SZRHR v Minister for Home Affairs

The requirement for leave - r 44.12 7 The primary Judge dismissed the proceeding before the Federal Circuit Court pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("Federal Circuit Court Rules"). That rule confers a discretionary power to dismiss an application if that Court "is not satisfied that the application has raised an arguable case for the relief claimed". 8 The dismissal of an application pursuant to r 44.12(1)(a) is an interlocutory decision: Federal Circuit Court Rules, r 44.12(2). Leave to appeal to this Court is thus required: Federal Court of Australia Act 1976 (Cth), s 24(1A). 9 As a general proposition, leave to appeal may be granted where: the judgment of the primary Judge is attended by sufficient doubt to warrant it being reconsidered; and substantial injustice would result if leave were refused, supposing the decision to be wrong. See, for example: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399 per Sheppard, Burchett and Heerey JJ; Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4] to [5]; (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ. But these two considerations do not represent a "hard and fast rule": Tyne v UBS AG [2016] FCA 241 at [33]; (2016) 338 ALR 624 at 631 per Edelman J citing Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156 at [29]; (2011) 217 FCR 238 at 249 per Dowsett, Foster and Yates JJ. They are thus "not to be applied in a rigid way, having regard to the variety of interlocutory decisions which may be the subject of an appeal": Ferdinands v The State of South Australia [2017] FCA 32 at [13] per White J. 10 The onus of persuading the Court that leave should be granted lies on the party seeking leave: SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [8] per Flick J.

The proposed Grounds of Appeal 11 The proposed Grounds of Appeal as set forth in the draft Notice of Appeal state (without alteration) as follows: 1. The Administrative Appeal Tribunal erred in its judgment in consideration applicant's evidence about persecution in Pakistan. 2. The Administrative Appeals Tribunal denied the applicant procedural fairness that the applicant claims were not made out and not enough evidence provided. 3. The Administrative Appeals Tribunal erred in its judgment that the fear for life at the hands of Taliban was not considered and made factual and legal error. 4. The Administrative Appeals Tribunal erred in its judgment that the applicant does not meet the relevant criteria under the Australian Migration Act and Migration Regulation and accordingly made legal error. 5. Hon. Federal Circuit Court Jude not considered information provided in the certificate issued under s438 and made legal error. To these proposed Grounds should be added the further contention identified in the Application for an extension of time and leave to appeal, namely that: The primary Judge erred in dismissing an application for judicial review without giving consideration to material facts and reasoning of AAT. This fundamental contention is thereafter expanded upon by contentions (inter alia) that the primary Judge erred "in dismissing the proceeding" and not considering the "document covered by … s438". 12 Grounds 1 to 4, it will be noted, refer to the decision of the Tribunal and assert error on the part of the Tribunal. Separate from any necessity to identify appellable error on the part of the primary Judge, as opposed to error on the part of the Tribunal, being the focus of any application for leave to appeal, the Grounds suffer from further difficulties including: the fact that Grounds 1 to 4 were not Grounds relied upon when the matter was before the primary Judge, the sole Ground there advanced for consideration being the un-particularised Ground that the "decision of the Tribunal involves jurisdictional error"; and the fact that Grounds 1 to 4 are largely un-particularised and fail to identify (for example) the manner in which it is sought to be contended that the Tribunal failed to consider the Applicant's evidence in circumstances where the Tribunal expressly set forth the claims being made. Further difficulties include the fact that: Grounds 1, 2 and 3 are focussed upon matters of evidence, and presumably findings of fact said to flow from such evidence - factual findings, however, being normally entrusted to the Tribunal alone to determine; Ground 3 is contrary to the express findings made by the Tribunal, including the finding by the Tribunal (at para [57] of its reasons) that "to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally and on that basis there is taken not to be a real risk of significant harm in respect of him under s 36(2B)…"; and Ground 4 also, on its face, seems contrary to the consideration in fact given by the Tribunal to "the relevant criteria", including the finding at para [57]. 13 In expanding upon these proposed Grounds, the Applicant in his oral submissions (inter alia): again made assertions as to the Tribunal failing to consider his evidence; and raised for the first time a submission that the claimed denial of "procedural fairness" arose out of his attempt before the Tribunal to adduce evidence which the Tribunal refused to accept. The latter argument is unsupported by anything in the Application Book presently before the Court. No affidavit has been filed by the Applicant in this Court setting forth the evidence he unsuccessfully sought to rely upon before the Tribunal. There is nothing on the face of the Tribunal's reasons to indicate that any such application was made. And it is an allegation not previously relied upon before the primary Judge. The allegation now made before this Court is thus rejected. 