Ahmad v Minister for Immigration
[2015] FCCA 1038
•11 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMAD v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1038 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – cancellation of a skilled sponsored visa – identity fraud – whether the Tribunal erred in withholding documents from the applicant in compliance with a Ministerial certificate considered. |
| Legislation: Migration Act 1958 (Cth), ss.5, 101, 107, 107A, 108, 109, 110, 111, 112, 353, 357A, 359A, 359AA, 360, 362A, 375A Migration Regulations 1994 (Cth) |
| Burton v Minister for Immigration [2005] FCA 1455 Minister for Immigration v Dhillon [2014] FCAFC 157 Minister for Immigration v Kumar [2009] HCA 10; (2009) 238 CLR 448 Minister for Immigration v Maman [2012] FCAFC 13; (2012) 200 FCR 30 |
| Applicant: | SHAMIM AHMAD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1978 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 April 2015 |
| Date of final submissions: | 27 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 15 July 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1978 of 2014
| SHAMIM AHMAD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an unusual application to review a decision of the Migration Review Tribunal (Tribunal). The Tribunal, on 18 June 2014, affirmed a decision of a delegate of the Minister to cancel the applicant’s (Mr Ahmad) subclass 886 (Skilled – Sponsored) visa. The present application is unusual in that it concerns the withholding of documents from Mr Ahmad in the course of the review because of a Ministerial certificate.
The following statement of background facts is derived from the submissions of the parties.
On 14 March 2007, Mr Ahmad lodged an application for a subclass 573 student visa. In that application he answered, in the negative, the question of whether he had ever been known by other names and whether he had previously applied for an Australian visa. Mr Ahmad was subsequently granted a subclass 573 visa on 2 April 2007. Some years later, on 24 October 2011, Mr Ahmad was granted a subclass 886 visa.
On 28 August 2013 a delegate of the Minister sent Mr Ahmad a document entitled “Notice of intention to consider cancellation under section 109 of the Migration Act 1958”[1]. Although the notice was directed to Mr Ahmad’s subclass 886 visa which he held at that time, the asserted non-compliance related to his application for a student visa that he made on 14 March 2007.
[1] Court Book (CB) 61-73 (the Section 107 Notice)
On 13 March 2014 a delegate of the Minister, having found that there was non-compliance by Mr Ahmad in the way described in the Section 107 Notice, decided to cancel Mr Ahmad's subclass 886 visa[2].
[2] CB 103-115
On 19 March 2014 Mr Ahmad applied to the Tribunal for review of the delegate's decision[3]. On 7 April 2014, a delegate of the Minister issued a certificate under s.375A of the Migration Act 1958 (Cth) (Migration Act) (the Certificate) certifying that the disclosure other than to the Tribunal of certain folios from the departmental file would be contrary to the public interest because those folios contain information provided in confidence and where the provider of the information has not consented to the disclosure of the information to Mr Ahmad.
[3] CB 116-127
On 30 April 2014, Mr Ahmad made a request for access to written material held by the Tribunal under s.362A of the Migration Act[4]. On 6 May 2014, the Tribunal wrote to Mr Ahmad's migration agent stating that it was providing access to the materials requested by Mr Ahmad, with the exception that it was not providing access to the documents covered by the Certificate[5].
[4] CB 137
[5] CB 140
On 21 May 2014[6], and again on 23 May 2014[7] and 26 May 2014[8], Mr Ahmad’s migration agent provided the Tribunal with various material to be taken into account in its consideration of the review.
[6] CB 146-183
[7] CB 184-203
[8] CB 204-206
The Tribunal hearing took place on 27 May 2014. Mr Ahmad attended, along with his migration agent and two witnesses (his wife and his uncle). A Bengali interpreter was also present.
On 29 May 2014, the Tribunal wrote to Mr Ahmad to invite him to comment on information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review[9]. This letter, written in accordance with s.359A, set out the substance of the adverse information contained in the documents covered by the Certificate. The Tribunal explained that this information may cause it to find that Mr Ahmad and a Mr Md Kabir Ahmed are the same person, which may in turn support a finding that there had been non-compliance with s.101(b) of the Migration Act[10]. The Tribunal also attached copies of the photographs that were shown to the applicant during the Tribunal hearing[11].
