BGW17 v Minister for Immigration and Border Protection
[2021] FedCFamC2G 306
•1 December 2021
FEDERAL CIRCUIT AND FAMILYCOURT OF AUSTRALIA
(DIVISION 2)
BGW17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 306
File number(s): MLG 605 of 2017 Judgment of: JUDGE RILEY Date of judgment: 1 December 2021 Catchwords: MIGRATION – Administrative Appeal Tribunal – protection visa – whether the Tribunal’s failure to disclose a s.438 certificate was a material jurisdictional error – whether the Tribunal improperly rejected or did not consider the applicant’s documents – whether the Tribunal being unable to find the applicant’s home village on a map was a jurisdictional error – whether the Tribunal, having said that the applicant faced a real risk of harm in his home region, was bound to not affirm the delegate’s decision – the Tribunal finding that the applicant could reasonably relocate within Pakistan. Legislation: Migration Act 1958, s.438 Cases cited: Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Division Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 18 October 2021 Place: Melbourne Advocate for the applicant: In person Solicitor for the applicant: None Counsel for the first respondent: Jonathan Barrington Solicitor for the first respondent: Sparke Helmore Lawyers Counsel for the second respondent: No appearance Solicitor for the second respondent: Sparke Helmore Lawyers ORDERS
MLG 605 of 2017 FEDERAL CIRCUIT AND FAMILYCOURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGW17
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
1 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 27 March 2017 be dismissed.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a citizen of Pakistan. He is not legally represented.
The Tribunal summarised the applicant’s claims in paragraph 20 of its reasons for decision as follows:
The applicant claims to fear returning to Pakistan because he will be harmed or killed by the Pakistani Taliban because of volunteer work in the local school and the Polio Vaccination Program in and around his home village, and because he is perceived as having westernised views. He also claims to fear returning to Pakistan because he will be harmed or killed by the Uncle of his former fiancée because he is perceived to have injured the honour of the uncle’s family.
BACKGROUND
In his written submissions filed on 11 May 2018, the Minister provided the following background to this matter:
9.The Applicant is a citizen of Pakistan. He first arrived in Australia on 28 March 2013 as the holder of a Prospective Marriage Visa. On 6 December 2013, the Applicant applied for a Protection Visa. In support of his application, the Applicant made a Statutory Declaration.
10.On 27 November 2015, a delegate of the Minister refused to grant the Applicant a Protection Visa for the reasons he gave at CB 85 to 106. The delegate also notified the Tribunal that the confidential information was subject to s 438(1)(b) of the Act as the information had been given to the Minister’s Department ‘in confidence’. The Delegate stated that the confidential information should not be disclosed to the Applicant because it was provided in confidence by another person or organisation; was from a third party whose identity could not be disclosed to the Applicant, and if released, would otherwise affect the privacy of another person.
11.On 4 January 2016, the Applicant applied for review of the Minister’s delegate’s decision to the Tribunal.
12.On 24 November 2016, the Applicant appeared at a hearing before the Tribunal to give evidence and present arguments. The Applicant was not represented at the hearing before the Tribunal. The Tribunal received certain documents in support of the Applicant’s case.
13.On 6 March 2017, the Tribunal affirmed the Minister’s delegate’s decision for the reasons it gave at CB 139 to 160.
(footnotes omitted)
…
2.On 27 March 2017, the Applicant applied to this Court for judicial review of the Tribunal’s decision (the original application).
3.On 14 December 2017, Judge Riethmuller dismissed the original application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) as there was no appearance by or on behalf of the Applicant at the hearing scheduled that day.
4.On 24 January 2018, by consent, Judge Riethmuller ordered that the orders of 14 December 2017 be set aside and the original application be listed for final hearing on 21 May 2018 (later scheduled to 24 May 2018). The Applicant was to file and serve any amended application, affidavits and written submissions 28 days before the final hearing. As at the date of these submissions, the Applicant has filed no further materials in support of the original application.
In his written submissions filed on 15 July 2021, the Minister provided the following procedural background to this matter:
2.On 6 March 2017, the Administrative Appeals Tribunal (the Tribunal) decided to affirm a decision of a delegate of the First Respondent (the Minister) not to grant the Applicant a protection visa.
