Abdulqadir v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 40
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abdulqadir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 40
File number(s): MLG 3376 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 25 January 2024 Catchwords: MIGRATION – judicial review of visa cancellation decision – whether Administrative Appeals Tribunal misconceived the notion of “best interests of the children” – whether certificate issued purportedly under s 375A of the Migration Act 1958 (Cth) was valid – whether it could be inferred that the Tribunal read the material covered by the certificate – whether applicant denied a fair hearing consistent with s 360(1) of the Act – no error identified – application dismissed with costs Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 60(1).
Migration Act 1958 (Cth) ss 116, 357A ,359A, 360, 375A, 438, 477 2
Cases cited: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Chi Cong Le v Minister for Immigration and Border Protection (2019) 272 FCR 1; [2019] FCAFC 178
CHZ19 v Minister for Home Affairs [2019] FCA 914
El Jejeh v Minister for Home Affairs & Anor (No 2) [2019] FCCA 840
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455; [2021] FCAFC 24
Meyrick v Minister for Home Affairs [2020] FCA 677
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submissions: 18 October 2022 Date of hearing: 8 August 2022; 18 October 2022 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Bardo & Erci Lawyers Counsel for the First Respondent: Mr J Lessing Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3376 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMED ABDULQADIR
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time filed on 21 December 2021 is allowed.
3.The amended application for judicial review filed on 18 October 2022 is dismissed.
4.The applicant pay the first respondent’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
Section 116(1)(e)(i) of the Migration Act 1958 (Cth) (the Act) authorises the first respondent (the Minister) to cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
By an application filed on 21 December 2021, the applicant seeks an extension of time to make an application for judicial review of a decision of the second respondent (the Tribunal) made on 10 March 2021 affirming a decision of the Minister (through his delegate) to cancel the applicant’s Subclass 444 (Special Category) visa (the visa) in purported reliance on s 116(1)(e) of the Act. The Minister consents to the application for an extension of time but submits that the application should be dismissed because the two grounds that it identifies and the further ground which the applicant belatedly sought to prosecute, are without merit. The Tribunal enters a submitting appearance save as to costs and has not participated in the proceeding.
Given the position adopted by the Minister, which I consider was appropriately taken, I will grant the applicant an extension of time to prosecute his application for judicial review and determine the application on the basis that the only consideration is whether he has established jurisdictional error in the decision of the Tribunal.
BACKGROUND
The applicant is a citizen of New Zealand. He was granted the visa on 11 December 2009 upon his arrival in Australia with his family. The applicant was nine years old at the time.
On 20 March 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by a delegate of the Minister (CB 2). The NOICC recorded (in table form) that the applicant had been charged with (but not convicted of) a series of offences in April 2019, had been convicted of affray on 30 November 2018 and had been convicted on 24 October 2018 of “traffic methamphetamine”, “deal property suspected proceed of crime”, affray and “unlawful assault” (CB 75). The NOICC also recorded that the applicant had been previously charged with multiple offences in relation to armed robbery and the theft of motor vehicles (on 7 December 2017, 8 May 2018, and 2 August 2018) (CB 4).
The NOICC contained a statement informing the applicant that given his criminal history and the current alleged behaviour involving violence in relation to aggravated carjacking and the trafficking of dangerous drugs, there was sufficient evidence to satisfy the author of the NOICC that the applicant’s presence in the community (sic) may pose a risk to the health and safety of the Australian community. The applicant was informed that the visa was being considered for cancellation under s 116(1)(e)(i) of the Act and that he was invited to comment on this ground for cancellation and to give reasons why the visa should not be cancelled (CB 5).
The applicant responded to this invitation on 23 March 2019 (CB 8-9). The applicant’s response emphasised his time spent in Australia (as distinct from New Zealand) and his “loving mother, father and 3 siblings in Melbourne”. The applicant explained that he was “not ready to leave my family and fend for myself”.
On 30 April 2020, a delegate of the Minister cancelled the visa under s 116(1)(e)(i) of the Act (CB 15-25).
On 8 May 2020, the applicant applied to the Tribunal for review of the cancellation decision (CB 30). The application was supported by a written statement from the applicant (CB 41).
On 24 February 2021 the Tribunal wrote to the applicant inviting him to attend a hearing via telephone, scheduled on 10 March 2021 (CB 56).
On 26 February 2021, the Tribunal wrote to the applicant inviting him to comment on the validity of a certificate issued by the Department of Home Affairs (the Department) on 25 May 2020 under s 375A of the Act regarding the disclosure of certain material held on the applicant’s file with the Department which (according to the certificate) “may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods” (CB 60-62). The applicant was invited to respond by 9 March 2021 but did not take up this opportunity.
On 10 March 2021, the applicant attended the hearing and later on the same day, the Tribunal affirmed the delegate’s decision to cancel the visa (CB 73-80).
