV1 was provided to the appellant’s senior counsel on an undertaking as to confidentiality and subsequently to junior counsel for the appellant on the same undertaking. The orders made on 2 August 2019 were amended on 9 August 2019 so as to extend the confidentiality order in order 3 to the supplementary submissions and again on 16 August 2019 so as to extend the date on which the Minister’s supplementary submissions were due to 21 August 2019.

20    Pursuant to these orders, the appellant and the Minister filed confidential supplementary submissions on 4 August 2019 and 20 August 2019 respectively addressing grounds 1A, 1B and 1C by reference to the content of the material the subject of the confidentiality orders and the claim of public interest immunity.

3.    FACTUAL BACKGROUND

21    I note that I have sought to avoid including details to the extent possible which may potentially be used to identify the appellant and for this reason have expressed certain aspects of the factual background at a level of generality.

3.1    The visa application and the decision of the delegate

22    The appellant is a Pakistani citizen who first arrived in Australia in 1999. He claimed asylum on the basis that he was an Afghan national. He was granted a temporary protection visa on 16 May 2000, and departed three years later on a voluntary reintegration package.

23    The appellant arrived in Australia again in 2011 on a Class UC (Business) Subclass 456 (Temporary) visa. He subsequently applied for the protection visa on 8 June 2011.

24    On 12 November 2012, a delegate of the Minister refused to grant the appellant the protection visa on the basis he was not satisfied that the appellant was a person to whom Australia had protection obligations under s 36 of the Act.

3.2    The Tribunal’s decision

25    On 27 November 2012, the appellant applied to the Tribunal for review of the delegate’s decision. He appeared before the Tribunal on 7 March 2014 to give evidence and present arguments.

26    The appellant’s claims for a protection visa before the Tribunal can be summarised as follows:

(1)    The appellant feared return to Pakistan by reason of his Hazara ethnicity and Shia religion.

(2)    The appellant fled Pakistan on the first occasion (i.e. when he arrived in Australia claiming Afghan nationality in 1999) because he believed he would be killed by Sunni extremists by reason of his membership of a high profile Hazara family in Quetta, several of whom had been targeted by Sunni extremists.

(3)    Following his return to Pakistan, he worked for his own consultancy and as a director of a company (the employer) which was a consultant in Pakistan providing facilities for persons wishing to undertake activities abroad. In 2010, he was threatened for sending Muslim persons to non-Muslim countries. He discussed his concerns with the CEO of the employer and was advised to close down the employer’s operation in Quetta as soon as possible, whereupon the appellant decided he would not be safe in Quetta and moved to Karachi. In support of this, the appellant provided a letter purportedly signed by the CEO of the employer, Mr [ABCD] which was said to confirm this version of events (the first letter).

(4)    He was a prominent person in certain fields of endeavour.

27    Following the hearing, on 20 March 2014, the Tribunal wrote to the appellant inviting him to comment on, or respond to, information. In particular, the Tribunal sought the appellant’s response to the following matters (AB450):

(1)    documentation on file suggesting that the appellant was still signing documents on behalf of his business in Quetta as late as March 2011, noting that this was relevant because “the Tribunal may not be convinced that your behaviour is consistent with your claim that you received threats in [late] 2010 that forced you to close down [the employer’s] operation, forced you to relocate … and forced you to begin winding down your business”;

(2)    information from New Zealand authorities about the appellant’s alleged relationship with a named individual who the applicant claimed was a relative but who had denied the relationship;

(3)    the appellant’s previous application in Australia on the basis that he was an Afghan national;

(4)    promotional information from the employer which suggested the name of the CEO was spelt differently from the name given in the letter provided by the appellant to the Tribunal in support of his claim, i.e., that the CEO’s name was Mr [IBCD]; and

(5)    Department of Foreign Affairs and Trade Country Information: Pakistan dated 29 November 2013 on the prevalence of document fraud.

28    On 3 April 2014, the appellant’s representative provided documents in response to the Tribunal, including: a statement of review from the appellant; a written submission on the appellant’s behalf; a letter dated 17 March 2014 allegedly from the CEO of the employer giving the employer’s Australian address in the footer but on letterhead from Head Office in Lahore (the second letter); and three articles. The second letter at AB472 stated that the first letter was genuine and contained a typographical error.

29    On 14 April 2014, the appellant’s representative wrote a further letter to the Tribunal enclosing country information about relocation to other parts of Pakistan, as well as citing previous Tribunal decisions in which the Tribunal had considered that relocation to other parts of Pakistan was not a viable option for visa applicants.

30    On 25 April 2014, the Tribunal affirmed the delegate’s decision.

31    The Tribunal accepted that the appellant was Hazara and Shia. However, it did not accept the appellant’s evidence that he had been individually targeted in the past (Tribunal reasons at [8] and [10]-[11]). In particular, it did not believe that the appellant had received threatening phone calls leading him to close down his employer’s Quetta office and close his own business down in December 2010. Nor did it accept that he was required to move to Karachi in December 2010 and gave instructions for his staff to close down the business as soon as possible (Tribunal reasons at [12]). However, the Tribunal accepted in light of the country information that Quetta was a dangerous place for Hazara and Shia people, and therefore that there was a real chance the appellant could face serious harm on account of his Shia religion and his Hazara ethnicity if he were to return to Quetta in the reasonably foreseeable future (Tribunal reasons at [14]-[15]).

32    The Tribunal then turned to consider whether the appellant could live elsewhere in Pakistan, concluding that it would be “reasonable, in the sense of practicable, for the applicant to relocate to Lahore to avoid the persecution which he fears in Quetta” (at [24]). This conclusion was drawn in light of the following matters.

(1)    The Tribunal has doubts as to whether the appellant was telling the truth about being from a high profile family. Among other things, the Tribunal noted that it had difficulty accepting the appellant’s evidence that he was related to certain high profile individuals in circumstances where the appellant had previously assumed the identity of an Afghan national in order to obtain residence in Australia and had also claimed to be a relative of a New Zealand citizen but that person had denied being related to the appellant. The Tribunal found that, given the appellant’s “lack of credibility and the Tribunal’s overall impression that the applicant simply assumes identities and relationships in order to obtain what he wants”, it preferred the evidence of the New Zealand citizen that they were unrelated (at [18]).

(2)    Even if the Tribunal was wrong and the appellant was related to the people he claimed to be related to and was a leader in the Hazara community, the Tribunal found that the appellant willingly returned to Pakistan in 2003 (after the deaths of his alleged relatives) and that nothing had happened to him in the eight years he had remained there (at [19]).

(3)    The Tribunal considered that if the appellant relocated to Lahore, he would be able to live and work there as he had done in the past, and to participate freely in his religious and ethnic community and in their religious and social activities. In reaching this conclusion, the Tribunal did not accept the appellant’s claim that he could not relocate to Lahore because his first wife’s family would be after him (at [23]).

(4)    The Tribunal also found that the general country information relied on by the applicant about the presence of Sunni extremist groups in Punjab was dated and mostly did not relate to Lahore (at [24]). It preferred country information emanating from the Department of Foreign Affairs and Trade (DFAT) which considered that the current security situation in Lahore was relatively free from politically motivated, terrorist and sectarian violence (at 25]).

(5)    The Tribunal considered that the documents outlining the appellant’s medical and mental health issues did not indicate the appellant would suffer harm if he returned to Pakistan, and that the appellant could seek treatment in Lahore (at [27]).

33    The Tribunal concluded that, taking into account the cumulative effect of all of these circumstances, it did not accept that the appellant had a well-founded fear of persecution for one or more of the Refugee Convention reasons if he returned to Pakistan and settled in Lahore now or in the reasonably foreseeable future (at [29]).

34    Similarly, with respect to the claim for complementary protection, the Tribunal concluded:

30. Having regard to my findings of fact above, the Tribunal is satisfied that it would be reasonable for the applicant to relocate to Lahore where the Tribunal considers that there would not be a real risk that he will suffer significant harm.

31. Having regard to my findings of fact above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

32. 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).

33. 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 obligation sunder s.36(2)(aa).

(emphasis in original)

35    The Tribunal therefore affirmed the decision not to grant the appellant the protection visa.

3.3    The Decision of the Federal Circuit Court

36    On 7 March 2016, the FCC dismissed the appellant’s application for review of the Tribunal’s decision. Before the primary judge, the appellant raised eight grounds in his amended application for judicial review, namely:

1. The Tribunal failed to apply the correct test under s36(2)(aa) of the Migration Act 1955 [sic] (‘the Act’) by conflating findings concerning s36(2)(a) into the consideration of s36(2)(aa) at [31] of the decision.