3.The Tribunal had before it material that was subject to a valid notification issued by the Secretary under s 438(2) of the Migration Act 1958 (Cth) that certain information should not be disclosed to the Applicant on the basis that it had been provided to the Department “in confidence”. (That material is Confidential Annexure B.)
4.On 22 March 2017, the Applicant sought judicial review in respect of the of the Tribunal’s decision. The judicial review proceeding was heard by Judge Riethmuller on 24 May 2018. At the hearing, the Minister sought a direction under s 130(1) of the Evidence Act 1995 (Cth) that Confidential Annexure B not be adduced on public interest immunity grounds – namely, that adducing the document would result in the disclosure, or potential ascertainment, of the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth.
5.Confidential Annexure B was not disclosed to the Applicant while that application under the Evidence Act remained outstanding.
6.The learned primary judge made orders dismissing the judicial review proceeding on 6 September 2018, and gave reasons for doing so. However, it was apparent that the Court had regard to the material in Confidential Annexure B while considering the substance of the judicial review proceeding. This was done without expressly ruling on the Minister’s Evidence Act application as a preliminary matter, and importantly, without Confidential Annexure B ever being disclosed to the Applicant.1
7.The Applicant subsequently appealed to the Federal Court. On 1 August 2019, Justice Anderson of the Federal Court made orders, by consent, remitting the matter to the Federal Circuit Court. The Federal Court noted, again by consent, that the course adopted below resulted in a denial of procedural fairness to the Applicant.
8.On 11 May 2021, the matter was listed before her Honour Judge Riley. On that occasion, the Minister’s representatives gave the Applicant copies of the Allan affidavit (with no Confidential Annexure B), and the Thomas affidavit. The matter was otherwise adjourned to 9 August 2021 for the hearing of an interlocutory application for public interest immunity over Confidential Annexure B (with consequential timetabling orders).
:BGW17 v Minister for Immigration and Border Protection [2018] FCCA 2488, at [39]-[41].
CONFIDENTIALITY OF ANNEXURE B
At the hearing on 9 August 2021, I made an order that:
Annexure B to the affidavit affirmed by Ashleigh Allan on 11 May 2018 remain confidential and not be adduced into evidence in this proceeding.
I gave ex tempore reasons for that order, which were as follows, with minor amendments:
1.This is an application by the Minister for Immigration for an order that there be public interest immunity in respect of annexure B to the affidavit affirmed by Ashley Allen on 11 May 2018. This application has arisen in the context of a refugee application. The matter was originally determined by Judge Riethmuller, who unfortunately did not directly address the Minister’s application for an order for public interest immunity under s.130(1) of the Evidence Act 1995. The matter went on appeal to the Federal Court where orders were made by consent referring the matter back to this court for that particular issue to be dealt with, along with the application generally.
2.The matter has been listed today for hearing and determination of the public interest immunity question. I have looked at annexure B. The applicant has been given a copy of the affidavit of Ashley Allen without annexure B and has also been given a copy of the affidavit of Michael Anthony Thomas affirmed on 14 May 2018.
3.The Minister filed written submissions dated 15 July 2021.The applicant was given an opportunity to file written submissions, but he did not do so. He is unrepresented.
4. Section 130 of the Evidence Act 1995 provides as follows:
Exclusion of evidence of matters of state
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding--whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant--whether the direction is to be made subject to the condition that the prosecution be stayed.
(6)...
5.It can be seen from that section that the court must first ascertain whether the document relates to matters of State. The Minister said that annexure B falls within s.130(4)(e) because it would:
disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State[.]
6.That test is satisfied in respect of annexure B because disclosure of the document would disclose the identity of a confidential source of information and that information relates to the administration of a law of the Commonwealth, being the Migration Act 1958 (“the Act”).
7.That being so, the court is then required to consider the matters set out in s.130(5) of the Evidence Act 1995 to consider the balance between the interest in the confidentiality of the document against the public interest in admitting all relevant evidence in the hearing of this proceeding.