THE DECISION OF THE TRIBUNAL
The Tribunal identified the issue before it as whether the ground for cancellation of the applicant’s visa was made out and if so, whether the visa should be cancelled on discretionary grounds (CB 74 [4]).
The Tribunal was satisfied that the ground for cancellation in s 116(1)(e) did exist. Its reasons are encapsulated by what is said at [12] (CB 76), being:
[12] The Tribunal finds that the applicant had been convicted of multiple offences since around 2018. The Tribunal places significant weight on the fact that many of the offences appear to involve violence towards others, such as attempted armed robbery, assault and assault with a weapon, carjacking and intentionally causing injury. The seriousness of these offences is reflected in the fact that the applicant had been given a custodial sentence and in relation to the most recent offending, the sentence is a lengthy one of four and a half years imprisonment. The Tribunal also finds it significant that despite the earlier offending and sentencing, the applicant continued to re-offend. The Tribunal has formed the view that the applicant has little regard for the law and the welfare of others. The Tribunal acknowledges that the applicant will be incarcerated for some time but given his past conduct and repeated offending despite past incarcerations, the Tribunal is not satisfied that the imprisonment would act as a strong incentive for the applicant to change his conduct. The Tribunal is of the view that there is a real risk that the applicant may re-offend in the future. The Tribunal finds that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community.
The Tribunal also found that, for discretionary reasons, the visa should be cancelled. In reasoning to this conclusion, the Tribunal addressed itself to the matters identified in the Department’s Procedures Advice Manual (PAM3) “General visa cancellation powers”.
In his proposed application for judicial review, the applicant initially sought to impugn two aspects of the Tribunal’s reasons. However, when his application came before me for hearing on 8 August 2022, counsel for the applicant, Mr Aleksov, informed the Court that his client no longer pressed ground two. The extant ground one was directed at the following two paragraphs of the Tribunal’s decision, both of which appeared under the heading “…best interests of the children as a primary consideration” at [26]-[27] (CB 78-79). They state:
[26] The applicant claims his entire family, including parents and siblings, reside in Australia. The Tribunal finds that principles of family unity may require his presence in Australia.
[27]The applicant states that his brother and sister, who are aged 10 and 14, would be affected by the cancellation of his visa. The applicant states that when he lived at home, he was their role model and they would talk to him with any issues. Since his detention, he speaks to them often on the phone. The Tribunal accepts that evidence but given the nature and the extent of the applicant’s offending, the fact that his pat (sic) conduct involves extensive criminal behaviour and, importantly, violence towards others, the Tribunal does not consider that the applicant’s presence offers a good example to his younger siblings. The applicant told the Tribunal that he did not bring problems home and even if he did anything outside, nobody at home would know about it. Nevertheless, given the nature and extent of the applicant’s past convictions, the Tribunal does not consider it is in the best interests of his minor siblings to witness such behaviour or its consequences. The applicant also told the Tribunal about his past drug and alcohol use and, again, the Tribunal does not consider it is in the best interests of these siblings to observe the use and effect of drugs and alcohol. The Tribunal has formed the view that there remains a risk of reoffending and if the applicant was to reoffend, the Tribunal does not consider it would be in the best interests of his young siblings to be in the same household. The Tribunal is also mindful that even if the applicant was to leave Australia, he can maintain contact with his siblings by electronic means and there may be a possibility of future travel. The Tribunal has formed the view that the best interests of these children would not be adversely affected by the cancellation of the visa.
PROCEEDINGS IN THIS COURT
In accordance with procedural orders made by the Court on 16 March 2022, the Minister filed a court book on 30 March 2022, the applicant (who was by now legally represented) filed written submissions on 13 July 2022 and the Minister filed an outline of submissions on 27 July 2022.
On 5 August 2022, the applicant, without leave, provided to the Court and served on the Minister a set of further written submissions by which he proposed a new ground of appeal concerning material that was provided to the Tribunal under cover of the s 375A certificate and which had been produced to the applicant and to the Court by the Minister on 2 August 2022 in response to a subpoena. The ground was framed as follows:
The applicant did not receive a fair hearing as required by s 360(1) of the Migration Act, given the prejudicial effect of the certificate material in the mind of the Tribunal, even if the effect was only subconscious.
On 8 August 2022, the Minister filed a set of further submissions in which he opposed leave for the applicant to rely on this new ground. The opposition principally reflected the contention that the proposed new ground was raised very late (in circumstances where the existence of the certificate was disclosed at least by 5 April 2022 when the court book was filed and served on the applicant) and that it lacked merit.
