Aix21 v Minister for Immigration, Citizenship and Multicultural Affairs - [2022] FedCFamC2G 765

Federal Circuit and Family Court of Australia
(DIVISION 2)
AIX21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 765

File number(s): PEG 23 of 2021

Judgment of: JUDGE LUCEV

Date of judgment: 14 September 2022

Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – citizen of Liberia – Protection (Class XA) visa – whether breach of meaningful opportunity to appear or denial of procedural fairness by failure to put concerns about genuineness of a relevant document – whether failure to property consider content of a document containing information relevant to determination of claims – whether failure to properly consider information about appointments to positions in Liberia – whether failure to give clear particulars of information considered to be the reason, or part of the reason, for affirming decision under review – whether denial of procedural fairness by denial of a right to present a legal or factual argument to contest an assertion made in relation to information held on the applicant’s immigration file – whether jurisdictional error by proceeding to act upon a notification regarding confidential information when the notification was invalid or where the Tribunal misunderstood the meaning or effect of the notification – whether jurisdictional error

Legislation: Migration Act 1958 (Cth) Pt 7, ss 5, 360, 375A, 424A, 424AA, 425, 438, 474, 476

Cases cited:
ADT16 v Minister for Immigration and Border Protection [2018] FCA 1198

AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

ARG15 and Others v Minister for Immigration and Border Protection and Another [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221

AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

CXS18 v Minister for Home Affairs [2020] FCAFC 18

El Jejiehv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103

El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 5; (2019) 363 ALR 599; (2019) 163 ALD 38

Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZLFX and Another [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11

MZAFZ v Minister for Immigration and Border Protection and Another [2016] FCA 1081; (2016) 243 FCR 1; (2016) 155 ALD 98

MZAMP v Minister for Immigration and Border Protection [2016] FCA 804; (2016) 70 AAR 1; (2016) 152 ALD 157

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609

Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1

SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; (2003) 77 ALD 1

WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568

WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79

Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476

Division: Division 2 General Federal Law

Number of paragraphs: 78

Date of last submission/s: 29 October 2021

Date of hearing: 29 October 2021

Place: Perth

Counsel for the Applicant: Mr D. V. Blades

Solicitor for the Applicant: Chisholm Law

Counsel for the First Respondent: Mr V. N. Ghosh

Solicitor for the First Respondent: Minter Ellison Lawyers

Second Respondent: Submitting appearance, save as to costs
ORDERS

PEG 23 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AIX21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE LUCEV

DATE OF ORDER:

14 September 2022

THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 9 February 2021, as amended on 24 June 2021, be dismissed.

