Arhbal v Minister for Home Affairs
[2021] FCCA 480
•15 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Arhbal v Minister for Home Affairs [2021] FCCA 480
File number(s): ADG 37 of 2019 Judgment of: JUDGE HEFFERNAN Date of judgment: 15 March 2021 Catchwords: MIGRATION – whether decision of Tribunal unreasonable – whether error of law – whether Tribunal misunderstood breadth of discretion in s 376 – whether s 359AA provides disclosure mechanism for ‘any matter’ under s 376 – materiality – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5F, 353(b), 375, 357A, 358AA, 359A, 359AA, 362A, 376 & 376(3)(b)
Migration Regulations 1994 (Cth), Schedule 2, cll 820.211(2)(a), 820.22 & reg 1.15A
Tribunals Amalgamation Act 2015 (Cth)
Cases cited: Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448
Number of paragraphs: 34 Date of hearing: 9 & 16 July 2020 Place: Adelaide Counsel for the Applicant: Mr S Ower SC Solicitor for the Applicant: Work Visa Lawyers Counsel for the Respondents: Mr P d’Assumpcao Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
ADG 37 of 2019 BETWEEN: MOHAMMED ARHBAL
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HEFFERNAN
DATE OF ORDER:
15 MARCH 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206).
REASONS FOR JUDGMENT
JUDGE HEFFERNAN
This is an application for constitutional writs with respect to a decision of the Administrative Appeals Tribunal (‘the Tribunal’). That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa (‘the visa’).
The applicant raised two grounds of review in his application filed 31 January 2019 but indicated that he only sought to press ground one:
1.The second respondent (the Tribunal) committed jurisdictional error in making its decision in Case Number 1730152 dated 11 January 2019 (the Decision) in that the Tribunal’s exercise of discretion under s. 376 of the Migration Act 1958 (Cth) (the Act) was subject to an error or law and/or was unreasonable and this materially affected the Decision.
Particulars
1.1 The Secretary provided information to the Tribunal documents or information to which s. 376 applied.
1.2 The Tribunal had regard to those documents or information in respect of making the Decision.
1.3 The Tribunal erred in law in that it failed to consider whether to disclose those documents or information under para. 376(3)(b), but only considered whether to disclose the documents pursuant to ss. 359A and 359AA and thereby erred in law and/or fettered its discretion under the former paragraph.
1.4 In the alternative, if the Tribunal did consider whether to disclose those documents or information under para. 376(3)(b), its exercise of discretion under the paragraph as unreasonable.
BACKGROUND
The applicant is a citizen of Morocco and in May 2011 he married Ms Ghizlane Ghilane, an Australian citizen.
He lodged an application for a partner visa in June 2011 and in 2014 the Minister refused his application. His wife was nominated as his sponsor. The applicant applied for a review of that decision before the Migration Review Tribunal (‘the MRT’). The decision of the delegate was affirmed by the MRT in June 2015. His application for review of that decision was refused by this Court in August 2016. The applicant lodged an appeal in the Federal Court which was successful, the decision in Minister for Immigration and Border Protection v Singh[1] having been decided by the Full Court in the interim, and remitted the matter to the Tribunal for rehearing[2]. In December 2017, a certificate which had been issued under s 357A of the Migration Act 1958 (Cth) (‘the Act’) was revoked and replaced with a certificate under s 376 of the Act (‘the certificate’). The Tribunal provided the applicant with a copy of the new certificate and invited him to comment on it. He did not do so. His migration agent requested documents pursuant to s 362A and asked for the “entire” Departmental file. The Department declined to provide him with documents on the basis that they were subject to the certificate and had been certified by the Minister as being documents the disclosure of which was not in the public interest.[3] The applicant does not dispute that he was given a copy of the certificate, that he was invited to respond to it, and that he did not do so.
[1] (2016) 244 FCR 305.
[2] The effect of the Tribunals Amalgamation Act 2015 (Cth) was to abolish the MRT and vest its’ responsibilities in the Tribunal.
[3] Court Book (‘CB’) 541.