On the question of merit, the Minister, who was represented by Mr Lessing of counsel, submitted that it could be inferred, by analogy with the decision of Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), that the Tribunal had not read the material behind the s 375A certificate as there was no reference to it in its written statement of reasons. The applicant, responsive to this submission, sought and was granted leave to issue a subpoena to the Tribunal for the content of its file. The subpoena material was then annexed to an affidavit of Ms Hazim filed on the applicant’s behalf on 1 September 2022 and the applicant and the Minister, on 1 September 2022 and 15 September 2022, respectively, filed written submissions that addressed the proposed new certificate ground.
The matter returned to Court on 18 October 2022 for the parties to make oral submissions on this issue. Argument directed at ground one had occurred on 8 August 2022.
THE GROUNDS OF APPLICATION
Ground 1
The applicant’s submissions
Ground one alleges that “the Tribunal misconceived the notion of ‘best interests of the children’, in that it failed to appreciate that the best interests of the applicant’s siblings would unambiguously see him remain in Australia”.
The applicant submitted in relation to this ground and by reference to [27] of the Tribunal decision that the Tribunal had not addressed itself lawfully to the best interests of the applicant’s two minor aged siblings in circumstances where it had concluded that their best interests would not be adversely affected by the cancellation of the applicant’s visa.
The applicant submitted that the Tribunal’s finding (at [27]) that “there remains a risk of reoffending and if the applicant was to reoffend, the Tribunal does not consider it would be in the best interests of his young siblings to be in the same household” did not sit comfortably with the evidence (accepted by the Tribunal) that “when [the applicant] lived at home, he was [his sibling’s] role model and they would talk to him with any issues” and that since his detention, he speaks to them often on the phone.
The applicant also made the submission that there did not appear to have been any evidence that the applicant would return to the same household as his siblings and that it was not apparent why further re-offending would occur in the same household as the siblings given that the applicant’s criminal history did not include violence in the home.
The applicant submitted that more fundamentally, it was unreasonable for the Tribunal to find that the applicant’s siblings’ best interests, on balance, would not be adversely affected by cancellation, even if the Tribunal had some evidence to support its reasoning. In this regard, the applicant appealed to the judgment of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018 267 FCR 628 at [3] which emphasised the need to confront the human consequences removal from Australia can bring.The applicant submitted that “[e]very reasonable human knows that separation of persons with bonds of that kind [close sibling bonds] is much worse than any detrimental effect of having a ‘bad role mode’ in the form of the applicant”. The applicant characterised the Tribunal’s approach as “perverse, in the extreme”.[1]
[1] Applicant’s written submissions filed 15 July 2022 at [9].
The applicant submitted on the question of materiality that in circumstances where the Tribunal should have given the consideration in favour of the siblings “some weight”, on a standard based on “reasonable conjecture” the possibility of a different outcome could not be discounted.
The Minister’s submissions
The Minister’s overriding submission was that ground one involved a descent into merits review and reflected a misapprehension of the Tribunal’s reasons at [26] and [27] and the considerations to which these two passages were directed.
As a starting point, the Minister submitted, by reference to Meyrick v Minister for Home Affairs [2020] FCA 677 at [49] that the best interests of the children will not necessarily weigh in favour of an applicant; this will require consideration of both the nature and duration of the relationship between the child and the non-citizen. It was said that in this case, it was not readily apparent why the best interests of the applicant’s siblings would be served by the applicant remaining in Australia when there was no evidence from the applicant’s parents or from the siblings themselves to that effect. Instead, the only evidence and submission the applicant advanced to demonstrate the best interests of his siblings was his own evidence, namely, that he was a role model for his siblings.
The Minister submitted that the Tribunal had rejected that submission and evidence at [27] of its reasons on the basis that, given the applicant’s substance use and violent criminal history, and the real risk that he would continue to offend, the applicant’s siblings’ best interests would not be adversely affected by visa cancellation. It was said that it was not legally unreasonable for the Tribunal to reason in the manner that it did having regard to the frequency and seriousness of the applicant’s offending – which involved aggravated carjacking, traffic methamphetamines and armed robbery. The finding had an evident and intelligible justification.
The Minister rejected the contention that the Tribunal had failed to consider the “human consequences” of its decision. To the contrary, the Tribunal was plainly aware of the effect that visa cancellation would have upon the applicant’s family, having regard to what was recorded at [20] of its reasons, namely:
[20]The Tribunal accepts that the applicant has extensive family ties in Australia and very limited, if any, support in New Zealand. The Tribunal accepts that the applicant would have to re-establish himself in New Zealand. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled.
As far as the applicant sought to impugn the Tribunal’s reasoning on the basis that there was an absence of evidence suggesting that the applicant would return to the same household as his siblings, the Minister noted that the applicant gave evidence that he regularly had contact with his family and that when released from prison, he would live with his parents and work at his cousin’s business. The Minister made the allied submission that the Tribunal’s consideration did not proceed in any case on the premise that further offending would necessarily occur in the household. Instead, the Tribunal’s reasoning was directed at the applicant’s claim that he was a role model to his siblings, the example he would set and whether the best interests of the siblings would be adversely affected by any visa cancellation.
