DGM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal is dismissed.
2. The appellants pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 24 November 2017. By that judgment, the primary judge dismissed the appellants' application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to refuse the appellants the grant of protection visas. 2 The appellants are citizens of Fiji. The first appellant claims to fear harm at the hands of the Fijian military police and government. The second, third and fourth appellants claim protection as members of the first appellant's family. 3 Before the delegate and the Tribunal, the first appellant made the following claims. On 5 January 2007 his cousin was abducted by military police and killed. Following the death of his cousin, he became active in speaking out against the Fijian military, police and government, including by regularly writing to newspapers and distributing photographs of his cousin's body. On 16 March 2007, he was taken for questioning by military police and beaten. In 2009, a member of the Fijian military was convicted of the manslaughter of his cousin. On 24 January 2012, the first appellant was again taken for questioning by military police officers. He was asked whether he still had photographs of his cousin and was continuing to distribute them. He was threatened that if he still had the photos, he would be killed. 4 The Tribunal summarised the first appellant's principal claims to fear persecution, and its findings upon those claims, as follows: 43. The applicant's central claims are that he would suffer harm if he returned to Fiji either directly from the Fijian authorities including the military and the police, or as a result of unjust laws in Fiji which treat those who criticise the Fijian government or authorities unfairly. He claims that he fears such harm because of his political opinion and criticism of the government and authorities including criticism of the authorities over the death of his cousin. 44. The applicant said that he has regularly expressed his criticism and political opinion through blogs and newspapers. While the Tribunal has found that the applicant's cousin was killed by a military officer, the Tribunal does not consider that there is a real chance that the applicant will suffer serious harm if he were to return to Fiji. This is because the Tribunal has found that the applicant has never been arrested or harmed by Fijian authorities as he has claimed and because the Tribunal does not accept that the applicant has ever publically criticised the authorities in Fiji and finds that he will not do so in the future. The Tribunal finds that the applicant not expressing public criticism of the Fijian authorities is not because he fears harm from the authorities. 5 The Tribunal found that much of the first appellant's evidence concerning the relevant events was not credible. The Tribunal did not accept that the first appellant had ever expressed criticism of the Fijian authorities. It did not accept that he was arrested, questioned and beaten in 2007. He did not accept that he was arrested and questioned in 2012. The Tribunal concluded that the first appellant had fabricated his claims of being arrested and assaulted and being publically critical of the Fijian government and the authorities in order to bolster his claim for a protection visa. 6 The Tribunal rejected the first appellant's claim that he faced a real chance of serious harm because he was related to cousins in the United States who were critical of the Fijian government and authorities. The Tribunal also rejected his claim that he would face harm as a result of applying for a protection visa to Australia, finding that there was no evidence that the Fijian authorities knew that he had made an application for a protection visa or would discover that he had done so. 7 The Tribunal was not satisfied that the first appellant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1994 (Cth) ("the Act"). It was not satisfied that the second, third and fourth appellants satisfied the criteria set out in s 36(2)(b) or (c) of the Act. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant the appellants protection visas. 8 The appellants then applied for judicial review of the Tribunal's decision to the Federal Circuit Court. The sole ground of review was in the following terms: 1. The Decision Maker and Tribunal Member have not understood the risk to myself and an expected apprehension by the airport police if I return to Fiji. I will be taken into custody. This is a serious matter to myself and to my safety. 9 The primary judge held that there was no evidence that the first appellant had made a claim before the Tribunal that he expected to be apprehended by airport police if he returned to Fiji. His Honour held that the Tribunal was not required to consider a claim that was neither made nor clearly arose on the material before the Tribunal, referring to cases including Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136. His Honour also observed that the Tribunal had rejected the first appellant's claim that the Fijian authorities know which of their nationals had applied for protection visas. Accordingly, his Honour rejected the ground of appeal. 10 The primary judge went on to consider an allegation made by the appellants that the Tribunal did not consider all the submissions made. However, the appellants were unable to identify any submission made to the Tribunal that had been ignored. 