AYL15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The appellant seeks a protection visa. His application was refused by a delegate of the Minister. Successive decisions by the Refugee Review Tribunal to affirm the refusal of his application were quashed. A third hearing before the Tribunal was convened for 26 March 2016. The appellant was notified of the date but did not attend and the Tribunal proceeded in his absence. At the third hearing, the Tribunal affirmed the decision not to grant the appellant a protection visa. 2 The appellant sought review of the third decision in the Federal Circuit Court. The Federal Circuit Court found correctly that the decision was only to be reviewed by that Court for jurisdictional error: AYL15 v Minister for Immigration and Border Protection [2016] FCCA 2062 at [18]. The Federal Circuit Court dismissed the review application and the appellant now appeals to this court. 3 Before the primary judge and in this Court the appellant appeared in person with the assistance of an interpreter in the Tamil language. 4 At the hearing of the appeal the appellant was afforded an opportunity to make oral submissions. He did not wish to say anything beyond the matters stated in his notice of appeal and affidavit. 5 The appeal grounds allege in general terms that the Tribunal made a jurisdictional error not detected by the primary judge by failing to consider the evidence, by failing to consider the relevant sections of the Refugee Convention and the complementary provisions of the Migration Act 1958 (Cth) and by not examining the provisions of the Prevention of Terrorism Act operating in Sri Lanka in assessing the country situation. The affidavit raises the same matters and also deposes that the situation in Sri Lanka continues to be bad for Tamils as independently reported particularly by the Oakland Institute. A separate affidavit drew attention to a number of paragraphs of the reasons of the primary judge. 6 In addition, this is a case in which there was notification to the Tribunal that s 438(1)(b) of the Migration Act applied to certain of the documents provided to the Tribunal. This was not a matter addressed by the Tribunal or the Federal Circuit Court. Quite properly, having regard to the recent decisions of this Court concerning s 438, the Minister as a model litigant made submissions as to whether the circumstances concerning the notification gave rise to jurisdictional error. 7 This matter was heard on 10 May 2018. On that day, the High Court granted special leave in two cases concerned with s 438, namely Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36. After the hearing, the Minister requested that the delivery of reasons in this matter be delayed pending the outcome of the High Court decisions. The appellant did not join in that request. In those circumstances, and in the absence of any formal application for a stay, I have proceeded to consider the matter. 8 For the following reasons, the appeal should be dismissed. 9 Before the primary judge there were a number of grounds. One review ground that stated simply that the application relies upon jurisdictional error. This ground was dismissed as an unparticularised assertion of jurisdictional error applying the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760: see reasons of primary judge at [19]. However, for reasons that I gave in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, the consequences of a failure to particularise written grounds will depend upon the circumstances. In a case such as the present where an applicant appears in person and seeks the review of a decision concerning a protection visa the applicant should be afforded an opportunity to explain the grounds. This opportunity was afforded through the consideration by the primary judge of other matters raised by affidavit which were treated as appeal grounds. 10 The primary judge gave detailed reasons for rejecting each of those matters. I have considered those matters which include whether the decision to proceed with the hearing in the absence of the appellant was unreasonable. I have not identified any error in the reasons given. Significantly, having regard to the terms of the grounds raised in this court, the primary judge: (1) considered the reasons of the Tribunal and a concluded that they set out, considered and made findings in relation to the claims made and the evidence and materials in a very detailed manner (at [26]); (2) concluded that the Tribunal did not fail to consider the Prevention of Terrorism (Temporary Provisions) Act 1978 (Sri Lanka) (at [16], [33]); (3) reviewed and reached conclusions in relation to the Tribunal's consideration of country information and matters relevant to persecution under the Refugee's Convention (at [35]); (4) considered affidavit material presented to the Federal Circuit Court and concluded that the documents containing country information were irrelevant to the Tribunal's decision (at [14]); and (5) considered whether there were review grounds as a result of the Tribunal proceeding in the absence of the appellant (then applicant) and found that there were not (at [37]-[42]). 11 As to complementary protection, the Tribunal separately considered that claim: see paras 61-71 of the Tribunal's reasons. Therefore, there is no merit to the appeal grounds raised in this court insofar as they refer to that issue. 