Consideration of ground one
I am not persuaded that there is merit in ground one. Instead, I consider that the ground encroaches on merits review and involves, at its core, an emphatic disagreement with the conclusion drawn by the Tribunal that, on balance, the best interests of the applicant’s two younger siblings would not be adversely affected by the cancellation of the applicant’s visa.
I am not satisfied that the reasoning adopted by the Tribunal was legally unreasonable or that it was irreconcilable with the evidence that was before it. It was open for the Tribunal to conclude that the promotion of a relationship of proximity between the applicant and his two siblings - whether that occurred within the same physical household in Australia or not – was antithetical to the best interests of the siblings having regard to the behaviours engaged in by the applicant historically and the prospect that such behaviours would be repeated in the future. The applicant had expressly put in issue his status as a “role model” so that it was both logical and reasonable for the Tribunal to interrogate the consequences of this relationship and to cast these consequences in a less favourable light then the applicant had through his own submissions and evidence.
Ground one is dismissed.
The proposed new certificate ground
As will be recalled, the applicant sought to rely on a ground which involved the allegation that he had been denied a fair hearing as required by s 360(1) of the Act given the prejudicial effect in the mind of the Tribunal of material that was the subject of a certificate issued by reference to s 375A of the Act on 25 May 2020 (the certificate).
Was the certificate valid?
The applicant’s first submission was directed at the validity of the certificate, or rather, its invalidity. The applicant accepted that his argument would fail at the threshold if he was unable to succeed on this point.
The certificate was issued for the stated reason that disclosure of the documents it purported to cover would be contrary to the public interest because “Disclosure of the information in these documents may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods”.
The applicant submitted that upon inspection of the certificate material, the explanation relied upon as justifying the issue of the certificate was untenable. This was because no crime detection methods were disclosed in the material and the minimal redaction applied to the material when it was produced to the applicant and to the Court should be understood as a concession by the Minister as to the benign character of the information that it contained.
In this regard, I note that in an affidavit of Department employee Mr Orchard-Stephan affirmed on 2 August 2022, the redactions applied to the certificate material were said to “cover the names, email addresses and phone numbers of Departmental officers, an informant and other third parties”.[2]
[2] Affidavit of Mr Orchard-Stephan at [4].
The applicant submitted that the attempts made by the Minister in his written submissions, to justify the claim of public interest immunity should be rejected.
That submission appeared at paragraph 16 of the Minister’s written submissions filed on 8 August 2022 and read:
There is support for the certificate’s validity. The material under the certificate contains several references to the applicant’s alleged involvement in youth gangs and that he was of interest to Echo Task Force in that connection. It can be inferred that, if the applicant was a member of a youth gang or gangs, then investigation of those gangs might be prejudiced by fellow gang members being made aware that they may have been identified, through association to the applicant, as also being gang members. That knowledge could rationally prejudice any investigation of those gang members.
The applicant characterised the justification as “contingent upon contingent” and unsupported by any evidence.
The certificate was invalid
Section 375A of the Act provided as follows:
375A Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or 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 375(a) or (b)); and
(b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
The certificate was signed by a delegate of the Minister on 25 May 2020 and addressed to the District Registrar of the Tribunal. It was headed “CERTIFICATE AND NOTIFICATION REGARDING DISCLOSURE OF CERTAIN INFORMATION TO ADMINISTRATIVE APPEALS TRIBUNAL UNDER s 375A OF MIGRATION ACT 1958”. It stated as follows:
I certify that in accordance with s 375A of the Migration Act 1958, the disclosure, other than to the Administrative Appeals Tribunal of the documents highlighted below contained in TRIM reference number(s) [CLD2019/16426139, CLD2019/16523685, ADD2019/2430293, ADD2019/4416794 and CLD2020/18939716] of file number [BCC2019/756140], would be contrary to the public interest because:
Disclosure of the information in these documents may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods
As s 375A applies to the document(s)/information identified above, the AAT must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the AAT, pursuant to s375A(2)(b) of the Migration Act 1958.
The delegate who signed the certificate also signed as a delegate of the Secretary of the Department of Home Affairs.
As noted previously, the documents referred to in the certificate were tendered by the Minister and admitted into evidence. The documents included, relevantly:
(a)An email sent by a Visa Cancellation Officer (VIC) on 18 March 2019 with the Subject: GCN Case Escalation and which stated: “Hi ##, Please see escalation for an 18 year old, TY 444 holder; proposed NOICC escalated due to possible involvement with youth gangs. The visa holder is reportedly of interest to Echo Task Force”.
