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[2018] FCA 329
Federal Court of Australia
2018-02-20
Logan J, Rares J
Original judgment source is linked above.
(REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an appeal from the decision of the Federal Circuit Court to refuse to grant the appellant Constitutional writ relief in respect of a decision by the Refugee Review Tribunal, given on 21 December 2014, that affirmed the Minister's delegate's decision not to grant the appellant a protection visa: SZTGS v Minister for Immigration [2016] FCCA 2008.
The misuse of delegated Ministerial power under s 438 of the Migration Act 1958 (Cth) 2 The hearing of this appeal had originally been fixed for 16 February 2017, but on 31 January 2017, I made an order by consent that it be adjourned pending the outcome of the Minister's application for special leave to appeal from the decision of the Full Court in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305. 3 The reason for that adjournment was that, following the decision of Logan J, on 22 August 2014, to set aside an earlier decision of the Tribunal made on 16 August 2013 (SZTGS v Minister for Immigration and Border Protection [2014] FCA 908), three pages of internal file notes were created within the Department. The notes recorded that the first Tribunal's decision had been set aside and was a "department loss", compliance action may not be appropriate in respect of the appellant, the names of some officers with carriage of the matter and the fact that the Court delivered its decision on 22 August 2014 ordering the Minister to pay the appellant's costs. 4 On 4 September 2014, Elizabeth Hepper, a delegate of the Minister, issued a certificate purportedly under s 438 of the Migration Act 1958 (Cth), certifying that those three pages contained information "relating to an internal working document and business affairs" the disclosure of which "would be contrary to the public interest". 5 Relevantly, s 438(1) gave the Minister power to certify in writing that the disclosure of any matter contained in a document, or of information, would be contrary to the public interest, broadly, for any reason specified in the document, being a reason that could form the basis of 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. 6 The Secretary notified the Tribunal of the certificate and under s 438(3) the Tribunal could have regard to the document or information to which the certificate applied and could restrict its further use or dissemination under s 440. Until recently the appellant was unaware of the certificate and the two pages or their innocuous contents. 7 It is inconceivable that such a certificate could have been given by any delegate of the Minister acting reasonably or responsibly. The issue of the certificate was an abuse of power. More seriously, that abuse of power caused the delay of the hearing of this appeal for a year pending the decision of the High Court, which refused special leave to appeal: Minister for Immigration and Border Protection v Singh [2017] HCA Trans 107. 8 On 7 June 2017, following the refusal of special leave, a solicitor in the firm acting for the Minister in this appeal made an affidavit in which she said, entirely properly, that the Minister made no claim for privilege over the certified material, did not seek any orders for confidentiality over it and she was not aware of any reason which would prevent the Court from viewing the documents in order to determine their admissibility. 9 Here, there was no basis for imagining that a claim for public interest immunity was even fancifully arguable. As Beach J described a similar certificate in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at 10-11 [37], the certificate manifested "overreach". 10 In Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 at 31, Mason CJ, with whom Dawson and McHugh JJ agreed, said: The courts have consistently viewed governmental secrets differently from personal and commercial secrets [Attorney-General v Jonathan Cape Ltd [1976] QB 752; The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86; Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109]. As I stated in The Commonwealth v John Fairfax & Sons Ltd [(1980) 147 CLR 39 at 51], the judiciary must view the disclosure of governmental information "through different spectacles". This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure [John Fairfax (1980) 147 CLR 39 at 52]. (emphasis added) 11 The delegate and the Minister's Department should never have used such an important power to suppress documents of the innocuous kind that were the subject of the certificate. The power is to be exercised to protect material as a governmental secret in accordance with settled principles of law. The practice, if it is a practice, by which the certificate in this case and in MZAFZ 243 FCR 1 were issued must stop and be carefully reviewed by the Minister to ensure that his Departmental officers are properly instructed in the law as to what matters are capable of being subject to claims for public interest immunity. This Court's processes have been delayed unnecessarily for over a year because of this attempt to interfere with material that, without any impact on the public interest, was and should have been included in the Departmental file, placed (were it relevant) before the Court and, in any event, disclosed to the appellant. 12 In the event, the document made, and could have made, no difference whatsoever to the appellant's case, or relevant material that was or could have been considered by the Tribunal. It did not affect the outcome of the proceedings in the Tribunal. The persons to whom the Minister delegates such an important power as to grant a certificate under s 438, must be senior officers with appropriate experience of what might be legitimately considered necessary. The issue of the certificate in this case and the suppression of the material that it covered was improper and has interfered in the administration of justice in a most serious and uncalled-for manner.