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 LUCEV
INTRODUCTION

The applicant, AIX21, filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on 9 February 2021. On 11 March 2021 orders made by a Registrar of this Court allowed for the filing of an amended Judicial Review Application and on 8 June 2021 consent orders were made by the presiding Judge extending time for the filing of any amended Judicial Review Application. Pursuant to those orders on 24 June 2021 AIX21 filed an amended Judicial Review Application (“Amended Judicial Review Application”).The Amended Judicial Review Application seeks review of a 13 January 2021 decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse AIX21 the grant of a Protection (Class XA) visa (“Protection Visa”).
The Amended Judicial Review Application contains seven grounds. At hearing ground 1 was not pressed by AIX21. The six grounds argued are set out below at [15] (ground 2), [23] (ground 3), [33] (ground 4) and [47] (grounds 5, 6 and 7).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 439 pages (“Exhibit 1”);
(b)a Supplementary Court Book (“SCB”) numbering 8 pages (“Exhibit 2”);
(c)the affidavit of AIX21 sworn on 9 February 2021, annexing:
(i)the Tribunal Decision; and
(ii)a copy of the article entitled “The Political Structures and Functions of [a group] in [a] Society”, Fulton R, American Anthropologist (October 1972), vol 74, no 5 (“Fulton Article”);
(d)the affidavit of Sarah Michelle Naysmith affirmed 24 June 2021 (“Naysmith Affidavit”), annexing the transcript of the Tribunal hearing held 2 September 2021 (“Tribunal Hearing Transcript”);
(e)AIX21’s written submissions filed 1 October 2021 (“AIX21’s Submissions”); and
(f)the Minister’s written submissions filed 15 October 2021 (“Minister’s Submissions”).
AMENDED JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Amended Judicial Review Application is as follows:
(a)AIX21 is a citizen of Liberia of a particular tribe: CB 56-57;
(b)AIX21 came to Australia on a Business (Short Stay) visa on 20 November 2012 as part of an official Liberian government delegation together with a number of other persons from Liberia: CB 14-16 and 120 at [4];
(c)AIX21 subsequently applied for a partner visa which was refused on 4 August 2015: CB 134-135;
(d)AIX21 applied for the Protection Visa on 21 August 2015: CB 135. In his Protection Visa application, he provided a statement: at CB 56-57, in which he claimed, amongst other things, that:
(i)his father was a leader of a ritualistic secret society (“Society”) in Liberia;
(ii)on 30 July 2015 he was notified that his father had died;
(iii)he planned to travel back to Liberia in order to witness the burial on 28 August 2015;
(iv)on 20 August 2015 he received an email from his friend, who told him that if he refused to be initiated as his father’s successor as leader of the Society, he would be killed through ritual practice: CB 57-59;
(v)he is now a Christian believer and not willing to accept his father’s position in the Society; and
(vi)he had verified with his sister by mobile phone that he was required to take over the position of their father in the Society;
(e)the Department acknowledged receipt of the Protection Visa application as a valid application on 5 October 2015: CB 64-76;
(f)on 27 June 2016 the Department invited AIX21 to attend an interview on 27 July 2016: CB 77-89;
(g)AIX21 provided further documents in support of his protection claims, including documents confirming his father’s death on 30 July 2015, and that his father was qualified to operate in a traditional position (“Position”) throughout a particular county in Liberia: CB 92-100;
(h)on 21 November 2016 the Department notified AIX21 of the Delegate’s Decision to refuse his Protection Visa application: CB 101-116;
(i)on 21 November 2016 the Delegate issued a notification: CB 117, regarding disclosure of certain information under s 438 of the Migration Act (“438 Notification”). The Delegate stated:
In my view, this information should not be disclosed to the applicant because it was given to an officer of the Department of Immigration and Border Protection in confidence.
(j)AIX21 lodged an application with the Tribunal for review of the Delegate’s Decision on 19 December 2016 (“Tribunal Review Application”): CB 118-119;
(k)he filed with the Tribunal a statutory declaration made on 17 December 2016 in which he restated his protection claims (“AIX21’s Statutory Declaration”): CB 120-121;
(l)on 21 December 2016 the Tribunal acknowledged receipt of the Tribunal Review Application: CB 126-132;
(m)on 21 February 2020 the Tribunal invited AIX21 to attend a Tribunal hearing arranged for 26 March 2020: CB 155-165;
(n)on 9 March 2020 AIX21 provided a response to the Tribunal hearing invitation: CB 176-178;
(o)the Tribunal hearing was postponed due to the COVID-19 pandemic and rescheduled for 2 September 2020: CB 180-199;
(p)on 26 August 2020 AIX21, through his migration agent, lodged submissions and supporting documents with the Tribunal: CB 206-336;
(q)the supporting documents included an email from AIX21’s sister to AIX21 dated 25 February 2020 in which she confirmed that he was still awaited in Liberia for initiation into the Society and that he should not return to Liberia because he would face grave punishment for running away without consent: CB 307;
(r)AIX21 also provided a statutory declaration from his partner: CB 309-310, and a letter of support from his step-daughter: CB 308;
(s)the Tribunal conducted a hearing on 2 September 2020 (“Tribunal Hearing”): CB 337;
(t)following the Tribunal Hearing AIX21’s migration agent provided a submission with supplementary information addressing issues raised by the Tribunal, including information on the practices of the Society: CB 342-400; and
(u)the Tribunal affirmed the Delegate’s Decision on 13 January 2021: CB 404-439.
Tribunal Decision
In Tribunal Decision the Tribunal:
(a)noted the basis of AIX21’s Protection Visa claim was that he was selected to occupy a Position as a traditional practitioner of the Society, and that because he refuses to take up the Position, he will be killed if he returns to Liberia: CB 411 at [5];
(b)set out the history of AIX21’s various visa applications, and set out the Protection Visa criteria: CB 411-412 at [6]-[11];
(c)gave detailed consideration to the evidence, materials, and submissions in relation to the Protection Visa application as well as the Delegate’s Decision: CB 412-422 at [12]-[89];
(d)noted that the Tribunal must be satisfied that AIX21 meets the refugee or complementary protection criteria and, citing various High Court and Federal Court authorities, noted that it was not required to accept uncritically the claims made by AIX21: CB 423 at [90]-[91];
(e)observed that material was put before the Tribunal under s 438 of the Migration Act pursuant to the 438 Notification. The Tribunal noted, however, that the 438 Notification was not signed, and thus was not valid (citing El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840 (“El Jejieh (No 2)”) where the then Federal Circuit Court held an unsigned certificate (under s 438 of the Migration Act) is invalid: CB 424 at [97]-[99];
(f)considered that it was required to, and did, provide AIX21 with particulars of the information in order to comply with its natural justice obligations: CB 424-425 at [100]-[101];
(g)made certain findings of fact, summarised below:
(i)that the circumstances of AIX21’s arrival and continued stay in Australia (and the nature and timing of the various visa applications) indicated that he arrived in Australia with an intention to remain: CB 426 at [109];
(ii)AIX21’s arrival as part of a delegation of which some 12 members stayed on in Australia and applied for other visas, mainly partner visas, supported the finding that AIX21 travelled to Australia with an intention to try to remain: CB 426-427 at [110]-[111] and [114];
(iii)AIX21’s evidence about the Society and the Position was vague: CB 427-429 at [115]-[118];
(iv)the Tribunal was not persuaded that AIX21 decided to apply for protection because of an email about being called up to occupy the Position. The content of the email suggested that it was prepared for the purposes of a protection claim, rather than as a communication between friends: CB 429-430 at [119] and [122];
(v)the timing of the email and the Protection Visa application suggested the receipt of the email did not prompt the Protection Visa application, as claimed: CB 429 at [120]-[121];
(vi)there were inconsistencies between the general information about initiation into the Society and elevation to the Position and the fears that were claimed to form the basis of AIX21’s protection claim: CB 430-431 at [123]-[126]; and
(vii)the Tribunal was not satisfied that AIX21 was asked to occupy the Position, or that the tribal elders have threatened to harm him if he does not take up the Position: CB 431-432 at [127]-[131];
(h)ultimately, was not satisfied that AIX21 had either a well-founded fear of persecution, or that there was a real chance of serious harm as a result of AIX21’s religion or refusal to occupy the Position: CB 432-435 at [132]-[145]; and
(i)concluded that AIX21 was not entitled to the Protection Visa because he did not satisfy the necessary criteria to establish refugee status or to enliven complementary protection obligations: CB 435-436 at [148]-[157].
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
An error may constitute a jurisdictional error where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. An instance where the Tribunal has made findings that are legally illogical, irrational or otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”).
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
2Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 (“Hossain”) the High Court observed that, other than in exceptional circumstances, relief will generally require the error to be one that was “material” in the sense that it deprived an applicant of the possibility of a successful outcome: Hossain at [30] per Kiefel CJ, Gageler and Keane JJ and [72] per Edeleman J.
The onus is upon AIX21 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424. In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, the High Court said at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (footnotes omitted) that:
38As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.
For reasons that will hopefully become obvious, it is important in this matter to observe and highlight that it is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or to actually determine AIX21’s Protection Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court must be acutely mindful that the dichotomy between merits review and judicial review is at the heart of Australian administrative law and the boundary between the two is vigorously policed: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J; Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ. Fact-finding is a matter for the Tribunal: as part of its fact-finding function it is for the Tribunal to identify the material it finds relevant to its reasoning and to give that material the weight it considers appropriate: Wu Shan Liang, CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (“Tran”) at [5]-[7] per RD Nicholson J.
The Tribunal was not required to accept uncritically any and all claims made by AIX21: Minister for Immigration and Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 596 per Kirby J, or possess rebutting evidence before finding that AIX21’s assertions were not established: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J.
The Tribunal was not obliged to refute, line by line, relevant material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, nor is the Tribunal required to expressly refer to each and every individual piece of evidence provided by an applicant or make findings regarding each of those pieces of evidence: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.The Tribunal made a jurisdictional error through breaching s 360 of the Migration Act 1958, alternatively the rules of procedural fairness, by failing to put to the applicant for comment its concerns about the genuineness of a relevant document.
Particulars
a.The applicant submitted to the Tribunal an email addressed to him from his sister … [name deleted] dated 25 February 2020 (CB 307) containing information about the applicant’s risk of harm from the … [name deleted] Society.
b.The Tribunal stated that it gave “little weight” to this email (at [127] CB 431).
c. The Tribunal, at [130] (CB 431), also stated that it had considered whether the email from … [male first name deleted] and from the applicant’s sister “have been provided to inflate the applicant’s claim which is nonetheless credible” – thereby demonstrating that it regarded the email from the applicant’s sister, as well as the email from … [male first name deleted], as having been fabricated for the purposes of the protection visa application.