[9] CB 212-216
[10] CB 215
[11] CB 218-219
On 12 June 2014, Mr Ahmad’s migration agent provided a response to the Tribunal's letter of 29 May 2014[12]. The agent submitted that the material referred to by the Tribunal was speculative and should not support a finding that Mr Ahmad and Mr Md Kabir Ahmed are the same person. The agent further submitted that the Tribunal should in any event decline to cancel Mr Ahmad's visa, taking into account the circumstances in which non-compliance was alleged to have occurred, the personal circumstances of Mr Ahmad, the time that elapsed since the alleged non-compliance, coupled with the fact that Mr Ahmad is otherwise of good character and that he has engaged in the Australian community.
[12] CB 222-236
On 18 June 2014 the Tribunal affirmed the delegate's decision[13]. After setting out the relevant background information and procedural history of the application, the Tribunal identified the issue as being whether there was non-compliance in the way described in the Section 107 Notice and, if so, whether Mr Ahmad’s visa should be cancelled[14]. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the Section 107 Notice complied with the statutory requirements[15]. The Tribunal therefore went on to consider whether there was non-compliance with s.101(b) by Mr Ahmad as described in the Section 107 Notice.
[13] CB 240-264
[14] CB 250 [49]
[15] CB 250 [53]
The Tribunal was satisfied that the evidence “overwhelmingly” supported a finding that Mr Ahmad and Mr Md Kabir Ahmed are the same person[16]. In making the finding that Mr Ahmad and Mr Md Kabir Ahmed are the same person, the Tribunal took into account the initial detection that they were possibly the same person, the findings of the Department’s Identity Resolution Centre, the fact that Mr Md Kabir Ahmed and Mr Ahmad's wife departed Australia on the same vessel, the similarities of family composition between Mr Ahmad and Mr Md Kabir Ahmed, the fact that Mr Ahmad's uncles visited Mr Md Kabir Ahmed in detention, the information regarding a site visit in Bangladesh and the other documentary information[17].
[16] CB 251 [54]
[17] CB 251-255 [55]-[63]
The Tribunal concluded that Mr Ahmad did not comply with s.101(b) of the Migration Act as described in the Section 107 Notice. Having found Mr Ahmad did not comply with s.101(b) of the Migration Act in the manner outlined in the Section 107 Notice, the Tribunal went on to consider whether to exercise the discretion to cancel Mr Ahmad’s visa. It noted the prescribed circumstances contained in regulation 2.41 of the Migration Regulations 1994 (Cth) (Regulations) but in the result it concluded that the preferable decision was that Mr Ahmad’s visa be cancelled[18].
[18] CB 262 [91]
The judicial review application
These proceedings began with an application for judicial review filed on 15 July 2014. Mr Ahmad continues to rely upon that application. It contains one ground of review:
The Tribunal denied the Applicant procedural fairness and failed to comply with s.362A of the Act.
Particulars
The Applicant requested access to all documents on the Tribunal’s file. The Tribunal denied access to certain documents which it said were the subject of a certificate under s.375A of the Act. The purported certificate was either wholly invalid or invalid with respect to some of the documents to which it referred.
In addition to the court book filed on 12 September 2014, I have before me as evidence the affidavit of Sophie Alexandra Helena Given made on 10 October 2014. Ms Given deposes as to the content of the documents withheld from Mr Ahmad pursuant to the Minister’s certificate. Those documents became the subject of a Notice to Produce issued on behalf of Mr Ahmad. On 17 April 2015, I made orders in relation to those documents, which required production of them but limited disclosure of them to the Court, the Minister and the legal representatives of the parties. The documents became a confidential exhibit[19].
[19] Exhibit A1
Mr Ahmad and the Minister made both oral and written submissions, including submissions after trial based upon an examination of the confidential exhibit.
Consideration
The parties have made useful submissions concerning the operation of the relevant legislative regime.
The cancellation regime
Section 107 of the Migration Act establishes a regime by which the Minister may inform a visa-holder that his or her visa may be cancelled because the Minister considers that the applicant provided false information etc as part of the visa-application process. A notice under s.107 must, amongst other things, specify the particulars of non-compliance and indicate that the visa-holder may respond in writing. Section 107A provides that the instances of non-compliance that can be specified in a notice under s.107, and which can constitute a ground for the cancellation of a visa, include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the visa-holder.