8.The first matter that the court must consider, under s.130(5)(a), is the importance of the information or the document in the proceeding. There is nothing in annexure B that would be of importance in the proceeding. Judge Riethmuller said in his reasons for decision at paragraph 39:
The factual claims made in the documents, even if accepted, largely are of no relevance to the issues that the Tribunal had to determine. However the document does make a bare allegation that the applicant may be seeking a protection visa for his own personal and economic benefits, rather than for protection from a genuine fear or harm.
9.The statement in annexure B, that the applicant is seeking a protection visa for personal benefit rather than for protection from harm, is simply a bare assertion. The statement was not substantiated or particularised. It is completely unhelpful, one way or the other. It could not be regarded as assisting in the determination of the applicant’s application in any way.
10.There is another statement in annexure B, which Judge Riethmuller did not disclose in his reasons for judgment. That statement was of even less relevance to the matters the Tribunal was required to determine than the bare assertion mentioned above.
11.The Tribunal said at paragraph 24 of its reasons for decision that the documents in annexure B:
a. were of no evidentiary value;
b. were the untested and unsubstantiated opinion of a third party; and
c. were given in confidence.
12. The Tribunal said that:
a. it paid no regard to the documents in annexure B;
b. it gave them no weight in the review; and
c. they were the subject of a certificate under s.438(1)(b) of the Act.
13.The Tribunal’s approach seems to have been the only sensible approach to the documents in annexure B as the assertions they contained were without any detail or substantiation. They cannot be regarded as helpful one way or the other. As the Minister has submitted, there would have been no practical injustice in the Tribunal not providing a copy of the documents in annexure B to the applicant, given that they were not material either way.
14.The documents in annexure B were not relevant to the Tribunal’s determination, and they are not relevant to the determination of the matter presently before the court.
15.The matters for the court to consider in the balancing exercise under s.130(5)(b) and (f) of the Evidence Act only apply if the matter is a criminal proceeding. This is not such a proceeding.
16.The next matter for the court to consider in the balancing exercise under s.130(5) of the Evidence Act is set out in paragraph (c) of that subsection and is the nature of the cause of action to which the document or information relates and the nature of the subject matter of the proceeding. This is an application for a protection visa. It is inherently a very serious matter. In such matters, the court might be inclined to err on the side of anything that might assist an applicant. However, as I have already said, there is nothing in annexure B that could assist the applicant in this case, whether before the Tribunal or this court.
17.The next factor for the court to consider in the balancing exercise under s.130(5) of the Evidence Act is set out in paragraph (d) of that subsection and is the likely effect that adducing evidence of the information document and the means available to limit its publication. It is most important that the documents in annexure B are not disclosed to the applicant. As the applicant is not represented, this is not a case where the court can release annexure B to the applicant’s legal representatives on the condition that they not release any or part of the information in it to the applicant. There seems to be no way of disclosing annexure B to the applicant while usefully limiting its publication.
18.The Thomas affidavit sets out various matters which are said to the likely effects of adducing the evidence. The first of those is that disclosure of annexure B, and placing it into evidence, would identify a confidential source of information, being an informant, in the course of the department’s administration of the Migration Act. That is patently correct.
19.Mr Thomas then said that release of annexure B would potentially found an action by the informant for breach of confidence. The Minister noted that, although the letter was not expressly stated to have been given in confidence:
a. it has the quality of a confidential communication; and
b.it was received in circumstances in which an obligation of confidence could be inferred.
It seems to me that those points are sound.
20.Mr Thomas then said that release of annexure B would compromise the physical safety and wellbeing of the informant. Having read annexure B, I consider this claim by Mr Thomas is perhaps drawing a long bow, but it probably cannot be entirely discounted.
21.Mr Thomas then said that, because of the previous factor, disclosure of annexure B could inhibit the future disclosure of information from third parties to the department and that could harm the department’s ability to administer the Migration Act. Whether or not the physical safety and wellbeing of the informant are at risk, it seems to me that any disclosure of annexure B could have the effect of diminishing the likelihood of future disclosures of information to the department.