(b)An attachment template document to the email described as “General Cancellations Network – Case for Escalation” which identified as the “Summary of reason(s) for escalation” the following: “The visa holder has been involved in multiple carjacking’s (sic) and theft over the course of 12 months preceding his eighteenth birthdate, including one count of trafficking in dangerous drugs (methamphetamines). He is of interest to ‘Echo Task Force – Gang Crime Squad’ in Melbourne, namely youth gangs”.
(c)An email sent on 11 April 2019 with subject: Draft Decision Record and which stated (amongst other things): “…I have attached a draft decision record for the above named NZ citizen and SCV holder. This is a case for escalation as the visa holder is the subject of Vic police’s Echo Taskforce, possible association with street gangs”.
(d)An email sent by Team Leader, Visa Cancellations Unit – VIC on 12 April 2019 with subject: FW: Draft Decision Record and which stated (amongst other things): “Young NZ born (African background) offender who is allegedly involved in Melbourne gangs”.
(e)General Cancellations Network – Case for Escalation document dated 12 April 2019 which identified the summary of reasons for escalation as: “The visa holder has been involved in multiple carjacking’s (sic) and theft over the course of 12 months preceding his eighteenth birthdate, including one count of trafficking in dangerous drugs (methamphetamines). Visa holder is of interest to ‘Echo Task Force – Gang Crime Squad’ in Melbourne, namely youth gangs.”
(f)An email sent by the Director, General Cancellations Network on 17 April 2019 which stated: “Hi ##, Please see attached an escalated cases as per Escalation Protocols. This visa holder has alleged links to Melbourne Youth Gangs.”
The power to issue a s 375A certificate, like any other statutory power or discretion, must be exercised reasonably: SZMTA at [19]. It follows that the Minister or his delegate cannot issue a certificate under s 375A of the Act unless there is at least some probative, rational or logical basis for finding that disclosure would in fact be contrary to the public interest. A certificate issued on grounds that are demonstrably arbitrary, irrational or illogical could be said to be invalid on the grounds of legal unreasonableness even if, on its face, it stated that disclosure was contrary to the public interest.
As noted earlier, the justification given for the issuing of the certificate was that disclosure of the information contained in the documents may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law. It is not contentious that disclosure of investigative methods and prejudice to future investigations is a proper basis to claim public interest immunity: see, CHZ19 v Minister for Home Affairs [2019] FCA 914 at [49].
However, having reviewed the entirety of the certificate material and noting that the matters and information conveyed by the material reaches its zenith in the passages reproduced at [47] above, I cannot be satisfied that a probative, rational or logical basis emerges to support the public interest justification given. The references to the applicant having alleged links to a Melbourne youth gang do not identify methods for preventing, detecting or investigating breaches or evasions of the law even if there was evidence to support the drawing of the inferences that the Minister suggested could be drawn from that information. I find therefore that the certificate is invalid.
What inferences should be drawn regarding the Tribunal’s engagement with the certificate and the certificate material?
The applicant acknowledged that in the event he cleared the validity hurdle he would next need to establish, on the balance of probabilities, that the Tribunal had read the certificate and the certificate material.
The applicant’s argument on this point proceeded as follows:
First, the applicant invited the Court to find, based on inference, that the Tribunal had read the certificate itself and had formed a view that it was valid.
The inference was said to arise by reference to item 6 of the material produced by the Tribunal on subpoena, identified as “Screenshot of Task Details screen in CaseMate”, which recorded the Presiding Member’s request that the applicant be provided a copy of the s 375A certificate and invited to comment on its validity. Consistent with this description, the document contained an instruction from the presiding Tribunal member to a member of the NSW Member Support Team to “pls provide Ra with a copy of the 375a cert and invite comments on validity”. It is common ground that the reference to “Ra” is to the applicant, the “review applicant”.
The applicant submitted that the communication of this direction by the Tribunal meant conclusively that the Tribunal member had read the certificate and formed at least a preliminary view that the certificate was valid. Had it not done so, the question of the validity of the certificate would not have arisen which would have obviated the need to invite comment from the applicant.
Second, the applicant invited the Court to draw the further, but related, inference, that in order to form even a preliminary view about the validity of the certificate, the Tribunal must have read the certificate material. This was because formation of a view as to whether the objective test for public interest immunity was made out required an evaluation of the reasons stated on the face of the certificate, as well as the material that the certificate purported to cover. Had the Tribunal member read the certificate material then the Tribunal would have read within the material the references to the applicant’s alleged involvement in youth gangs, and that he was of interest to the Echo Task Force in that connection.
The applicant submitted that on the evidence, the inferences that he asked the Court to draw were the best inferences. They were fortified, so it was said, by the failure of the Tribunal to say anything in its reasons about the certificate or the certificate material. Had the Tribunal entertained any doubts about the validity of the certificate, as a matter of administrative propriety, one would expect the Tribunal to have at least acknowledged the issue. The Court was also entitled to assess all of the available evidence having regard to the “rule” in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 that evidence is to be weighed according to the capacity of a party to adduce it.