Section 108 provides that the Minister is to consider any response given by the visa-holder and make a decision about whether there was non-compliance by the visa-holder in the way described in the notice. Section 109 in turn provides that if satisfied that there was non-compliance by the visa-holder, the Minister, after having regard to various matters, may cancel the visa-holder’s visa. In determining whether a visa should be cancelled, the Minister is obliged to take account of the matters prescribed in regulations 2.41 of the Regulations[20]. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s.109[21]. The weight to be given to the prescribed circumstances is, however, a matter for the decision-maker[22].
[20] Section 109(1)(c). The matters prescribed in regulation 2.41 are (a) the correct information; (b) the content of the genuine document (if any); (c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Migration Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (j) any breaches of the law since the non-compliance and the seriousness of those breaches; (k) any contribution made by the holder to the community.
[21] Minister for Immigration v Khadgi (2010) 190 FCR 248 at [57]
[22] Khadgi at [68]
Section 110 provides that “to avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder”. Section 111 provides that “[t]o avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent”. Finally, s.112 provides as follows:
(1) A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.
(2) The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.
Provisions bearing upon the review
Section 353 of the Migration Act imposes the following obligations on the Tribunal:
(1)The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case.
Section 357A applies to all of Division 5 of Part 5 of the Migration Act (ss.357A-367):
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
Subsection 360 imposes an obligation on the Tribunal to invite an applicant to appear:
(1)The Tribunal must 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.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 362A of the Migration Act states as follows:
(1)Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2)This section does not override any requirements of the Privacy Act1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3)This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
Section 375A states as follows:
(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.
Section 375A operates to prevent the Tribunal from disclosing documents that are the subject of a “s.375A Certificate” to any person other than a member of the Tribunal as constituted for the purposes of the particular review. There are comparatively few cases dealing with the operation of s.375A, particularly in relation to how s.375A interacts with other provisions, such as ss.359AA, 359A or 362A of the Migration Act. The starting point in the analysis is the decision of Dowsett J in Davis v Minister for Immigration[23] where his Honour held that the existence of a s.375A certificate overrides the obligation to provide particulars of “adverse information” imposed by s.359A(1) as well as the obligation posed by s.362A of the Migration Act. According to Dowsett J[24]:
Section 375A authorizes the Minister to certify that material should not be disclosed, other than to the Tribunal, upon the ground that such disclosure would be contrary to the public interest for any reason other than one of the reasons set out in s 375. In the event of such a certificate being issued, the Tribunal is obliged to do everything necessary to ensure that neither the documents containing the information, nor the information is disclosed to any person other than a member of the Tribunal constituted for the purposes of the review in question. The Tribunal has no discretion in the matter. Such material may, in some cases, also fall within par (b) or (c) of the definition of "non-disclosable information" and therefore be exempted by par 359A(4)(d) from the operation of s 359A, depending upon the Minister’s reason for issuing the certificate. However the Minister may conceivably act upon a basis which does not fall within those paragraphs. In that case, par 359A(4)(c) would not exempt the material from the operation of s 359A
It is curious that material which is the subject of a certificate under s 375A is not expressly excluded from the operation of s 359A. Nonetheless, the obligation to maintain secrecy imposed upon the Tribunal by s 375A is so specific that the obligation imposed by s 359A must give way to it. This would, in my opinion, be so, even in the absence of s 357A. However that section puts the matter beyond doubt. The obligation conferred upon the Tribunal by s 362A must similarly yield to that imposed by s 375A (emphasis in original).