22.The next factor for the court to consider in the balancing exercise under s.130(5) of the Evidence Act is set out in paragraph (e) of that subsection and is whether the substance of the document has already been published. An aspect of the document was published in Judge Riethmuller’s, as he then was, reasons for judgment, as mentioned above. However, the critical points that the Minister wishes to remain confidential are not the part that has already been released. The critical points are the identity of the informant and one other assertion that the informant made. At this stage, those critical points have not already been published.
23.Taking into account all those matters, it seems to me that the balance falls on the side of not disclosing annexure B. I cannot see any benefit to the applicant in the determination of this case, whether by the Tribunal or this court, in him knowing what is in annexure B. It is of no relevance to the case and would not be of any assistance to him.
THE TRIBUNAL’S REASONS FOR DECISION
In relation to the applicant’s to fear harm from his former fiancee’s family, the Tribunal concluded at [40]:
…the tribunal has accepted that there was a proposed marriage and that the uncle of the bride was unhappy about that marriage because he wanted her to marry one of his sons to keep control of the family property. This is evidence of a family dispute but falls far short of explaining the seriousness reported by the applicant, said to place him at risk of an ‘honour killing’. Taking into account the public celebration of the engagement and the fact that the applicant lived in the country in close proximity to the uncle up until he left to marry [the fiancée?] without any threats or actions taken by [the Uncle], the tribunal does not accept that there was ever a risk of serious harm to the applicant from [the Uncle]. The tribunal does not accept that the applicant is currently of any interest to [the Uncle] given the ending of the engagement. The tribunal has not accepted that the applicant has been threatened ‘if he didn’t go ahead with the marriage’ or that a ransom has been demanded in return for his life. The tribunal finds that there is no real chance of serious harm to the applicant from [the Uncle] because of the marriage proposed with [the fiancee]. The tribunal similarly finds that there is no real chance of serious harm to the applicant from [the Uncle] because of the breakdown of the marriage or because of a perception held by [the Uncle] that it was the applicant who ended the marriage. The tribunal finds that any risk of harm to the applicant from [the Uncle] if he was to return to Pakistan is remote.
In relation to the applicant’s volunteer work in the local school and in the polio vaccination program, the Tribunal concluded at [81] that:
… based on his past history of persecution and the ongoing attacks on and threats of violence to polio workers and teachers in [a certain area], the tribunal is satisfied that if he were to undertake volunteer work as a teacher or polio worker in his home village in future, he would face a real chance of serious harm due to the risk of being attacked whilst doing that work.
However, the Tribunal considered that the applicant could reasonably relocate within Pakistan, saying at [89] that:
… The tribunal is satisfied that his particular circumstances (including his past work as a polio worker and teacher) are not such that he would face any particular risk of harm from or being targeted by extremists outside his home area and that even taking into account the generalised violence, it is reasonable for him to locate within Pakistan to avoid the risks to him in his home area. The applicant does not have a profile or other characteristic which would bring him to the attention of extremists in a large urban environment.
WRITTEN GROUNDS OF REVIEW
In the application filed on 27 March 2017, under the heading “Grounds of application”, the applicant said:
I applied for refuge visa (class XA) (subclass 010) on 06/12/2013. The delegat[e] refused my application on 27/11/2015 on the basis that I did not satisfy the requirements of the visa. I further applied for a review application to the Tribunal on 04/01/2016. The Tribunal invited me to attend hearing to present evidence in support of my application. I presented argument and notified the Tribunal that I provided all the document
andwhat requires and Itoldexplain them how I fear for my life in Pakistan.However, the Tribunal refused to grant visa so I am not satisfy with the decision made by AAT on my application. I believe there is an error therefor I want to appeal against the decision in the court.
The error is I believed that they done investigation back in Pakistan. Last time the officer couldn’t find my village in Pakistan map and she said I agree with that you have real threat in back in home. between interview the officer reject my all documents and he didn’t even check my documents. When I received my decision I am shocked because I gave them everything but still they not satisfy. I come to you because my documents all is legal and checked then give me a decision.
The first two paragraphs of the grounds of review are not grounds of review as such, but a summary of the history of the matter.