14 Common to Grounds 1 to 4 (inclusive) is an underlying disagreement by the Applicant as to the findings of fact made by the Tribunal. But such disagreement does not entitle the Applicant to relief: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at 518 to 519. Kirby J there concluded in relevant part as follows: Absence of demonstrated jurisdictional error [24] I am not sure that the applicant fully appreciated the distinctions which our law draws between an appeal on the merits from a decision such as that of the tribunal and the limited jurisdiction which this court enjoys to set such a decision aside for jurisdictional error. … [25] For all this, I consider that the applicant has said all that, unaided, he can say in complaint about the decision of the tribunal. His essential complaint is that the tribunal came to the wrong decision in his case on the facts placed before it. That is not a complaint that, without more, enlivens the jurisdiction of this Court to provide a constitutional writ. Specifically, it is a complaint that falls short of showing jurisdictional error on the part of the tribunal. In the circumstances, I am not convinced, by what I have read and heard today, that any of the grounds relied on by the applicant has been made out as reasonably arguable. I see no evidence, in the matters placed before me, that supports any of the three complaints which the applicant makes. The same observations can be made in the present proceeding. The mere fact that claims have been rejected does not mean that they have not been considered: SZTJX v Minister for Immigration and Border Protection [2014] FCA 1360 at [23] per Flick J. "Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error": Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35]; (2001) 177 ALR 473 at 481 per McHugh J. 15 It is only proposed Ground 5 which seeks to identify appellable error on the part of the primary Judge. The argument separately raised in the Application for an extension of time and leave to appeal but not in the proposed Notice of Appeal as to the primary Judge not "giving consideration to material facts and reasoning of AAT" is without substance, especially in circumstances where: the primary Judge was being called upon to resolve the sole Ground then relied upon, an argument without any particularisation as to how the "jurisdictional error" was said to arise; the failure on the part of the Applicant to file any submissions that may have provided assistance; and the reasons of the primary Judge in fact canvassing the background to the case then before the Court, the claims made by the Applicant before the Tribunal and the reasons given by the Tribunal: [2018] FCCA 1104 at paras [5] to [18] and [32] to [35]. It is therefore only proposed Ground 5 as set forth in the proposed Notice of Appeal which warrants further consideration on the present Application for an extension of time and leave to appeal.

The decision of the primary Judge & section 438 16 The potential relevance of s 438 arose by reason of the fact that the Minister had issued a certificate pursuant to s 438 of the Migration Act 1958 (Cth) (the "Migration Act"). 17 That section provides as follows: Tribunal's discretion in relation to disclosure of certain information etc. (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 18 Questions as to the potential relevance of s 438 of the Migration Act arose because a delegate of the Minister had written to the District Registrar of the then Refugee Review Tribunal in June 2014 notifying the Tribunal that the delegate was of the view that s 438 applied to information in a number of documents. The letter stated (inter alia) that in the delegate's view "this information should not be disclosed to the applicant or the applicant's representative because folios 83, 112-117 contain information relating to an internal working document and business affairs". 19 The Tribunal in its reasons for decision published in June 2016 made no reference to either the letter dated 30 June 2014 or the folios identified. 20 Before the primary Judge an affidavit was filed on behalf of the Minister that the s 438 certificate had been "identified" when "perus[ing] the files and materials". The deponent stated that the "Minister makes no claim for privilege over the documents and does not seek any orders for confidentiality over the documents". Steps were undertaken to make the documents available to the Applicant. 21 Notwithstanding the manner in which the sole ground of review was expressed when the proceeding was before the Federal Circuit Court, the primary Judge nevertheless addressed s 438 (in relevant part) as follows: [43] ... I did also consider whether the matter of the s.438 certificate gave rise to any arguable case for the relief sought. … [45] Although not raised by the applicant's ground, I considered whether there was any arguable case that the applicant was denied procedural fairness by the Tribunal in relation to the s.438 certificate. [46] The Minister's second written submissions refer to MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 155 ALD 98 ("MZAFZ") and Singh. However, the current circumstances are distinguishable from what was before the Courts in those cases. There the Courts drew a reasonable inference on what was before them that the Tribunal in each case, had "acted on" the relevant certificates, and the failure to