2. The Tribunal failed to correctly apply s36(2)(a) of the Migration Act by applying the wrong test as to whether Australia owed protection obligations to the applicant under the Refugee Convention. In particular, although the Tribunal found there would be a well founded fear of persecution for the applicant returning to Pakistan, it misapplied the law as to the reasonableness of relocation within Pakistan by confining the test of reasonableness of re-location to one of whether there would be a well founded fear of persecution in a particular part of the country.

3. The Tribunal misconstrued the relocation test for the purposes of assessing Australia's protection obligations under the Refugee Convention by failing to address or give consideration to whether the applicant could transit safely to Lahore.

4. The Tribunal misunderstood the real chance test and failed to apply Chan in that it required evidence of the applicant having been ‘targeted’ for harm.

5. The Tribunal failed to take into account material provided to it in accordance with s424 of the Act by rejecting a document corroborative of the applicants [sic] claims authored in Australia on the basis of country information about document fraud in relation to documents created in Pakistan.

6. The Tribunal’s rejection of the claims (at [10]) based on the letters from [the employer] was irrational and illogical and based on a false premise, namely that ‘independent evidence indicates the CEO of [the employer] is ‘[Mr IBCD]’’ in circumstances where no such ‘independent evidence’ is identified and where the name of the CEO of [the employer] is in fact ‘Mr [IBCD]’ (as correctly identified in the letter dated 17 March 2014.

7. Further, to the extent that any such ‘independent evidence’ referred to at [10] existed, it was not put to the applicant for comment in breach of s424A of the Migration Act. To the contrary it was put to the applicant (at [57]) that the website of [the employer] indicated that the CEO was ‘[Mr IBCD]’.

8. Tribunal failed to give reasons for its decision in accordance with s430 of the Act in that it provided an [sic] document entitled Attachment 1 Claims and Evidence which did not form part of the signed Statement of Reasons for the purpose of s430 and the Signed Statement of Reasons was correspondingly deficient.

37    The primary judge rejected each of the grounds for reasons I deal with in the context of considering the grounds of appeal.

4.    CONSIDERATION

4.1    Relevant principles

4.1.1    The criteria for the grant of a protection visa

38    The Act provides for the circumstances in which a person who is not a citizen of Australia (a “non-citizen”) may enter and remain in Australia. The Act provides for different classes of visa, one of which is protection visas. A protection visa may be granted under s 65 of the Act where the criteria in s 36(2)(a) are met, namely, where (as at the relevant time) the Minister is satisfied that the person is a person to whom protection obligations are owed because the person is a refugee as defined in article 1A(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention). Article 1A(2) defines a refugee as a person who:

…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it.

39    A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Tribunal to assess what will occur in the future. A fear is “well-founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid. Accordingly, where the Tribunal entertains any real doubt about a finding to reject a claim, it must consider in the alternative whether there is a “real chance” that a visa applicant may suffer persecution on the assumption that it was wrong: see Guo at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at [62] (North J agreeing)).

40    Section 36(2)(aa) provides for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:

…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

41    Section 36(2A) provides that a non-citizen will suffer “significant harm” if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

42    A determination of whether there is a real risk for the purposes of s 36(2)(aa) requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” (as defined in s 36(2A)) if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). The level of risk of harm under s 36(2)(aa) is therefore the same as the level of risk required under s 36(2)(a) of the Act.

43    The question of whether an applicant, while having a well-founded fear of persecution in their home region, could safely relocate elsewhere in their country of nationality is relevant to both criteria in s 36(2)(a) and (aa), as I now explain.

4.1.2    The relevance of relocation to the criteria for a protection visa

44    It will be recalled that the Tribunal’s finding that it would be reasonable for the appellant to relocate to Lahore where there was no real chance that he would be persecuted for a Convention reason so as to satisfy s 36(2)(a) or suffer significant harm for the purposes of s 36(2)(aa) were determinative of the Tribunal’s decision to affirm the delegate’s decision to refuse the appellant a protection visa.

45    In the case of s 36(2)(a), the notion of “relocation” and of the “reasonableness” of relocation is inferred from the definition of “refugee” in the Refugees Convention. As Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] UKHL 5; [2006] 2 AC 426 (Januzi) held at [7]:

… if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason…

46    This passage was approved in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (SZATV) at [19] (Gummow, Hayne and Crennan JJ) (Callinan J relevantly agreeing at [105]; see also Kirby J at [69]-[70] (subject to the caveat that, unlike the majority, Kirby J did not consider that the reference by Lord Bingham to “protection” should be read as a reference to diplomatic protection abroad)).

47    However, it does not necessarily follow from the fact that a well-founded fear of persecution does not extend to the whole of the country of nationality that the person does not have a well-founded fear of persecution for the purposes of the Refugees Convention. Rather, as the UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1979) states (quoted with approval in Januzi at [7] and SZATV at [21]):

The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of great disturbances involving Civil War conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if under all the circumstances it would not have been reasonable to expect him to do so.

48    Conversely, a person will be excluded from refugee status if in all of the circumstances it would be reasonable to expect her or him to seek refuge in another part of the same country: Januzi at [7]; SZATV at [22].

49    Reasonableness in this context is used in the sense of “practicable” which, in turn, “must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV at [24] (Gummow, Hayne and Crennan JJ) (emphasis added). Kirby J in SZATV elaborated upon the requirement that relocation be “reasonable” as follows:

80.    A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven [European Council on Refugees and Exiles, Research Paper, pp 8-9]. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation [The Michigan Guidelines on the Internal Protection Alternative, agreed to at the First Colloquium on Challenges in International Refugee Law, 9-11 April 1999, para [13]]; or where safety could only be procured by going underground or into hiding [Hathaway and Foster, “Internal protection/relocation/flight alternative as an aspect of refugee status determination” in Feller et al (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) pp 384-385]; or where the place would not be accessible on the basis of the applicant’s travel documents or the requirements imposed for internal relocation [Hathaway and Foster, p 391].

81.    An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country [Hathaway and Foster, p 383]. In some circumstances, having regard to the age of the applicant the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable [Hathaway and Foster, pp 386-387]. In each case, the personal circumstances of the applicant [UNHCR, Guidelines, p 6 [25]]; the viability of the propounded place of internal relocation [European Council on Refugees and Exiles, Research Paper, pp 12 [8.1], 52]; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution [UNHCR, Guidelines, p 6 [26]], will need to be weighed in judging the realism of the hypothesis of internal relocation.

50    In short, the concern is with the “practical realities facing” an applicant if she or he relocated within her or his country of nationality: NAIZ v Minister for Immigration and Indigenous Affairs [2005] FCAFC 37 at [22] (Branson J (North J agreeing)); see further the illustrations given in the helpful discussion in MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; 206 FCR 191 at [67]-[79] (Dodds-Streeton J).

51    It is important, however, to emphasise that the factors identified by Kirby J in SZATV are illustrative only and do not constitute a list of considerations which must necessarily be taken into account in every case: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 (MZYPW) at [9] (Flick and Jagot JJ). Rather, the extent of the decision-maker’s task in assessing the reasonableness of relocation will largely be determined by the case sought to be made out by the applicant, both in terms of personal circumstances and country conditions: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 443 (Black CJ) and 453 (Whitlam J). Importantly, Tracey and Foster JJ explained in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124] that the answer to the question of whether relocation is practicable in the particular circumstances of the particular applicant “depends upon the framework set by the particular objections raised to relocation”.

52    The question of whether it would be reasonable for the visa applicant to relocate within her or his country of origin is also relevant to the question of whether a non-citizen meets the complementary protection criterion in s 36(2)(aa). Thus s 36(2B) relevantly provides that:

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; …

4.2    Did the primary judge err in finding the Tribunal had not conflated s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) (Ground 2)?

53    Ground 2 of the notice of appeal corresponds to ground 1 of the application for judicial review in the FCC. By ground 2, the appellant alleges that:

The Circuit Court erred at [32] and [37] of its reasons by finding that unless there was a specific separate claim to protection under complimentary [sic] protection criteria which was unrelated to the claims for protection under the refugee convention, the Tribunals’ conflation of the findings under s 36(2)(a) with 36(2)(aa) would not involve jurisdictional error.

54    The Tribunal considered whether the complementary protection criterion in s 36(2)(aa) was met only after rejecting the appellant’s claim for protection under s 36(2)(a) in line with the statutory scheme outlined above. The Tribunal found that the criterion in s 36(2)(aa) was also not met for the following reasons:

30. Having regard to my findings of fact above, the Tribunal is satisfied that it would be reasonable for the applicant to relocate to Lahore where the Tribunal considers that there would not be a real risk that he will suffer significant harm.

31. Having regard to my findings of fact above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, there will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

55    It was not in dispute that the reference in these passages to “my findings of fact above” was a reference to findings made in the context of assessing whether the criterion in s 36(2)(a) was met.