The Minister submitted that the highest the material produced by the Tribunal under subpoena took the applicant’s case was that it might be inferred that the Tribunal member had read the certificate. The CaseMate note (see [54] above) only conclusively demonstrated that the Tribunal member was aware of the existence of the certificate in the matter and nothing further. However, absent a requirement on the Tribunal to determine the validity of the certificate and, absent a discretion (such as that contained in s 438 of the Act) to disclose the material to the applicant, there was no compelling basis to infer that the Tribunal had in fact read the certificate material itself (relying on Chi Cong Le v Minister for Immigration and Border Protection [2019] FCAFC 178 (Chi Cong Le) at [39]-[40]).
The Tribunal did not read the material behind the certificate
While I am prepared to accept, based on inference, that the Tribunal read the certificate, I am not persuaded that the Tribunal took the additional step of reading the material “behind the certificate”.
I accept the applicant’s submission that in order to form a preliminary view about the validity of the certificate the Tribunal, more likely than not, would have read the material behind the certificate. However, I reject the first strand of the applicant’s argument, namely, that the Tribunal did in fact turn its mind to the question of whether the certificate was valid.
While the applicant places importance on the request made by the Tribunal to invite the applicant to comment on the validity of the certificate (this indicating the Tribunal had formed at least a provisional view that the certificate was valid) I consider instead it to be equally plausible and likely that the Tribunal took this course (of extending an invitation to comment to the applicant) without reviewing the underlying material.
First, the wording of the Tribunal’s request did not disclose that it had formed a view, one way or the other, as to the validity of the certificate.
Second, the entitlement of a review applicant to contest the assertion of the Minister or the Secretary that s 375A of the Act applies to a document or information (which opportunity the Tribunal was requesting be given to the applicant) arises irrespective of any view formed by the Tribunal as to the validity of the certificate.
Third, the premise of the applicant’s submission (reproduced at [57]) that had the Tribunal entertained any doubts about the validity of the certificate you would expect to see some mention of the issue in the Tribunal’s written statement of reasons, supports a conclusion that the Tribunal did not read the certificate material. I consider instead that had the Tribunal interrogated the certificate material at even a cursory level, it would have been obvious that there were issues with its validity. The failure to refer to the certificate (or the underlying material) is consistent with the Tribunal proceeding on the basis that the certificate had been lawfully issued; it being the case also that the applicant had not filed any submissions on validity capable of dislodging this view. The approach adopted by the Tribunal was consistent with the expectation that in the ordinary course it would leave the documents referred to in the certificate out of account reflecting the entitlement to treat the s 375A certificate as valid: see, Chi Cong Le at [39].
The Blatch v Archer maxim that “evidence is to be weighed according to the proof which it was in the power of the one side to produce and the other to contradict” does not assist the applicant in the context of the foregoing analysis.
The result of my finding is that the applicant is unable to succeed on his argument and accordingly his proposed new ground and the application (as amended) must be dismissed.
Further or alternative reason for dismissing the proposed new certificate ground
If I am wrong in the above analysis, and I should have found instead that the Tribunal read the certificate and the certificate material, I would have dismissed the proposed new certificate ground for the further, sequential, reason that the certificate material did not contribute to or cause an unfair hearing. In order to understand this conclusion, it is necessary to set out the arguments made on this issue by the parties.
The applicant’s submissions
The applicant submitted that the certificate material and its reference to the applicant’s involvement in a youth gang was significant because it had the potential to engage with or inform what was characterised as the decisive issue in the case against the applicant, being that he was likely to offend again.
The Tribunal’s reasons directed at this point appeared at [31] where it stated, after previously recording a finding that the length of the applicant’s residence in Australia and the extent of his ties in this country offer strong reasons why the visa should not be cancelled:
[31]However, the Tribunal has decided to place greater weight on the circumstances in which the ground for cancellation arose. In particular, the Tribunal places significant weight on the nature and extent of the applicant’s past convictions. The list of convictions, set out above, is extensive and, what is of most concern to the Tribunal, these involve several offences of violent nature. The Tribunal does not accept the applicant’s evidence that he has now reformed as he had time to think about his conduct while in jail as his past imprisonment, albeit for shorter periods and in youth detention facilities, did little to alter the applicant’s behaviour. He continued to offend once released from detention and the offending appears to have become more serious, with the level of violence escalating. The Tribunal has formed the view that insufficient time has passed since the most recent offending, and the applicant has not lived in the community since the most recent convictions, to establish that his future conduct would be different and the Tribunal has found that there remains a risk of reoffending, despite the applicant’s participation in rehabilitation programs and his assurances otherwise.