[23] [2004] FCA 686
[24] at [20]-[21]
In Burton v Minister for Immigration[25], Wilcox J drew attention to the fact that Dowsett J in Davis did not advert to the distinction between the provision of “particulars of any information” that the Tribunal considers would be “a reason, or part of a reason, for affirming a delegate’s decision” (covered by s.359A(1)) and access to the written material itself. As Wilcox J stated[26]:
There is a real distinction. I think it is analogous to the distinction, familiar to all litigators, between particulars of a claim and the evidence that supports the claim. The command of s 375A (2)(b) is that the Tribunal ‘do all things necessary to ensure that the document or information is not disclosed’ otherwise than to the relevant Tribunal member. Provision of particulars about information need not reveal the information itself, and certainly need not involve access to any particular document. Take the example mentioned in argument. Suppose the Department has received a letter from a person who deposes to having seen a visa holder pay $5,000 to the relevant nominator on their wedding day. A valid s 375A certificate would prevent the Tribunal allowing the visa holder to have access to that letter, or providing detailed information about it, as would otherwise be the former visa holder’s right under s 362A. However, it seems to me s 375A would not prevent the Tribunal informing the former visa holder, by way of particulars of the information that could constitute a reason, that it was alleged that he or she had paid $5,000 to the nominator on that day. Such particulars would not reveal either the source or the detail of the information conveyed to the Department; they would allow the former visa holder to understand the nature of the case he or she needed to meet. (emphasis added)
[25] [2005] FCA 1455
[26] at [40]
The ground of review
As is noted in the Minister’s initial submissions, it is central to Mr Ahmad’s application that the Tribunal denied him procedural fairness and breached s.362A of the Migration Act because the Certificate upon which the Tribunal relied was invalid. The Minister points out that Mr Ahmad had not sought to challenge the Minister’s decision of 7 April 2014 to issue the Certificate. The only relief sought (save as to costs) by Mr Ahmad is against the Tribunal. The Minister contends that in such circumstances, and even assuming that the Court would have had jurisdiction to deal with the challenge to the Minister’s decision to issue the Certificate, any argument that the Certificate was invalid cannot be entertained by the Court. I do not accept that submission. While it is no doubt true that the application represents a collateral attack on the Minister’s Certificate, such an attack was permitted by this Court in Kokcinar v Minister for Immigration & Anor (No.2)[27]. I am not persuaded that that decision is plainly wrong. The Tribunal is bound to act upon a Certificate issued by the Minister. In doing so, however, the Tribunal may fall into jurisdictional error where the Certificate prevents an applicant from understanding or dealing with the issues bearing upon the review. Such error may be exhibited and pleaded in various ways in respect of the Tribunal’s procedural code if the Minister’s Certificate is not validly issued or if the Certificate does not in its terms apply to all the documents to which it purports to apply.
[27] [2008] FMCA 1307
Having found that the challenge mounted by Mr Ahmad is open to him, it is necessary to consider whether it has been made out.
Mr Ahmad’s contentions
Section 362A is not dependent on an applicant making a request for access to any documents. It is an entitlement to have access to any written material, or a copy thereof, given or produced to the Tribunal for the purposes of the review.
Nevertheless, on 30 April 2014 Mr Ahmad’s legal representatives requested access to "All Relevant Materials" held on the Tribunal's file and the Department's file pursuant to s.362A.
On 6 May 2014 the Tribunal provided copies of certain documents from its file and a file of the Minister's Department[28]. The Tribunal denied access to certain documents on the departmental file on the ground that they were "excluded from release because they are subject to a certificate made by the Department under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest."
[28] CB 140-141
On 10 October 2014 the Minister filed the affidavit of Ms Given annexing a copy of a certificate purportedly made under s.375A, listing the documents to which the Tribunal had denied Mr Ahmad access and claiming that they "contain information provided in confidence and where the provider of the information has not consented to the disclosure of the information to the review applicant".
In the body of the affidavit Ms Given deposed that she had inspected the documents and then proceeded to describe what she said those documents consisted of[29].
[29] [4]-[8] of the affidavit
All of the documents contain information about two named individuals, Kabir Ahmed and Shamim Ahmad, the latter being Mr Ahmad and the former being a name that it is alleged Mr Ahmad previously used to travel to Australia.
Importantly, the information appears to have been generated within the Department or provided to it by other government agencies. The notion that the Department could provide itself with information in confidence is said to be “absurd”.
Mr Ahmad submits that neither should it be inferred that information given to the Department by another government agency in response to inquiries would be given subject to any confidences other than protection of the privacy of the individuals to whom it referred. There is nothing in the information as described in the affidavit that would suggest that access would breach the confidence or privacy of any person other than the two named individuals.