56    The primary judge explained that in his submissions, the applicant had focused upon the words “having regard to my findings of fact above” to contend that the Tribunal had fallen into error in failing to consider separately whether the criterion in s 36(2)(aa) was met as opposed to that in s 36(2)(a) (FCC reasons at [28]). The primary judge rejected that submission, finding that:

31. It is to be remembered that the Tribunal found that the applicant, as a Shi’a of Hazara ethnicity, would suffer serious harm if he were to return to Pakistan. Therefore, what the Tribunal concluded at [29] … was the “cumulative effect” of its findings of fact in relation to relocation within Pakistan.

32. I cannot see on the evidence before the Court, that the applicant made separate claims to protection as a refugee to those claims to protection under the complementary protection criterion.

33. In light of this also, it is of note that the applicant, when invited to comment on the question of relocation to Lahore in Pakistan, did not provide separate reasons as against each criterion as to why he could not reasonably relocate (see [9] at CB 460 to [16] at CB 461).

34. I note and relevantly apply what was said in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37]:

“The issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context…”

35. In this circumstance, I cannot see error in the Tribunal’s reliance on factual findings arising from a common set of factual assertions. Nor in, then concluding that in light of the accumulation of those findings, the applicant could reasonably relocate to Lahore, and that this finding provided disposition of the application for the protection visa as against each of the criteria at s.36(2) of the Act.

57    In so finding, the appellant contended that the FCC erred on the ground that the decision in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 was distinguishable because, in that case, the Tribunal had expressly directed itself to the terms of s 36(2)(a) when considering the question of reasonableness of relocation for the purposes of section 36(2)(aa). However, the applicant contended that no such consciousness of the statutory framework was evident in the Tribunal’s decision in this case. The appellant also argued that the conflation of the statutory tests “[was] clearly evident in the Tribunal’s rolled up reasons at [29] for rejecting the appellant’s claims for protection under the refugee convention which are globally adopted in relation to complimentary protection at paragraph [30]-[32]. The global statement “for the reasons above” prefacing each of those paragraphs provides no exposed reasoning process in relation to the rejection of the claims for complimentary [sic] protection”.

58    It was properly not in issue that ss 36(2)(a) and 36(2)(aa) prescribe different criteria for the grant of a protection visa. Bearing in mind that one of the requirements under s 36(2)(aa) is that the Minister must not be satisfied that the visa applicant is a refugee for the purposes of s 36(2)(a), it necessary follows that the Minister will consider whether the criterion in s 36(2)(aa) is met only if it finds that the criterion prescribed by s 36(2)(a) is not. As such, the Tribunal was unquestionably required to give separate consideration to the question of whether the criterion in s 36(2)(aa) was met once it had concluded that the criterion in s 36(2)(a) was not.

59    This does not, however, mean that Tribunal’s factual findings made in the context of assessing the claim under s 36(2)(a) could not be relied upon by it in the context of assessing the claim under s 36(2)(aa). To the contrary, it is well established that the Tribunal is entitled to refer to earlier expressed findings of fact when considering whether the complementary protection criterion was met (FCC reasons at [36]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55]-[56] (Robertson J) and SZSQG v Minister for Immigration and Border Protection [2013] FCCA 612; 136 ALD 360 at [84]-[93] (the Court)). It is apparent that the Tribunal did no more than this in circumstances where, as the primary judge found, no separate reasons were advanced by the appellant when invited to comment on the question of relocation as to why he might satisfy the criterion in s 36(2)(aa), even if he did not meet the criterion in s 36(2)(a). As such and given the terms of s 36(2B)(a), the claim for complementary protection under s 36(2)(aa) could not survive the findings of fact as to the reasonableness of relocation made in the context of the refugee criterion. It follows that ground 2 the notice of appeal must fail.

4.3    Did the primary judge err in finding the Tribunal took the correct approach to relocation (Grounds 3 and 4)?

60    Before the FCC, the appellant argued that the Tribunal had erred in confining the test of reasonableness of relocation to one location within Pakistan (at [53]). The appellant referred to MZYPW which the primary judge understood to be illustrative of the appellant’s argument that the “Tribunal did not address, or more particularly did not give any explanation for the finding, that the children could not relocate to Lahore” (at [60]).

61    No issue was taken with the primary judge’s summary of the nature and extent of the appellant’s claims that his children did not speak Urdu but only Farsi as follows:

63. The issue of relocation was raised by the applicant prior to the Tribunal hearing. In his written statement dated 25 May 2011, submitted at the time of the making of the protection application (CB 213 to CB 217), the applicant stated that he had attempted to relocate within Pakistan (to Karachi), to avoid harm in Quetta (see in particular at [10]-[11] at CB 215 to CB 216 and [15] at CB 217). There is no reference there to any language difficulties for his children in the context of his family relocating.

64. The applicant also submitted a statement to the Tribunal dated 13 November 2013 (CB 346 to CB 348). The issue of relocation was again raised, and specific references were made to his wife and children (see [4] at CB 346 to CB 347 and [6] at CB 346). No reference is made to any language difficulties for the children.

65. The first mention, therefore, of language difficulties for the applicant’s children in the context of relocation (indeed, in any context) is the applicant’s reported statement at the [Tribunal] hearing that his children do not speak Urdu.

66. Following the hearing, the Tribunal wrote to the applicant by letter dated 20 March 2014 inviting his comments on certain information (CB 449 to CB454). That information related to Hazaras and Shi’as living in Lahore (CB 451.8 to CB 454).

67. The representative responded on the applicant’s behalf (CB 462 to CB 471). In relation to the specific matter of relocation to Lahore, two matters were put forward as to why relocation to Lahore was “not a viable option” (CB 464.6). None of these matters made any reference to any linguistic difficulties for the applicant’s children.

62    As in the FCC, the appellant contended that the Tribunal had failed to apply the correct test to the question of relocation as explained by the Full Court in MZYPW. The appellant submitted that the FCC had erred in distinguishing MZYPW on the ground that he had raised the language difficulties under which his children laboured only on one occasion and had failed to expand upon those difficulties in subsequent submissions to the Tribunal (AOS at [38]-[39]). As such, the appellant submitted that “[i]t appears that the Court below sought to explain or down play the clear failure of the Tribunal to address the issue of the children’s language limitations for the purposes of relocation, by reference to a failure by the appellant to mention the issue on multiple occasions” (AOS at [39]). The appellant also submitted that the FCC had erred in his Honour’s characterisation of the issue in MZYPW in stating that “in MZYPW the applicant had articulated that a barrier to his family going to Afghanistan (in the sense of reasonableness) was that the dialect spoken by the family would expose them to danger” (AOS at [41], quoting from the FCC reasons at [73]). The appellant further submitted in oral argument that the FCC had erred in substituting for the question of whether it was practicable for an applicant to relocate, the question of whether it was safe for an applicant to do so based upon his Honour’s erroneous understanding of the reasoning in MZYPW.

63    With respect, however, these submissions proceed on a misreading of the primary judge’s reasons. The primary judge’s point was not that the language issue had been raised only once but rather that on the only occasion on which the issue was raised by the appellant, it “simply report[ed] the applicant’s statement, albeit in the context of relocation to Lahore, that his children could not speak Urdu, only Farsi” (at [74]). As his Honour continued, “there was nothing further from the applicant to the Tribunal to explain why the fact that his children spoke Farsi was a matter that would cause difficulty for him and his family if they were to go to Lahore” (at [75]). No link, in other words, was made between the personal circumstances of the applicant’s children on the hand, and the viability of the proposed place of relocation, on the other hand, whether on the grounds of safety or for other reasons. In this regard, given that the children were at early school age at the time of the Tribunal hearing (as the primary judge noted) and that no such language difficulties were claimed with respect to their parents, it could not be said to be self-evident from the bare fact that the children spoke only Farsi and not Urdu that relocation was not reasonable in the relevant sense.

64    It follows, as the primary judge held, that the decision in MZYPW is distinguishable. In that case, the applicant family gave evidence that the dialect of Hazaragi spoken by them presented a barrier to relocation because that dialect was used in Pakistan, thereby marking them out and placing them at risk of harm if returned to Afghanistan. By contrast, in this case as the primary judge held, “the importance or significance of the issue of language remained unexplained before the Tribunal. It is not for the Court now to speculate as to the relevance, or significance, or consequence, of the applicant’s reported statement” (FCC reasons at [78]). In these circumstances, there is nothing to displace the inference to be drawn in the context of the Tribunal’s obligation to set out findings on material questions of fact under s 430(1), that the Tribunal did not expressly refute the evidence as to the children’s language limitations in addressing the relocation issue because it did not consider the evidence to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [5] (Gleeson CJ) and [69] (McHugh, Gummow and Hayne JJ).