d. The Tribunal did not put its concerns about the genuineness of the email from … [sister’s name deleted] to the applicant for comment, and in so doing made a jurisdictional error.
AIX21’s Submissions
AIX21’s Submissions in relation to ground 2 were as follows:
(e)the Tribunal made a jurisdictional error breaching s 360 of the Migration Act, alternatively the rules of procedural fairness, by failing to put to AIX21 for comment its concerns about the genuineness of a relevant document;
(f)AIX21 submitted to the Tribunal an email addressed to him from his sister dated 25 February 2020: CB 307, containing information about AIX21’s risk of harm from the Society;
(g)this email had not been before the Delegate – accordingly it was new information;
(h)the Tribunal stated that it gave “little weight” to this email: CB 431 at [127];
(i)the Tribunal: CB 431 at [130], also stated that it had considered whether emails from AIX21’s male friend and from AIX21’s sister “have been provided to inflate the applicant’s claim which is nonetheless credible” – thereby demonstrating that it regarded the emails from AIX21’s sister and AIX21’s male friend, as having been fabricated for the purposes of the Protection Visa application;
(j)in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 (“WAIJ”) at [53] per Lee, and Moore JJ it was held that:
53It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
(k)in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; (2003) 77 ALD 1 (“WACO”) at [54] per Lee, Hill and Carr JJ it was held:
54Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
(l)the Tribunal did discuss its concerns about the email from AIX21’s male friend with AIX21. The email from AIX21’s sister, issued four and a half years after the one from AIX21’s male friend, purported to corroborate AIX21’s claims in material respects;
(m)the Tribunal did not make a blanket adverse credibility finding against AIX21, although it did dispute the credibility of his claims. There was nothing on the face of the emails to show that they were forgeries; and
(n)the Tribunal did not put its concerns about the genuineness of AIX21’s sister’s email to AIX21 for comment, and in so doing made a jurisdictional error.
Minister’s Submissions
The Minister’s Submissions in relation to ground 2 were as follows:
(a)AIX21 had to be given a proper chance (or a real chance) or a meaningful opportunity to present his case: Migration Act, ss 360 and 425. What is a meaningful opportunity, or a real chance, will be dependent on the facts in each case: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [51] Allsop CJ, Robertson and Mortimer JJ; MZAMP v Minister for Immigration and Border Protection [2016] FCA 804; (2016) 70 AAR 1; (2016) 152 ALD 157 at [54] per Rangiah J; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30] per Ryan, French and RD Nicholson JJ;
(b)in WACO at [42] per Lee, Hill and Carr JJ, the Court held that an administrative tribunal was not required to put to an applicant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the applicant. However, the tribunal was required to raise clearly with an applicant the critical issues upon which the outcome of an application might depend;
(c)there is also a distinction between concluding that a document is not genuine (or that it is a fabrication or a forgery) and concluding that the events referred to in a document did not actually occur: WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [59] per Carr and Tamberlin JJ. Findings may be made that fail to accept various claims made in letters, without finding that the letters are forgeries or not genuine: WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 at [14]-[16] per Marshall, Mansfield and Siopis JJ;
(d)in the Tribunal Decision at CB 431 at [127] the Tribunal observed that (emphasis added):
127For all these reasons, considered cumulatively, the Tribunal is not satisfied that the applicant was asked to [occupy the Position] or threatened with death if he did not comply. As the Tribunal does not accept the evidence that the applicant has been asked to [occupy the Position] and threatened if he refuses to take up the position, the Tribunal has given little weight to the email of his sister in which she claims that it would be dangerous for him to return or the document from the National Council of Chief and Elders or the Ministry for Internal Affairs.
(e)the Tribunal’s characterisation of AIX21’s sister’s email at CB 431 at [127] suggests that the Tribunal’s view of the lack of significance of the email was affected by its finding that AIX21 had not been asked to occupy the Position; and
(f)the critical issue – whether AIX21 had been asked to occupy the Position, and threatened if he refused to do so, guided its assessment of AIX21’s sister’s email and that critical issue was raised with AIX21.
Consideration – ground 2
Although ground 2 refers to s 360 of the Migration Act the Court has assumed, because the Amended Judicial Review Application seeks review of a reviewable decision under Part 7 of the Migration Act, that the reference to s 360 of the Migration Act is intended to be a reference to s 425 of the Migration Act.
Ground 2 is misconceived. At CB 431-432 at [130] the Tribunal said that it:
… has considered for example whether the email from [male friend’s name deleted] and from his sister have been provided to inflate [AIX21’s] claim which is nonetheless credible.
but went on to say that:
… the Tribunal is not satisfied, considering all the factors referred to above [cumulatively], that [AIX21] has been asked to [occupy the Position], or that the elders have threatened him with death if he does not accept the position. Courts have often reiterated that the Tribunal must consider the evidence in its entirety and not in isolated parts and it is the totality of the evidence which has led to this conclusion.
At no stage did the Tribunal conclude that AIX21’s sister’s email was not genuine or a fabrication. Having regard to a series of five matters (each discussed individually and extensively at CB 426-431 at [109]-[126]) the Tribunal concluded at CB 431 at [127] that for all of the reasons set out in relation to the five matters it:
(a)was not satisfied that AIX21 was asked to occupy the Position or threatened with death if he did not comply; and
(b)said, consequently, that it “has given little weight to the email of his sister” claiming it would be dangerous for AIX21 to return.
In relation to the issue to which AIX21’s sister’s email related, that is, whether AIX21 was asked to occupy the Position and the danger of not doing so, there was a body of evidence (including country information) which independently satisfied the Tribunal that AIX21 had not been asked to occupy the Position. And, as against that evidence, the Tribunal simply placed little weight on AIX21’s sister’s email which suggested it may be dangerous for AIX21 to return to Liberia if he did not occupy the position: CB 307. Plainly “other facts”: WAIJ at [53] per Lee and Moore JJ, allowed the Tribunal to attribute “little weight” to AIX21’s sister’s email. Further, the fact that the Tribunal attributed some weight to AIX21’s sister’s email shows that the Tribunal did not conclude that AIX21’s sister’s email was a forgery or not genuine, and thus the passage cited by AIX21 from WACO is of no assistance. All that the Tribunal did here was to prefer the conclusion it had drawn from a significant body of relevant evidence to the evidence in a single email from AIX21’s sister. The Tribunal Decision thus reveals a reasonable and intelligent justification for its findings with respect to this issue: Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [105] per Gageler J; Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J, and reviewing the Tribunal’s findings would constitute no more than impermissible merits review because the weighing of the evidence and the drawing of factual conclusions was a task for the Tribunal: CXS18 v Minister for Home Affairs [2020] FCAFC 18 (“CXS18”) at [35] per McKerracher, White and Colvin JJ; Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Having regard to [19]-[21] above, the Court has concluded that ground 2 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Amended Judicial Review Application is as follows:
3.The Tribunal made a jurisdictional error through failing to properly consider the content of a document containing information relevant to the determination of the applicant’s protection visa claims.
Particulars
a. The applicant submitted to the Tribunal an email addressed to him from his sister … dated 25 February 2020 (CB 307) containing information about the applicant’s risk of harm from the … Society.
b. The Tribunal set out the content of this email, while omitting the date on which the email had been sent by the applicant’s sister, at paragraph 87 of its reasons (CB 422), but did not discuss it further, apart from stating:
i. at paragraph 127 that it has given the email “little weight”; and
ii. at paragraph 130 that it had “considered …whether the email from … [male name deleted] and from his sister have been provided to inflate the applicant’s claim which is nonetheless credible.”
c. The Tribunal did not consider the content of the email from the applicant’s sister, and in so doing made a jurisdictional error through failing to consider relevant material, or through failing to give proper, genuine and realistic consideration to the applicant’s claim.
AXI21’s Submissions
AIX21’s Submissions in relation to ground 3 were as follows:
(a)the Tribunal made a jurisdictional error through failing to properly consider the content of a document containing information relevant to the determination of AIX21’s Protection Visa claims;
(b)AIX21 submitted to the Tribunal an email addressed to him from his sister dated 25 February 2020: CB 307, containing information about AIX21’s risk of harm from the Society;
(c)the Tribunal set out the content of this email, while omitting the date on which the email had been sent by AIX21’s sister: CB 422 at [87], but did not discuss it further, apart from stating:
(i)at CB 431 at [127] that it had given the email “little weight”; and
(ii)at CB 432 at [130] that it had “considered whether the email from [male name deleted] and from his sister have been provided to inflate the applicant’s claim which is nonetheless credible.”
(d)the Tribunal did not consider the content of the email from AIX21’s sister, and in so doing made a jurisdictional error through failing to consider relevant material, or through failing to give proper, genuine and realistic consideration to AIX21’s claim;
(e)the sister’s email was corroborative of AIX21’s claims in material respects. It stated that she had been back to AIX21’s home village and spoken to an “oldman” who confirmed not only that AIX21 was awaited for initiation into the Society in their late father’s position, but also that the prolonged time that AIX21 had been away constituted a violation because he ran away without consent; and
(f)the Tribunal should have engaged with the content of the email and tested it within AIX21’s narrative of events rather than merely referring to it and stating it would give it little weight.
Minister’s Submissions
The Minister’s Submissions in relation to ground 3 were as follows:
(a)it is axiomatic that “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46]-[47] per French, Sackville and Hely JJ;
(b)the Tribunal Decision at CB 422 at [87] and CB 431 at [127] and CB 431-432 at [130] set out AIX21’s sister’s email and assessed the weight it considered should be given to it; and
(c)there is no basis to suggest that the Tribunal did not properly consider the email.
Consideration – ground 3
It was not necessary for the Tribunal to refer to every piece of evidence and every contention made by AIX21:Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ; WAEE at [46] per French, Sackville and Hely JJ. In that regard, the Tribunal was entitled to accept or reject, or give such weight to the evidence proffered as it thought appropriate in all the circumstances: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J. Further, this Court is not to approach the task of judicial review overzealously in search of error in the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; WAEE at [46]-[47] per French, Sackville and Hely JJ.
In many respects what is said in relation to ground 2 is applicable to ground 3, and for similar reasons, ground 3 does not establish a reasonably arguable case of jurisdictional error in the Tribunal Decision or by the Tribunal. Specifically, however, it cannot be said that the Tribunal did not consider the review material before: rather, it considered it in some detail and arrived at findings that were open on the evidence, and more particularly on AIX21’s own evidence.

