AOQ16 v Minister for Immigration and Border Protection
[2020] FCA 103
•14 February 2020
FEDERAL COURT OF AUSTRALIA
AOQ16 v Minister for Immigration and Border Protection [2020] FCA 103
Appeal from: AOQ16 & Ors v Minister for Immigration & Anor [2017] FCCA 1548 File number: NSD 1240 of 2017 Judge: O'BRYAN J Date of judgment: 14 February 2020 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of decision of Administrative Appeals Tribunal affirming decision of Minister’s delegate refusing grant of protection visas – notices issued under s 438 of the Migration Act 1958 (Cth) – procedural fairness obligations relating to the issue of a notice under s 438 – whether Tribunal acted unreasonably in refusing to grant appellants extension of time to respond to invitation to comment on information – whether Tribunal denied appellants procedural fairness by failing to inform them of the s 438 notices – whether Tribunal erred by acting upon invalidly issued s 438 notice – appeal dismissed Legislation: Migration Act 1958 (Cth) Pt 7, Div 4, ss 424AA, 424A, 424B, 425, 427(1)(c), 438 Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Date of hearing: 12 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 80 Counsel for the Appellants: Mr M T Jones Solicitor for the Appellants: Parish Patience Immigration Lawyers Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1240 of 2017 BETWEEN: AOQ16
First Appellant
AOR16
Second Appellant
AOS16
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'BRYAN J
DATE OF ORDER:
14 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The second and third appellants pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
Introduction
This is an appeal from orders made by the Federal Circuit Court of Australia on 4 July 2017, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 February 2016. The appellants are a child (AOQ16, the appellant child), wife (AOR16, the appellant wife) and husband (AOS16, the appellant husband). The Tribunal had affirmed a decision of a delegate of the Minister under s 65 of the Migration Act1958 (Cth) (Act) refusing to grant the appellants protection visas.
The notice of appeal was filed on 25 July 2017 and raised the following two grounds of appeal:
1.The Federal Circuit Court erred in failing to find that the Second Respondent Tribunal had acted unreasonably in refusing to extend time for the Applicants to reply to an invitation to comment on or respond to information.
2.The Federal Circuit Court erred in failing to find that the Second Respondent had erred in dealing with one or both of two certificates purportedly issued under s438 of the Migration Act 1958.
On 21 May 2018, the Court made orders adjourning the hearing of this appeal pending the outcome of appeals to the High Court in cases named CQZ15 and BEG15. The appeals to the High Court concerned the question whether the giving of a notice under s 438 of the Act to the Tribunal triggered an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. The High Court delivered judgment on those appeals, and a further case named SZMTA, on 13 February 2019: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA). That decision is discussed further below.
Following the delivery of judgment in SZMTA, the parties to this appeal filed further written submissions and the appeal was heard on 12 August 2019.
This appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act1976 (Cth). In the appeal, the appellants rely on the grounds of review argued before the primary judge, contending that the primary judge erred in failing to uphold those grounds of review. Accordingly, the Court must determine whether the primary judge was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 (SZVFW). The Minister also relies on a notice of contention dated 18 July 2019, by which he agitates an additional basis on which the primary judge was correct to reject the appellants’ legal unreasonableness ground (ground one of the notice of appeal).
For the reasons that follow, I have reached the same decision as the primary judge that the Tribunal’s decision is not affected by jurisdictional error as alleged. Although unnecessary to determine the issue, I also uphold the Minister’s notice of contention. Accordingly, the appeal is dismissed with costs.
Background
This proceeding has a lengthy background.
The appellant husband and wife are citizens of Pakistan and their religion is Shia Muslim.
The appellant husband first arrived in Australia on a student visa in February 2008. He departed Australia on 9 April 2010 and returned on 5 May 2010. He was granted a further student visa in May 2012. He departed Australia on 5 September 2012 and returned on 27 September 2012.
The appellant wife first arrived in Australia in 2011 and departed and returned to Australia with the appellant husband in September 2012.