65    It follows that grounds 3 and 4 of the notice of appeal have not been established.

4.4    Did the primary judge err in finding that the Tribunal did not impose a requirement on the appellant to prove the existence of targeting (Ground 5)?

66    The fifth ground of appeal alleges that the primary judge erred in finding (at [92] and [97]) that the Tribunal did not make a finding that the applicant was “required to prove the existence of ‘targeting’ for the purpose of his application”. In this regard, the appellant submitted that “it is plain from reading the Tribunal’s decision as a whole that it approached the question of relocation through the prism of the only relevant question being whether the appellant had suffered harm in the past and had been specifically targeted” (referring to the Tribunal reasons at [17] and [18]): AOS at [47] (emphasis added). The appellant therefore submitted that the primary judge wrongly found that the Tribunal was simply responding to the appellant’s claims to fear harm throughout Pakistan when it spoke of the applicant being targeted as the only basis of his claim that relocation was unreasonable. The appellant further submitted that “it may also be seen that the appellant’s submissions as to why it would be unreasonable for him to relocate to Lahore went well beyond a mere submission that he would be specifically targeted there, including the submission that his children could not speak Urdu but only speak Farsi...” (AOS at [48]).

67    This ground must also be rejected.

68    First, to the extent that the ground relies upon a claim that relocation was not reasonable by reason of the children’s language difficulties, it cannot succeed for the reasons already given.

69    Secondly, the primary judge correctly explained that:

90. The assessment of whether there is a real chance of persecution, that is the application of the real chance test, requires the Tribunal to make findings of fact arising from the applicant’s claims. This will often require an evaluation of country information, and the evaluation of the applicant’s claims in light of findings about relevant country information, concerning the situation in the relevant country.

91. Past events can be a guide to the determination of what would likely occur in the future (see Guo at 574). As was made clear in Guo, this involves an assessment of these events. However, the real chance test is focussed on the reasonably foreseeable future if the applicant were to return to his home country or a part of that country. The claims to fear harm must be assessed with that focus (see SZTOO v Minister for Immigration & Anor [2015] FCCA 1631 at [27]).

70    Thirdly, there is nothing in the reasons of the Tribunal to suggest that it was making findings as to what had happened in the past otherwise than in order to assess what may occur in the reasonably foreseeable future in accordance with these principles.

71    Fourthly, as the primary judge held at [92] and [97], the Tribunal at [22] was concerned to address the appellant’s claims that by reason of his membership of a prominent Hazara family in Pakistan, he would face a very high risk of being specifically targeted and tracked down in all parts of Pakistan and that, based upon available country information, as a Hazara Shi’a he would be “targeted and denied effective protection” throughout Pakistan (see e.g. letters from the appellant’s migration agent dated 14 February 2014 at AB302 and 303; and 3 April 2014 at AB465). In other words, read fairly and in the context of the appellant’s claims, it is plain that the Tribunal did not impose any requirement that the appellant establish that he had been specifically targeted in order to satisfy the real chance test. This is confirmed by the fact that the Tribunal took into account other factors which had no bearing upon whether the appellant might be targeted in the context of finding that the appellant could reasonably locate to Lahore. These included its finding that “Lahore is a large and diverse city and there is plenty of opportunity for qualified and educated people to pursue a career which the applicant has done in the past” and the appellant’s ability to participate in his religious and ethnic community in Lahore as he had in the past and in their religious and social activities if he so wished (Tribunal reasons at [22] and [23]).

72    It follows that ground 5 is not established.

4.5    Alleged errors arising from the Tribunal’s rejection of corroborative letters (Grounds 6-10)

4.5.1    Relevant findings by the Tribunal

73    Grounds 6 to 10 concern the Tribunal’s rejection of the appellant’s claim to have been individually targeted in the past. Specifically, the appellant claimed that, following threats made against him in December 2010, the employer’s CEO advised him to shut down the employer’s operation in Quetta and in December 2010 the appellant moved to Karachi out of concerns for his safety in Quetta. In his statement dated 25 May 2011 at [9], the appellant alleged he discussed the threats with the CEO of the employer, Mr [IBCD], who advised him to close the employer’s operation in Quetta as soon as possible for his safety and that of the appellant’s staff.

74    It will be recalled that:

(1)    the appellant relied in support of this claim upon a letter allegedly dated 12 May 2011 and written by the CEO, Mr [ABCD], confirming that the appellant worked for the employer and the appellant’s version of these events (the first letter) (AB; [AB74])

(2)    the Tribunal wrote to the appellant on 20 March 2014 inviting the appellant to comment upon information which the Tribunal considered may be part of the reason for affirming the delegate’s decision including material suggesting that the CEO’s name was spelt as Mr [IBCD] and therefore differently from its spelling in the first letter (see above at [27]); and

(3)    in response, the appellant’s representative provided the second letter allegedly from the CEO dated 17 March 2014 giving an Australian address in the footer but on letterhead from the Head Office in Lahore. The second letter said that the first letter was genuine and that it “had [sic] typographical error which has been rectified” (AB472). As such, the appellant submitted to the Tribunal that the CEO had earlier mistyped the spelling of his name, and that the second letter contained the correct spelling of the CEO’s letter, i.e., Mr [IBCD].

75    The Tribunal considered this evidence in the course of considering whether the appellant had suffered harm in the past, as he claimed. I note that, as the appellant submitted, the Tribunal ultimately relied only on the difference in the spelling of the CEO’s surname and not of his middle name. At [10], the Tribunal said that it “has much difficulty” in accepting the appellant’s claim regarding his alleged move to Karachi and the circumstances in which that allegedly occurred. The Tribunal gave a number of reasons for doubting this claim.

76    First, while the Tribunal accepted that the appellant had worked as the CEO of his consultancy, it doubted that he ever worked for the employer:

… the Tribunal doubts that the applicant has ever worked for [the employer] given that the letter in support of the applicant’s employment has been signed by a ‘[Mr ABCD]’ when independent evidence indicates that the CEO of [the employer] is [Mr IBCD]. The Tribunal doubts that the CEO would be incorrectly named on correspondence as the applicant and a subsequent letter allegedly from [Mr IBCD] have claimed. In reaching this conclusion the Tribunal is also mindful that DFAT has indicated that document fraud is common in Pakistan.

(Tribunal reasons at [10])

77    Secondly, the Tribunal found that “[i]n addition the Tribunal has difficulty accepting that the applicant closed down the [employer’s] operation in Quetta in December 2010 because he feared for this safety and the safety of his staff yet documentation on file clearly suggests that the applicant’s own offshore … consultancy continued out of the same address after that date … as late as March 2011” (Tribunal reasons at [11]). This information had also been the subject of the letter from the Tribunal to the appellant’s representative on 20 March 2014 inviting him to comment, as earlier explained.

78    Thirdly, while the appellant attempted to explain this discrepancy when it was put to him at the hearing on the basis that, while his office was still open, he had told his staff to close down the business as soon as possible with only outstanding business to be done, the Tribunal clearly gave weight to the inconsistency in his evidence, finding that “the applicant initially stated [that his consultancy] was closed in December 2010 when this is clearly not the case” (Tribunal reasons at [11]).

79    Fourthly, the Tribunal found that “[i]n addition” contracts entered into by the appellant’s consultancy in February and March 2011 “[do] not suggest that [the consultancy] was simply handling outstanding business and winding down but rather, it suggests that the business was continuing to run on a ‘business as usual basis’” (Tribunal reasons at [11]). Again the Tribunal did not accept the appellant’s attempt to explain this inconsistency when it was put to him as the explanation had not be proferred earlier.

80    As a result, the Tribunal found that:

11. …Put simply, there is no hint in this documentation or in any of the other documentation mentioned that the business is being wound down or that he as CEO was located at another address in Karachi. These documents do not suggest to the Tribunal that the applicant left the office prior to his departure for Australia in April 2011.

81    The Tribunal concluded on this issue that:

12. This means that even if the Tribunal gives the applicant the benefit of the doubt and except the applicant did work for [the employer], the Tribunal does not believe that the applicant did receive threatening phone calls which meant that as a result he had to close down [the employer] and was too scared to keep going with his own business or that he closed his own business down in December 2010 as first claimed at hearing. The Tribunal also does not accept that he was required to move to Karachi in December 2010 or that he gave instructions to his staff that they needed to close down the business as soon as physically possible. Put simply, the Tribunal is not satisfied that the applicant is telling the truth when he states that he has been individually targeted in the past or for any of the reasons claimed. This means that the Tribunal is not satisfied that he has been individually targeted in the past.