The basis of the delegate's decision to cancel Mr Ahmad’s visa, and the affirmation of that decision by the Tribunal, was that Kabir Ahmed and Shamim Ahmad are one and the same person. A claim by either the Minister or the Tribunal that information about one of them would be confidential in respect of the other is therefore unsustainable.
It is not sufficient to say that the Tribunal was prevented from providing access to the documents merely because on its face the purported certificate stated that it would be contrary to the public interest to do so. Section 375A requires the maker of the Certificate to state the reason why it would be contrary to the public interest that the documents or information not be revealed. If the reason given could not sustain the public interest claim, then the Tribunal was not as a matter of law bound by the purported certificate.
Parallels may be drawn with other cases involving otherwise binding third-party determinations such as Commonwealth Medical Officer assessments[30] and "independent expert" reports in relation to family violence[31].
[30] Minister for Immigration v Seligman [1999] FCA 117; (1999) 85 FCR 115
[31] Minister for Immigration v Maman [2012] FCAFC 13; (2012) 200 FCR 30
The High Court in Kumar[32] considered similar issues in relation to the definition of "non-disclosable information" in s.5 of the Migration Act. Included in that definition is information or material "whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence". In considering the meaning of the term, the Court said[33]:
[...] the introduction into the Act of the expression “found an action ... for breach of confidence” may immediately invite attention to the body of doctrine in private law concerned with the protection, particularly by equitable remedies, of confidential information. But, as further remarked in what follows in these reasons, caution is required in the immediate translation into public law of such private law concepts.
This is so even where no statutory regime is immediately involved. The reasoning of Mason J in The Commonwealth v John Fairfax & Sons Ltd is in point. The Commonwealth relied upon the protection given by equity to confidential information, but Mason J observed:
The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
Where a statutory regime such as the migration legislation is involved the consideration stressed by Mason J becomes, if anything, plainer. If the terms of a statute take as a criterion for its operation a particular doctrine of the general law the resulting compound may have elements of indeterminacy. One reason for this may be found in the statement by Francis Bennion that a statute “takes on a life of its own.” The particular doctrine of the general law, in this case that respecting the protection of confidential information, may have been framed by judicial decisions addressed to ends which do not precisely correspond to those of the statute in question. The translation from private to public law must accommodate the scope and purpose of the public law regime. So it is in the present case.
(footnotes omitted)
[32] Minister for Immigration v Kumar [2009] HCA 10; (2009) 238 CLR 448
[33] at [19]-[21]
Applying the Court's attention to "the scope and purpose" of the merits review regime in Part 5 of the Migration Act, Mr Ahmad submits that it is apparent that any public interest in the protection of confidentiality must be understood within the parameters set by provisions such as ss.353, 357A(3) and 360(1). The "reason" given by the maker of the purported certificate was limited to the most general justification that the provider of the information had not consented to its disclosure.
All of the above provisions have been interpreted as implying that the merits review process is one in which procedural fairness has a central role.
In Minister for Immigration v Li[34], the Full Federal Court had found that procedural fairness was implicit in ss.353 and 357A(3). On appeal the High Court[35] held at [16] that to the extent that the Full Court treated the direction in s.353 as giving rise to grounds for judicial review it was in error, although it added that "nothing in s.353 is adverse to the application of the requirements of procedural fairness in the exercise of the MRT's functions".
[34] (2012) 289 ALR 210
[35] (2013) 249 CLR 332
In considering s.357A(3), the High Court said[36]:
The terms of s 357A(1) would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Div 5. What then is to be understood by the requirement in s 357A(3), expressed in obligatory terms, that in “applying this Division, the Tribunal must act in a way that is fair and just?” If s 357A(1) is to be taken as exhaustive of the requirements of procedural fairness which attach to a review, does s 357A(3) nevertheless say that the Tribunal, in fulfilling those requirements and in exercising its powers, is to do so in a way which is fair and just?