The appellant husband and wife first applied for protection visas on 14 November 2012. The appellant husband was the primary applicant and the appellant wife applied for protection as a member of her husband’s family unit. In a statutory declaration accompanying his original application, the husband applicant stated that in 2009, Taliban gunmen killed his father’s cousin because he was a Shia Muslim. He also stated that in 2011 the Lashkar-e-Jhangvi (L-e-J) kidnapped two of his second cousins and beheaded them because they were Shia. He stated that in September 2012 he and his wife (who was pregnant) returned to Pakistan. He stated that she missed her family and wanted to return and they did not think they would be targeted by the L‑e‑J whilst they were in Pakistan. He stated that a week after they arrived, he and his wife noticed the L-e-J following them. They feared for their lives and remained at home. He stated that on 17 September 2012, he and his wife left their home to attend a religious ceremony about 10km from their home. As soon as they left the house, they noticed four men in two groups following them and whilst he was on his motorbike with his wife as a passenger they aimed at them. The four men fired at them and the appellants skidded on the road and both sustained injuries. He claimed that his wife lost her unborn baby as a consequence and remained in hospital for four days. On 27 September 2012, they return to Australia. He stated that his father was killed on 7 October 2012 when a gunman shot him. The appellant husband stated that his father was the general secretary of a Shia organisation and was outspoken about the cruelty of the Taliban to the Shia community. The appellant husband feared that the Taliban would kill him and his family members. The appellants claim that they fear being kidnapped, tortured and murdered by the Taliban or L‑e‑J because they are Shias and due to the political involvement of the appellant husband’s family in opposing the Taliban.
A delegate of the Minister refused to grant the appellants visas on 1 March 2013. The appellants applied to the then Refugee Review Tribunal for a review of the Minister’s decision.
On 1 March 2013, a delegate of the Minister wrote to the Refugee Review Tribunal and stated that s 438(1)(b) of the Act was applicable to certain documents because they contained information given to the Minister in confidence (the first s 438 notice). The documents referred to allegations made to the Department by an anonymous source to the effect that:
(a)the appellant husband’s claims for protection were false and he had obtained false documents from Pakistan in support of his claims;
(b)the appellant husband had claimed he had a mental disability but he was working as a security guard; and
(c)the appellant husband had claimed that his wife was pregnant and had an abortion but that was false and his wife had not been pregnant.
The appellants did not contend that the first s 438 notice was invalid, and I have proceeded on the basis that the notice was validly given.
On 3 December 2013, the Tribunal wrote to the appellant husband and the appellant wife and sought their response to certain information, including the anonymous allegations contained in the documents referred to in the first s 438 notice. On 3 January 2014, the appellants responded in writing denying the anonymous allegations.
On 4 February 2014, the Refugee Review Tribunal affirmed the delegate’s decision. In its reasons, the Tribunal referred to the anonymous allegations and the appellants’ response and stated that it would disregard the allegations (at [98]).
On 16 May 2014, the appellants made a second application for protection visas. On this occasion, the appellant wife and child were the primary applicants and the appellant husband applied for protection as a member of the family unit. In the second application for protection visas, the appellant wife repeated the claims that had been made by the appellant husband in the first application.
For reasons that are not clear from the record, on 22 September 2014 a delegate of the Minister wrote again to the first constituted Refugee Review Tribunal and stated that s 438(1)(a) of the Act was applicable to two sets of documents (the second s 438 notice) on the basis that the disclosure of the information would be contrary to the public interest. The first set of documents were the same documents that were the subject of the first s 438 notice. The second set of documents were internal papers of the Department summarising the appellants’ immigration history and information contained in other documents before the Tribunal.
It is common ground that the second s 438 notice was invalid because s 438(1)(a) was not satisfied. However, this appeal only concerns the documents that were referred to in both the first and second s 438 notices, being the documents referring to anonymous allegations. The appellants placed no reliance on the second s 438 notice in so far as it referred to the second set of documents.
On 1 October 2014, a delegate of the Minister refused to grant the appellants protection visas. The appellants applied to the Tribunal for a review of the Minister’s decision.
On 15 February 2016, the Tribunal affirmed the decision not to grant the appellants protection visas.
On 15 March 2016, the appellants filed an application for review of the Tribunal’s decision in the Federal Circuit Court of Australia, which was dismissed on 4 July 2017.
The proceedings before the Tribunal
The appellants appeared before the Tribunal on 16 December 2015 to give evidence and present arguments. During the hearing before the Tribunal, the Tribunal member raised with each of the appellant husband and wife the anonymous allegations that had been made to the Department (and which were the subject of the first and second s 438 notices). The Tribunal member referred to the fact that the allegations had been raised with the appellants by the previous Tribunal. The Tribunal member did not refer to the subject matter of the allegations, other than to say that there was an allegation that the appellant husband was “faking” his psychiatric illness. The Tribunal member stated that she gave no weight to the allegations and would not take them into account in making her decision.