In relation to the third paragraph of the grounds, I note that the delegate was a man and the Tribunal member was a woman. The applicant’s references to “the officer” and “he” seem to be references to the delegate. This court is not empowered to review the decision of the delegate. Whether or not the delegate rejected the applicant’s documents, and whether or not the delegate did not even check the applicant’s documents, is not relevant to whether the Tribunal made a jurisdictional error. This court is only able to consider whether the Tribunal made a jurisdictional error.
If the applicant did, in fact, mean that it was the Tribunal that rejected his documents and did not even check them, I note that the applicant provided to the Tribunal on 15 November 2016 the following documents:
(a)a letter certifying that the applicant had worked as a voluntary teacher at a particular school; and
(b)documents relating to his work for the polio program.
The Tribunal did not reject those documents. The Tribunal clearly did check them, because it analysed them. The Tribunal noted that the applicant appeared to have embellished his claims before the delegate. However, the Tribunal basically accepted that the documents were genuine and accurate with one exception. A letter stated that the applicant worked on the polio program from 15 December 2011 until 31 December 2012. The Tribunal concluded, at paragraph 64 of its reasons for decision, that the applicant did not work on the polio program after June 2012, when his friends were attacked. The Tribunal gave reasons for its conclusion, including inconsistencies in the applicant’s own evidence. The conclusion was open to the Tribunal.
In relation to the point about the Tribunal being unable to find the applicant’s village on a map, the Tribunal said in paragraph 28 of its reasons for decision that, during the hearing:
… The applicant pointed out the region on a map in which [his fiancee’s] family assets are held, and it was noted to be quite close to his own village.
It is not entirely clear whether the Tribunal actually found the applicant’s village on the map, or just accepted that it was near the region where his fiancee’s family had assets. Whether the Tribunal could find the applicant’s village on a map of Pakistan does not really matter, in circumstances where the Tribunal knew approximately where it was. The applicant has not pointed to any error that flowed from the Tribunal not knowing the precise location of the applicant’s village.
In relation to the claim that the Tribunal member accepted the applicant’s claim that he faced a real threat back home, that was reflected in the Tribunal’s reasons for decision. The Tribunal accepted that the applicant faced a real risk of harm in his home region, but considered that he could reasonably relocate elsewhere within Pakistan. There was no error, or inconsistency, in that finding. The Tribunal did not mislead the applicant by saying that he faced a real risk of harm in his home area. The relocation findings were open to the Tribunal.
All in all, I am not satisfied that the Tribunal made any jurisdictional error of the type mentioned in the applicant’s grounds of application.
ORAL GROUNDS OF REVIEW
In his oral submissions to this court, the applicant reiterated the point about the map. For the reasons discussed above, that was not a jurisdictional error.
The applicant also said in oral submissions that the Tribunal member had said that in his village, he was not safe, but in another city, he would be safe. Again, for the reasons discussed above, that was not a jurisdictional error.
THE S.438 CERTIFICATE
At the substantive hearing before me, the Minister conceded that the Tribunal made an error of law in not disclosing to the applicant the s.438 certificate regarding annexure B. Section 438 of the Act 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.
However, the Minister submitted that the error was not material. The Minister relied on MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17, where Kiefel CJ, Gageler, Keane and Gleeson JJ said:
Proof of materiality of a failure to disclose a notification under s 438(2)(a) of the Act
61.Necessary next is to consider the more specific question of what historical facts a plaintiff in an application for judicial review must prove in order to establish the materiality of a breach of procedural fairness constituted by failure on the part of the Tribunal, in the conduct of a review under Pt 7, to disclose the existence of a notification by the Secretary under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary pursuant to the procedural obligation imposed on the Secretary by s 418(3).