In Minister for Immigration and Citizenship v SZMOK, a Full Court of the Federal Court considered an analogue to s 357A, which appeared in what was Div 4 of Pt 7 of the MigrationAct. Applied to s 357A, the reasoning is that s 357A(3) cannot be taken as intended to qualify or cut down the express statement in s 357A(1). However, Div 5 provides no indication as to how the procedural powers contained in it are to be exercised. Section 357A(3) may be taken to address that omission. The Full Court considered that s 357A(3) may have been intended to restore concepts of fairness and justice to the exercise of the procedural powers for which the Division provides.
On this approach, it was said that “fairness” and “justice” may usefully be compared with the content of those words in the expression “procedural fairness” and “natural justice”. In drawing this conclusion, the Full Court in SZMOK was not equating the requirement of s 357A(3) to act in a way that is fair and just in the conduct of the review with the obligation to afford procedural fairness or natural justice. The Full Court said that some other requirement of fairness is to be implied, but clearly thought that that requirement bore the hallmarks of the obligation of procedural fairness at common law. The reconciliation effected by the Full Court suggests that it considered that a breach of the requirements of s 357A(3) may not have the same consequences as a breach of the common law obligation. The Full Court did not, however, consider the role of s 75(v) of the Constitution. It is firmly established that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction, for which prohibition will go under s 75(v).
In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.
A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.
(footnotes omitted)
[36] at [55]-[59]
The High Court found at [62] that it was not necessary in that case to determine the requirements and consequences of s.357A(3). In the Full Federal Court, Greenwood and Logan JJ said at [28]:
Even if these sections are only declaratory, they are not, in our respectful opinion, thereby to be consigned to the status of aspirational statements, as opposed to requirements. It is just that, as with the general law error ground, neither can have any particular content divorced from the circumstances of a particular case or the statutory context in which they appear.
As noted above, s.362A entitles an applicant to have access to any written material that is before the Tribunal, subject to specific exceptions. The only exception raised by the Tribunal in this case was the purported certificate under s.375A. The purported certificate was not, in Mr Ahmad’s submission, lawfully made, with the result that the Tribunal failed to exercise its jurisdiction by denying Mr Ahmad his entitlement under s.362A and more generally by denying procedural fairness.
Following examination of the confidential exhibit by his solicitor, Mr Ahmad makes these further submissions:
The purported s375A certificate claims that disclosure of any matter or information contained in the identified documents would be contrary to the public interest because they “contain information provided in confidence and where the provider of the information has not consented to the disclosure of the information to the review applicant”. With the exception of certain documents, this claim is unsustainable on its face.[37] There is no evidence of any of the documents having been given under an expectation that they would not be made available to the Applicant in appropriate circumstances, nor are they on their face documents which the public interest would require not be disclosed to the Applicant.
[37] The documents in respect of which it is agreed that there may be a prima facie claim of confidentiality are the following (references are to Ms Given's affidavit): 4q, 7f, 7g, 8a, 8b.
The Court should find that the purported certificate, at least in respect of the documents other than those listed below, was not valid because the documents listed were not capable of coming within the claim of public interest exclusion as described in the purported certificate.
The Applicant further submits that the failure to provide the documents to the Applicant amounted to a denial of procedural fairness because had they been provided it would have been open to him to raise the following criticisms of the evidence being used against him:
(i)No attempt had been made by the Department of Immigration to seek to verify the identity of Mr Kabir Ahmed, such as passport verification or birth record searches of the type the Department was clearly able to do in respect of Shamim Ahmad.
(ii)No attempt was made to compare the handwriting of Kabir Ahmed and Shamim [Ahmad] on the files available to the Department.
(iii)The Australian High Commission in Dhaka was unable to provide an accurate timeframe for a person to change their name in Bangladesh (page 1 of document 4s).
A failure on the part of the Tribunal to provide an applicant information that would not necessarily have been covered by s359A but was nevertheless supportive of the applicant's case was found by the Full Federal Court to be a denial of procedural fairness because it was a breach of the Tribunal's obligations under s357A(3) to act in a manner that was fair and just and to provide the applicant with a real opportunity to present his case as required by s360(1).[38]
The Minister’s contentions
[38] MIBP v Dhillon [2014] FCAFC 157, at [25].