On 15 January 2016, the Tribunal wrote to the appellants and invited them to comment on or respond to information in relation to several aspects of their claims. The letter set out apparent inconsistencies in the evidence given by the appellants and invited a response. The penultimate paragraph of the letter also notified the appellants of two reports from the Department of Foreign Affairs and Trade (DFAT) to which the Tribunal would have regard. The paragraph was as follows:
Also attached are two reports from the Department of Foreign Affairs and Trade for your information:
•“DFAT Country Information Report – Pakistan”; and
•“DFAT Thematic Report - Shia in Pakistan”.
These reports were both released today and the Tribunal will have regard to these reports in making its decision.
On 1 February 2016, the appellants wrote to the Tribunal requesting an extension of time in which to provide comments or a response to the Tribunal’s letter dated 15 January 2016. The letter stated:
I am writing this letter regarding extension of time to provide comment or response as we are waiting for some documents from overseas and need legal advice. Therefore we request to Tribunal to please allow us some more time for comment or response.
On the same day, the Tribunal replied to the appellants stating that it had considered their request carefully but had decided not to grant an extension of time. It reiterated that the appellants’ comments or response was required by 10 February 2016.
On 10 February 2016, the appellants provided a response to the Tribunal’s letter. In addition to providing responses to the issues raised by the Tribunal, the appellants’ response provided comments on the DFAT reports referred to in the Tribunal’s letter.
In its reasons for decision, the Tribunal stated that it was not satisfied that the appellant husband and wife were truthful witnesses (at [30]). The Tribunal stated that it accepted that the appellant husband and wife were involved in a motorcycle accident while they were in Pakistan in September 2012 and that this unfortunately resulted in the appellant wife suffering a miscarriage; however, the Tribunal did not accept that the incident was caused while they were being targeted by the Taliban, L-e-J or any other extremist groups (at [30]). The Tribunal concluded that the appellants had fabricated the claims in an attempt to support their claims for protection in Australia. The Tribunal accepted that Shia Muslims have been the subject of considerable violence and targeting throughout Pakistan, but the Tribunal was not satisfied that the appellants had been individually targeted by the Taliban or L-e-J or any of the associated extremist groups.
The Tribunal recorded that the Department file contained an anonymous allegation that the appellant husband had applied for protection on a false basis, his wife was not pregnant in September 2012 and he “staged” his admission to hospital on the basis of suicidal thoughts (at [17]). In relation to that material, the Tribunal concluded (at [51]):
In reaching the above conclusions, the Tribunal makes no adverse findings in relation to the anonymous letter received by the Department. When this issue was discussed during the hearing, [the appellant husband] indicated that he knows who sent it and it was someone with whom he had a dispute. The Tribunal has no knowledge of the identity of the author and gives the letter no weight.
The Tribunal also referred to the appellants’ request for an extension of time in which to respond to information put to them by the Tribunal and stated (at [51]):
As indicated above, the Tribunal refused to give the applicants an extension to provide documentation and obtain legal advice. The Tribunal is satisfied that the applicants were aware of the issues which were discussed with them at length during the most recent hearing and at a previous hearing and two previous interviews with the Department, and their claims have been raised since 2012 when they first lodged an application. The Tribunal is satisfied that it was both reasonable and appropriate that it proceed to a decision.
Proceedings in the Federal Circuit Court of Australia
On 15 March 2016, the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court under s 476 of the Act. An amended application was filed on 8 December 2016 and, at the hearing before the Federal Circuit Court, the appellants were given leave to file a further amended application.
Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The grounds of review stated in the further amended application to the Federal Circuit Court were as follows:
1. The Tribunal acted unreasonably in refusing to extend time for the Applicants to reply to an invitation to comment on or respond to information.
2. The Tribunal erred in dealing with certificates purportedly issued under s 438 of the Migration Act 1958.
Particulars of the grounds were provided which are unnecessary to reproduce.
The application was heard by the primary judge on 4 July 2017, and the primary judge delivered an ex tempore judgment dismissing the application.
Appeal Ground 1: Request for an extension of time
By ground 1 of the notice of appeal, the appellants contend that the primary judge erred in failing to find that the Tribunal acted unreasonably in refusing to extend time for the appellants to reply to an invitation to comment on or respond to information.
As set out earlier, the appellants gave evidence at a Tribunal hearing held on 16 December 2015. Following the hearing, on 15 January 2016, the Tribunal sent a letter to the appellants inviting them to comment on or respond to, in substance, inconsistencies in their evidence, and the absence of evidence to support an aspect of their claims. The Tribunal’s invitation also attached two DFAT reports for the appellants’ information, and stated that the Tribunal would have regard to them in making its decision.