In WAEE at [47] per French, Sackville and Hely JJ the Full Court of the Federal Court observed that:
47The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
In this case:
(a)AIX21’s sister’s email is specifically set out, in full, at CB 422 at [87];
(b)AIX21’s sister’s email is referred to not once, but twice, when findings of fact were being made by the Tribunal at CB 431 at [127], set out at [17] above, and at CB 431-432 at [130], set out [19] above;
(c)it is apparent that the Tribunal clearly understood the nature of the claims which were being made; and
(d)the reasons are otherwise comprehensive: WAEE at [47] per French, Sackville and Hely JJ, and extend to some 27 page and 157 paragraphs, not only setting out the evidence, but also making detailed findings of fact as referred to above at [5(g)] and [27];
(e)the Tribunal was aware that it was required to consider “the evidence in its entirety” as it expressly observed in the passage quoted at [19] above from CB 431-432 at [130]; and
(f)the fact that the sister’s email was set out and then discussed at CB 422 at [87], CB 431 at [127] and CB 431-432 at [130] in the Tribunal Decision means that it cannot be inferred, on the evidence, that it was otherwise overlooked.
The suggestion in ground 3 that the Tribunal failed to give proper, genuine and realistic consideration to AIX21’s claim by reason of a failure to consider the sister’s email falls foul of the admonition set out in CXS18 at [35] per McKerracher, White and Colvin JJ, as follows:
35That recognised, it is doubtful that the requirement that the decision-maker give ‘proper, genuine and realistic consideration’ to a particular matter as emphasised in ground 1, adds anything to the statement of principle. Indeed, generally speaking, that language is now thought to be unhelpful because it is apt to cause a court exercising its judicial jurisdiction to elide the distinction between judicial review and merits review: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where there Honours said (at [30]-[32]):
30 In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration”:
“That which had to be properly considered was ‘the merits of the case’. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.”
Bearing in mind that reasons are not to be over scrutinised: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, taken together with the fact that AIX21’s sister’s email is set out in full, subject to consideration and the drawing of findings in two paragraphs of the Tribunal Decision at CB 431 at [127] and CB 431-432 at [130], and the Tribunal expressly set out the fact that it was aware that it had to have regard to the totality of the evidence, that is sufficient to conclude that the Tribunal did not fail to consider the content of AIX21’s sister’s email.
For the reasons set out at [26]-[31] above ground 3 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 of the Amended Judicial Review Application is as follows:
4.The Tribunal made a jurisdictional error through failing to properly consider, or overlooking or misconstruing, information before it about the appointment … [to the Position] and leaders of the … Society in Liberia.
Particulars
a. The applicant claimed that as he was his father’s eldest son, he was required to take over his father’s position as leader … [the Position] in the … Society; further, that his father had nominated him to assume the position prior to his (father’s) death.
b. The Tribunal had before it country information concerning the appointment of leaders in the … Society in the article: Fulton, R, “The political structures and functions of … in … Society”, American Anthropologist, October 1972, Vol 74, no 5 [Fulton Article], which the Tribunal referred to in its reasons at:
i. paragraphs 116, 126 and 139; and
ii. footnotes 16, 17, 23, 30 and 31.
c. The Tribunal did not consider the information contained in this article at page 1224 stating: “The … [Position] is always chosen by heredity. Before an important … [holder of the Position] dies, he chooses his successor from among his immediate family (usually his son).” (See article annexed to the affidavit of the applicant sworn 9 February 2021, page 39, left column on the page, last paragraph.)
AXI21’s Submissions
AIX21’s Submissions in relation to ground 4 were as follows:
(a)the Tribunal made a jurisdictional error through failing to properly consider, or overlooking or misconstruing, information before it about the appointment to the Position and of leaders of the Society;
(b)AIX21 claimed that as he was his father’s eldest son, he was required to take over his father’s position as leader (the Position) in the Society, and that his father had nominated him to assume the Position prior to his father’s death;
(c)the Tribunal had before it country information concerning the appointment of leaders in the Society in the Fulton Article;
(d)the Tribunal referred to the Fulton Article in its reasons at CB 427-428 at [116] at fnn 16-17, CB 431 at [126] at fn 23, CB 433-434 at [139] at fnn 30-31
(e)significantly for AIX21’s claims the Tribunal referred to information at CB 431 at [126] that people can also be appointed to the Position through skill, completion of appointed tasks, heredity and wealth, as well as being groomed beforehand. The Tribunal sourced that information from p 1223 of the Fulton Article (first column, third paragraph) where it said that the “higher ranks are controlled by core lineages that pass on ritual function and rank to prepared immediate kinsmen (usually, but not always, the son of the recent incumbent).” That part of the Fulton Article was concerned with ascension to higher ranks generally and it was not concerned directly with the appointment to the Position;
(f)the Fulton Article referred at p 1224 (first column, second paragraph) to “a variety of secondary [Positions] within [the Society]”;
(g)the Fulton Article explained that a particular Position is the “first among equals” (p 1223, second column, first paragraph);
(h)the Tribunal did not consider the information contained in the Fulton Article at page 1224 (first column, third paragraph) stating “The [Position] is always chosen by heredity. Before an important [occupant of the Position] dies, he chooses his successor from among his immediate family (usually his son).” That piece of information supported AIX21’s claim that he had been chosen by his father to succeed him in the “head” Position. It was not AIX21’s claim that he was being pursued to be initiated into a secondary leadership role;
(i)it was not sufficient for the Tribunal to only address the information in the Fulton Article concerning the higher ranks generally or the secondary leadership roles;
(j)by failing to address critical independent information that directly addressed the claim that was made by AIX21, the Tribunal made a jurisdictional error; and
(k)it is well established that a failure by the Tribunal to take into account relevant country information is a jurisdictional error: AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429 at [56] per Beach J; ARG15 and Others v Minister for Immigration and Border Protection and Another [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 at [71] per Griffiths, Perry and Bromwich JJ.
Minister’s Submissions
The Minister’s Submissions in relation to ground 4 were as follows:
(a)AIX21 clearly disagrees with the Tribunal’s assessment and conclusions drawn from the Fulton Article and invites the Court to trespass “into the forbidden field of review on the merits.”: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412, CLR at 391 per Mason CJ;
(b)the starting point is that it is for the decision-maker to identify the evidence and material that it finds relevant to its reasoning, and to give that evidence and material the weight it considers appropriate: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray J; AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069 at [39] per Yates J;
(c)the Tribunal expressly referred to the Fulton Article, and the pages referred to in the Tribunal Decision include pages located shortly before and after the pages identified by AIX21 as not having been considered;
(d)there is no proper basis to assert that, as a matter of fact, the pages AIX21 highlighted were not properly considered, or overlooked, or misconstrued; and
(e)even if the Tribunal did not properly consider the country information (which is denied), this failure was not material to the Tribunal Decision. That is, compliance with the relevant obligation could not realistically have resulted in a different conclusion: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 5; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”) at [45] per Bell, Gageler, Keane JJ.
Consideration – ground 4
AIX21 notes that the Tribunal sourced information from the Fulton Article at page 1223, first column, third paragraph. That paragraph reads as follows:
The [Society] has a ranked system of ritual specialization with increasing importance in decision-making. The higher ranks are controlled by core lineages that pass on ritual function and rank to prepared immediate kinsmen (usually, but not always, the son of the recent incumbent). Such positions are few, as most advancement must be (a) earned through skill, (b) deserved through completion of appointed tasks, as well as (c) purchased through “initiation fees.” Obviously heredity and wealth supply the highest ranking [Society] elders.
AIX21 says that the Tribunal did not consider the following passage in the Fulton Article at page 1224, first column, third paragraph, which was as follows:
When I asked informants how a [Position] was chosen, I received a variety of answers. The most common was that “a [Position] is sent from God.” This might refer to the fact that besides the hereditary factor, some minor [Positions] are chosen through accidents of personal behaviour. Diviners would indicate [Positions] because this explained deviant behaviour: epilepsy, hysteria, or other personal problems. The [Position] is always chosen by heredity. Before an important ( [Position]?) [Position] dies, he chooses his successor from among his immediate family (usually his son).
It is important to note what information the Tribunal referred to in relation to the Fulton Article. First, at CB 427-428 at [116] the Fulton Article is referred to in the context of detailed information on the sacred functions of the Position and relationships with spirits in five separate categories, and the control of several masked figures that represent spirits and have secular functions (including internal police, judiciary, diplomacy and advice to secular authorities). This information appears in the Fulton Article at page 1226-1227. Second, at CB 431 at [126] at footnote 23 the information referred to is that a person can also be appointed to a Position through skill, completion of appointed tasks, heredity and wealth, as well as being groomed beforehand. This information appears at page 1223 and 1224 of the Fulton Article. Third, the Tribunal refers to the integral role that the Society has within the community with functions performed educationally, religiously, medically and politically, with the Society considered to be a trusted custodian of culture and to inculcate and teach skills conducive to communal harmony, and also to have a spiritual dimension: at CB 433 at [139] at footnotes 30 and 31. This appears to relate to information at page 1222 of the Fulton Article.
Looked at in this way it is apparent that the Tribunal had read and considered and was able to relay the information contained in the Fulton Article for the purposes of the Tribunal Decision. What, therefore, AIX21 does is to focus upon two single lines of information (which when read side-by-side are not markedly different, if at all) and say that the Tribunal considered the former (which related to lesser Positions) but not the latter (which it says relates to a higher Position or Positions such as the position – that is the position previously held by AIX21’s deceased father).
The difficulty for AIX21 is twofold:
(a)the information said not to be considered (as it relates to the claim of AIX21 that his father was the leader of the Society) is no different conceptually to the information as it relates to the lesser Positions in the society, that is, that the higher ranks of the Society are controlled by core lineages that pass on ritual function and rank to prepared immediate kinsmen, usually, but not always the son of the recent incumbent; and
(b)with respect to the leading Position, the occupant of that Position before he dies, chooses his successor from among his immediate family, usually his son.
If, as appears to be the case, AIX21 says that in reaching the conclusion that the Position or Positions did not always devolve to the son, that the Tribunal did so in respect of the Positions of the lesser leaders in the Society, no different a conclusion could be reached in relation to the leader’s Position, because like the lesser Positions, whilst it is usual for it to devolve to the son, it is apparent that it is not always the case, hence “usually his son” at page 1224 (which is in practical terms no different to “usually, but not always, the son”) at page 1223 of the Fulton Article. It follows that even if there was a failure to consider the information at page 1224 of the Fulton Article it would have made no difference, and was therefore not material: MZAPC and SZMTA, because it was the case, on the country information before the Tribunal, that both the lesser Positions and the leader’s Position “usually” devolve to the son, but not always, and this was the Tribunal’s conclusion
In reaching its conclusion the Tribunal had regard to a veritable array of country information from newspapers, academics, the US Department of State, the UN Security Council, the United Nations Mission in Liberia and various websites concerning the Society and its practices, which led the Tribunal to conclude that persons beside the first son can be chosen: CB 431 at [126].
A further reason that a failure to consider this single line of country information would not be material is that AIX21’s own submissions acknowledge that people could be appointed to a Position without prior knowledge, without having been previously initiated, and without a father who was a member of the Society: see AIX21’s submission to the Tribunal reproduced at CB 428-429 at [117].
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criteria under the Migration Act, and that the Tribunal is required to engage in an active and intellectual process directed at the claim or criteria: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [45]-[46] per Lindgren, Rares and Foster JJ; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[49] per Judge Lucev.
In this case, the Tribunal recognised the relevant claim that the first son of the leader should ascend to the Position - as head of the Society - and that AIX21 was not willing to accept that position as he is a Christian: CB 413 at [21]-[22], and thus the claim was identified by the Tribunal. It was also, considered by the Tribunal, as is evident from the summary of the Tribunal Decision set out at [5(g)] above, and in particular at CB 430-432 at [123]-[131] of the Tribunal Decision, and as is evident from a reading of those just referred to paragraphs of the Tribunal Decision, the Tribunal did engage in an act of an intellectual process directed at AIX21’s claim in this respect. Otherwise, for the reasons set out at [38]-[43] above, even if the Tribunal did specifically omit to consider the one line of information referred to in the Fulton Article, the failure to do so would have resulted in a jurisdictional error capable of being dispositive of the review because the information allegedly not considered was so similar to information that was considered that its consideration could not have altered the outcome of the Tribunal Decision, and it was therefore not dispositive of the Tribunal Review Application, nor material for the purposes of establishing jurisdictional error.
In the circumstances set out at [36]-[45] above, ground 4 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 5, 6 and 7
Ground 5, 6 and 7 of the Amended Judicial Review Application are as follows:
5. The Tribunal made a jurisdictional error by breaching s 424AA of the Act.
Particulars
a. The Tribunal failed to orally give to the applicant clear particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, the information being (as set out at paragraph 111 of the Tribunal’s reasons (CB 427)):
i. that [name deleted] receives money from smuggling people from Liberia using fake Diplomatic and Official passports;
ii. that [name deleted] facilitates marriages from within the Liberian community in Australia;
iii. that the Department had commented that this was a well-organised people smuggling operation.
b. The Tribunal did not ensure that the applicant understood why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review, in breach of s 424AA(b)(i).
c. The Tribunal did not orally invite the applicant to comment on or respond to the information in breach of s 424AA(b)(ii).
d. The Tribunal did not advise the applicant that he may seek additional time to comment on or respond to the information in breach of s 424AA(b)(iii).
6.The Tribunal denied the applicant procedural fairness by denying him the right to present a legal or factual argument to contest the assertion of the Delegate that s 438 of the Act applies to information held by the Department in his immigration file, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3).
Particulars
a. The Tribunal had before it a notification regarding the disclosure of certain information under s 438 of the Migration Act 1958, dated 21 November 2016 (CB 117).
b. At the Tribunal hearing, the Tribunal disclosed to the applicant the existence of “a certificate”.
c.However, the Tribunal did not ask the applicant to comment on the validity of the notification, nor to argue for a favourable exercise of one or both of the discretions conferred by s 438(3).
7.The Tribunal made a jurisdictional error by proceeding to act upon a notification (CB 117) regarding confidential information when the notification was invalid; alternatively, or in addition the Tribunal erred by acting upon the notification in circumstances where the Tribunal misunderstood the meaning or effect of the notification.
Particulars
a. The notification was issued by a Delegate of the Minister for Immigration and Border Protection, not the Secretary, the office holder mentioned in subsections 438(2) and (3) of the Act and defined in s 5 of the Act.
b. The notification was in addition invalid through not being signed, as found by the Tribunal at [99].
c. The Tribunal misunderstood the meaning or effect of the notification because the notification stated that, in the view of the Delegate of the Minister for Immigration and Border Protection, the information “should not be disclosed to the applicant”, but the Tribunal said that the notification stated that the Tribunal “must not disclose the material in the relevant folios”. (At [97]).