62.The automatic statutory consequences of a notification under s 438(2)(a), spelt out in SZMTA, are that the Tribunal has no power to take information covered by the notification into account in making its decision unless it affirmatively exercises the discretion conferred by s 438(3)(a) and has no power to disclose that information to the applicant for review unless it affirmatively exercises the discretion conferred by s 438(3)(b). Also spelt out in SZMTA is that the Tribunal is obliged to exercise those discretions within the bounds of reasonableness and is obliged to perform its procedural obligations under ss 424AA, 424A and 425 to the maximum extent permitted by the reasonable exercise of the discretion conferred by s 438(3)(b). It is precisely because a notification has those statutory consequences that the implied condition of procedural fairness requiring the Tribunal to give the applicant for review notice of the notification was held in SZMTA to arise. Armed with notice of the notification, the applicant for review becomes equipped to exercise the general entitlement that he or she has under s 423 specifically to present legal and factual argument to the Tribunal for a favourable exercise of the discretions conferred by s 438(3)(a) and (b).
63.The materiality of a failure to disclose a notification under s 438(2)(a) must in that context turn on the potential for information covered by the notification to have borne on the decision which the Tribunal in fact made on the review and on how the Tribunal in fact dealt with that information in making that decision. The potential for information covered by the notification to have had some subconscious impact on the Tribunal in making the decision can for a moment be deferred. As to the potential for information covered by the notification to have impacted on the Tribunal’s conscious deliberation if taken into account in making the decision, two categories of case have been shown to have arisen.
64.The first category of case, illustrated by SZMTA, is where information covered by the undisclosed notification might have the potential to have borne on the decision in a manner helpful to the applicant. Logically, disclosure of the notification in a case in that first category could not have resulted in the Tribunal making a different decision if the Tribunal did in fact take the information into account in making the decision that it did. Hence, it was emphasised in SZMTA that a necessary but not sufficient step in establishing the materiality of non-disclosure in that case was proof on the balance of probabilities that the Tribunal did not take the potentially supportive information into account in making its decision.
65.The second category of case, illustrated by the circumstances giving rise to this appeal, as well as by MZAOL and CQZ15, is where information covered by the undisclosed notification might have the potential to have borne on the decision in a manner adverse to the interests of the applicant. Logically, disclosure of the notification in a case in that second category could not have resulted in the Tribunal making a different decision if the Tribunal did not in fact take the information into account in making the decision that it did. Hence, as was recognised by Mortimer J and emphasised by the Full Courts in both MZAOL and CQZ15, a necessary but not sufficient step in establishing non-disclosure to have been material in a case in that category is proof on the balance of probabilities that the Tribunal did take the potentially adverse information into account in making its decision.
66.There is no reason to think that the ease or difficulty of discharging the burden of proof should in practice be the same for a plaintiff in each category of case. To the contrary, the statutory consequences of giving a notification for the procedure to be adopted by the Tribunal provide reason to think that in practice an inference that the Tribunal did not take potentially helpful information into account in making its decision will more readily be drawn on the balance of probabilities than will an inference that the Tribunal did take potentially adverse information into account in making its decision. That is because, as the majority observed in SZMTA, “[t]he drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act”. The majority continued:
“[T]he Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). 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 therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.”
67.That observation of the majority was singled out for criticism by Mortimer J in the judgment under appeal as appearing to require a court on judicial review of a decision of the Tribunal to apply a “presumption” that the Tribunal did not take information covered by a notification into account in making the decision. The observation was not so stated and should not be so interpreted. The observation is no different in its significance or its generality from the routinely cited and routinely illustrated observation in Minister for Immigration and Multicultural Affairs v Yusuf to the effect that the obligation imposed on the Tribunal by s 430(1)(c) to set out its findings on material questions of fact entitles a court to infer that a matter not mentioned by the Tribunal in the statement of the reasons that it in fact gives for its decision was not considered by it to be material.
68.The plaintiff on an application for judicial review of a decision of the Tribunal faces no presumptive impediment to the discharge of his or her burden of proof. Whether or not the plaintiff has discharged the burden of proving on the balance of probabilities that particular information covered by a particular notification was or was not taken into account by the Tribunal in making the decision under review falls to be determined at the end of the day by reference to inferences appropriate to be drawn from the totality of the evidence adduced on the application.