Division 4 of Part 7 of the Act imposes certain procedural fairness obligations on the Tribunal. Section 424A(1) provides that, subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Subsection (2A) provides as follows:
The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
Subsection (3) provides as follows:
This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
The Tribunal invited the appellants to provide their comments or response in writing by 10 February 2016, being the period prescribed by s 424B(2) of the Act and reg 4.35(3)(b) of the Migration Regulations 1994 (Cth) (as the Tribunal’s invitation was sent by post in accordance with s 441A(4), the appellants were deemed to have received it 7 working days later: see s 441C(4)).
As referred to earlier, on 1 February 2016, the appellants sought an extension of time within which to respond to the Tribunal’s invitation. The Tribunal replied by letter on the same day, stating that it had decided not to grant an extension of time. The Tribunal also communicated this decision to the appellant husband by telephone and by email. The appellants provided a response to the Tribunal’s invitation to comment on 10 February 2016. In its reasons for decision, the Tribunal stated (at [51]) that it refused an extension of time because it was satisfied that the appellants were aware of the issues which were discussed with them during the hearing and at a previous hearing and their claims had been raised since 2012 when they first lodged their application.
Appellants’ submissions
The appellants relied on an affidavit of the appellant husband, read at the hearing before the primary judge, in which he deposed that his understanding of the Tribunal’s letter of 15 January 2016 was that he had until 10 February 2016 to comment on or respond to the information in the body of the letter and the nearly 40 pages of the attached documents (being the DFAT reports). He thought he would need legal assistance and sought an extension of time because he was unable to get an appointment. The appellant husband deposed that, after being refused an extension of time, he spent the time between receiving the letter and the deadline trying to read through the DFAT reports to prepare a response and, while he did his best to comment on all of the material in the time given, he did not think that his response was as good as it could have been if he had been given more time.
The appellants submitted that the power to grant an extension of time is given by s 424B(4) and is discretionary. In exercising the discretion available to it, the Tribunal must act reasonably, relying on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [23]-[24] per French CJ. The appellants argued that, in Li, Hayne, Kiefel and Bell JJ said (at [76]) that “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. The appellants relied on the fact that the letter refusing the extension of time contained no reasons for the refusal and did not address the reasons given by the appellants for seeking the extension. The appellants submitted that, in this case, the Tribunal gave no evident or intelligible justification for its refusal of the appellants’ request.
The appellants argued that the fact that the DFAT documents attached to the Tribunal’s letter, on a technical legal reading, may not have been included in the deadline for response, and that the Tribunal was not aware that the appellants had understood that they were included, does not mean that there was not jurisdictional error affecting the Tribunal’s decision. They argued that a jurisdictional error may occur even when the Tribunal is not aware of facts giving rise to it, relying on Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (SCAR) and SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE). The appellants submitted that the Tribunal’s exercise of the discretion to extend time was unreasonable even if it was not aware of the full facts, because the result was a de facto denial of procedural fairness to the appellants. The result was that the appellants were unable to prepare a full response to the information, including the information in the DFAT documents.
Minister’s submissions
The Minister advanced two submissions.
First, in reliance on the notice of contention, the Minister submitted that none of the material put to the appellants by the Tribunal in the letter dated 15 January 2016 gave rise to the Tribunal’s obligations pursuant to s 424A(1) of the Act. Relying on SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 (SZBYR) at [17]-[18], the Minister submitted that, in so far as the Tribunal’s letter raised inconsistencies in the appellants’ evidence, such inconsistencies are not “information” within the meaning of s 424A(1). Relying on s 424A(3)(a), the Minister submitted that, in so far as the Tribunal’s letter made reference to the DFAT reports, those reports are excluded from the obligation imposed by s 424A(1). In circumstances where the duty in s 424A(1) had not arisen, the time for compliance with the Tribunal’s letter was not subject to the statutory requirements of s 424B, including the discretionary power to extend time. Accordingly, the principles in Li had no application and the Tribunal’s consideration of the request for an extension of time was not subject to an implied obligation to exercise a statutory discretion in a reasonable manner.