4.5.2    The appellant’s arguments in the FCC regarding the Tribunal’s treatment of the potentially corroborative material

82    Before the FCC, the appellant argued that:

(1)     the Tribunal failed to take into account information provided to it in accordance with s 424 of the Act when it rejected a document corroborative of his claims on the basis of country information about document fraud in Pakistan;

(2)    the Tribunal’s finding based on the letter in rejecting the applicant’s claims was irrational and illogical; and

(3)    there was a breach of s 424A of the Act because the “independent evidence” relied upon by the Tribunal was not put to the applicant for comment.

(FCC reasons at [99] and [106])

83    As to the first of these grounds, the primary judge explained that:

104. In short, the applicant’s complaint was that the Tribunal did not take into account corroborative evidence because it rejected the letter from [the employer] because it found the letter contained a misspelling of the author’s name, and because of information concerning the prevalence of document fraud in Pakistan.

84    The primary judge further explained that before the FCC the applicant submitted that these grounds “sought to ‘crystallise’ the ‘SZRHL point’” referring to SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; 136 ALD 641 (SZRHL). In that case, Logan J held that the Tribunal had found that the applicant lacked credibility on the basis of an erroneous factual premise. His Honour characterised the Tribunal’s reasoning as a result as illogical or irrational and as a breach of procedural fairness in the circumstances of that case (SZRHL at [34]-[36]), and found that the error was material on the basis that it was open to conclude that the appellants were deprived of a successful outcome on the merits as a result of the error (SZRHL) at [37]).

85    The primary judge rejected the appellant’s submissions for reasons I explain below.

4.5.3    Ground 6, amended notice of appeal

86    By the amended notice of appeal, the appellant contends that the FCC erred first by characterising at [118] the Tribunal’s finding as one concerned only with rejecting the first corroborative letter provided by the appellant’s former employer (ground 6). The ground is, with respect, misconceived. The finding at [118] should be read in context of the preceding paragraphs in the primary judge’s reasons:

115. There are two answers to the applicant’s arguments. First, on the facts presented there was no relevant errant fact finding made by the Tribunal. Whatever may have been said at the hearing, and whatever the reference to independent information at the hearing in relation to the “correct” name of the CEO of [the employer] (see [57] at CB 514 and [63] at CB 515), the relevant findings of the Tribunal are at [10] (at CB 497).

116. Those findings were that (in context) the first letter was signed by “[Mr ABCD]”. On the evidence it was (CB 74). The Tribunal’s reference to the second letter (irrespective of the spelling of the name of the CEO on it) was not to note the difference in that spelling to the spelling which the Tribunal considered to be the “correct” spelling.

117. Rather, on a fair reading, the reference to the second letter was made for the purpose of noting and identifying that there was a second letter. The reference to the second letter was to further note the contents of that letter in confirming that the name had been incorrectly spelt in the first letter. That is made clear with the reference to the words “as the applicant and a subsequent letter allegedly from [Mr IBCD] have claimed”.

118. That is, the Tribunal’s relevant finding, which was reasonably open to it on what was before it, and which it had discussed with the applicant at the hearing, was an expression of doubt that the name of the “CEO would be incorrectly named on correspondence”. That is, in the first letter. Whatever the “correct spelling” of the name of the CEO was, it was not “[Mr ABCD]” as appeared on the first letter.

87    No error is apparent in the primary judge’s reasons in these paragraphs. It was undoubtedly the case that, whatever was the correct spelling of the CEO’s name, even on the appellant’s own case it was not the spelling of his name on the first letter in 2011. As that spelling differed from the spelling of the CEO’s name as it appeared on independent promotional material, it was rational and reasonable for the Tribunal to doubt whether the appellant had ever worked for the employer given its doubts about whether the name of the CEO of the employer would be incorrectly spelt, particularly when it is borne in mind that even on the appellant’s own case, this was a major international company with an Australian office. Equally there is nothing unreasonable about the Tribunal taking into account independent country information that document fraud is common in Pakistan.

4.5.4    Ground 8 and 9, amended notice of appeal

88    It is convenient to deal with grounds 8 and 9 of the amended notice of appeal together. By ground 8 of the amended notice of appeal the appellant contends that the primary judge erred in finding that the Tribunal’s reference to document fraud in Pakistan only referred to the first corroborative letter (which was from Pakistan) and not the second corroborative letter from a Pakistani in Australia. Ground 9 in turn alleged that the primary judge erred by finding (at [125]) that because the second corroborative letter (authored in Australia) showed on its letter that the company had a head office in Pakistan, this was sufficient to bring it within the scope of DFAT’s country information concerning document fraud in Pakistan.

89    In support of these grounds, the appellant submitted that:

… it is clear that [the] Tribunal used … the DFAT report “in reaching this conclusion”, namely its rejection of the correspondence from the CEO of [the employer].

The Circuit Court (at [125]) also found that the reference to the DFAT report could be justified because the second corroborative letter (authored in Australia) showed on its letterhead that the company had a head office in Pakistan and that this was sufficient to bring it within the scope of DFAT’s country information concerning document fraud in Pakistan.

That finding by the Court below was clearly in error. The terms of the letter made it clear that the author was to be found in Melbourne and not Pakistan. The contact details he places under his signature include an Australia mobile phone number and what is clearly a phone number with a Melbourne area code, together with an address in [X] Street. Those details are part of the particular type written document and not the printed letterhead. There is no foundation to suggest that the document was authored other than in Australia, the respondent made no such contention.

90    A similar contention was made in the FCC (FCC reasons at [124]).

91    While the primary judge accepted at [125] that it “may be the case, when read fairly, the Tribunal’s reference to ‘document fraud’ (at [10] at CB 497), clearly related to the first letter from [the employer], however the same cannot be said of the second letter”, the primary judge held that:

125. … In any event, as is clear from the on the face of both letters, both made reference on their letterhead to the Head Office of [the employer] in Lahore, Pakistan. The first letter, while identifying in its letterhead the company name as [the employer], had as part of the signature block “[the employer] Pakistan”. This is sufficient for the Tribunal to reasonably have treated both letters as coming within the information from DFAT concerning document fraud in Pakistan.

92    I agree with the appellant that, fairly read, the Tribunal’s concerns about the possibility that the correspondence allegedly from the CEO of the employer was fraudulent extended to both the first and second letters. In my view, this is clear from the Tribunal’s description of the second letter at [10] as “allegedly” from the CEO of the employer in doubting the claims made in that letter (and by the appellant) that the CEO’s name had merely been misspelt, and from the reference in the following sentence to country evidence indicating the prevalence of document fraud in Pakistan in support of “this conclusion”. Furthermore, as the Minister submitted, if there were doubts about the whether the first letter was written by the CEO, logically the Tribunal must have had the same doubts about the second letter (T 3 March 2016 at p. 37.12-16).

93    The appellant’s submission, however, assumes that the fact that the signature block to the second letter contains an Australian address somehow means that “the letter was clearly authored in Australia” and that it was therefore irrational for the Tribunal to doubt the veracity of the second letter by reference to country evidence as to document fraud in Pakistan. However it is logically just as possible for a letter fraudulently produced in Pakistan to refer to an address in Australia as it is to refer to an address in Pakistan. In this regard it must also be borne in mind that the second letter was provided to the Tribunal on 3 April 2014 only after the Tribunal raised concerns in its letter dated 20 March 2014 about the discrepancy between the spelling of the CEO’s name in the first letter and the spelling of his name in independent evidence, and it is therefore scarcely surprising that the second letter should have been treated with some suspicion by the Tribunal. The fact that the second letter was ostensibly on letterhead for the Head Office in Lahore, Pakistan, only serves to strengthen the potential link between the second letter and country evidence as to document fraud in Pakistan. Neither grounds 8 or 9 therefore have been established.

4.5.5    Ground 7, amended notice of appeal

94    By ground 7 of the amended notice of appeal the appellant contends that the primary judge erred in finding at [119] that the Tribunal’s incorrect findings as to the incorrect spelling of the name of the CEO of the former employer were not determinative of the applicant’s credibility (ground 7). In this regard, the primary judge held that:

119. Second, and in any event, as the Minister submits, and bearing in mind what was stated, and found, in SZRHL, in the current case it cannot be said that the matter of the spelling of the CEO’s name was determinative of the relevant conclusion as to the applicant’s credibility.

95    The short answer is that it is plain on the face of the Tribunal’s reasons that the differences in spelling were not determinative. Rather, as the primary judge held at [121], the differences in the spelling of the CEO’s name gave rise only to “doubts” that the appellant had worked for the employer. Those doubts were enhanced in the Tribunal’s views by the existence of document fraud in Pakistan as established by the country information.