The Tribunal was not permitted to show Mr Ahmad the documents covered by the Certificate
The Minister submits that the suggestion that the Tribunal breached s.362A, or otherwise fell into jurisdictional error, because it failed to show Mr Ahmad the Relevant Documents, should not be accepted. The fact remains that the Tribunal was not permitted, because of the existence of the Certificate, to show the applicant the Relevant Documents, either in response to the applicant’s request under s.362A or otherwise.
In any event, the Tribunal did not fall into jurisdictional error.
The Minister’s primary submission is that the fact that the Relevant Documents were the subject of the Certificate (the validity of which has not been directly challenged) provides a complete answer to Mr Ahmad’s contentions in this matter. Nevertheless, for the reasons that follow, the Minister submits that even if it were the case that the Relevant Documents ought not to have been covered by the Certificate, Mr Ahmad would not be able to establish that the Tribunal fell into jurisdictional error.
The first point made by the Minister is that Mr Ahmad was only entitled to the procedural rights that are afforded to him under Part 5 Division 5 of the Migration Act[39]. This meant that Mr Ahmad was entitled to be invited to the hearing under s.360(1) and, for instance, to be informed of the particulars of adverse information (subject to some exceptions) pursuant to s.359AA or s.359A.
[39] Section 357A(1)
Mr Ahmad does not contend that the Tribunal failed to comply with its obligations under s.359A of the Migration Act. That Mr Ahmad does not is unsurprising, given that it is plain that the Tribunal, consistently with the approach endorsed by Wilcox J in Burton[40], gave particulars of the information contained in the Relevant Documents to Mr Ahmad and explained why the information would constitute a “reason, or a part of the reason, for affirming the decision that is under review”[41]. On 12 June 2014, Mr Ahmad responded in writing to the Tribunal’s s.359A letter[42]. A considerable amount of material[43], including a statutory declaration in which Mr Ahmad responded to each point raised in the s.359A letter[44], was also provided.
[40] At [40], his Honour said that “ … However, it seems to me s.375A would not prevent the Tribunal informing the former visa holder, by way of particulars of the information that could constitute a reason, that it was alleged that he or she had paid $5,000 to the nominator on that day. Such particulars would not reveal either the source or the detail of the information conveyed to the Department; they would allow the former visa holder to understand the nature of the case he or she needed to meet.”
[41] CB 212-216
[42] CB 222
[43] CB 226-236
[44] CB 229-233
Insofar as Mr Ahmad contends that the Tribunal did not comply with its obligations under s.360(1) of the Migration Act, the Minister submits that such contention should not be accepted. Section 360(1) provides that the Tribunal “must 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 crucial issue in the review was whether Mr Ahmad and a Mr Md Kabir Ahmed were the same person. Mr Ahmad has not pointed to anything that suggests that the Tribunal did not comply with s.360(1) in the circumstances. In particular, Mr Ahmad has not pointed to anything that would suggest that Mr Ahmad was not provided with “a real chance to present his or her case”[45] in relation to the central point in the review.
[45] Minister for Immigration v Li (2013) 249 CLR 332 at [61]
Mr Ahmad also contends that the Tribunal did not conduct a fair hearing and hence failed to comply with its obligations under s.357A(3) of the Migration Act. Whilst the Minister concedes that it is true that in Li the High Court expressly left open for consideration the issue of whether s.357A(3) is an exhortative provision or whether it imposes substantive obligations on the Tribunal, he submits that the issue does not arise in these proceedings as, for the reasons expressed in the preceding paragraph, there was nothing unfair or unjust in the conduct of the hearing. Nevertheless, the Minister’s position is that s.357A(3) does not impose any substantive obligations on the Tribunal in addition to the obligations found in Part 5 Division 5.
In supplementary submissions made in response to Mr Ahmad’s additional submissions, based on the confidential exhibit, the Minister makes the following additional submissions:
Even if the Court were to find that the Certificate was at least partially invalid (which, it is submitted, it cannot, having regard to the way in which the applicant has framed his challenge), this does not lead to a conclusion that the Tribunal fell into jurisdictional error. In order to succeed in the proceedings, it is incumbent upon the applicant to establish that the Tribunal otherwise breached its obligations under s 360 of the Migration Act.