The person whose name has been deleted from ground 5 will hereafter be referred to as “Mr A”.
AXI21’s Submissions
AIX21’s Submissions in relation to ground 5, 6 and 7 generally are as follows:
(a)on 21 November 2016 a delegate of the Minister issued the 438 Notification: CB 117, regarding disclosure of certain information under s 438 of the Migration Act. The Delegate stated:
In my view, this information should not be disclosed to the applicant because it was given to an officer of the Department of Immigration and Border Protection in confidence.
(b)the Tribunal described the 438 Notification as a “Section 438 Certificate”: CB 424-425 at [97[-[101]. The Tribunal stated at CB 424-425 at [100]:
100… Therefore, while the material subject to a certificate cannot be provided to an applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its natural justice obligations.
(c)at the Tribunal Hearing, the Tribunal described the 438 Notification as a “certificate”: Tribunal Hearing Transcript, Naysmith Affidavit at page 35. There, the Tribunal stated:
Ok, and then, there’s a document that was provided, sorry a document that was in the departmental file, that had what is called a non-disclosure note on it – a certificate. And that means that the Department has said that that document cannot be disclosed.
(d)the Tribunal mischaracterised the 438 Notification at CB 117. It was a notification made pursuant to s 438(1)(b) and (2)(a) of the Migration Act, not a certificate;
(e)section 438(1) of the Migration Act states that it applies to a document or information if paras (a) or (b) thereof are satisfied;
(f)section 438(1)(a) of the Migration Act applies where the Minister has certified in writing that disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest, s 438(1)(b) of the Migration Act relevantly applies where the document, the matter in the document, or the information was given to an officer of the Department in confidence;
(g)there was no certification by the Minister in writing pursuant to s 438(1)(a) of the Migration Act. The notification at CB 117 was therefore founded upon the relevant information having been given to an officer of the Department in confidence pursuant to s 438(1)(b) of the Migration Act;
(h)having been notified under s 438(2) of the Migration Act that s 438(1)(b) of the Migration Act applies to the information in folios 86-89 of the Department file, the Tribunal was required to exercise the discretions under s 438(3) of the Migration Act to:
(i)have regard to any matter contained in the document, or to the information; and
(ii)if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under s 438(2) of the Migration Act, disclose any matter contained in the document, or the information, to AIX21;
(i)the advice given by the Delegate under s 438(2) of the Migration Act was that “this information should not be disclosed to the applicant because it was given to an officer of the Department of Immigration and Border Protection in confidence”;
(j)the Tribunal erroneously stated, in light of its consideration of the case law relating to s 375A of the Migration Act, that it could not “disclose”: AIX21’s Submissions at [60], the relevant information to AIX21: CB 424-425 at [100]. Despite that, the Tribunal decided to disclose the gist of the information, without disclosing the names of other parties or showing AIX21 the actual document: CB 425 at [101]. In taking this approach the Tribunal was influenced by fact that the Department had already revealed some of the information to AIX21 at the Departmental interview: see CB 112 at [38];
(k)the Tribunal had a discretion under s 438(3) of the Migration Act to disclose some or all of the relevant information the subject of the 438 Notification to AIX21, not only the gist of the information;
(l)the information covered by the 438 Notification at CB 117 was not information that had been the subject of a certification under s 375A of the Migration Act. In ADT16 v Minister for Immigration and Border Protection [2018] FCA 1198 at [29] per Charlesworth J it was stated:
29There is an important difference between s 375A and s 438 of the Act. In the context of a review under Pt 5, upon the issue of a certificate under s 375A(1) and the giving of a notice under s 375A(2)(a), s 375A(2)(b) operates to prohibit the Tribunal from providing the document or information the subject of the certificate to the review applicant. No such prohibition arises in the context of a review conducted under Pt 7. It is not necessary to consider the consequences, if any, of that difference between the two provisions.
(m)the Tribunal disclosed what it described as the “gist” of the information to AIX21: Tribunal Hearing Transcript, Naysmith Affidavit at pages 35-36. The Tribunal did not, however, disclose the extra information that it set out in its reasons for decision at CB 426-427 at [111], that:
(i)Mr A receives money from smuggling people from Liberia using fake Diplomatic and Official passports;
(ii)Mr A facilitates marriages from within the Liberian community in Australia; and
(iii)the Department had commented that this was a well-organised people smuggling operation;
(n)the Tribunal concluded at CB 427 at [114] that Mr A’s delegation travelled to Australia with an intention to remain in Australia, which the Tribunal said suggested that AIX21 had had an intention to remain in Australia since 2012 and “does significantly undermine the suggestion that he only applied for a protection visa because he found out in 2015 that he was required to be [in] [the Position].”;
(o)AIX21 gave evidence at the Tribunal Hearing that he was a political officer for Mr A, supervising things for him when Mr A was not around: Tribunal Hearing Transcript, Naysmith Affidavit at page 13; and
(p)in the result, the Tribunal fell into jurisdictional error.
AIX21’s Submissions in relation to the particulars of ground 5 are as follows:
(a)in breaching s 424AA of the Migration Act the Tribunal failed to orally give to AIX21 clear particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the Delegate’s Decision (the information being as set out at [5(g)] above);
(b)further:
(i)the Tribunal did not ensure that AIX21 understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the Delegate’s Decision, in breach of s 424AA(b)(i) of the Migration Act;
(ii)the Tribunal did not orally invite AIX21 to comment on or respond to the information in breach of s 424AA(b)(ii) of the Migration Act; and
(iii)the Tribunal did not advise AIX21 that he may seek additional time to comment on or respond to the information in breach of s 424AA(b)(iii) of the Migration Act;
(c)given the negative view that the Tribunal took about AIX21’s protection claims and his close working relationship with Mr A as a political officer, the Tribunal should have put the full extent of the information it had before it concerning Mr A and his alleged illicit activities (which the Tribunal summarised in its reasons at CB 426-427 at [111]), in which the Tribunal has impliedly asserted AIX21 was involved, to him for comment; and
(d)the Tribunal cannot have taken the view that the information about Mr A’s activities should remain confidential because it was disclosed by the Tribunal in the Tribunal Decision.
AIX21’s Submissions in relation to the particulars of ground 6 are as follows:
(a)the Tribunal denied AIX21 procedural fairness by denying him the right to present a legal or factual argument to contest the assertion of the Delegate that s 438 of the Migration Act applies to information held by the Department in his immigration file, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3) of the Migration Act: MZAFZ v Minister for Immigration and Border Protection and Another [2016] FCA 1081; (2016) 243 FCR 1; (20160 155 ALD 98 (“MZAFZ”) at [50] per Beach J;
(b)the Tribunal had before it the 438 Notification regarding the disclosure of certain information under s 438 of the Migration Act: CB 117;
(c)at the Tribunal Hearing, the Tribunal disclosed to AIX21 the existence of “a certificate”: CB 425 at [101];
(d)the Tribunal did not, however, ask AIX21 to comment on the validity of the 438 Notification, nor to argue for a favourable exercise of one or both of the discretions conferred by s 438(3) of the Migration Act. The breach was material; and
(e)it may be suggested that no unfairness occurred because the Tribunal found that the 438 Notification was invalid and it decided to disclose the gist of the information to AIX21 in any event, but the second discretion in s 438(3)(b) of the Migration Act permitted the Tribunal to disclose all the information, not just the gist of it, to AIX21. That would have included the extra information the Tribunal revealed at CB 426-427 at [111] set out at [49(m)] above.
AIX21’s Submissions in relation to the particulars of ground 7 are as follows:
(a)by this ground it is argued that the Tribunal made a jurisdictional error by proceeding to act upon the 438 Notification: CB 117, regarding confidential information when the notification was invalid; alternatively, or in addition, that the Tribunal erred by acting upon the 438 Notification in circumstances where the Tribunal misunderstood the meaning or effect of the 438 Notification;
(b)there were two problems with the 438 Notification. First, the notification was issued by a Delegate of the Minister, not the Secretary, the Secretary being the office holder mentioned in s 438(2) and (3) of the Migration Act and defined in s 5 of the Migration Act. Second, the 438 Notification was not signed;
(c)it was the second problem that led the Tribunal to find that the 438 Notification, or “certificate” as the Tribunal labelled it, was invalid;
(d)if the 438 Notification was invalid, then s 438(3)(b) of the Migration Act did not apply, because the Tribunal had not been notified in writing that the 438 Notification applies in relation to the information;
(e)in that circumstance, the Tribunal had no basis to withhold from AIX21 the full extent of the allegations made against Mr A, and by implication against AIX21 also given that he was part of Mr A’s staff;
(f)the Tribunal misunderstood the meaning or effect of the 438 Notification because the 438 Notification stated that, in the view of the Delegate of the Minister, the information “should not be disclosed to the applicant”, but the Tribunal said that the 438 Notification stated that the Tribunal “must not disclose the material in the relevant folios”: CB 424 at [97]; and
(g)the Tribunal’s approach to the 438 Notification began on a wrong footing – that it could not disclose any of the information. It did decide to disclose some of it, but it ought to have begun its approach to the question of disclosing the information based on a proper understanding of the 438 Notification.
Minister’s Submissions
The Minister’s Submissions in relation to ground 5, 6 and 7 generally are as follows:
(a)a delegate of the Minister provided the Tribunal with the 438 Notification in respect of some of the information before the Tribunal: CB 117;
(b)section 438(3) of the Migration Act provides that the Tribunal:
(i)may have regard to the information; and
(ii)may, if it thinks appropriate having regard to any advice provided by the Secretary, disclose any matter contained in the document, or the information, to AIX21;
(c)in this matter, the Tribunal disclosed the information to AIX21 and offered him the opportunity to comment upon it;
(d)AIX21 takes issue with the failure by the Tribunal to disclose three matters set out in the Tribunal Reasons at CB 426-427 at [111], and set out at [49(m)] above; and
(e)AIX21 cites the Tribunal’s reasons at CB 427 at [114], where the Tribunal refers to the efforts of nearly all of AIX21’s 2012 delegation to stay in Australia.
The Minister’s Submissions in relation to the particulars of ground 5 generally are as follows:
(a)in SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 at [77] and [87]-[88] per Tracey and Foster JJ it was stated:
77The immediate effect of a failure properly to comply with s 424AA is that the Tribunal will have purported to exercise a procedural discretion but will have in fact failed to do so in the manner required by the statute. The relevant sections when read together in their context suggest that the overriding obligation to provide the applicant with clear particulars of relevant information subsists and will be required to be discharged by other means (ie through s 424A(1)).
…
87In our view, the Tribunal must always comply with the provisions of s 424A. However, the Tribunal has a choice as to whether it will invoke the provisions of s 424AA.
88If the information under consideration by the Tribunal is the type of information covered by subs (3) of s 424A or if the Tribunal has engaged the provisions of s 424AA and complied with the requirements of that section, it need not meet the requirements of s 424A(1). This is because s 424A(2A) relieves the Tribunal of the obligation to do so if s 424AA has been complied with and s 424A(3) relieves the Tribunal of the obligation to do so if the information is of a kind covered by that subsection.
(b)thus, the failure to comply with s 424AA of the Migration Act (without more) is not sufficient to establish jurisdictional error on the part of the Tribunal;
(c)there was no failure to comply with s 424A(1) of the Migration Act because the information was “non-disclosable information” under s 424(3)(c) of the Migration Act;
(d)further, or in the alternative, the information would not be information that would be a reason, or part of the reason, for affirming the Delegate’s Decision; and
(e)further, and in the alternative, the substance of the information was put to AIX21 in the Tribunal Hearing.
In relation to non-disclosable information the Minister submitted that:
(a)the Tribunal was excused from complying with s 424A(1) of the Migration Act if the information was “non-disclosable information” under s 424(3)(c) of the Migration Act;
(b)non-disclosable information, as defined in s 5 of the Migration Act, extends to information “whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence”;
(c)the information was provided to the Minister in confidence. This inference is supported by the request for anonymity from the person providing the information; and
(d)in circumstances where the Tribunal was not required to disclose the information, there has been no jurisdictional error by failing to do so.
In relation to the reason for affirming the Delegate’s Decision the Minister submitted that:
(a)the information does not engage the operation of s 424A of the Migration Act because it was not information “that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [15]-[19] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Minister for Immigration and Citizenship v SZLFX and Another [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448 at [24]-[26] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; and
(b)while the Tribunal refers to the information in its reasons, the Tribunal Decision was based on the number of members of AIX21’s delegation who attempted to stay in Australia and not the wider alleged activities of Mr A: Tribunal Decision, CB 426-427 at [111]-[114].
In relation to information put to AIX21 by the Tribunal the Minister submitted that, as a matter of substance, the information was put to AIX21 at the Tribunal Hearing: Tribunal Hearing Transcript, Naysmith Affidavit at pages 34-36.
The Minister’s Submissions in relation to the particulars of ground 6 and 7 are as follows:
(a)at the Tribunal Hearing, the Tribunal observed (Tribunal Hearing Transcript, Naysmith Affidavit, page 35) that:
Ok, and then, there's a document that was provided, sorry a document that was in the departmental file, that had what is called a non-disclosure note on it - a certificate. And that means that the Department has said that that document cannot be disclosed. Now because the information in that document is relevant to the case, I am disclosing it to you so that you have an opportunity to comment or respond to it.
(b)at the Tribunal Hearing, the Tribunal disclosed the critical components of the information to AIX21. The Tribunal also considered the information;
(c)thus, despite the Tribunal’s initial view that the 438 Notification applied to the information, the Tribunal did afford AIX21 substantive procedural fairness, and it substantively complied with the procedural fairness obligations set out in MZAFZ at [50] per Beach J;
(d)later, the Tribunal concluded that the 438 Notification was not valid: Tribunal Decision, CB 424 at [97]-[99];
(e)it has been held that an invalid notification under s 438 of the Migration Act “amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review”: SZMTA at [44] per Bell, Gageler, Keane JJ. This will only constitute jurisdictional error where the breach is material to the ultimate outcome;
(f)the Tribunal’s reasoning in respect of the 438 Notification was not material to the Tribunal Decision, in that compliance could not realistically have resulted in a different decision;
(g)as set out at [49(m)] above, the information did not form the substance of the reasons in the Tribunal Decision for affirming the Delegate’s Decision; and
(h)in all the circumstances (and particularly given the Tribunal’s disclosures and AIX21’s responses at the Tribunal Hearing: Tribunal Hearing Transcript, Naysmith Affidavit, pages 34-36), there is no realistic prospect that AIX21’s responses to the information would have resulted in a different decision because of the many distinct reasons for the Tribunal’s affirmation of the Delegate’s Decision.
Consideration – ground 5
Section 424AA of the Migration Act provides as follows:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