96    That notwithstanding, the Tribunal gave the appellant the “benefit of the doubt” that he had worked for the employer in Pakistan. As a result, the Tribunal then went on to consider on that assumption whether the appellant had suffered threats in the past as he claimed. The “key finding” by the Tribunal, as the primary judge held at [123], was therefore that the appellant had not received the threatening telephone calls or had to close down the employer’s business or his own as a result. This finding was made for other reasons, namely, evidence contradicting the appellant’s initial claims that he had closed down the employer’s and his own consultancy operations in December 2010 and so forth: see above at [77]-[81]. In other words, none of these findings relied upon the correct or incorrect spelling of the name of the CEO of the employer, as the primary judge held at [123].

4.5.6    Ground 10, amended notice of appeal

97    Ground 10 of the amended notice of appeal alleges that the primary judge erred by finding (at [127]) that, because the Tribunal gave the appellant the “benefit of the doubt” that he had worked for the employer in Pakistan, “it cannot be said that the dismissal of that letter would be part of the reason for affirming the decision under review in circumstances where the value of the second corroborative letter was to corroborate the fact that the Quetta office (in which the appellant was in charge) had to be closed due to a genuine life threat.” Relevantly, the primary judge held that:

127. Nor was the Tribunal’s decision in relation to the applicant’s claim that he had been specifically targeted illogical or irrational or unreasonable, with reference to ground six (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1). The only evidence before the Court of what occurred at the hearing is what the Tribunal has reported in its decision record. These references reveal that the applicant was put on notice both as to the Tribunal’s concern as to his claim to have been specifically targeted and the matter of the two letters. Given that the Tribunal found, by giving the applicant the benefit of the doubt, that he had worked for [the employer] in Quetta in Pakistan, it cannot be said that the information concerning the CEO of the company obtained from DFAT was information that the Tribunal considered would be a part of the reason for affirming the delegate’s decision such as to enliven s.424A(1) of the Act, with reference to ground seven.

98    In this regard, as the appellant submits, the first letter not only stated that the appellant was a director for the employer, but purported to corroborate the appellant’s substantive claims to fear harm. In particular, the first letter stated that:

(1)    the author knew the appellant personally;

(2)    the appellant came from a “well know[n] Shia Hazara family”;

(3)    the appellant had informed him that he had received a threat of assassination by reason of his consultancy and involvement in a creative field of endeavour;

(4)    the appellant had informed him that he could not continue the business and had “to hide his presence from his office before he [was] killed”;

(5)    the author knew that “his family member has been already assassinated in different target killings in Pakistan”;

(6)    the author advised the appellant to close down the employer’s international Quetta office and that the Quetta branch office address and contact would be officially removed from the website; and

(7)    “[i]t is really grate danger for [the appellant] to stay in Pakistan.”

(AB74; errors in the original)

99    In the second letter dated 17 March 2014, the author relevantly purported to confirm the correctness of the information in the first letter (AB472).

100    In the appellant’s submission, if the letters were accepted, then the appellant’s substantive claims must be accepted.

101    As such, the appellant submitted that the primary judge erred in failing to deal with “the other very significant aspects of corroboration provided by the letters….” (AOS at [30]). Yet in his submission, the “irrational rejection of the corroborative evidence was determinative of the relevant conclusion as to the appellant’s credibility.”

102    In effect, it is my understanding that the appellant submits that the primary judge should have found that the Tribunal could not logically and rationally:

(1)    give the appellant the benefit of the doubt by considering his claims on the basis that he was employed by the employer despite its doubts about the genuineness of the first and second letters from the CEO; and, at the same time

(2)    dismiss the letters on the basis of those doubts insofar as the letters corroborated his substantive claims to fear harm.

103    In my view, as the primary judge held, properly understood there is no such irrationality in the Tribunal’s decision.

104    Rather, the proper inference to be drawn from the Tribunal’s reasoning is that it did not consider that the statements in the two letters about the appellant’s claims to have been threatened, and about what was said to have occurred as a consequence, were material. In this regard, the Tribunal is required relevantly only to set out its findings “on any material questions of fact” (s 430 of the Act). As such, it is well established that if the Tribunal does not set out a finding on a question of fact, that is an indication that it made no finding on that matter, which, in turn, may indicate that the Tribunal did not consider the matter to be material: Yusuf at [5] (Gleeson CJ) and [69] (McHugh, Gummow and Hayne JJ); SZMTA (HCA) at [14] (Bell, Gageler and Keane JJ). Other considerations may, of course, displace that inference: Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 at [43]-[47] (the Court). However, there is nothing to that effect in the present case.

105    First, the Tribunal plainly did not overlook the letters as it dealt expressly with them at [10] of its reasons.

106    Secondly, the Tribunal dealt expressly with a matter on which the author of the letters (assuming their veracity) would be likely to have personal knowledge, namely, the claim by the appellant to have been employed by the employer, and gave the appellant the benefit of the doubt on that issue. However, the author of the letters did not purport to have any actual knowledge of the alleged threat of harm against the appellant which underlay the appellant’s claims about the closing of the Quetta office, his move to Karachi and so forth. To the contrary, the author said no more than that he had been “informed” by the appellant that he had been threatened.

107    In these circumstances, the proper inference is that the Tribunal did not consider that the letters were material insofar as they purported to deal with the appellant’s claim to have been threatened and the steps which the appellant took in response to the threats. Rather the Tribunal was in a position to, and did, assess for itself the veracity of those substantive claims based upon the appellant’s own evidence, including his explanations for inconsistencies between his evidence and other evidence, and the country/independent evidence. Thus, as earlier explained in considering ground 7 of the amended notice of appeal, the Tribunal gave reasons unrelated to its concerns about the genuineness of the two letters for rejecting the appellant’s claims to have feared harm in the past.

4.6    Grounds 1A, 1B and 1C: alleged breach of procedural fairness regarding non-disclosure of the s 438 Certificate

4.6.1    The issues

108    Grounds 1A, 1B and 1C of the amended notice of appeal challenge the Tribunal’s decision on the ground of a breach of procedural fairness by reason of the Tribunal having failed to disclose the existence of a certificate issued under s 438(1) of the Act by the Minister’s delegate and given to the Tribunal by the Secretary in accordance with s 438(2).

109    The nature of the documents in Confidential Exhibit SB1 which were the subject of the s 438 Certificate were accurately described in generic terms by Ms Burnett as follows:

(a)    an internal handwritten note by an officer of the Department;

(b)    a copy of an envelope with the name and address of a confidential third-party (Third-party);

(c)    a translation of a statement made by a confidential third-party relating to the appellant and a copy of the untranslated statement;

(d)    various hand written notes by the Third-party relating to the Appellant.

110    The Minister contended that the Certificate was valid because it identified an issue which engaged s 438(1)(a) and/or 438(1)(b) of the Act. However, the Minister accepted that the existence of the Certificate was not drawn to the appellant’s attention by the Tribunal and that this constituted a denial of procedural fairness. That concession was rightly made. In this regard, the majority (Bell, Gageler and Keane JJ) held in SZMTA (HCA) that:

29. … procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.

30. A notification by the Secretary to the Tribunal that a document or information given by the Secretary to the Tribunal is a document or information to which s 438 applies is an event which alters the procedural context within which the Tribunal's duty of review is to be conducted. If valid, the notification erects a procedural impediment to the otherwise unfettered ability of the Tribunal to take into account the document or information if the Tribunal considers it to be relevant to an issue to be determined in the review, constrains the power of the Tribunal under s 427(1)(c), and truncates the specific obligations of the Tribunal under ss 424AA, 424A and 425. The very fact of notification also changes the context in which the entitlement of the applicant under s 423 – to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review – falls to be exercised.

(emphasis added)

111    In so holding, their Honours rejected the Minister’s submission that an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification by the Secretary under s 438 is excluded by s 422B insofar as s 438 relates to Div 4 of Part 7 (SZMTA (HCA) at [37]). Section 422B provides that Division 4 of Part 7 of the Act (regarding the conduct of the merits review process by the Tribunal) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.

112    However, a denial of procedural fairness will result in jurisdictional error only if the denial of the opportunity to make submissions is material. As the majority also held in SZMTA (HCA):

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" [citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [37]]: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision [citing Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341-342 [56]-[57]].

113    The appellant’s primary submission was that the breach of procedural fairness was material because it could not be said that withholding the documents covered by the s 438 Certificate might not have made a difference to the outcome of the Tribunal’s review, given the adverse credibility findings made by the Tribunal. In the alternative, the appellant submitted that the s 438 Certificate was invalid because “because it does not refer to the components of public interest immunity and the reasons on the Certificate did not address the matters that were required to be addressed under the statutory test in s.438(1)(b) of the Migration Act 1958 (Cth).”

4.6.2    Is the s 438 Certificate invalid?

4.6.2.1    The pre-conditions for the issue of a valid certificate under s 438(1) of the Act

114    Notwithstanding the order in which the appellant put his submissions, it is necessary first to consider the appellant’s contention that the s 438 Certificate is invalid because of the relevance of that issue to the question of whether the denial of procedural fairness was material, as I later explain.