The applicant attended a hearing before the Tribunal on 16 October 2018. The applicant took the opportunity to provide a significant amount of material to the Tribunal prior to the hearing. He was at all relevant times represented by a solicitor. The Tribunal affirmed the delegate’s decision on 11 January 2019.
LEGISLATIVE SCHEME
A mandatory criterion for the grant of the visa is that the applicant be a ‘spouse’ of the sponsor as defined in the Act.[4] The Act defines the term spouse in s 5F as follows:
[4] Migration Regulations 1994 (Cth) (‘the Regulations’) Schedule 2 cl 820.211(2)(a).
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
When determining whether a person is a spouse of the sponsor as defined in s 5F, the decision maker is to consider the matters set out in reg 1.15A of the Regulations which provides for a series of mandatory considerations.
By virtue of ss 375, 375A and 376, disclosure of material is restricted. Where, at common law, disclosure of material would ordinarily be restricted by principles of public interest immunity, s 375 operates to prohibit the Secretary from providing it to the Tribunal. Pursuant to s 375A, where the Minister certifies that the disclosure of a matter or information in a document is not in the public interest, and states in the certificate that the document or information must only be disclosed to the Tribunal, then the Tribunal must do all things necessary to ensure that it is only disclosed to a member of the Tribunal as constituted for the purposes of the review in question.
Section 376 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:
(i)has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) 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; and
(ii)has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; 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 and section 375A does not apply to the document or information.
(2)Where, pursuant to 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) shall 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)Where 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 pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
It is clear that s 376(3)(b) bestows a broad discretion on the Tribunal to disclose ‘any matter’. What seems equally clear is that s 376 does not impose the manner or a format of disclosure should the Tribunal exercise the discretion in favour by that course. That it does not do so is, as submitted by the first respondent, consistent with the prescription in s 353(b), that in reviewing a decision the Tribunal, “shall act according to substantial justice and the merits of the case”.
If the documents or information covered by the certificate would be the reason or part of the reason for affirming the decision of the delegate, then the Tribunal may give particulars to the applicant either in writing or orally pursuant to s 359A. Relevantly for these proceedings, that section does not apply to ‘non-disclosable’ information. That section provides:
Information and invitation given in writing by Tribunal
(1)Subject to subsections (2) 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.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)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 359AA.
(4)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.
(5)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 362B(1F).
Section 359AA(1) provides for oral disclosure as follows:
Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a)he 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 362B(1F).
THE TRIBUNAL DECISION
The issue before the Tribunal was whether the applicant was the spouse of Ms Ghilane.
As identified by the first respondent in his written submissions, as the challenge to the Tribunal’s decision is the legality of it in light of the provisions I have referred to above and not with respect to the finding that the applicant was not in a spousal relationship with Ms Ghilane, it is not necessary at this point to set out the reasoning of the Tribunal on that matter at great length. The Tribunal considered the matters it was required to by reg 1.15A and was not satisfied that at the time of the application the applicant met the mandatory criteria set out in cl 820.22.
With respect to the certificate issued pursuant to s 376, the Tribunal had the following to say:
9.On 4 December 2017, the certificate issued under s 375A was revoked and replaced with a certificate issued under s 376 of the Act. This provides the Tribunal a discretion to disclose the information.
10.The Tribunal wrote to Mr Arhbal on 13 August 2018 and provided a copy of the certificate issued under s 376 of the Act and invited his comment on the validity of this certificate. No comments on the validity of the certificate were received.
11.Where the information covered by the certificate was relevant to Mr Arhbal’s matter this information was put to him under s 359AA of the Act as detailed below.
With respect to s 359AA, the reasoning of the Tribunal was as follows:
45.Mr Arhbal was provided a copy of the allegation that the relationship was not genuine. This allegation was also put to him under s 359AA of the Act at the hearing. Specifically it was put to him that an allegation was made to immigration that:
•He entered Australia as a student but did not study.
•He did not apply for another visa after his student visa expired.
•He married in May 2011, maybe late May 2011.
