ALF16 v Minister for Immigration and Border Protection
[2019] FCA 1457
•6 September 2019
FEDERAL COURT OF AUSTRALIA
ALF16 v Minister for Immigration and Border Protection [2019] FCA 1457
Appeal from: ALF16 v Minister for Immigration & Anor [2018] FCCA 1596 File number: VID 840 of 2018 Judge: DAVIES J Date of judgment: 6 September 2019 Catchwords: MIGRATION – appeal from Federal Circuit Court – primary judge dismissed application for judicial review of decision of Administrative Appeals Tribunal (“Tribunal”) affirming decision not to grant appellant protection visa – whether primary judge erred in failing to find procedural unfairness in Tribunal’s decision – Tribunal did not disclose existence of certificates under s 438 of Migration Act 1958 (Cth) – appellant informed of and given opportunity to respond to particulars of allegations in certificates – Tribunal did not give weight to information in certificates – breach of procedural fairness not material – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 424A, 437, 438, 440 Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72
Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3
Date of hearing: 14 August 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: WLW Migration Lawyers Counsel for the First Respondent: Mr A Yuile Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 840 of 2018 BETWEEN: ALF16
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
6 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”), refusing to grant the appellant a Protection (Class XA) visa. The ground of appeal is that the primary judge erred by failing to find that the decision of the Tribunal was procedurally unfair, in that it did not disclose to the appellant the existence of certificates under s 438 of the Migration Act 1958 (Cth) (“the Act”).
Section 438 provides:
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.
In the present case, two certificates had been issued by a delegate of the Minister under s 438 of the Act with respect to material in documents that could disclose the identity of a third party who provided information about the appellant to the Department of Immigration and Border Protection (“the Department”) on a confidential basis (“the identifying information”). The appellant accepted on the basis of the evidence furnished on behalf of the Minister in the FCC hearing that the preconditions in s 438(1) were met in relation to the material covered by the certificates and that the certificates were valid.
The Tribunal did not disclose the existence of the certificates to the appellant, but before making a determination the Tribunal wrote to the appellant pursuant to s 424A of the Act and gave particulars of the allegations made about the appellant in the material covered by the certificates and sought the appellant’s response to those allegations. The Tribunal also issued a written direction under s 440(1) of the Act which was attached to the s 424A notification to the appellant as follows:
Being satisfied that it is in the public interest, the Tribunal, pursuant to s.440(1) of [the Act], directs that the evidence and information given to the Tribunal at folio (omitted) of AAT file (omitted) and folios (omitted) of departmental file (omitted) (both sides) must not be published or otherwise disclosed except for the purposes of, or in connection with the present review application.
Section 440(1) provides:
Tribunal may restrict publication or disclosure of certain matters
(1)If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:
(a) any evidence given before the Tribunal; or
(b) any information given to the Tribunal; or
(c) the contents of any document produced to the Tribunal;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.
In the s 424A notification, the Tribunal gave the following particulars of the two allegations:
In March 2014, the Department received an anonymous allegation that your family owned large amounts of assets in Nepal, including property and factories. It was alleged that you had made fraudulent asylum claims so that your family could fast track their immigration to Australia and avoid paying large fees to migrate as either students or through business. It was further alleged that you had lied about your real age in order to receive the full benefits allowed for under aged Unauthorised Maritime Arrivals.
In November 2014, the Department received allegation that you were not a refugee and came from a very wealthy and politically connected family which owned businesses. It was alleged that you and your wife were under age when she became pregnant and you had to leave because this brought shame on your family in light of their connections.
This information is relevant to the review because it casts doubt over the genuineness of your claims about your personal circumstances in Nepal. If the Tribunal relies on the information, it may not be satisfied that your identity and personal circumstances in Nepal are as claimed…
(Errors in original.)
The appellant provided his response to the s 424A notification in the form of a statutory declaration. He addressed the allegations as follows:
March 2014 anonymous allegation –Avoiding visa fees
3. I understand that the Department of Immigration and Border Protection (Department) received an anonymous allegation in March 2014 that I am from a wealthy family that owned a large number of assets in Nepal, including property and factories. I understand that it was alleged that I have made fraudulent claims in order to avoid the fees involved with an Australian business or student visa and to receive unspecified benefits as an Unauthorised Maritime Arrival.
4. It is very difficult for me to respond to these allegations as I do not know the source and exact details of the information received by the Department. I request that as the allegations are anonymous, that no weight be given to them.
…
March 2014 anonymous allegation –Age
7. I understand that the anonymous allegation received by the Department in March 2014 also alleged that my age on arrival was 22 years.
8. Again, it is very difficult for me to respond to these allegations as I do not know the source and exact details of the information received by the Department. I request that as the allegations are anonymous, that no weight be given to them.
…
November 2014 anonymous allegation –Wife and child
12. I understand that the Department received an anonymous allegation in November 2014 that I come from a wealthy and politically connected family which owned businesses. I understand that it was also alleged that my wife and I were under-age when she became pregnant and that I had to leave Nepal because of the shame that this brought on my family, due to their connections.