While the applicant contends that the Tribunal did breach its obligations under s 360, such contention is made on a very limited footing. The applicant’s contention (see paragraphs 5(i)-(iii) of his written submission) is simply that the Tribunal’s failure to provide him with the Relevant Documents only meant that the applicant was denied the opportunity to make three submissions. The applicant does not attempt to identify which of the Relevant Documents should have been provided and why it is contended that the denial of access to a particular document meant that the applicant was precluded from advancing the three submissions that the applicant says he would have liked to have made.
In his written submissions, the applicant also draws attention to the decision of the Full Federal Court in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157. The present case is different from Dhillon. In the present case, the Tribunal gave the applicant a very extensive s 359A letter (CB 210-217), which the applicant does not take issue with. Critically, having received the s 359A letter, it would have been apparent to the applicant that the Tribunal was not relying on (a) handwriting evidence; or (b) passport/birth certificate verification evidence. It was entirely open to the applicant to make a submission (and he in fact did that with respect to the issue of passport/birth certificate evidence: CB 231 [15]) that given this evidentiary lacunae it was not safe for the Tribunal to reach the conclusion that the applicant and Md Kabir Ahmed are the same person. The fact that the applicant did not take advantage of such opportunity is irrelevant. As Gaudron J observed in Re Architects of Australia Association; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305, procedural fairness requires only that a party be given a reasonable opportunity to present his or her case, and it is not necessary for the decision-maker to ensure that the party takes best advantage of such opportunity.
Resolution
In his written submissions, Mr Ahmad accepts that the Certificate would be invalid only to the extent that it covers documents that “were not capable of coming within the claim of public interest exclusion as described in the … [C]ertificate”. While he concedes that the Certificate was valid in respect of a number of the Relevant Documents, he does not give any detailed explanation as to why he contends that the balance of the documents would not be covered by the Certificate. Mr Ahmad, who bears the onus of proof, merely states that “[t]here is no evidence of any of the documents having been given under an expectation that they would not be made available to the [a]pplicant in appropriate circumstances, nor are they on their face documents which the public interest would require not be disclosed to the [a]pplicant”. I accept the Minister’s submission that without specific submissions directed to each of the Relevant Documents, Mr Ahmad’s collateral challenge to the Certificate cannot succeed.
The Certificate is impugned by Mr Ahmad principally in relation to internal departmental communications, which were generally by email. Such documents might be more appropriately described as internal working documents rather than confidential communications but I am prepared to accept at least the possibility that officials within the Minister’s Department and its related agencies may have an expectation that their email communications will not be made public without their consent. I have not heard argument on what principles or practices apply to such communications within the Minister’s portfolio and I am unwilling to proceed on any presumption that such communications are not confidential.
Even if I were persuaded that the Minister’s Certificate was partially invalid (which I am not) or even if I were persuaded that the Certificate did not in its terms protect the internal email correspondence, it would not follow that the failure by the Tribunal to provide the documents pursuant to s.362A of the Migration Act necessarily constitutes a jurisdictional error. It may be an error but it may not necessarily go to jurisdiction. Whether the error goes to jurisdiction would, in my opinion, depend upon the significance of the documents withheld and their impact upon the review. Two elements of this case, in my opinion, indicate that, if the Tribunal did err, the error did not go to jurisdiction. First, I accept the Minister’s submission that the Tribunal disclosed the substance of the documents withheld pursuant to s.359A of the Migration Act. In terms of that element of the Tribunal’s procedural code, it was sufficient if the substance of the documents were disclosed, to the extent that they constituted adverse information.
Mr Ahmad contends, in effect, that if he had access to the documents, they would have assisted him in three respects to find fault with the efforts of the Minister’s officials to determine the issue of identity. He says, in essence, that more could have been done. No doubt it could. More could always be done. The fact remains that the enquiries that were undertaken led both the delegate and the Tribunal to the firm view that Mr Ahmad had used a false identity which justified cancellation of the visa. There is no reason to suppose that, if the additional enquiries Mr Ahmad now asserts, with the benefit of hindsight, should have been made were made, that would have made any difference. Neither, in relation to s.357A(3) is it apparent that the Tribunal’s process in this case was any less fair and just than it would have been if the documents in issue had been provided to Mr Ahmad.
Conclusion
I conclude that Mr Ahmad has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 June 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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