12 The only remaining issue is whether the circumstances concerning the notification under s 438 gave rise to jurisdictional error. 13 On 5 January 2015, a delegate of the Minister wrote to the District Registrar of the Tribunal in relation to the documents provided to the Tribunal concerning the appellant's application in the following terms: I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information in folio/s 82;108;109;134;162-165 of File Number: CLF2012/144720. This information was given to the Minister of the Department of Immigration and Border Protection an officer of the Department of Immigration and Border Protection in confidence. In my view, this information should not be disclosed to the applicant or the applicant's representative because folios 82;108;109;134;162-165 contains information relating to an internal working document and business affairs. The Refugee Review Tribunal's use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958. 14 Section 438 provides as follows: (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 15 I note that this is not a case where there has been a certificate by the Secretary under s 438(1)(a). Rather, it is a case where documents are said to have been given to the Minister or an officer of the Department in confidence. 16 Before me, it was not suggested that the Tribunal informed the appellant of the existence of the notification, provided the notification to the appellant or invited the appellant to comment on the notification. 17 Rather, it was submitted that the material covered by the notification lacked any connection to the appellant's claims. Further, it was said that there was no reference to the documents the subject of the notification by the Tribunal in its decision. In those circumstances, it was submitted that it should be inferred that the documents were not considered by the Tribunal to be relevant to its consideration of the claims and, as the Tribunal did not act on the notification, there was no jurisdictional error. 18 On the hearing of the appeal, the Minister sought to rely upon an affidavit of Ellen Lucy Goldsworthy Tattersall. It had been provided on a confidential basis in the manner indicated by the Full Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 at [67]. 19 The affidavit produced the documents the subject of the notification in a sealed envelope. It described the documents as being 'in the nature of emails and administrative documents of the Department … and Departmental records'. It stated that the Minister sought no order for confidentiality and that Ms Tattersall was not aware of any reason that would prevent the court from viewing the documents. 20 At the hearing, the appellant said that he had not read the documents attached to the affidavit. I received the affidavit and provided to the appellant (with the assistance of the interpreter) a general description of the content of the documents and adjourned to enable the interpreter to provide a translation of a particular document referred to as an 'IMA PV Checklist'. After that, I enquired of the appellant whether he could identify any significance that the documents would have had for his case before the Tribunal and he responded in the negative. Given the circumstances in which the statement was made, I do not treat this as a concession of any kind. 21 I have reviewed the documents attached to the affidavit. They comprise some nine pages. Apart from the IMA PV Checklist they comprise summaries of advice given to the Minister as to why an appeal in relation to judicial review of the second decision by the Tribunal concerning the appellant's application for a protection visa should be conceded by the Minister. There is also a document headed 'Checklist' which appears to be a list of documents completed and steps taken as part of an interview process. The document described as IMA PV Checklist contains a one page list of administrative steps taken in relation to a party identified by reference to a boat/client ID bearing the date 16 August 2012. 22 In the documents there is a brief record of advice to the effect that the appeal as to the second decision of the Tribunal was affected by jurisdictional error because the Tribunal did not adequately consider the appellant's status as a member of a specific fishing caste which has been linked with Tamil separatism. The advice refers to this matter as being a ground raised by the appellant which was not considered by the Tribunal. It recommends that the appeal be conceded for that reason. There are documents recording instructions to concede the appeal and reports that the appeal has been conceded. 23 In the decision the subject of these proceedings (the third Tribunal decision), the Tribunal recorded that the previous Tribunal decision 'was remitted for reconsideration by the Tribunal when the Department conceded the Tribunal failed to consider the applicant's claim to fear persecution as a member of the fishermen caste': at para 18. In its reasons, the Tribunal then considered a number of claims made by the appellant as to why he would suffer harm if returned to Sri Lanka. Specifically at paras 46 to 54, the Tribunal dealt with harm for reasons of membership of the fishermen caste in Sri Lanka. It addressed the evidence as to that claim and did not accept the claim. There is no reference in the reasons given by the Tribunal to the advice contained in the documents attached to the affidavit of Ms Tattersall. 