115    Section 438 relevantly provided at the relevant time that:

(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.

116    As the Minister submits, s 438(1)(b) is less onerous than s 438(1)(a) because it captures any information given in confidence, including information which does not fall within a recognised category of public interest immunity. As the majority explained in SZMTA (HCA) with respect to criteria in subsections (a) and (b):

19. The precondition in s 438(1)(a) is met if the Minister, acting within the bounds of reasonableness and on a correct understanding of the law, has certified that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for a reason specified in the certificate. The reason so specified must be a reason (other than a reason which would permit certification under s 437) that could form the basis for a claim by the Executive Government of the Commonwealth in a court proceeding that the matter contained in the document, or the information, should not be disclosed. Where no ground of privilege or statutory immunity from disclosure is engaged, the reason specified in the certificate must therefore be a reason capable of grounding a claim for public interest immunity from disclosure at common law or under s 130 of the Evidence Act 1995 (Cth).

20. The precondition in s 438(1)(b) is met if the document, the matter contained in the document, or the information in question was given to the Minister, or to an officer of the Department, in confidence. The circumstances in which the document, matter or information was given need not be such as would give rise to an equitable obligation on the part of the recipient to keep the document, matter or information confidential.

(emphasis added)

117    The s 438 Certificate is dated 16 August 2013 and is signed by a delegate of the Minister. The Minister’s delegate relevantly stated in the Certificate that:

I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information contained in this allegation. This information was given to the Minister for Immigration and Citizenship in confidence.

In my view, this information should not be disclosed to the applicant or the applicant’s representative because it would serve to identify the source of the allegation.

(Annexure SB-1 to the affidavit of Ms Burnett affirmed on 11 April 2018)

118    The Certificate relates to documents apparently received by the Victorian Onshore Protection Visa division of the Department by post on 12 or 13 August 2013 (second Vosnakes affidavit at [5(a)]). Having regard to the nature of the allegations, the documents were forwarded to the National Allegation Assessment Team (NAAT) (now the Border Watch Allegations Referral Team (BWART)) to undertake an analysis of them (second Vosnakes affidavit at [5(a)]). BWART is the central collection point for community and industry allegations relating to fraud against departmental programs including visa applications and applicants, and conducts intelligence assessments to identify threats and fraudulent conduct or documents. Mr Vosnakes explained that its role is to alert the business areas within the Department of information relating to fraudulent activity and provide intelligence analysis (second Vosnakes affidavit at [6]). Information comprising allegations of fraud recorded in “dob-in” letters and as received by the Department from members of the community are generally forwarded to BWART and thereafter subject to the procedures to be implemented under the Fraud Allegation Referral Matrix.

119    The Tribunal did not refer to the s 438 Certificate in its reasons. However, the Tribunal was plainly aware of the documents the subject of the Certificate, as is apparent from its reasons at [28]. I agree with the Minister’s submission that the appropriate inference to be drawn in these circumstances is that the Tribunal accepted on the basis of the notification that s 438 of the Act applied to the documents the subject of the Certificate: see by analogy SZMTA (HCA) at [70] (Bell, Gageler and Keane JJ).

4.6.2.2    Evidence in support of the validity of the Certificate

120    In support of the validity of the s 438 Certificate, the Minister relied upon the Burnett affidavit to which the s 438 Certificate and the documents the subject of the Certificate were exhibited, as well as the two Vosnakes affidavits: see the First Respondent’s Confidential Submissions dated 20 August 2019 at [6] relying upon the First Respondent’s Outline of Submissions in Support of its Claim for Privilege filed on 22 July 2019. It will be recalled that Mr Vosnakes was a Commonwealth officer at the then Department of Home Affairs, for which the Minister has responsibility. The Minister’s witnesses were not cross-examined.

121    Confidential Exhibit DV1 was exhibited to Mr Vosnakes’ second affidavit. It comprised a copy of a handwritten note received by the Department on or about 13 December 2013 from the same informant who sent the documents comprised in Confidential Exhibit SB1 to the Department. I note that, while Confidential Exhibit DV1 to Mr Vosnakes’ second affidavit was relied upon in support of the Minister’s submission that the Certificate was valid under s 438(1)(a), that document was not included in the files of the delegate of the Minister or the files of the Refugee Review Tribunal relating to the appellant (being files numbered CLF/2011/208681, CLR/2011/90291, CLF/2000/4202 and 11_02_1151 (Files 1 to 3): second Vosnakes affidavit at [22]; cf Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 (CPA16). Only the bundle of documents the subject of the Certificate issued under s 438(1)(b) of the Act was included within the delegate’s and the Tribunal’s files, namely file CLF/2011/208681: second Vosnakes affidavit at [22].

122    I also note that, as Confidential Exhibit DV1 was received by the Department on 13 December 2013 and therefore after the issue of the s 438 Certificate on 16 August 2013, I have not taken it into account in reaching my conclusion that the Certificate was validly issued under s 438(1)(b). As that subsection directs attention to whether a document was “given … in confidence”, it therefore suggests that the focus should be upon the known circumstances at the time that the documents were given to the Department. In any event, the contents of Confidential Exhibit DV1 would merely have confirmed my conclusion that the documents comprised in Confidential Exhibit SB1 were given in confidence.

4.6.2.3    The precondition in s 438(1)(b) (information given in confidence)

123    The Minister submitted that because of the circumstances of confidence, the Certificate was validly issued under s 438(1)(b) of the Act. I also agree that the Certificate was validly issued under this provision for the following reasons.

124    In his second affidavit, Mr Vosnakes explained it is the practice of the BWART (formerly the National Allegation Assessment Team) and the Department generally to maintain confidentiality over documents and information provided by informants which could disclose the informant’s identity or enable it to be ascertained, even if the informant does not expressly state that the document is to remain confidential. He explains that the Department’s confidentiality regime is maintained and promoted for two reasons:

(a)    first, where an informant does not expressly state the “dob-in” letters (or their content) can be disclosed, it is presumed that the informant does not want his or her identity or the content of their letter to be disclosed given the potential risk of harm to that person that arises where serious allegations are made against another person which may undermine that other person’s objectives or status in Australia, such as, by way of example, a person’s application for a visa; and

(b)    second, based on my expertise, skill and having worked in intelligence within the Australian Public Service for 15 years, if confidentiality of “dob-in” letters is not maintained, I believe that there is a risk that people in the community who provide valuable information to the government and government agencies will not continue, or will be disinclined to inform the Department of fraudulent conduct.

125    As Mr Vosnakes deposes, the name of the informant is clearly identified on page 1 of the confidential documents and the allegations made against the appellant with respect to his application for a protection visa are of such a nature as may disclose the identity of the informant. The allegations made in the confidential documents are also of such a nature that it can readily be inferred that the informant did not wish her or his identity or the allegations in the letter to be disclosed. In these circumstances, I agree with the Minister’s submission that this is plainly a case where the document and the information contained in the document were given to the Minister or a Departmental officer in confidence so as to satisfy the criterion in s 438(1)(b) of the Act.

126    In this regard, the appellant submitted that the s 438 Certificate was invalid because “the reasons on the Certificate did not address the matters that were required to be addressed under the statutory test in s.438(1)(b)”. However, the s 438 Certificate stated that the “information was given to the [Minister] in confidence” and should not be disclosed because it would identify the source of the allegation. There is nothing in that formulation which lacks engagement with the criterion in s 438(1)(b) or misstates the test. The submission with respect was not developed by the appellant and lacks merit.

4.6.2.4    The precondition in s 438(1)(a) (public interest immunity)

127    Further and in any event, the Minister submitted that the Certificate was validly issued under s 438(1)(a), relying upon the submissions and evidence in support of confidentiality orders to protect the documents the subject of the Certificate against disclosure on the ground that their disclosure would be contrary to the public interest within the meaning of s 130(1) and (4) of the Evidence Act 1995 (Cth) (the Evidence Act).

128    With respect to s 438(1)(a), s 130(1) of the Evidence Act provides that:

If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

129    In turn, s 130(4) of the Evidence Act relevantly provides that:

Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

…

(e)    disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; …

130    It is important to reiterate that s 438(1)(a) requires only that disclosure of the document or information “could form the basis for a claim” by the Commonwealth in a judicial proceeding under s 130(4)(e) of the Evidence Act (emphasis added). It does not invite any assessment of whether a Court would allow that claim in the weighing exercise mandated by s 130(1) which of its nature must be affected by the particular context in which any such claim is made.