11 The appellants also made allegations that the Tribunal member was biased, that the Tribunal did not properly consider a claim that returning asylum seekers were subjected to persecution upon their return to Fiji and that the Tribunal had refused to accept submissions and other material from the appellants. 12 The primary judge considered that the appellants had made no proper attempt to particularise their allegations of bias or to provide any evidence that the Tribunal member had a pre-existing state of mind that disabled him from undertaking, or rendered himself unwilling, to undertake a proper evaluation of the matter. His Honour rejected the first appellant's claim that the Tribunal's repeated questioning of him indicated bias. His Honour pointed out the difficulty of assessing the claim of apprehended bias without a transcript having been provided to the Court. His Honour said that, in any event, repeated questioning in relation to matters critical to the resolution of a review is not necessarily, or even generally, demonstrative of bias. His Honour considered that there was nothing in the Tribunal's decision record to indicate that a fair minded and informed person might reasonably apprehend that the Tribunal member might not have brought an impartial mind to bearing on the decision, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. 13 The primary judge rejected the contention that an indication of bias was that the Tribunal's decision record varied very little from the delegate's decision, "like it was copied". His Honour considered that the Tribunal's decision, when compared to the delegate's decision, did not create an "impression that there has been carried out a mechanical process of cutting and pasting devoid of cognitive activity", referring to SZNZK v Minister for Immigration and Citizenship [2010] FCA 651 at [38]. His Honour's view was that the decision record revealed that the Tribunal had properly engaged with the first appellant's claims and other material. 14 The primary judge rejected the first appellant's submission that the Tribunal did not properly consider his claim that the returning asylum seekers were subjected to persecution upon their return to Fiji. His Honour held that the Tribunal had specifically considered that claim. 15 As to the appellant's submission that the Tribunal member refused to accept submissions and other material from the first appellant, his Honour noted that it was not clear that the newspaper article annexed to the first appellant's affidavit was in any way relevant to the claims he made, or that he had attempted to provide it to the Tribunal. Given that the Tribunal had otherwise generally considered news reports, blogs and articles about the treatment of Fijians at the hands of Fijian authorities, his Honour found that it was unlikely that the Tribunal would refuse to receive a newspaper article that the first appellant wished it to have. His Honour observed that the first appellant had argued that the Tribunal had failed to accept an affidavit prepared by his representative prior to the proceeding, but found that the affidavit was in fact before the Tribunal. While the affidavit was not specifically referred to in the Tribunal's reasons, the Tribunal was not obliged to refer to each and every piece of evidence provided by the first appellant. His Honour considered that it was unremarkable that the Tribunal had failed to refer to the documents annexed to the affidavit. 16 The primary judge noted that the Minister had brought to the Court's attention that a certificate under s 438(1)(a) of the Act had been issued by a delegate on 16 September 2015. There was no evidence that the Tribunal had invited the appellants to comment upon the certificate. The Minister also conceded that the certificate was, on its face, invalid. Although the certificate was not addressed in the Tribunal's reasons, his Honour found that it was likely that the Tribunal had regard to the certificate and to the two documents referred to in the certificate. 17 The primary judge, referring to MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1, held that the Tribunal had failed to afford the appellants procedural fairness by failing to disclose to them the existence of the certificate. However, his Honour concluded that, having regard to the contents of the documents covered by the certificate, it was difficult to see how the appellants had lost any opportunity to advance their case. They had suffered no practical injustice. His Honour concluded that, as a matter of discretion, he would refuse relief because there would be no utility in granting the relief that the appellants claimed. 18 In this appeal, the appellants rely upon the following grounds: 1. 33 - There are now as attached newspaper articles that clearly indicate there will be apprehension at the Nadi International Airport upon return to Fiji. 2. 35 - There will be harm, in fact persecution as announced through the media by Prime Minister Frank Bainimarama. He has made it quite clear that those seeking protection and those having practiced sedition by speaking against the regime will be subjected to the legal process and ultimate jail. 3. 48 - It is not the fact that the Tribunal refused to receive a newspaper article; it is the fact that I wanted the Tribunal to view Social Media content that emphasized that those persons seen as having practiced "sedition" are being apprehended and sent to jail. Social Media confirms that has already happened. That was very important evidence confirming that upon return to Fiji others have been imprisoned. That I expect would be ultimate fate. 19 The numbers 33, 35 and 48 in the notice of appeal refer to paragraphs of the reasons for judgment of the Federal Circuit Court. 