•Ms Ghilane met him through his uncle who lives in Australia.
•After they married Ms Ghilane learned his intentions were not genuine and that he only married to obtain a visa.
•Ms Ghilane had not lodged an application for a visa, and all the papers are with Mr Arhbal and his lawyer.
•Ms Ghilane had no awareness of an application where she has sponsored you for a visa.
It continued later in the reasons with the following:
53.Another matter put to Mr Arhbal under s 359A of the Act from the immigration file was an anonymous notification that Mr Ali Arhbal (the uncle of Mr Arhbal) was attempting to sponsor his nephew for a permanent visa. It says that Mr Ali Arhbal was in jail for four· months in 1985/86 for the importation of cannabis resin sent by his (Mr Ali Arhbal’s) brother and the father of the visa applicant. It goes on to state that Mr Ali Arhbal does not seem to earn a great deal and it is doubtful he could support his nephew without drawing on cash that is not disclosed for income tax purposes.
54.He was advised this would be relevant to the financial aspects of the relationship with reference also to money deposited to Ms Ghilane’s bank account and referred to in the decision of the previous Tribunal and may support an allegation that he had paid Ms Ghilane to sponsor him for the visa. Mr Arhbal was advised that if the Tribunal relied on the information this may be part of the reason to support a finding he had paid Ms Ghilane to sponsor- him for the visa.
A third allegation was put to the applicant under s 358AA:
57A third allegation put to Mr Arhbal under s.359AA from the immigration file was that an allegation was made on 23 April 2015 that he had paid $40.000 for·sponsorship for a spouse visa. The allegation while anonymous, identified Mr Arhbal by name and gave an approximate age. It provided his country of birth and previous addresses by suburb. It provided the make of car that Mr Arhbal drives. It provided his sponsor's name and approximate age and that she was an Australian citizen but was in Morocco. The allegation is that they lodged the application and stayed together for one and a half years before Ms Ghilane told Mr Arhbal she was going to Morocco for one month but did not return. It alleges that Ms Ghilane conned Mr Arhbal, taking the money and leaving for Morocco where she currently lives. The allegation cites the source of the information being a friend of Mr Arhbal.
58.Mr Arhbal was advised that if this information is relied on the Tribunal would find either relying on this information on this own or in combination with the decision of the previous Tribunal hearing that repeat deposits of $8.000 were made into the sponsor’s bank account which could not be satisfactorily explained, supports the allegation that Mr Arhbal paid Ms Ghilane to sponsor· him for the visa.
The applicant was given an opportunity to respond to those matters and those responses are recorded in the reasons of the Tribunal.
The first respondent has submitted that it is clear by virtue of the reasons given by the Tribunal that the finding that the applicant was not the spouse of the sponsor was determined by an application of the matters referred to in reg 1.15A. That is plain when the following passage of the reasons is considered:
95I am not satisfied on the basis of the information before me and having considered the factors in r.1.15A of the Regulations that at the time of the application the parties had a commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing.
96.As a result, I am not satisfied Mr Arhbal met the requirements in s SF(2) and was the spouse of Ms Ghilane at the time of the visa application.
97Therefore the applicant does not meet cl.820.211(2)(a). As he did not meet the requirements at the time of the application, he cannot meet time of decision requirements at cl 820.22.
SUBMISSIONS
Submissions of the Applicant
The applicant provided very detailed written submissions in this matter. Whilst it is not my usual practice, it is convenient to set them out verbatim. The applicant submitted as follows:
30.The Tribunal has power to give information to the applicant pursuant to s. 363(1)(c).
31.The provision in subs. 376(3)(b), too, is expressed as a power to disclose information.
32.It follows that its exercise is subject to the implied condition that it is to be exercised within the bounds of reasonableness. In addition, a failure on the part of the Tribunal to consider exercising the power in subs. 376(3)(b) may also be legally unreasonable,FN 23 with the consequence that the decision is to be set aside, depending on the circumstances of the case.
33.In the legislative context of the Act, the content of the constraint of reasonableness under s. 376 is informed by the legislative features of the relevant scheme of review.