131    For the reasons earlier given, it is clear that the documents the subject of the s 438 Certificate disclose, or would enable the appellant to ascertain, the identity of a confidential source of information relating to the administration of the law of the Commonwealth, i.e., the grant of a protection visa under ss 36 and 65 of the Migration Act. As such, even without considering Confidential Exhibit DV1, in my view the criterion in s 438(1)(a) is also met.

132    Nonetheless for the sake of completeness, I note that in the handwritten note from the informant comprising Confidential Exhibit DV1, Mr Vosakes correctly explained that:

(1)    the author directed the Department to keep the information “secret”; and

(2)    the author stated the perceived dangers to the author and others within the author’s family if the information were disclosed.

(Second Vosnakes affidavit at [21])

133    As such, this evidence confirms my conclusion reached in any event that the documents the subject of the s 438 Certificate could form the basis of a claim by the Commonwealth for public interest privilege under s 130 of the Evidence Act and therefore satisfy s 438(1)(a). As the Minister submitted, when regard is had to this additional evidence, not only did the documents disclose the identity of a confidential source in circumstances of obvious confidence, but an express request was subsequently made in Confidential Exhibit DV1 for the identity of the informant not to be revealed and for all of their information to be kept secret on the basis of an apprehension of harm.

134    Finally, the appellant also submitted that the s 438 Certificate was invalid because it did not refer to the components of public interest immunity. Given that the s 438 Certificate states the information should not be disclosed because it would serve to identify a confidential source, the submission which again was not developed, must be rejected.

4.6.3    Was the breach of procedural fairness material?

4.6.3.1    The appellant’s submissions

135    The appellant’s primary argument was that the breach of procedural fairness in failing to disclose the existence of the s 438 Certificate was material to the Tribunal’s decision. The onus lies upon the appellant to establish materiality: SZMTA (HCA) at [4] and [41] (Bell, Gageler and Keane JJ); CPA16 at [32(5)] (the Court).

136    The appellant relied by analogy upon the decision in CPA16. In that case, it was common ground that the material provided by CPA16 to the delegate had included a corroborative letter from the visa applicant’s parish priest which for unknown reasons was not placed on the Departmental file and was not therefore given by the Secretary to the Immigration Assessment Authority (IAA) as required by s 473CB(1) of the Act (CPA16 at [3]). The Full Court held that the IAA’s decision was affected by jurisdictional error by reason of the non-compliance with s 473CB(1).

137    On the question of “materiality”, the Full Court considered among other authorities, the decision of the High Court in SZMTA (HCA). The appellant in the present appeal relied in particular upon the following observations by the Full Court on the approach as to whether the non-compliance “could realistically have made a difference to the decision when credit findings were involved” (original emphasis). Specifically after holding that the primary judge had erred in failing to decide whether there was a realistic possibility that the outcome could have been different and speculating instead about the likely effect of the priest’s letter on the IAA’s decision, the Full Court held that:

38. Even so, while the primary judge did not go far enough in his finding at [52], we concur with his Honour’s conclusion that in the circumstances of the present case the non-compliance with s 473CB(1) constitutes jurisdictional error. For the reasons we now explain, having regard to CPA16’s claims and the evidence as a whole and in light of the Authority’s course of reasoning, we are satisfied on the balance of probabilities that provision of the Priest Letter could realistically have resulted in the Authority making a different decision. CPA16 was deprived of a realistic possibility of a successful outcome. It follows that the Minister’s appeal must be dismissed.

39    We commence by noting that, in a case such as the present, where the Authority found that CPA16’s documentary evidence relating to his employment at the TV station was not cogent and it made adverse credibility findings about CPA16’s claims, the task of deciding whether an omitted document is material is not without difficulty. As Gleeson CJ said in Aala (at [4]) “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” Credibility findings are often non-linear in nature: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79] (Hill, Sundberg and Stone JJ); SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (Lee J). We respectfully agree with Kirby J’s observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [81] where his Honour said:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

138    Applying the reasoning in CPA16, the appellant submitted that, “[g]iven the nature of the extensive adverse credibility findings made by the Tribunal against the appellant in this case, it could not be said that withholding documents that would go to his credibility could not have made a difference to the outcome of the decision [of the Tribunal] in this case.”

4.6.3.2    The breach of procedural fairness was not material

139    The appellant’s submissions proceeded on the assumption that he lost an opportunity to make submissions on the contents of the documents the subject of the s 438 Certificate simpliciter. Equally in oral argument, the appellant submitted that “plainly, SZMTA requires an analysis of the significance or the materiality of the material underlying the certificate to the proceedings which were before the tribunal” on the basis that ultimately the majority in SZMTA (HCA) did precisely this (T 12 June 2019 at p. 64.1-7) (emphasis added).

140    However, as the Minister submits, this significantly overstates the content of the obligation of procedural fairness breached by the Tribunal in a case such as the present. Rather, the right of procedural fairness triggered by notification by the Secretary to the Tribunal of a s 438 certificate is for the appellant to lead evidence and make submissions on the procedural issues impacted upon by the certificate. In other words, the materiality of the breach falls to be assessed by reference to the nature of the opportunity of which the appellant was deprived. As Bell, Gageler and Keane JJ explained in SZMTA (HCA):

31. The entitlement under s 423 extends to allowing the applicant to present a legal or factual argument in writing either to contest the assertion of the Secretary that s 438 applies to a document or information, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3). This entitlement, at least in those specific applications, is capable of meaningful exercise only if the applicant is aware of the fact of a notification having been given to the Tribunal.

141    The question therefore is whether arguments addressing the issues identified by the majority in SZMTA (HCA) at [31] “could realistically” have led to a different decision on the application for merits review: SZMTA (HCA) at [45].

142    This question was considered in SZMTA (HCA) in circumstances where the s 438 certificates in each matter were either wholly or partially invalid. In two of the three appeals heard and determined in SZMTA (HCA), the Minister conceded that the s 438 certificates were invalid: SZMTA (HCA) at [54) (with respect to the appellant CQZ15) and at [59] (with respect to BEG15). With respect to the last appellant, SZMTA, the majority held that the certificate was invalid insofar as it applied to certain documents although the appropriate inference having regard to the contents of the documents before the Tribunal, was that taking them into account could not realistically have affected the Tribunal’s decision (SZMTA (HCA) at [70]). As such, materiality necessarily fell to be assessed in the context where all or some of the documents covered by the certificate ought never to have been withheld from disclosure to the appellants.

143    This case, however, falls to be considered in the context of a valid certificate. Given that the s 438 Certificate is valid, it cannot be said that the breach of procedural fairness was material insofar as it deprived the appellant of the opportunity to contend that the certificate was invalid.

144    What the appellant lost in this case by reason of the breach of procedural fairness was therefore the opportunity to lead evidence and make submissions that:

(1)    the Tribunal should not exercise its discretion under s 438(3)(a) to have regard to any matter contained in the notified information for the purposes of exercising its powers; and/or

(2)    it should exercise its discretion under s 438(3)(b), having regard to any advice by the Secretary under s 438(2), to disclose the document or information to the appellant.

145    The short answer, however, is that the Tribunal simply did not have regard to the documents the subject of the s 438 Certificate in reaching its decision. The relevant passage in the Tribunal’s decision is as follows:

28. Finally, on file there were claims of which the Tribunal only considers relevant and significant the claim that the applicant owes money. When this was put to him at the hearing, the appellant denied it. Given the inability of the Tribunal to examine this issue further and given that the applicant has denied it, the Tribunal accepts that the applicant does not owe money.

146    Read fairly, as the Minister submitted, the reference to documents “on file” was a reference to the documents the subject of the s 438 Certificate. As such it is clear that the Tribunal did not accept the contents of the document in Confidential Exhibit SB-1 alleging a debt, preferring instead the appellant’s evidence, and otherwise ignored as irrelevant the other material covered by the Certificate.

147    This is confirmed by the structure of the Tribunal’s reasons. Following the passage at [28], the Tribunal concluded at [29] that, “[t]aking into account the cumulative effect of all these circumstances, for the reasons given above the Tribunal does not accept that there is a real chance” that the appellant has a well-founded fear of persecution if he returned to Pakistan and settled in Lahore. The Tribunal’s reasons for finding that the complementary protection criterion in s 36(2)(aa) was not met were also made “[h]aving regard to my findings of fact above” (Tribunal reasons at [30]-[31]). As such, only after the Tribunal had considered all of the other material before it and made all of the factual findings on the basis of which it found that s 36(2)(a) and (aa) were not satisfied, did the Tribunal refer to, and dismiss as irrelevant, the material covered by the s 438 Certificate.

148    It follows that none of the documentation the subject of the s 438 Certificate was material to the Tribunal’s decision and that grounds 1A, 1B and 1C of the amended notice of appeal must be rejected.

5.    CONCLUSION

149    The appeal must be dismissed with costs.

Associate:     

Dated:    8 May 2020