13. Again, it is very difficult for me to respond to these allegations as I do not know the source and exact details of the information received by the Department. I request that as the allegations are anonymous, that no weight be given to them.
The Tribunal did not accept the appellant’s claims and affirmed the decision of the delegate not to grant the appellant a visa. In respect of the anonymous allegations received by the Department, the Tribunal said at [101]:
Against this background are the two allegations received by the Department. The Tribunal does not have before it any information regarding the source of the allegations and is unable to verify them. For this reason, the Tribunal considers that it would be unsafe to accord them any weight. However, the Tribunal notes that in the context of the credibility concerns outlined above, particularly, as regards the applicant’s identity and personal circumstances, if accepted, they would provide a plausible alternative explanation for the deficiencies in the applicant’s evidence.
Both in the Court below and on appeal, the appellant submitted that the failure to disclose the existence of the certificates was a breach of procedural fairness in that although the Tribunal informed the appellant of “the gist of the adverse information” under the certificates, he had an entitlement to make submissions to the Tribunal about whether the Tribunal should exercise its power under s 438(3)(b) and provide him with the documents subject to the certificates to him. It was submitted that the failure to disclose the existence of the certificates resulted in the appellant losing the opportunity to have access to all of the “credible, relevant and significant information” that was before the Tribunal during the course of the review, being such information as might reveal the identity of the informant. It was submitted that information tending to identify the informant was “inherently relevant” to the credibility of the certificate information, given that the Tribunal did give particulars of the allegations made under s 424A, as constituting information which “would”, subject to the appellant’s comments or response, “be the reason, or a part of the reason, for affirming the decision under review”. The relevance was also said to be evidenced in the Tribunal’s reasons at [101].
The Minister accepted there was a breach of procedural fairness in the Tribunal failing to disclose the fact of the certificates to the appellant. However, it was said, although the appellant was not aware of the certificates, he was aware that anonymous information had been given to the Department and the breach did not give rise to “practical injustice” because, in responding to the s 424A notification, it was open to him to seek the identifying information. It was submitted further that the appellant “did in fact make submissions that effectively sought access to more information” and it was open to the Tribunal, in response, to re-exercise its power under s 438(3)(b) to disclose the identifying information but the Tribunal “chose not to do so”. The Minister further argued that the breach was not material as it did not deprive the appellant of the possibility of success, as the Tribunal gave no weight to the allegations in its decision-making because it did not have any information before it regarding the source of the allegations and was unable to verify them.
The FCC rejected the contention that the appellant had made a request for the Tribunal to disclose the source of the information but held at [86] that the appellant was not denied procedural fairness in the process of review because he did not lose an opportunity during the process of review to request the Tribunal exercise its discretion under s 438(3)(b) of the Act to disclose the source of the information. The FCC reasoned that in responding to the correspondence from the Tribunal, the appellant had an opportunity to request the Tribunal to disclose the source of the information but chose not to utilise this opportunity and instead requested the Tribunal not to place weight on the allegations because of the anonymity of the source. The FCC at [87] also considered whether, if there was a denial of procedural fairness, the breach had deprived the appellant of the possibility of a successful outcome. The FCC gave two reasons for concluding that there would have been no difference in outcome had the appellant been afforded an opportunity to request the disclosure of the source of the information. First, the FCC reasoned that the possibility of the Tribunal acceding to such a request was remote because, as the Tribunal had stated at [101], it “[did] not have before it any information regarding the source of the allegations and [was] unable to verify them”. Secondly, the FCC reasoned, the Tribunal did not give the information any weight.
Since the FCC decision, the High Court has handed down its decision in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 (“SZMTA”). That case is authority that the failure to disclose the fact of a certificate constitutes a breach of procedural fairness. As the plurality (Bell, Gageler and Keane JJ) explained at [22]-[25], [30]-[31]:
Being notified by the Secretary that a document or information is a document or information to which s 438 applies then has consequences for how the document or information can be dealt with by the Tribunal if the notified document or information is in fact a document or information to which the section applies.
First, the Tribunal has a discretion under s 438(3)(a) to have regard to the information or to any matter contained in the document for the purpose of exercising its powers, including for the purpose of making a decision on the review. Implicit in the conferral of that discretion is that the Tribunal has no power to have regard to the information or to any matter contained in the document for the purpose of making a decision on the review unless the discretion is affirmatively exercised.
Second, the Tribunal has a discretion under s 438(3)(b), after taking account of such advice as the Secretary may have given to the Tribunal under s 438(2)(b), to disclose to the applicant the information or any matter contained in the document. Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised. No doubt, the discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion.
25. If the Tribunal exercises the discretion under s 438(3)(b) to disclose to the applicant the information or any matter, s 438(4) operates to require the Tribunal to give a direction under s 440…
…
30. A notification by the Secretary to the Tribunal that a document or information given by the Secretary to the Tribunal is a document or information to which s 438 applies is an event which alters the procedural context within which the Tribunal's duty of review is to be conducted. If valid, the notification erects a procedural impediment to the otherwise unfettered ability of the Tribunal to take into account the document or information if the Tribunal considers it to be relevant to an issue to be determined in the review, constrains the power of the Tribunal under s 427(1)(c), and truncates the specific obligations of the Tribunal under ss 424AA, 424A and 425. The very fact of notification also changes the context in which the entitlement of the applicant under s 423 – to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review – falls to be exercised.