20 In a statutory declaration filed in this Court, the first appellant set out three grounds of appeal which he says were, "Entered into the Federal Circuit Court on the 24 November 2017". Those grounds are as follows: 1. there was clear evidence by way of newspaper articles that persons accused of seditious intent or activities would be apprehended at the Nadi International Airport upon return. 2. There will be harm - in fact persecution, as announced by the prime minister, that such persons accused of sedition will be subjected to the legal process and jailed. 3. It was asked that the previous tribunal did view the social media content which emphasized that those persons practicing sedition are being sent to jail. My face book page through the years- 2015, 2016, 2017 and even 2018 has clearly displayed the seditious intent. This in itself will entice the Fijian courts to commit myself with subsequent jail term. (Errors and emphasis in the original) 21 As the first appellant alleges that the document containing those grounds was filed on 24 November 2017, the day judgment was delivered, they could not have been considered by the Federal Circuit Court. In any event, the first of those grounds appears to be much the same as the sole ground of appeal that was before the Federal Circuit Court. 22 The first appellant's statutory declaration states that: …I am convinced that should I return to Fiji that I will be apprehended at the Fijian International Terminal on arrival. My passport ID will have been flagged. My submissions to the Federal Circuit Court with the newspaper evidence submitted should have been taken more seriously as now it is more evident as a result of recent court cases in Fiji. In particular at present there is a group of 44 Fijian on sedition charges. More concerning is that only recently- on 30 April 2018 - two senior parliamentarian persons, namely Mosese BULITAVU and Jagath KARUNARATNE have both been sentenced to 2+ years jail for sedition related activities. The newspaper articles are attached. Those sedition activities were merely being involved with others for the spray painting of words with seditious intent. ( only involved with others) The activities of myself- presenting myself before media in Australia will be taken more seriously. … (Errors in the original.) 23 There are three newspaper articles attached to the first appellant's statutory declaration. The first is dated 21 February 2018, the second 26 March 2018 and the third 31 August 2015. The first article refers to a trial of 44 persons accused of sedition, the second to the conviction of a member of parliament for sedition and the third to a threat by the Fijian Prime Minister to jail dissidents whom he claimed were plotting to overthrow his government. 24 The appellants have also filed written submissions. The written submissions assert that the primary judge wrongly exercised his discretion by dismissing his application despite finding there was a denial of procedural fairness. The appellants submit that the only course of action available to the primary judge was to remit the matter for a further hearing with the missing material provided to the appellants. The appellants submit that if they had the material that they were denied access to, then the outcome of the hearing before the Tribunal could have been different because they could have been better able to address the issues raised in the material. They submit that the assumption made by the primary judge that the withheld material would have made no difference to the outcome was not available. Further, they submit that the Tribunal's decision not to provide the appellants with the certificate and the relevant document was unreasonable because it did not allow them to fully prepare for the case. 25 In the appeal, the first appellant represented himself and the other appellants. He relied upon their written submissions. He made oral submissions concerning the hardship that he and his family would suffer if they were forced to return to Fiji. He also submitted that the Tribunal had erred by rejecting his claims of having publicly protested against the killing of his cousin. 26 The first ground of the notice of appeal appears to proceed upon a misunderstanding of the primary judge's reasons. At [33] of the reasons, the primary judge held that: There is no material to suggest that the first applicant ever made a claim that he expected to be apprehended by the airport police if he was to return to Fiji. The primary judge was there expressing his view that there was no material before the Tribunal suggesting that the appellants may be apprehended by airport police. The first appellant's ground appears to have misconstrued his Honour's finding as saying that there was no material in existence supporting that possibility, and seeks to show that there is such evidence in existence, namely the newspaper articles referred to in the first ground. The articles referred to appear to be those attached to the first appellant's statutory declaration. However, as the primary judge pointed out, as there was no such claim made before the Tribunal, the Tribunal was not required to consider it. Further, the newspaper articles relied upon by the appellants do not assist to establish that there was a risk that the first appellant would be detained by airport police. I cannot see any error in his Honour's conclusions at [33] of the judgment. The first ground of appeal must be rejected. 