69.Before turning to examine whether the appellant discharged his burden of proving on the balance of probabilities that the Tribunal took potentially adverse information covered by the notification into account in making its final decision in the present case, it is appropriate to return to the topic of the potential for information covered by a notification to have had a subconscious impact on the Tribunal even if the Tribunal did not consciously take that information into account. The potential arises from the availability of an inference, which the appellant seeks to call in aid, that the Tribunal can be expected in the conduct of a review at least to look at information covered by a notification for the purpose of considering exercise of the discretions conferred by s 438(3)(a) and (b).
70.Quite apart from practical difficulties inhering in proof of a subconscious impact, there is a conceptual difficulty in fathoming how the potential for information covered by a notification to have had an impact on the subconscious of a member who constitutes the Tribunal can properly bear on the legal consequence of a failure to discharge the procedural obligation that it breaches through non-disclosure of a notification. As was noted in Minister for Immigration and Border Protection v SZSSJ, whilst “compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power”, “[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”. There is an oddity in conceiving of the opportunity to be heard of which the appellant was deprived by non-disclosure of the notification as a lost opportunity to present legal and factual argument to the Tribunal directed to the Tribunal’s subconscious. There is a similar oddity in thinking that the Tribunal was required to examine its own subconscious in considering the exercise of the discretions conferred by s 438(3)(a) and (b).
71.Best is to conceive of the potential for information covered by a notification to have had a subconscious impact on the Tribunal not as bearing on the statutory consequence of non-compliance with the Tribunal’s procedural fairness obligation to give notice of the notification but rather as having the potential to bear on the discharge of the Tribunal’s distinct obligation of procedural fairness to ensure that what occurs in the conduct of the review “is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which [Pt 7] provides might reasonably apprehend that the [Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review”.
72.In the case of potentially adverse information covered by a notification that has not been proven to have been taken into account by the Tribunal in making its decision, a question for a court on judicial review in an appropriate case can still remain whether the information was so “highly prejudicial” to the applicant for review that “the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [the information] albeit subconsciously”. So much was illustrated by the approach taken in CQZ15. The Full Court there found that a breach by the Tribunal of its procedural fairness obligation to give notice of a notification did not result in jurisdictional error because the Tribunal did not in fact take the highly prejudicial information covered by the notification into account in making the decision. The Full Court nevertheless went on to find that the decision was affected by jurisdictional error on the basis that “[t]he fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3), the Tribunal might have been subconsciously influenced by the prejudicial information … in making its decision”. The structure of that analysis undertaken by the Full Court was sound in principle.
In the present case, the Tribunal clearly explained at paragraph 24 of its reasons for decision that it did not take into account the material in annexure B because it had no evidentiary value. Paragraph 24 of the Tribunal’s reasons is as follows:
The file also contained material provided by a third party which was subject to a certificate under section 438(1)(b) of the Act. This material was not disclosed to the applicant due to the tribunal’s assessment that it was of no evidentiary value in the review and because the material was provided in confidence. The material contained untested and unsubstantiated opinion of a third party and for this reason the tribunal has paid no regard to the information, and has given it no weight in this review.
I accept, on the balance of probabilities, that the Tribunal did not consciously take into account the material in annexure B.
In relation to the subconscious aspect of the matter, the majority of the High Court said in MZAPC that this went to the issue of apprehended bias, particularly in cases where the material was highly prejudicial. In the present case, the Minister argued that, because of the order made on 9 August 2021, there was no evidence before the court about what the material consisted of, so the court could not form the view that the Tribunal could have been subconsciously affected by it. That is technically correct.
However, as mentioned above, I looked at annexure B for the earlier part of the proceeding. I can say that the material in annexure B is not highly prejudicial. It is somewhat prejudicial, but it is completely unsupported by any evidence. It is a long way short of cases such as Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136 where the applicant was charged by the police with indecent assault of a woman. The fact of charges being laid gives substantial credibility to the claim, as charges are only laid following a police investigation, and satisfaction of the prosecutorial guidelines.
In the present case, I am not satisfied that the Tribunal’s error, in failing to disclose the certificate under s.438 of the Act, was a material error.
CONCLUSION
All in all, I am not persuaded that the Tribunal made any material jurisdictional error in this case. Consequently, the application must be dismissed with costs. As the matter has taken an unusual course, I will hear the parties on the question of costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 1 December 2021
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