The circumstances of the appeal 13 The appellant is a citizen of India who arrived in Australia on 3 July 2012 on a business visa issued on 20 June 2012. On 26 July 2012, he applied for a protection visa. In essence, he alleged that as a Hindu, he feared persecution at the hands of Muslims in the place in which he lived because, from August 2011, he had had an inter-faith relationship with a Muslim girl. He claimed that her family had found out about the relationship when she fell pregnant and that, in various ways, he had suffered harm from members of her family and their associates whom, he claimed, had tried to kill him in attacks he described in various ways. He claimed that an imam at the local mosque declared that he should be punished with death because of the relationship and that local adherents of the Muslim faith had promised to fulfil the imam's wishes. He claimed that he could not obtain protection in India and needed to come to Australia. 14 The delegate interviewed the appellant. The delegate disbelieved all of the appellant's claims by reason of the inconsistencies and incoherence in the way in which he presented his account. The delegate also found that there was no reason that, even if the claims were true, the appellant could not have relocated in India. Accordingly, he found that Australia did not owe protection obligations, either under the Refugees Convention or on the complementary protection ground in s 36(2)(a) and (aa) of the Act.
The second Tribunal's decision 15 The appellant sought review of the delegate's decision in the Tribunal and, following the decision of Logan J, the second Tribunal reviewed his application afresh. During the course of the hearing, the second Tribunal took evidence from the appellant. It asked him about statements that he had made in his business visa application which, at the time he made them, he declared were true. The appellant told the Tribunal that although he signed it, the information in that application and its supporting papers were "all false". 16 The Tribunal considered that, given the appellant's readiness to provide false information to the Australian Government to obtain his business visa, which he had acknowledged in his evidence, he might also have provided false evidence in order to secure a permanent protection visa. The Tribunal found, ultimately, that the appellant had fabricated his claims in order to achieve a migration outcome. It noted that he had not made any claims under the complementary protection ground, but it considered his eligibility to obtain such protection and rejected it for the reasons that it had already given. 17 The Tribunal found that the appellant was not a reliable or truthful witness and was not satisfied that he had a genuine fear of persecution for a Convention reason or that there was a real chance that, were he to return to India, he would suffer serious or significant harm within the meaning of ss 36(2)(a) or (aa).
The proceeding before the trial judge 18 The appellant's grounds for review put to the trial judge were, that the Tribunal had made a jurisdictional error by failing first, to address his claims relating to being attacked by Muslims, the declaration by the imam that he should suffer death, his leaving the village and moving around before he left India, and his having reported the incident in which he claimed to have been attacked to the police and their failure to do anything about it and, secondly, to afford him procedural fairness because it had reached an adverse conclusion that the inconsistencies between his oral and written evidence were not obviously open on the known material, without having given him an opportunity to make written comments in respect of those matters. 19 The trial judge dismissed both grounds. His Honour rejected the first ground below on the basis that it was clear from the Tribunal's decision record that it had asked the appellant about his claims, considered them and then came to the view that it did not accept them. 20 The trial judge found, correctly, that it was the appellant's answer as to the falsity of what he had put in his business visa application, that he acknowledged was false on the earlier occasion, which was the reason or part of the reason for the Tribunal's finding of his lack of credibility, as opposed to the information in the business visa application itself. The admission by the appellant, that he was prepared to give false information in a visa application, was the basis on which the Tribunal proceeded to disbelieve him, as opposed to it using or relying on the content of, or information in, the application which the appellant had said was false. 21 In other words, the Tribunal acted on the appellant's evidence to it that he was prepared to put false statements to the Government in order to obtain a favourable migration outcome at an earlier stage, rather than information in the application itself. I see no error in his Honour's finding rejecting the second ground below. Moreover the delegate's decision had made clear that the appellant's credibility would be in issue in the review by the Tribunal, so that the Tribunal need not have drawn that matter to the appellant's attention: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 22 As the appellant put to his Honour and also today to me, the only submission which he felt he was in a position to make, not being legally qualified, was that he feared returning to India because he claimed that he would be persecuted.
This appeal 23 Today the appellant did not put any submissions to me, other than repeating why he feared being returned to India. 24 He raised two grounds of appeal, namely that the trial judge had failed to find, first, that the Tribunal had acted in a manifestly unreasonable way when dealing with his claim and had ignored the need to make findings under the now repealed s 91R of the Act in a way that amounted to jurisdictional error and, secondly, that the Tribunal's decision was unjust and made without taking account of the full gravity of the appellant's circumstances and the consequence of his claim. 25 The Minister argued that neither ground had been put below. 26 In my opinion, the second ground appeared to conflate both grounds that the appellant argued below. Neither ground before me has any substance. There is no basis for finding that the Tribunal acted otherwise than in accordance with the processes that it was required to follow pursuant to the Act or that his Honour made any error in determining that the application below should be dismissed with costs.
Conclusion 27 For these reasons, the appeal must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
SZTGS
Minister for Immigration and Border Protection
(1995) 183 CLR 10
(2016) 244 FCR 305
(2016) 243 FCR 1
(2006) 228 CLR 152
(1980) 147 CLR 39
(1987) 10 NSWLR 86