The applicant submitted that the issue of whether or not to accept his case about having reformed would be very significantly influenced by knowledge that the applicant was a member of a youth gang. The fact that the Tribunal had not mentioned this matter in its reasons was not remarkable. Indeed, this was consistent with the Tribunal having formed a view that the certificate was valid and that it was therefore bound by the obligations of non-disclosure imposed under s 375A in respect of the material (and information) it purported to cover.
Mr Aleksov submitted that in circumstances where the issue in the case was the applicant’s credibility, the information contained in the certificate material was adverse to him. The hearing afforded to him was not real and meaningful because he did not have an opportunity to identify and respond to the potential for the certificate material to operate consciously or subconsciously on the mind of the Tribunal member.
Mr Aleksov submitted that the Court was entitled, when considering this question, to take account of the nature of the decision involved. It was suggested that while a judge could be trusted to put certain things out of mind and to consciously work to ensure that something that should not be considered was not, the same level of trust should not be reposed in an administrative decision-maker, such as the Tribunal.
The Minister’s submissions
The Minister submitted that if the Court was to find (contrary to its primary submission) that the Tribunal had in fact read the certificate material, there was nothing in the subpoena material, or elsewhere, to indicate that the Tribunal took the certificate material into account, including subconsciously.
The Minister submitted that this conclusion was inescapable having regard to the following considerations:
First, consistent with SZMTA at [46]-[49] it could not be inferred that the Tribunal took the certificate material into account given the absence of any reference to the certificate or the certificate material in the reasons.
Second, even if the certificate was invalid, the Tribunal proceeded on the basis that it was dealing with a valid certificate. In those circumstances, it would be unsurprising for the Tribunal to put the certificate material aside in circumstances where the applicant would not be able to comment or respond to it (referring to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 at [82]) and consistent with what the Tribunal might be expected to do in the ordinary course of the administration of the Act (referring to Chi Cong Le at [39]).
Third, there was nothing in the material that has been produced by the Tribunal under subpoena to indicate that the Tribunal had read the material. The Blatch & Archer point did not further the applicant’s case given that the Court had the Tribunal material before it from which it was evident what had occurred.
The Minister submitted that even if the Court was to find that the Tribunal had read the certificate material, whether or not the applicant was suspected of being in a gang was not a question of significance that the Tribunal needed to decide and therefore not an “issue” for the purpose of s 360(1) of the Act. This was reflected in the absence of any reference to the certificate, or the certificate material, in the reasons for decision.
The Minister submitted that the Reasons at [11], [12], [21] and [31] disclosed that in determining the application, the Tribunal considered the following matters: (1) the nature and extent of the applicant’s offending (including that the more recent offending was more serious and violent in nature); (2) the fact that the applicant continued to offend despite his incarceration in a youth detention facility; (3) the lack of satisfaction that the applicant would cease using drugs; and (4) the relatively short time that had passed since the most recent offending. All of these findings, it was submitted, were made independently of any alleged involvement by the applicant in a gang.
The point was made by the Minister that this was not a case analogous to that the subject of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 where the Tribunal had decided the case on a basis that was substantially different to that adopted by the delegate. Likewise, this was not a case where the Tribunal had erred by failing to take into account material favourable to the applicant which was under cover of an invalid certificate (referring to El Jejeh v Minister for Home Affairs & Anor (No 2) [2019] FCCA 840). Instead, the Minister described the case as one where the Tribunal, on balance did not take into account information which could not have assisted the applicant’s case. It was submitted that there was no evident failure to comply with s 360(1), particularly in circumstances where the applicant was aware of the certificate.
The Minister in his submissions emphasised the character of the applicant’s complaint as involving a failure to afford natural justice. This required the Court to be cognisant of the other provisions within Division 5, Part 5 of the Act – being ss 357A, 359A and 375A – that established the procedure the Tribunal was required to adopt in dealing with adverse information. An application of these provisions yielded the following results: first, if the certificate was valid, the statutory framework did not permit the certificate material to be provided to the applicant. Second, if the certificate was invalid, the statutory framework only required the adverse information to be provided to the applicant if the information would be the reason or part of the reason for affirming the decision. In either case, the natural justice requirements set out in Division 5, Part 5 of the Act were complied with.