31. The entitlement under s 423 extends to allowing the applicant to present a legal or factual argument in writing either to contest the assertion of the Secretary that s 438 applies to a document or information, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3). This entitlement, at least in those specific applications, is capable of meaningful exercise only if the applicant is aware of the fact of a notification having been given to the Tribunal.
(Footnotes omitted and emphasis added.)
The Minister was thus correct to concede that the failure to inform the appellant of the two certificates in this case amounted to a breach of procedural fairness. However as the plurality further explained, a breach only amounts to jurisdictional error if the breach gave rise to a “practical injustice” in the sense that the breach resulted in a denial of an opportunity to make submissions and that denial was material to the Tribunal's decision. At [38], the plurality stated:
Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision.
(Footnotes omitted and emphasis added.)
To establish materiality, the appellant must demonstrate that “compliance could realistically have resulted in a different decision”: [45].
The appellant relied on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 (“VEAL”) to argue that it is sufficient to constitute jurisdictional error if the procedural unfairness was the failure to draw an applicant’s attention to “credible, relevant and significant information”, even if the decision-maker did not rely on that information in making its decision. The extension of the argument was that the s 424A notice evidenced that the material subject to the s 438 certificates did constitute “credible, relevant and significant information”. Accordingly, the submission went, the breach of procedural fairness did give rise to “practical injustice” because the appellant was not given access to all “credible, relevant and significant information”. Alternatively it was formally submitted that “materiality” as discussed in SZMTA is not a correct statement of the law.
VEAL is authority that there was a breach of procedural fairness in this case but, contrary to the appellant’s submission, SZMTA is not inconsistent with VEAL. In VEAL, the Tribunal did not disclose to the appellant that allegations had been made in a letter sent confidentially to the Department of Immigration and Multicultural and Indigenous Affairs (as the Department then was) and did not ask the appellant about the substance of any of the allegations made in the letter. Although in its reasons the Tribunal stated in reaching its findings it gave no weight to the letter as it had been unable to test the claims made, the High Court held that there had been a denial of procedural fairness in failing to draw the appellant’s attention to the information received by the Department and to provide the appellant with an opportunity to respond to that information. The Court determined that the Tribunal’s reasoning that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness. The Court reasoned at [27]:
The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter.
VEAL is distinguishable. In contrast in the present case, the appellant was put on notice of the substance of the allegations made against him and provided with an opportunity to respond to those allegations, which he did.
VEAL is not authority that unfair procedures, howsoever arising, require that relief be granted nor, as was submitted for the appellant, should SZMTA be read as subject to a qualification that procedural unfairness of the kind in VEAL must give rise to practical injustice because unfair procedures were followed. The argument elides the question of whether there has been a denial of procedural fairness with the question of whether, if there has been a breach, the breach is material so as to constitute jurisdictional error. To succeed in establishing that the procedural unfairness from the failure of the Tribunal to disclose the fact of the certificates to the appellant constituted jurisdictional error, the appellant has to show that there was a realistic possibility that the Tribunal’s decision could have been different if he had been given the opportunity to make submissions on the s 438(3)(b) discretion. The appellant’s submission that there was “practical injustice” in the unfair procedure because the appellant thereby lost the opportunity to have access to all of the credible, relevant and significant information which included the identifying information of the informant misdirects the inquiry. To determine the materiality of the breach it is necessary to evaluate how such an opportunity, if provided to the appellant, could realistically have affected the result. Significantly, in point of distinction from VEAL, the Tribunal put to the appellant the substance of the allegations contained in the s 438 material before making its determination. Furthermore, there is nothing in the reasons to suggest that the Tribunal took account of anything in reaching its decision which had not substantively been put to the appellant beforehand for his response.
I also reject the appellant’s submission that it should not be concluded that the Tribunal did not place any weight on the certificate information. The FCC was correct to hold for the reasons given at [102]-[105] that it should not be inferred from the Tribunal’s comment at [101] of the Tribunal’s reasons that the information “would provide a plausible alternative explanation for the deficiencies in the [appellant’s] evidence” that the Tribunal did act on the information. As the FCC noted, the Tribunal qualified that comment with the words “if accepted”. It is sufficiently clear from how the Tribunal expressed itself that it did not place any weight on that material. Further, I reject the submission that there is a realistic possibility that the certificate information influenced the adverse credibility findings, having regard to the Tribunal’s comment at [101]. On a fair reading of the reasons as a whole, the Tribunal made adverse credit findings capable of justification without imputing some subconscious, or even conscious, influence by reason of the allegations made.
For the sake of completeness, I also reject the Minister’s submission that the appellant did in fact make submissions that effectively sought access to more information. No such request is implicit in the responses given.
The appeal should be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 6 September 2019
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