Second, and in the alternative, the Minister submitted that the Tribunal’s exercise of discretion pursuant to s 424B(4) was not in any event legally unreasonable. Relying on SZVFW, the Minister submitted that the test to be applied on judicial review for alleged legal unreasonableness is stringent and such cases are rare (see SZVFW at [11] per Kiefel CJ; at [52] per Gageler J; at [84] per Nettle and Gordon JJ; and at [135] per Edelman J). Contrary to the appellants’ contention, the appellant husband’s misunderstanding that a response to the DFAT reports was being sought is of no relevance in circumstances where the Tribunal was not aware of that misunderstanding. In the present case, the Tribunal set out its reasons for declining to provide the appellants with the extension sought (at [51]), and those reasons demonstrate a justification for the exercise of the power in the manner it was exercised. The Tribunal was not obliged to give reasons for its decision in its letter refusing the request for an extension.
Consideration
In my view, the Minister’s submissions should be accepted and the appellants’ submissions rejected.
Even if the Tribunal’s letter involved an exercise of statutory power under s 424A(1) of the Act, in my view its decision not to extend time was not legally unreasonable. As the Tribunal stated in its reasons (at [51]), the matters raised for comment had been the subject of the appellants’ claims since 2012 and had been examined in two previous Ministerial decisions and a previous Tribunal hearing. In his affidavit before the primary judge, the appellant husband did not suggest that there was any difficulty in commenting on those matters in the time allowed, and no such submission was put on this appeal. Rather, the appellant’s argument was that the appellant husband’s misunderstanding that the letter sought a response to the DFAT reports made the Tribunal’s decision unreasonable because the outcome was a procedurally unfair process.
In my view, the decisions relied on by the appellants in support of their argument, SCAR and SZFDE, are distinguishable. They do not stand for the proposition advanced by the appellants, that the exercise of a statutory discretion may be legally unreasonable by reason of circumstances affecting the applicant but unknown to the decision-maker. Such a proposition is too broad.
In SCAR, the Full Court of the Federal Court found that a decision of the Tribunal involved jurisdictional error in circumstances where, at the time of the hearing, the applicant was suffering from distress arising from his father’s death, requiring medical treatment, and was unable to represent himself. Although the Tribunal was unaware of the applicant’s distress (and there was no suggestion that the Tribunal conducted itself unreasonably in that regard), the Court nevertheless concluded that the Tribunal had failed to comply with its statutory obligation under s 425 of the Act to afford the applicant a fair hearing, which was a jurisdictional error (at [41]).
The circumstances in SZFDE were somewhat analogous. The applicants were represented by Mr Fahmi Hussain, who falsely claimed to be a solicitor and migration agent. In fact, Mr Hussain’s practising certificate as a solicitor and his registration as a migration agent had been cancelled. Mr Hussain had advised the applicant wife not to attend the hearing before the Tribunal. In its reasons, the Tribunal noted that the wife, though invited, had not appeared before it and that there were relevant matters that the Tribunal would have wished to explore with her. The High Court concluded that the fraud of Mr Hussain had the consequence of stultifying the legislative scheme to afford natural justice to the applicants, as found in Part 7 of the Act, and particularly reflected in s 425 (at [49]). While the Tribunal was blameless in that outcome, the statutory requirement to afford the applicant a fair hearing had been disabled by the fraud of Mr Hussain (at [51]). The consequence was that the Tribunal’s jurisdiction remained constructively unexercised (at [52]).
In my view, the principles stated in SCAR and SZFDE are inapplicable to the present case. The jurisdictional error in those cases did not involve legal unreasonableness and did not depend on the reasonableness of the Tribunal’s decision, reasoning or conduct. The cases involved the failure to comply with a statutory obligation to afford natural justice by providing the applicant a fair hearing. The failure to do so involved jurisdictional error even though the failure was not due to any fault or unreasonableness on the part of the Tribunal.
In contrast, the present case involves an alleged failure to exercise a discretionary power reasonably. The joint judgment in Li explained (at [76]) that a decision made in the exercise of a statutory power is unreasonable in the legal sense when it lacks an evident and intelligible justification. The relevant focus is on the reasons of the decision-maker for the decision. The reasons must be considered in light of the findings of fact made by the decision-maker that support his or her reasoning.
In the present case, the Tribunal invited the appellants to comment on a number of concerns the Tribunal had with their evidence. No argument was put that the time allowed for the response was unreasonable (indeed, it complied with the statutory requirements). The Tribunal also informed the appellants of further DFAT material that it would take into account. The Tribunal did not ask for comment on, or a response to, that material. The appellant husband mistakenly thought the Tribunal sought such a response. However, that was not communicated to the Tribunal. The Tribunal refused the appellants’ request for an extension of time on the basis that the time allowed for a response was adequate. On the facts as known to the Tribunal, there was nothing unreasonable in that decision. The erroneous belief held by the appellant husband, which was not caused by the Tribunal, did not render the Tribunal’s refusal unreasonable.