Further, insofar as the applicant’s case was premised on the certificate material having a subconscious effect on the Tribunal, the Minister’s submission was that there was no meaningful distinction between a conscious and subconscious effect when it came to its application to the hearing rule. In aid of this submission, the Minister relied on paragraphs [70] and [71] of MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 where a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) said:
Quite apart from the practical difficulties inhering in proof of a subconscious impact, there is a conceptual difficulty in fathoming how the potential for information covered by a notification to have had an impact on the subconscious of a member who constitutes the Tribunal can properly bear on the legal consequences of a failure to discharge the procedural obligation that it breaches through non-disclosure of a notification. As was noted in Minister for Immigration and Border Protection v SZSSJ, whilst “compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power”, “[o]rdinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry”. There is an oddity in conceiving of the opportunity to be heard of which the appellant was deprived by non-disclosure of the notification as a lost opportunity to present legal and factual argument to the Tribunal directed at the Tribunal’s subconscious. There is a similar oddity in thinking that the Tribunal was required to examine its own subconscious in considering the exercise of the discretions conferred by s 438(a) and (b).
Best is to conceive of the potential for information covered by a notification to have had a subconscious impact on the Tribunal not as bearing on the statutory consequence of non-compliance with the Tribunal’s procedural fairness obligation to give notice of the notification but rather as having the potential to bear on the discharge of the Tribunal’s distinct obligation of procedural fairness to ensure that what occurs in the conduct of the review “is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which [Pt 7] provides might reasonably apprehend that the [Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review.
Mr Lessing for the Minister submitted that the effect of these passages was that the concept of subconscious effect was reserved to questions of bias and that it was not a natural fit within the framework of the hearing rule. As the applicant had made the concession that an apprehended bias ground would not succeed in this case (on the basis that the certificate material was relevant), the subconscious effect of the material (if any) could not otherwise establish legal error in the decision of the Tribunal.
The applicant in reply submitted that the Court should proceed cautiously when reasoning by analogy with SZMTA on the inference point. This was because the High Court’s analysis was concerned with s 438 of the Act which, in two important respects, differed to s 375A of the Act. The first point of distinction was that by s 438(3)(a), the Tribunal had a discretion, for the purpose of the exercise of its powers, to have regard to any matter contained in a document or information that was the subject of a notification made under s 438. This provision, which was absent from s 375A, was said to support the inference that absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review could be justified in inferring that the Tribunal paid no regard to the notified document or information. For had it done so, it might have been expected to record its deliberations on the exercise of s 438(3)(a).
The second difference identified by the applicant was described as being that the form of s 438 required the Tribunal to do everything to ensure that a document was not disclosed, simpliciter, which included to the Tribunal member. Section 375A on the other hand permitted the disclosure of a document to the Tribunal. The applicant submitted that these two differences meant that the inferential process identified in SZMTA for s 438 certificates was not applicable to s 375A and in fact, the reasons being silent on review material supplied under s 375A should be understood as the norm with any mention of the review material likely to involve a breach of the provision.
The Tribunal did not fail to comply with s 360(1) of the Act
I accept that the certificate material contained information that was capable of informing debate on the question of the applicant’s recidivism. However, there is no evidence that would allow me to conclude that the Tribunal took the certificate material into account when it made its decision.
I am unable to discern any sound reason in principle why paragraph [47] of SZMTA cannot transpose to the present case and environment with the result that the Court can evaluate the proposed new ground on the basis that, absent contrary indications, the Tribunal left the certificate material out of account in reaching its decision.
The Tribunal’s reasons directed at the risk of the applicant re-offending said nothing about the certificate material and involved (especially those recorded at [31] of the Tribunal’s written statement of reasons) a self-contained, intelligible, and cogent justification for the conclusion reached that there remained a risk that the applicant would re-offend.
I reject the applicant’s submission about the ability of the Tribunal to quarantine certified information from its deliberative process. The submission is not supported by any legal authority that the applicant took me to nor on any other rational basis that I am able to identify. Further it operates inconsistently with the observation made by Justice Jagot in the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 at [59(10)] that “the IAA is not a judicial decision-maker but is a professional decision-making body taken to understand the statutory scheme involved…”. While these comments were directed at the Immigration Assessment Authority, they are capable of application (perhaps more so) to the Tribunal, whose members have, in the performance of their duties, the same protection and immunity as a Justice of the High Court: s 60(1) Administrative Appeals Tribunal Act 1975 (Cth).
The certificate material, even if read by the Tribunal, did not engage obligations of procedural fairness, including the obligation contained in s 360(1) to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The certificate material (or more precisely, the information which it conveyed) was not a dispositive “issue” of the kind comprehended by that provision. Neither did the material engage any other obligation of procedural fairness arising under Division 5, Part 5 of the Act.
Insofar as the certificate material might have created a subconscious effect I accept, for the reasons identified by the Minister in his submissions, that beyond a finding of apprehended bias (which, for good reason the applicant disclaimed reliance on) it could not establish legal error in the Tribunal decision.
ORDERS
For the reasons set out above I have not been persuaded that the decision of the Tribunal dated 10 March 2021 was affected by jurisdictional error.
Accordingly, I will order that the application filed 18 October 2022 (as amended) be dismissed and that the applicant pay the first respondent’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date of hearing.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 25 January 2024
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