In order to properly appreciate what the Tribunal put to AIX21 at the Tribunal Hearing and how that was dealt with in the Tribunal decision it is necessary to have regard to the relevant parts of the Tribunal Hearing Transcript and the Tribunal.
At the outset of the Tribunal Hearing: Tribunal Hearing Transcript, Naysmith Affidavit at pages 4-5, the Tribunal said as follows to AIX21:
I might also ask questions that relate to material which appears adverse to your case. Or would be a reason, or part of the reason for me affirming or agreeing with the Department decision and if I do that, I do that in order to be fair to you. In order to provide you with an opportunity to comment or respond to the material or you can let me know if you need more time to do so.
The Tribunal returned to the issue later in the hearing, and although lengthy it is worth setting out the relevant transcript: Tribunal Hearing Transcript, Naysmith Affidavit at pages 34-36 as a whole:
Member:Ok, so I mentioned to you at the beginning of this hearing that I might put information to you which would be a reasonable part of the reason for agreeing or affirming the decision under review, subject to any comments or response that you may have. Which you can either give me now or let me know if you need more time. So, I am going to provide you with that information now and give you an opportunity to respond. So, in the information, is information that was in the Departmental records about your early visas. So, the application for your temporary business visa, the departmental records indicate that all members of the delegation, except for one, overstayed their visas or carried on staying in Australia afterwards; which is relevant because it suggests that the delegation was not a genuine delegation to come assist the or provide information to the Liberian community. But rather was a means to come and then to stay on in Australia. So I just wanted to see if you wanted [to] respond or to comment about that information in the departmental records.
AIX21: Yeah, yeah, remember, about the issue I would say, is not true. We did come as a delegate from a fine institution and came to Australia, and thereafter a meeting where I – we had additional time to either visa (xx, 1:47:11) and I must admit that (xx, 1:47:17) what has been said about it is not true.
Member:So, you are saying that it’s not true that they used that as a means to come and stay in Australia.
AIX21:I don’t know what I am saying – what I am saying is not sure is that I really know very much about myself, but not about everybody. Can you get what I am trying to say?
Member:No, just say that again.
AIX21:I’m trying to say that I (xx, 1:47:48) for myself than everyone.
Member:So you know your own situation and you don’t know everyone else’s.
AIX21:Yeah.
Member:Ok, so, also in the departmental records there is reference to concern by the ACRA High Commission about the intention of some in your delegation. And the notes suggests that diplomatic and official passports were used and that there were issues with people staying in the country and applying for other visas and the departmental records note that there was corruption and fraud as problems in Liberia and that unemployment drives people to seek migration elsewhere. Also, the departmental records note that there was a complaint received from the association of the Liberian community that members of the delegation remained onshore by getting married and that there were also some allegations of - that - there was some sort of fraud involved with the diplomatic and official passports. So again, I just wanted to invite you to comment or respond to those departmental records.
AIX21:Yeah there were fraud, can you explain the word fraud to me?
Member: Yeah, so they are basically suggesting, well two things. One, that there's just notes in the departmental records that there's a great deal of fraud and corruption in Liberia, particularly that there were ongoing problems in Liberia. And secondly, that some of the official and diplomatic passports used may have been fake amongst the delegation.
AIX21:Yeah, I will say that the official passport that I brought was not fake.
Member: Ok, and then, there's a document that was provided, sorry a document that was in the departmental file, that had what is called a non-disclosure note on it - a certificate. And that means that the Department has said that that document cannot be disclosed. Now because the information in that document is relevant to the case, I am disclosing it to you so that you have an opportunity to comment or respond to it. And basically, I think some of this information has been disclosed to you previously. But basically, the information related to a number of persons including members of the Liberian community in Australia, having concerns about members of the delegation were staying on and trying to get married in order to stay in Australia. And they were concerned about how - and the Department was concerned about how many of the delegation remained in Australia. And that complaints had been received that people who had been married or in de facto relationships in Liberia have come as part of the delegation and then got married in Australia in order to stay in Australia. So, again this is information that I wanted to put to you in order that you have a chance to comment or respond, because clearly that kind of information does suggest that, because you were part of that delegation, your intention was to come to Australia to stay, rather than for a genuine purpose as part of the delegation.
AIX21: Yeah the issue of the letter, remember I didn't know nothing about the letter? And even after my first and second application - First application, I was (xx, 1:52:52) very lately, but what I think about that letter is that you can find love anywhere, it is not only because -
Member: You can - sorry I just missed what you said. You can what anywhere?
AIX21: You can find your relationship anywhere.
Member: Yeah.
AIX21: Yeah, so I think that in itself was how I was able to get into contact with my wife.
Member: But you are saying that this delegation that came into Australia was a genuine political delegation to visit the Liberian community and that there no intention to stay on afterwards?
AIX21: For me, I would say there was no intention to stay, but in the - in that scope of time, when I found love, I decide to stay with my fam- my wife, so I (xx, 1:53:53) because my wife, we that chemistry came and she being a single mother, so we decide to make our life together and until now we are still together as husband and wife.
Member: And how about the other members of the delegation, were you aware with what was going on or not?
AIX21: I really don't- I really don't know about anyone else
In the Tribunal Decision the Tribunal dealt with these issues at CB 426-427 at [111]-[112] and [114] as follows (footnote omitted):
111Departmental records indicate that on 12 December 2012 an Integrity Alert Notice was issued within the Department indicating that 12 members of the delegation stayed on in Australia and applied for other visas, mainly partner visas. This does suggest that the delegation had been some kind of a mechanism to allow them to travel to Australia and remain in the country, including the applicant. Departmental officers commented on the ongoing problem of corruption and fraud in Liberia, and the fact that Liberian nationals may submit tourist or business visa applications and then seek to remain in Australia through lodging protection or partner visa applications. A complaint was received by the Department in December 2012 from a member of the Liberian community in Australia that members of the delegation were seeking to remain onshore by lodging Family Migration applications having entered into marriages with Liberian community members in Australia and possibly travel interstate under the pretence of visiting relatives/friends. He also stated that the Liberian Community in WA had ceased to have any further dealings with Hon Thomas P Fallah and his entourage. A related allegation was received by telephone to the Department on 20 December 2012 from a person claiming to be a Liberian Community member alleging that Mr Fallah receives money for smuggling people from Liberia using fake Diplomatic and Official passports, and that Mr Fallah facilitates marriages from within the Liberian community in Australia. The Department commented that this was a well-organised people smuggling operation.
112This information (which was content referred to in the s.438 Certificate mentioned earlier) was put to the applicant by the Department, and by the Tribunal under the natural justice provisions of the legislation at the Tribunal hearing. Asked to respond or comment he said that it was not true that the visit of the delegation was a means to stay in Australia, and his passport was not fake. He said that he only ‘knows his own situation’ and in regard to the other members of the delegation he did not know ‘anything about this’ and he had a genuine relationship. He said that he did not have an intention to stay permanently in Australia when he came with the delegation. He said that he and his wife have stayed together, and he does not know much about the others.
114However, the Tribunal is of the view that the delegation travelled to Australia with an intention to remain in Australia, given the Department information that nearly all members of the delegation did so remain. This does suggest that the applicant had an intention to remain in Australia since 2012 and does significantly undermine the suggestion that he only applied for a protection visa because he found out in 2015 that he was required to be a Zoe.
In the Tribunal Decision the Tribunal further dealt with these issues at CB 432 at [131] as follows:
131.The Tribunal has noted the reports about the delegation with which the applicant travelled and the fact that nearly all members of the delegation remained in the country after their visit. This does suggest that he had the intention of remaining in Australia when he first came to Australia and that the protection visa application was a means for achieving this outcome, rather than arising out of genuine fear, particularly when considering he applied for protection so soon after the refusal of his partner visa.
It is evident from the:
(a)Tribunal Hearing Transcript and Naysmith Affidavit at pages 4-5 that the Tribunal understood what was required to be done pursuant to s 424AA of the Migration Act; and
(b)Tribunal Decision that it intended to fulfil its statutory duty in respect of s 424AA of the Migration Act: see CB 427 at [112] fn 15.
What then were the reasons, or part of the reason, for the Tribunal affirming the Delegate’s Decision, relative to the information alleged by AIX21 to be subject to s 424AA of the Migration Act?
The Tribunal Decision at CB 427 at [114] and CB 432 at [131] plainly indicates that part of the reason for the Tribunal Decision was that members of the Liberian Government delegation travelled to Australia with an intention to remain in Australia. The Tribunal Decision goes no further than that as a reason for the Tribunal Decision in relation to the information alleged by AIX21 to be subject to s 424AA of the Migration Act. It is pertinent to observe that the Tribunal did not rely upon the fake passport issue (adverted to at CB 427 at [112]) as a reason, or as part of the reason, for the Tribunal Decision. That reason, that members of the Liberian Government delegation travelled to Australia with an intention to remain in Australia, was put in unequivocal terms to AIX21 at the Tribunal Hearing: see Tribunal Hearing Transcript, Naysmith Affidavit at pages 34-36, at page 34 (bottom), page 35 (middle) and page 36 (top), and at the same time it was explained that that information was relevant to the review because it suggested that AIX21, as a member of that delegation, came to Australia with an intention to stay rather than for a genuine purpose as part of the delegation: Tribunal Hearing Transcript, Naysmith Affidavit at pages 34-36. And it had already been explained to AIX21 that he might be, as he was, invited to comment on information which might be adverse to his case, and that he might have more time to respond if he needed it: Tribunal Hearing Transcript, Naysmith Affidavit at pages 4-5. The information that AIX21 alleges in ground 5 was not put to him was therefore not the reason, or part of the reason, for affirming the Delegate’s Decision.
Whether or not the Tribunal acted under a misapprehension as to what information was disclosable was therefore immaterial, in the sense described in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ because the essential criteria for breach of s 424AA (and s424A) of the Migration Act, that the information concerned was not the reason, or part of the reason, for affirming the Delegate’s Decision, was not met in any event.
It follows that ground 5 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration – ground 6
Section 438 of the Migration Act provides as follows:
Tribunal's discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
At CB 424 at [99] and CB 425 at [101] the Tribunal observed as follows:
99In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. For documents to have been given in confidence they must have the necessary quality of confidentiality. The report was prepared confidentially and labelled ‘immigration-in-confidence’. However the Certificate was not signed. In El Jejieh v MHA (No2) [2019] FCCA 840 the court held that an unsigned certificate is invalid. The Tribunal is satisfied therefore that the Certificate is not valid.
101After considering the advice from the Department, and the judgments referred to above, the Tribunal disclosed the existence of the certificate to the applicant and the gist of the information in the report, without disclosing the names of other parties or showing the applicant the actual document. In deciding to disclose the information the Tribunal took into account the fact that the Department had already revealed some of the information to the applicant at the Departmental interview. The applicant was provided with an opportunity to comment or respond. This is discussed in more detail later in the decision.
The observations and findings made by the Tribunal at CB 426-427 at [111] and 427 at [112] and [114] are set out at [63] above.
In SZMTA the applicants for protection visas submitted that an invalid notification under s 438 of the Migration Act was sufficient to render the conduct of the review unauthorised, and in the alternative that the reasoning in MZAFZ meant that the Tribunal can be assumed in such cases to have acted on the invalid notification in a manner contrary to law: SZMTA at [42] per Bell, Gageler, Keane JJ. The High Court did not accept this argument, finding at [44]-[45] per Bell, Gageler, Keane JJ (headings and footnotes omitted) as follows (footnotes omitted):
44None of these submissions can be accepted. The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
45Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
AIX21 acknowledged that it might be argued against him that the Tribunal found the 438 Notification to be invalid and the Tribunal therefore made a decision to disclose certain information to AIX21, but says that the proper exercise of the discretion under s 438(3)(b) of the Migration Act would have meant that the extra information said not to have been disclosed (being that referred to at CB 426-427 at [111] as set out at [49(m)] above) would have been disclosed to AIX21. This argument, sound in a vacuum, cannot, however, prevail here. The extra information that AIX21 refers to was not relied upon in the Tribunal Decision, for reasons set out above in relation to ground 5, and therefore could not realistically have resulted in a different outcome from the Tribunal Decision. That conclusion is reinforced by the fact that the extra information referred to by AIX21was plainly adverse to AIX21 and in its terms it could not have resulted in a different outcome from the Tribunal Decision.
It follows that ground 6 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration – ground 7
Ground 7 takes the matter no further than grounds 5 and 6 and is not made out for the same reasons that grounds 5 and 6 are not made out. It follows that ground 7 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that none of the seven grounds of the Amended Judicial Review Application, of which only six were argued, have been made out, and jurisdictional error in the Tribunal Decision has not therefore been established. It follows that there will be an order dismissing the Amended Judicial Review Application. There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