34.There are certain provisions by which the Tribunal has an obligation and a power to give certain information. The Tribunal is required to give the applicant certain information pursuant to ss. 359A and 359AA of the Act.
35.The first feature to note in this context is that the nature of the relationship between the various provisions as considered in Minister for Immigration and Border Protection v SZMTA. In that case, the plurality were considering the analogous provisions to ss. 359A, 359AA and 376 in Part 7 of the Act, namely ss. 424A, 424AA and 438.
36.The plurality stated:
… 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.
37.In other words, the obligation under ss. 359AA and 359A is subject to the proper exercise of discretion under subs. 376(3)(b).
38.However, the second feature is to note that the subs. 376(3)(b) has an application even where ss. 359AA and 359A do not. The requirement in ss. 359AA and 359A does not include information that otherwise falls within the definition of “non -disclosable information” in s. 5. There is no obligation to disclose “non-disclosable information”; to the contrary, the section simply does not apply to “non-disclosable information”.
39.“Non-disclosable information” is defined in s. 5. That information does not refer back to any of ss. 375, 375A or 376. However, certain categories of information that would fall within the meaning of “non-disclosable information” are identical with information that may be the subject of a certificate under ss. 375A or 376. For example:
39.1“non-disclosable information” as defined in s. 5 includes (b) information, whose “disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings”;
39.2Subs. 376(1)(a)(i) provides that the Minister may certify in respect of information, the disclosure of which “would be contrary to the public interest for any reason specified in the certificate … that could form the basis for a claim by the by the Crown in right of the Commonwealth in judicial proceedings that the matter contained in the document, or the information, should not be disclosed”.
40.The effect of this is that there is going to be certain information subject to a certificate under s. 376 that is not required to be disclosed under s. 359A or 359AA (and indeed should not be), but may nevertheless be disclosed as a matter of discretion under s. 376.
41.The third feature is that as distinct from ss. 359A and 359AA where the obligation (and the power) is to disclose “clear particulars”, the power under s. 376(3)(b) is much broader - to disclose any matter.
42.Following on from SZMTA as set out above, disclosure under, say, s. 359A is subject to an exercise of power under s. 376. But the Tribunal may otherwise choose to exercise its power under s. 376; this power is discrete and broader than any disclosure required under other provisions.
43.Finally, in terms of the relevance of “natural justice”, there is s. 357A of the Act, which expressly refers back to s. 376. This provision has an equivalent in Part 5 (s. 422B) and Part 7AA (s. 473DA). The latter is broader in its effect than s. 357A. However, even under the broader prescription in s. 473DA, in BVD17 v Minister for Immigration and Citizenship, the plurality stated:
… there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b).
44.Earlier, their Honours had stated:
The consequence of the codifying effect of s 473DA(1) … is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.
45.Edelman J, in a separate judgment (although agreeing with the outcome) stated that “even if any implication of procedural fairness were excluded by s 473DA(1), an implication with almost precisely the same content could be implied as requirement of legal reasonableness”. His Honour stated that:
… it is hard to imagine any circumstance in which the exercise of a power in a manner contrary to the requirements of procedural fairness that would be implied but for the purported exclusion by s 473DA(1) would not be legally unreasonable.
Argument
46.Unlike s. 375 or s. 375A, s. 376 allows a weighing up of the public interest considerations relating to non-disclosure and those supporting disclosure. In this sense, one solution would be treating the requirements of reasonableness when dealing with “dob in” material as overlapping with procedural fairness. However, the discretion is broader than that.
47.In the present case, the inference arises from the materials that the Tribunal did not understand that it had a separate power of disclosure under s. 376, broader than the obligation under s. 359AA. There is no weighing up process evident from the materials.
48.While the Tribunal states that it has a “discretion to disclose the information”, it nevertheless goes on to consider that disclosure is to be made under s. 359AA. The assumption appears to be that, if a discretion is exercised, disclosure can only be made under s. 359AA.