27 The first appellant's second ground of appeal concerns [35] of the primary judge's reasons, where his Honour referred to the Tribunal's rejection of the first appellant's claim that the Fijian government knows which Fijian nationals have applied for protection visas in Australia. The ground appears to assert that the Tribunal should have found that those seeking protection and those accused of practicing sedition by speaking out would be subjected to a legal process and jail. However, the Tribunal made a finding of fact that the first appellant had not publicly spoken out against the Fijian authorities. The ground appears to assert that the Tribunal ought to have found the first appellant's evidence to be credible, but the question of credibility was for the Tribunal, rather than this Court, to decide: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]. The first appellant has not demonstrated any jurisdictional error in respect of that finding. The second ground of appeal must be rejected. 28 The third ground of appeal refers to [48] of the primary judge's reasons, where his Honour found that it was unlikely that the Tribunal would refuse to receive a newspaper article that the first appellant wished it to have. The first appellant seems to assert that the Tribunal was asked to view the first appellant's Facebook page for the years from 2015 to 2018, which he says clearly displayed "seditious intent". However, as the primary judge observed, the first appellant failed to place the transcript of the hearing before the Tribunal before the Court. There is no evidence before the Court that the first appellant asked the Tribunal to view those Facebook pages, or that the Tribunal refused or failed to do so. That ground cannot succeed. 29 Finally, the first appellant submits that the primary judge's finding that the denial of procedural fairness should not result in the Tribunal's decision being set aside was erroneous. The Minister has filed a notice of contention asserting, inter alia, that the primary judge erred by finding that there was procedural unfairness, in circumstances where non-disclosure of the certificate and the documents did not deprive the appellants of the opportunity to advance their case and the Tribunal did not treat the certificate and documents as material to the decision under review. I understand that to have been the only ground of the notice of contention that was pursued. 30 Section 438 of the Act provides: 438 Tribunal's discretion in relation to disclosure of certain information etc. (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. … 31 The s 438 certificate asserted that there were two documents that should not be disclosed on the basis of, "internal working documents and business affairs". The two documents are before the Court. The first is entitled "Allocations Check-list" and appears to be a check-list dealing with administrative arrangements for an interview between the delegate and the appellants, such as whether a room and interpreter had been booked and whether a letter of invitation for the interview had been sent. The second document is a form containing a heading, "Application and Identification Test Details". In the form, an authorised officer certified that, inter alia, he was satisfied that "the personal identifiers" provided by the appellants were usable and of the integrity of those identifiers. 32 The judgment of the primary judge was delivered prior to the judgment of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599; [2019] HCA 3. In that case, the High Court held, relevantly: 38 Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision. … 44 …The Secretary's provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review . Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material. 45 Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. 46 Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. … 49 Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome", the task is not impossible and can be done in these appeals. (Citations omitted.) 33 The Minister conceded before the trial judge that the s 438 certificate was invalid. The primary judge found that the Tribunal had not disclosed the s 438 certificate or the documents to the appellants. It follows from paras [38] and [44] of SZMTA that the primary judge was correct to hold that there had been a denial of procedural fairness. Therefore, the notice of contention must be rejected. 34 The primary judge considered that the Court had a discretion to decline to grant relief on the basis that, having regard to the content of the documents covered by the certificate, there was no detriment to the appellants. The judgment in SZMTA demonstrates that the materiality of the breach goes to the question of whether the denial of procedural fairness amounts to jurisdictional error. Therefore, the question of materiality precedes any question of the discretion to grant relief. Although the primary judge should have considered materiality in the course of deciding whether jurisdictional error had been established, rather than in the exercise of the Court's discretion to grant relief, it did not affect the outcome of the appeal. The primary judge was correct to conclude that the disclosure of the certificate and of the documents referred to in the certificate could not have made any difference to the outcome before the Tribunal. 35 I will therefore dismiss both the appeal and the notice of contention. There should be an order that the appellants pay the Minister's costs of the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.