The Court will hear the parties as to costs.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 14 September 2022

File number(s):	PEG 23 of 2021
Judgment of:	JUDGE LUCEV
Date of judgment:	14 September 2022
Catchwords:	MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – citizen of Liberia – Protection (Class XA) visa – whether breach of meaningful opportunity to appear or denial of procedural fairness by failure to put concerns about genuineness of a relevant document – whether failure to property consider content of a document containing information relevant to determination of claims – whether failure to properly consider information about appointments to positions in Liberia – whether failure to give clear particulars of information considered to be the reason, or part of the reason, for affirming decision under review – whether denial of procedural fairness by denial of a right to present a legal or factual argument to contest an assertion made in relation to information held on the applicant’s immigration file – whether jurisdictional error by proceeding to act upon a notification regarding confidential information when the notification was invalid or where the Tribunal misunderstood the meaning or effect of the notification – whether jurisdictional error
Legislation:	Migration Act 1958 (Cth) Pt 7, ss 5, 360, 375A, 424A, 424AA, 425, 438, 474, 476
Cases cited:	ADT16 v Minister for Immigration and Border Protection [2018] FCA 1198 AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 ARG15 and Others v Minister for Immigration and Border Protection and Another [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 CXS18 v Minister for Home Affairs [2020] FCAFC 18 El Jejiehv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103 El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 5; (2019) 363 ALR 599; (2019) 163 ALD 38 Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 Minister for Immigration and Citizenship v SZLFX and Another [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 MZAFZ v Minister for Immigration and Border Protection and Another [2016] FCA 1081; (2016) 243 FCR 1; (2016) 155 ALD 98 MZAMP v Minister for Immigration and Border Protection [2016] FCA 804; (2016) 70 AAR 1; (2016) 152 ALD 157 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 SZMCD v Minister for Immigration and Citizenship and Another [2009] FCAFC 46; (2009) 174 FCR 415 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; (2003) 77 ALD 1 WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division:	Division 2 General Federal Law
Number of paragraphs:	78
Date of last submission/s:	29 October 2021
Date of hearing:	29 October 2021
Place:	Perth
Counsel for the Applicant:	Mr D. V. Blades
Solicitor for the Applicant:	Chisholm Law
Counsel for the First Respondent:	Mr V. N. Ghosh
Solicitor for the First Respondent:	Minter Ellison Lawyers
Second Respondent:	Submitting appearance, save as to costs

PEG 23 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AIX21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	14 September 2022