49.For the reason set out above, this was a legal error – in fact, it was not required to make such disclosure and, indeed, on the proper construction of s. 359AA, was not permitted to make disclosure under that provision in respect of information that otherwise constituted “non-disclosable information”.
50.In fact, its power was to make broader disclosure. There appears to be no consideration of this. The Tribunal erred in law in that it failed to consider whether to disclose those documents or information under para. 376(3)(b), but only considered whether to disclose the documents pursuant to ss. 359A and 359AA and thereby erred in law and/or fettered its discretion under the former section. Alternatively, if it is found that it did actually exercise the broader power, its exercise of discretion was legally unreasonable for the same reason – it misunderstood what it could do.
(emphasis in original)
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 at [21] (per Gageler, Keane and Nettle JJ), [86] (per Gordon J), [97] (per Edelman J); Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421 at [24]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [35]-[36]. See, for example, DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [37]-[39]. Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59] (Gageler J). (2018) 264 CLR 421 at [24]. Subs 376(3)(b) is similar in terms to subs 438(3)(b), albeit the width of the power in the former section is wider in that it empowers disclosure to any person who gave evidence to the Tribunal. Furthermore, under s 438(4), disclosure under subs (3) gives rise to a requirement to make a written direction under s 440. There is no equivalent in s 376. The equivalents of ss.427(1)(c), 424AA, 424A and 425 are ss 363(1)(c), 359AA, 359A and 360 respectively. See Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 454-455 [17]-[21]. Subsection 359A(4). [2019] HCA 34 at [36]. Ibid at [34]. Ibid at [61]. Ibid at [62], referring Plaintiff M174 at [26], [49], [97]. Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at [32], citing VEAL (2005) 225 CLR 88 at 100 [29]. CB 756[9]
Mr Ower supplemented his written submissions with oral submissions. In essence, his argument was that the Tribunal misunderstood and misapplied the law, in particular the breadth of its discretion under s 376 of the Act. The exercise of the discretion had been restricted because of that misunderstanding of its breadth.
Submissions of the first respondent
The first respondent submitted that ground one alleges an unspecified error of law and or unreasonableness. The first respondent submits that if s 359AA has been complied with, then any obligation to put adverse information to the applicant under s 359A falls by the wayside.
The first respondent did not tender copies of the relevant folios from the Departmental file but it was conceded by the applicant that it was not necessary for me to have these documents before me. In the first respondent’s submission, a fair reading of the decision confirms that the three issues put to the applicant under s 359AA were the issues arising from those folios. What comes from that is that the Court can be satisfied that the material in the folios was not information on which the Tribunal relied when making its’ decision. If that submission is accepted, then the applicant faces an insurmountable hurdle on the question of materiality.[5] That would be the case irrespective of whether any error occurred with respect to the application of either ss 376 or 359AA. Jurisdictional error would not have been demonstrated.
[5] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Counsel for the first respondent referred the Court to the transcript of the proceedings[6] before the Tribunal to submit that it is clear that when the three adverse issues were put to the applicant he appeared to have no difficulty understanding or responding to those matters. He sought no clarification of the relevance of the information or the consequences of the Tribunal relying on it. He did not seek additional time to respond to it although that matter was raised with him by the Tribunal. He was at all times represented.
[6] Transcript, Affidavit of Ms Lien, 17/4/19 Annexure ‘MA-2’.
The first respondent conceded that at the time the Tribunal disclosed the matter, it did, pursuant to s 359AA, consider relying on the information. Why else would it have utilised s 359AA, unless it considered the information to be adverse information on which it might rely? That point, it was submitted, ultimately goes nowhere because it is necessary to focus on what the Tribunal actually said in its reasons when determining to affirm the decision under review. When read in that light, it can be seen that it determined the matter on the basis of the considerations in reg 1.15A.
Finally, the first respondent submitted that the Tribunal disclosed the gist of the information to the applicant and that the plain fact of the matter is that the source of the information the subject of the certificate was revealed to the applicant in correspondence from the Tribunal.[7] That was acknowledged by his representative in a letter sent to the Tribunal.[8]
[7] CB 562.