Although it is unnecessary to decide the point, I also accept the Minister’s submission that none of the material put to the appellants by the Tribunal in the letter dated 15 January 2016 gave rise to the Tribunal’s obligations pursuant to s 424A(1) of the Act. The following propositions emerge from the High Court’s decision in SZBYR:
(a)First, s 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review (at [15]).
(b)Second, the statutory criterion in s 424A (would be the reason, or a part of the reason, for affirming the decision that is under review) does not mean “the reasoning process of the Tribunal” in a general sense. Rather, it refers to the reason that the Tribunal might find that the statutory criterion for the applicable visa was not satisfied (at [17]).
(c)Third, if the reason why a Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies in that evidence, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of s 424A(1). In that context, the meaning of the word “information” is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence (at [18]).
Applying those principles to this case, none of the matters on which the Tribunal sought comment from the appellants by its letter engaged the obligation under s 424A(1). Each of those matters raised (i) inconsistencies in evidence given by the appellant husband at different times during the visa application processes; (ii) inconsistencies in the evidence given by the appellant husband and wife; and (iii) the absence of evidence on claims made. While the DFAT reports might arguably be classified as “information” within s 424A(1), such information is expressly excluded from the obligation in s 424A(1) by paragraph (3)(a).
For those reasons, I dismiss ground one of the appeal.
Appeal ground two: s 438 notices
By ground two, the appellants contend that the primary judge erred in failing to find that the Tribunal had erred in dealing with one or both of the two notices purportedly issued under s 438 of the Act.
Section 438 provides as follows:
(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.
The focus of the argument concerned the documents, referred to in both s 438 notices, which recorded the anonymous allegations, set out earlier. The appellants accepted that the other documents referred to in the second s 438 notice could not have had any bearing on their protection claims.
Both of the s 438 notices were given to the Refugee Review Tribunal (the first constituted tribunal). Nevertheless, it was common ground that the notices and the documents referred to in the notices were relevantly before the second constituted Tribunal. It also followed that the letter from the Refugee Review Tribunal to the appellants dated 3 December 2013, by which the Tribunal put to the appellants the anonymous allegations, and the appellants’ response dated 3 January 2014, by which the appellants denied the allegations, were also before the second constituted Tribunal.
As referred to earlier, the second constituted Tribunal made reference to the anonymous allegations during the hearing and, in response, the appellant husband and wife denied that their claims were false.
Appellants’ submissions
The appellants advanced two principal arguments.
The first argument was that the Tribunal had failed to give the appellants adequate notice of the existence of the s 438 notices and the content of the documents referred to in them (being the documents referring to the anonymous allegations), which was a jurisdictional error, relying on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (VEAL) and SZMTA. The appellants submitted that, at the hearing, the Tribunal made a very general reference to an anonymous allegation that the appellants were “faking” their claims, but the Tribunal did not reveal to the appellants any of the specific allegations made, namely:
(a)the appellant husband had obtained false documents on his last visit to Pakistan;
(b)the appellant husband claimed to be suffering from a mental disability but was still able to work as a security guard; and
(c)the appellant wife claimed to have been pregnant and had an abortion, when she had not been pregnant at all.
The second argument was that, during the hearing, the Tribunal asked a number of questions about the appellant wife’s pregnancy and appeared to have doubts about the veracity of the claimed pregnancy. The appellants submitted that, if the content of the documents referred to in the s 438 notices had been put to the appellants, which included an allegation about the appellant wife’s pregnancy, they could have put further submissions to the Tribunal about the pregnancy. The failure of the Tribunal to inform the appellants adequately about the contents of the s 438 notices deprived the appellants of an opportunity to address all of the issues in the case. The outcome might have been different had the Tribunal properly informed the appellants.
Minister’s submissions
The Minister submitted that it should be accepted that the Tribunal disregarded the anonymous allegations in the documents referred to in the s 438 notices (as it stated in its reasons) and it should not be inferred that the Tribunal acted upon either of the notices “in some unspecified way”: cf MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. In relation to the appellants’ argument about the Tribunal’s questions concerning the appellant wife’s pregnancy, the Tribunal ultimately found that the wife had been pregnant and had a miscarriage (at [30]). Accordingly, further disclosure of the s 438 notices and the anonymous allegation about the pregnancy could not have affected the decision.