put the applicants on notice of the existence of the certificates, resulted in a failure of procedural fairness. [47] There is nothing in the evidence before the Court to indicate that the Tribunal told the applicant about the existence of the s.483 certificate, or that it invited him to comment on it. The primary Judge then set forth observations of the Full Court in BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 at [30]; (2017) 253 FCR 36 at 43 to 44 and continued: [49] On this basis, I accept the Minister's submissions that no arguable case arises simply because the Tribunal did not disclose the existence of the s.438 certificate, or the documents it covered, to the applicant. [50] The documents which were the subject of the s.438 certificate are documents relevant to a consideration of a request made by the applicant for Ministerial intervention pursuant to s.417 of the Act, and what appears to be a copy of the departmental record ("screenshot") relevant to the applicant. [51] I agree with the Minister that there is nothing in these documents from which an indication, let alone a reasonable inference, may be drawn, that this material was relevant to the review conducted by the Tribunal, or that the Tribunal "acted on" this material (MZAFZ at [40] and see [7] of the Minister's second written submissions). [52] Neither the author of the documents covered by the s.438 certificate or the "screenshot", expresses any view as to the credibility of the applicant's claims to protection, nor the prospect of success were the applicant to have made another application for a protection visa (following SZGIZ). [53] The absence of any reference to the documents in the Tribunal's decision, and the actual contents of the documents covered by the s.438 certificate, provide the basis to reasonably infer that the Tribunal did not consider the documents to be relevant to its consideration. In the circumstances, I find that there is no suggestion that the Tribunal acted on the documents in the manner identified in MZAFZ. [54] The documents covered by the s.438 certificate were departmental records. The failure to disclose the s.438 certificate or the documents to the applicant do not, in the circumstances, provide any basis to say that an arguable case for a denial of procedural fairness arises, or that any practical injustice occurred in the circumstances (AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [91] and BEG15 at [33] and see [8] of the Minister's second written submissions). An appeal of that decision of the Full Court, it may be noted, was dismissed by the High Court of Australia: BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599. The decision of the High Court, it may further be noted, was handed down subsequent to the decision of the primary Judge in the present proceeding. 22 In dismissing the appeal from the Full Court, Bell, Gageler and Keane JJ observed: [2] The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. Their Honours continued on to further observe: Materiality [45] ... A breach is material to a decision only if compliance could realistically have resulted in a different decision. 23 Albeit not by reference to the decision of the High Court, the primary Judge in the present case concluded (at para [51]) that there was nothing to indicate that the Tribunal had "acted on" the information to which the s 438 certificate was directed. Any non-disclosure, to now employ the language of the High Court, was thus not "material". Accordingly, no claim for relief arises.

CONCLUSIONS 24 SZRHR has no right of appeal to this Court. 25 The only applications which can be made are an application for an extension of time and for leave to appeal from the interlocutory decision of the Federal Circuit Court dismissing the proceeding before that Court pursuant to r 44.12 of that Court's Rules. 26 An extension of time in which to appeal is refused. Even had an extension of time been granted, leave to appeal would not have been granted. The only error sought to be advanced to impugn the decision of the primary Judge is an error in the application of s 438 of the Migration Act. As the primary Judge correctly concluded, any failure to disclose to the Applicant the information the subject of the s 438 certificate could have no material impact upon the Tribunal's decision and could not have given rise to any denial of procedural fairness. 27 Although the Grounds upon which the Application for an extension of time and leave to appeal refer to "error" on the part of the primary Judge in dismissing the proceeding "pursuant to the Federal Court Rules", no error has emerged as to the manner in which the primary Judge exercised the discretionary power conferred by r 44.12(1)(a) of the Federal Circuit Court Rules. 28 Noticeable deficiencies on the part of the Applicant's interpreter in the present proceeding, it should finally be noted, was a matter of concern. Interpreters should be reminded that their task is to translate all of that which is being said during the course of a proceeding - not the translation of only that which they consider to be relevant or a summary of that which is being said. But such deficiencies in the services being provided to the Applicant, it is considered, were not such as to deprive him of an adequate opportunity to be heard. 29 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The proceeding is dismissed.
2. The Applicant is to pay the costs of the First Respondent, either as assessed or agreed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.