24 On my consideration of the rest of the documents the subject of the certificate under s 438, they do not contain any other matter of material relevance to the matters addressed by the Tribunal in the decision or the grounds raised by the appellant in support of his application or other matters that may have been raised. The Court should be cautious in reaching conclusions of that kind given that it is not aware of all the circumstances of a particular applicant for a protection visa. However, the information in this case was of narrow compass and apart from the records as to the concession of the earlier appeal of a formal nature. 25 Therefore, the documents were either mundane or similar in character to those that were the subject of a notification in BEG15 v Minister for Immigration and Border Protection [2016] FCCA 2778 being documents recording advice as to why there was error in an earlier Tribunal decision. Nevertheless, having regard to the terms of s 418 of the Migration Act they are documents which the Secretary must have determined to be relevant to the review of the decision to refuse to grant a protection visa to the appellant. 26 The prospect that the existence of a notification under s 438 that was not disclosed to an applicant may give rise to jurisdictional error was first determined by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1, delivered after both the decision of the Tribunal and the decision by the Federal Circuit Court in this matter. Since then, there have been a number of cases dealing with the issue. 27 The notification (quoted above) was before the Federal Circuit Court, but not the documents. No submission was made concerning the issue to the primary judge. It was raised for the first time in this court. The Minister raised no objection to the consideration of the issue as a basis upon which there may have been jurisdictional error by the Tribunal. Indeed, as I have mentioned, the Minister put on submissions as to the issue and sought to rely upon the affidavit of Ms Tattersall. 28 By reason of the notification, the Tribunal was authorised by s 438(3) to have regard to the documents the subject of the notification and also had a discretion whether to disclose any matter contained in the documents to the appellant. 29 There is no evidence before me as to whether the Tribunal adverted to the documents or acted upon then in any way. I am asked to infer that the Tribunal did not bring their contents into account in the making of the decision to affirm the refusal of the application for a protection visa by the appellant because the material is not relevant to any such matter and there is no reference to matters in the documents in the reasons given by the Tribunal. I accept that the contents of the documents other than the advice concerning the claim to harm by reason of the appellant belonging to a fishermen caste were not materially relevant to the matters addressed by the Tribunal in its reasons. However, having regard to the reference in the decision to the concession of the appeal, I do not infer that the Tribunal did not bring the contents of the documents into account. 30 The decided cases have accepted that there may be a denial of procedural fairness if there is non-disclosure by the Tribunal of the existence of a certificate under s 438(1)(a) or notification under s 438(2). Whether that will be so depends upon all the circumstances and the consequences for the applicant of the omission: Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; (2017) 253 FCR 21 at [69]. The use of those documents without notification to the appellant would also support such a claim. 31 If a denial of procedural fairness is established then relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [60]. The qualification as to when a denial of procedural fairness will not justify relief has been otherwise expressed as arising where the applicant did not lose an opportunity to advance the applicant's case or there was unfairness that justifies intervention: WZARH at [35]-[47], applying Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1. 32 Aside from the advice regarding the claim of risk of harm arising from association with the fishermen caste, on my review the other checklist documents contain no information that might have aided the appellant in advancing arguments to support his application. To the extent that the material refers to a recognition of an obligation to consider the claim for protection based upon membership of the fishermen caste, the Tribunal recognised that matter and addressed it. Indeed, it referred to the fact that there had been remittal of the matter because the second decision had been set aside for failure to consider that claim. This was a claim that the appellant had an opportunity to present and did present. It was a claim that was not aided by anything in the documents beyond the fact that it was a claim that the Tribunal was required to consider. 33 In the above circumstances, I find that the failure to inform the appellant of the existence of the notification under s 438(2) did not result in the appellant losing an opportunity to advance his case and did not deprive the appellant of the possibility of a successful outcome before the Tribunal. Therefore, a basis for relief based upon jurisdictional error associated with the notification under s 438(2) has not been demonstrated. 34 It follows that the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.