The Minister further submitted that, in so far as the anonymous allegations were potentially adverse to the appellants, the appellants were on notice of the substance of the allegations. Accordingly, the appellants were not deprived of an opportunity to give evidence or make arguments as to why they satisfied the criteria for the grant of a protection visa, and were not deprived of the possibility of a successful outcome: SZMTA at [2] and [48].
Further and in any event, the Tribunal expressly stated (at [51]) that it “makes no adverse findings in relation to the anonymous letter received by the Department. … The Tribunal has no knowledge of the identity of the author and gives the letter no weight”. As the High Court held in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [83], “[o]rdinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry”.
Consideration
Three questions arise in relation to the second ground of appeal. First, did the Tribunal fail to afford the appellants procedural fairness, either by failing to inform them of the s 438 notices or by failing to put the anonymous allegations to them for a response? Second, was the Tribunal’s decision affected by error in that it received and acted upon an invalid s 438 notice? Third, if either of the foregoing errors occurred, was the error material to the decision? In answering those questions, it is necessary to have regard to the principles stated in VEAL and SZMTA.
In VEAL, two Eritrean nationals, a husband and wife, applied for protection visas. The Department received an unsolicited letter in which the author made allegations against the husband. The Department sent the letter to the Tribunal. The Tribunal did not tell the husband that it had received the letter or ask him about the substance of the allegations made in it. The Tribunal affirmed the delegate’s decision not to grant protection visas to the husband and the wife. In its reasons for decision, the Tribunal stated that it had been unable to test the claims made in the letter and accordingly gave it no weight. Despite that, the High Court concluded that procedural fairness required the Tribunal to inform the husband of the substance of the allegations made in the letter before reaching its decision. The following principles emerge from the decision:
(a)First, procedural fairness requires that an applicant before the Tribunal be given the opportunity to address adverse information that is credible, relevant and significant to the decision to be made (at [15]).
(b)Second, because principles of procedural fairness focus upon procedures rather than outcomes and are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised, the question of what is credible, relevant and significant information must be determined by a decision-maker before the final decision is reached (at [16] and [17]).
(c)Third, it follows that the expression “credible, relevant and significant information” must be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision (at [17]).
(d)Fourth, it also follows that a Tribunal’s statement, that it gave no weight to certain information in reaching its decision, does not demonstrate that there was no obligation to reveal that information to the applicant and to give him an opportunity to respond to it (at [18]).
(e)Fifth, the particular content of the obligation to accord procedural fairness is to be identified having regard to the particular provisions of the Act that regulate the Tribunal’s work and also to the scope and objects of the Act as a whole (at [23]). To conduct the review with procedural fairness, the applicant had at least to know the substance of the adverse information (at [27]).
In SZMTA, the High Court considered the procedural fairness obligations that arise if the Department gives the Tribunal a notice under s 438 of the Act, and the consequences of giving an incorrect and invalid notice. The following principles emerge from the decision:
(a)First, when given a notice under s 438, 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 (at [23] per Bell, Gageler and Keane JJ).
(b)Second, the Tribunal also 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 is that the Tribunal has no power under s 427(1)(c) and no obligation under ss 424AA, 424A or 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised. The discretion must be exercised within the bounds of reasonableness (at [24] per Bell, Gageler and Keane JJ).
(c)Third, by reason of the foregoing, the giving of a valid notice under s 438 alters the procedural context within which the Tribunal’s duty of review is to be conducted. Procedural fairness ordinarily requires that an applicant be apprised of an event which results in such an alteration. The applicant has an entitlement under s 423 to present a legal or factual argument in writing either to contest the assertion in a notice given under s 438 that the section 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 (at [29] – [31] per Bell, Gageler and Keane JJ; see also at [115]-[116] per Nettle and Gordon JJ).
(d)Fourth, because procedural fairness requires disclosure of the fact of a s 438 notification, non-disclosure of the fact of notification to the applicant constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness (at [38] per Bell, Gageler and Keane JJ; at [115] per Nettle and Gordon JJ). 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 (at [38] per Bell, Gageler and Keane JJ).
