AHH16 v Minister for Immigration

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision not to grant the applicant a protection visa. The applicant contended that the Tribunal had made a jurisdictional error by concluding that he faced no more than a remote risk of harm if returned to his country of nationality. A further ground for review was whether the Tribunal's failure to disclose an invalid 438 certificate and the documents covered by it was material to its decision.

The central legal issues before the court were whether the Tribunal committed a jurisdictional error in its assessment of the risk of harm to the applicant and, more significantly, whether the non-disclosure of a 438 certificate and its accompanying documents constituted a jurisdictional error. The court was required to consider the differing views of the High Court in *SZMTA* regarding the consequences of such non-disclosure. Specifically, it needed to determine whether the materiality of the non-disclosure was a prerequisite for jurisdictional error, as suggested by the plurality judgment in *SZMTA*, or whether any breach of the disclosure obligation automatically gave rise to jurisdictional error, as per the non-plurality judgment.

The court noted that all justices in *SZMTA* agreed that the Tribunal's receipt of a 438 certificate, even if invalid, obliged it to disclose the certificate to the applicant. However, the plurality judgment held that such a failure would only constitute jurisdictional error if it was material, meaning that compliance with the disclosure obligation could realistically have resulted in a different decision. The applicant bore the onus of proving this materiality. In contrast, the non-plurality judgment found that a breach of the disclosure obligation inherently constituted jurisdictional error, irrespective of materiality, although materiality could be relevant to the court's discretion to grant relief. The court then proceeded to examine the documents covered by the 438 certificate, categorising them as interpreter engagement confirmations, an inter-departmental email regarding asylum seeker assistance, and a case officer's checklist, to assess their potential relevance to the applicant's claims.