[8] CB 545.
CONSIDERATION
The Tribunal specifically recognized that it had power under s 376 to disclose the information in the certificate.[9] I am not satisfied that it has been established that an inference arises that the Tribunal did not understand the nature of the power it had under s 376. Having specifically acknowledged the existence of the power in s 376 was one of disclosure, it is difficult to accept the submission of the applicant that the Tribunal proceeded on the basis that if a discretion arose it could only be exercised under s 359AA or that it misunderstood the breadth of the discretion in s 376.
[9] CB 756 [9].
With respect the argument of the applicant that the Tribunal was not permitted to make disclosure to the applicant under s 359AA, it must be rejected. The section specifically refers to circumstances in which an applicant appears at a hearing to which he or she has been invited under s 360. I accept the submission of the first respondent that s 359AA(1) of the Act provides a mechanism by which disclosure contemplated by s 376(3)(b) can occur. The reference to non-disclosable information is contained in s 359A(4)(c). Non-disclosable information is defined in s 5 of the Act in the following terms:
"non-disclosable information" means information or matter:
(a)whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would:
(i)prejudice the security, defence or international relations of Australia; or
(ii)involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b)whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c)whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
In my view, the reference to non-disclosable information in s 359A means that the terms of s 359A do not apply to non-disclosable information, not that s 359AA does not apply to non-disclosable information. The term ‘non-disclosable information’ is not used in s 359AA. Where information is non-disclosable, the disclosure mechanism contemplated by s 359A(1) does not apply to it. In addition, by virtue of s 359A(3), where the form of disclosure contemplated in s 359AA is used by the Tribunal, s 359A does not apply. That is entirely different to the submission put by the applicant that s 359AA does not permit the disclosure of non-disclosable information. The authority cited by the applicant, Minister for Immigration and Citizenship v Kumar,[10] dealt with s 359A, not s 359AA. Section 359AA operates as an alternative mechanism to s 359A with respect to matters and information to which that section applies, but it also operates as a disclosure mechanism with respect to s 376(3)(b). When the reasons of the Tribunal are read in light of that, the submission that an inference can be drawn that it failed to consider the exercise of the discretion to make disclosure under s 376(3)(b) cannot be accepted. The relevant passages of the reasons simply demonstrate that the Tribunal adverted to the discretion under s 376(3)(b) and determined appropriately to apply the disclosure mechanism provided for in s 359AA.
[10] (2009) 238 CLR 448 [17]-[21].
I am not persuaded by the submission of the applicant that the discretion under s 376(3)(b) to “disclose any matter contained in the document or the information” is broader than the discretion in s 375AA to disclose “clear particulars of any information”. The discretion in s 376(3)(b) does not appear to extend to disclosing the document itself. The discretion in s 375AA clearly extends to ‘information’ which might be contained within documents. The only way that meaningful and reasonable disclosure could be made of ‘any matter’ contained in a document or information would be for clear particulars of it to be given. There is no reason to conclude that clear particulars could not extend to a verbatim disclosure of the relevant matter in the document or information. I am not satisfied that it has been demonstrated that the Tribunal misunderstood the breadth of the discretion under s 376 to disclose ‘any matter’.
Finally, even in circumstances where jurisdictional error is demonstrated, there is a discretion as to whether or not to grant relief. The error must be a material error.[11] I accept the submission of the first respondent that the applicant cannot in this matter demonstrate materiality. The decision of the Tribunal did not turn on any of the information disclosed by way of s 359AA. The decision involved a straightforward application of the factors in reg 1.15A.[12]
[11] Hossein, op cit; SZMTA, op cit.
[12] See [20] herein.
In those circumstances, even if the applicant could demonstrate jurisdictional error, and I am not satisfied that he has, it would not, in the circumstances of this matter, have affected the end result. The applicant could not be said to have been deprived of a successful outcome given the matters which the Tribunal found to be dispositive.[13] Jurisdictional error has not been demonstrated.
[13] Hossain op cit.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Heffernan. Associate:
Dated: 15 March 2021
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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