(e)Fifth, an incorrect notification that s 438 applies in relation to a document or information is a breach of the statutory procedures which condition the conduct of a review by the Tribunal (at [44] per Bell, Gageler and Keane JJ; at [76] and [117] per Nettle and Gordon JJ). However, the breach will not constitute jurisdictional error unless it is material: that is, unless compliance could realistically have resulted in a different decision (at [45] per Bell, Gageler and Keane JJ). The question of materiality is an ordinary question of fact in respect of which the applicant bears the onus of proof (at [46] per Bell, Gageler and Keane JJ).
(f)Sixth, absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can be justified in inferring that the Tribunal accepted the validity of the s 438 notice and paid no regard to the notified document or information in reaching its decision. If those inferences arise, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account (at [47]-[48] per Bell, Gageler and Keane JJ).
Turning to the first question in light of the above principles, the facts are that, in the course of the proceedings before the first constituted Tribunal, the appellants were not informed that a s 438 notice had been issued but were advised of the substance of the documents referred to in the notice, being the anonymous allegations. The allegations were put to the appellants for a response and they provided a response. The first constituted Tribunal stated in its reasons for decision that it gave no weight to the anonymous allegations. While the first constituted Tribunal did not advise the appellants that a s 438 notice had been received, in my view there was no breach of the principles of procedural fairness. Consistently with the principles stated in VEAL, and exercising the statutory discretion under s 438(3)(b), the first constituted Tribunal disclosed the substance of the information to the appellants and sought their response. Having taken those steps, the Tribunal then disregarded the anonymous allegations.
Similarly, the second constituted Tribunal, whose decision is the subject of this appeal, did not notify the appellants of the s 438 notices. However, during the hearing, it directed the appellants’ attention to the anonymous allegations (by reference to the first constituted Tribunal) and advised the appellants that it would disregard the allegations. In the circumstances, in my view there was no breach of the requirements of procedural fairness by the Tribunal. The appellants had been informed of the allegations in the context of the first Tribunal hearing and had responded to them. That material was before the second constituted Tribunal. If there was any doubt about that in the minds of the appellants, the Tribunal member raised the matter with them during the hearing. The Tribunal informed the appellants during the hearing that it would disregard the allegations and its reasons for decision state that it did. Given that procedural history, in my view the Tribunal did not breach the requirements of procedural fairness.
If I am wrong in that conclusion, in my view any breach by the Tribunal was not material and accordingly did not constitute jurisdictional error. In the circumstances described above, there was no realistic possibility that the decision could have been different if the Tribunal had notified the appellants of the s 438 notices, and again notified the appellants of the anonymous allegations. Those circumstances were that: (i) a previous Tribunal, addressing effectively the same issues, had put the allegations to the appellants, received a response and decided to disregard the allegations; (ii) during the hearing the Tribunal adverted to the allegations and informed the appellants that it would disregard them; and (iii) the Tribunal then expressly disregarded the allegations. The allegations were not suppressed; the appellants were not denied an opportunity to make submissions about the allegations if they chose to do so; and the Tribunal disregarded the allegations.
The appellants’ argument that the Tribunal appears to have been influenced by the anonymous allegations because it asked the appellant wife questions about her pregnancy must be rejected. An examination of the transcript shows that the doubt raised by the Tribunal was not the fact of the wife’s pregnancy; the doubt was about the appellants’ claim to fear harm in Pakistan. The questions were to the effect: if pregnant, why travel to a place that was unsafe? Ultimately, the Tribunal accepted that the appellant wife was pregnant when she travelled to Pakistan in September 2012 (at [30]).
Turning to the second question, the Minister accepted that the second s 438 notice was incorrectly issued (not being justified by the public interest criterion in s 438(1)(a)) and therefore invalid. It follows that that was a breach of the statutory procedures which conditioned the conduct of the review by the Tribunal. Nevertheless, in my view the invalid second s 438 notice did not constitute jurisdictional error. In the circumstances of this case, the failure to comply with s 438 did not deprive the appellants of a realistic possibility of a successful outcome. If s 438 was complied with, the notice would not have been issued. As discussed earlier, there were two sets of documents referred to in the second notice. The first set of documents were those that were the subject of the first notice. The issue of the invalid second notice could have had no effect on the conduct of the review before the Tribunal in respect of those documents because they were already the subject of a valid notice (the first s 438 notice). In respect of the second set of documents, the appellants conceded that they were not relevant to the review and could not have affected the decision.
For those reasons, I dismiss ground two of the appeal.
Conclusion
The appeal should be dismissed, and the second and third appellants ordered to pay the first respondent’s costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan. Associate:
Dated: 14 February 2019
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