BJN16 v Minister for Immigration and Anor (No.2)
[2017] FCCA 1512
•30 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJN16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 1512 |
| Catchwords: MIGRATION – Protection visa – certificate issued under s 438 – certificate not disclosed to applicant before hearing of application – summary judgment – procedural error established – no discretionary factors against relief. |
| Legislation: Evidence Act1995 (Cth), ss.55, 56 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Annetts v McCann (1990) 170 CLR 596 Miller v The Queen; Smith v The Queen [2016] HCA 30 Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 Minister for Immigration and Border Protection v Singh [2017] HCATrans 107 |
| Publications: Authority to Decide, The Law of Jurisdiction in Australia, M Leeming [2012] The Use and Abuse of Precedent, Mason (1988) 4 Aust Bar Rev 93 |
| Applicant: | BJN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1183 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 June 2017 |
| Date of Last Submission: | 8 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Ferrari |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Hosking |
| Solicitors for the First Respondent: | Clayton Utz |
THE COURT ORDERS THAT
A writ of certiorari issue quashing the decision of the second respondent dated 4 May 2016.
A writ of mandamus issue directed to the second respondent that it consider and determine the application for review of the decision of a delegate of the first respondent dated 28 January 2016 according to law.
Within 10 days the applicant file a submission (not exceeding 3 pages) addressing the question of costs.
Within 10 days thereafter, the first respondent file a submission (not exceeding 3 pages) addressing the question of costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1183 of 2016
| BJN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks an order quashing a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 May 2016 which affirmed a decision of a delegate of the first respondent given on 28 January 2016 refusing his application for a protection visa. Ancillary relief is sought directing the Tribunal to determine his application according to law.
At the commencement of a directions hearing listed on Friday, 2 June 2017, the applicant’s counsel informed the court that the applicant now sought summary judgment. The court was also informed that the first respondent had been given notice of the application at some stage on Tuesday, 30 May 2017. No application for summary judgment has been filed or served.
On 31 May 2017, the applicant filed a brief submission which identified the essential basis on which it was said that summary judgment ought to be given. The applicant submitted that a failure of the Tribunal to disclose to the applicant that it had received a certificate from the Secretary of the Department given pursuant to s 438 of the Migration Act 1958 (Cth) (Act), sufficed, in and of itself, to support an order for summary judgment. The applicant submits that the Tribunal’s decision is vitiated by jurisdictional error grounded upon a want of procedural fairness by reason of the admitted non-disclosure of the Departmental Secretary’s Certificate (Certificate).
On 1 June 2017, the first respondent filed submissions opposing the foreshadowed application for summary judgment. The first respondent submitted that the admitted non-disclosure of the Certificate did not compel the conclusion that the applicant was entitled to summary judgment.
On the morning of the directions hearing, the applicant filed and served a detailed reply submission.
When the proceeding was called on, counsel for the applicant intimated that the court might adopt one of three courses. It could hear the application for summary judgment immediately, list it for hearing on another day or transfer the proceeding to the Federal Court of Australia. Transfer was sought as the preferred outcome on the stated basis that the proceeding would then be added to a caseload of related proceedings now being managed by that court following the refusal on 12 May 2017 of an application for special leave to appeal from orders of the Full Court of the Federal Court made in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (Singh).
As the first respondent had been afforded little opportunity to consider the applicant’s reply submissions or case note, the prospect of an immediate hearing of the application for summary judgment seemed impractical. Equally, the short notice that an application for summary judgment would be made on 2 June 2017 supported a conclusion that it would be preferable for the matter to be listed at some future date. As concerned the applicant’s preferred outcome of an immediate transfer to the Federal Court, I did not understand how an immediate transfer was consistent with the applicant’s oral application that he should be granted summary judgment.
In all the circumstances the court offered, and the parties agreed to, the application for summary judgment being heard on Monday, 5 June 2017.
I have concluded that the applicant is entitled to summary judgment in this proceeding. My reasons follow.
Background
The applicant, a Vietnamese national who is presently aged 34 years, first travelled to Australia in July 2010. He so travelled on a Vietnamese passport. At that time, the applicant held a Class TU (Subclass 573) higher education visa. The applicant travelled to and from Vietnam and Australia between 2010 – 2014. During that period, a second education visa was granted to him.
In August 2014, the applicant’s second education visa expired.
On 17 November 2015, the applicant was detained and transferred to the Maribyrnong Immigration Detention Centre. Presently, he is not in detention.
On 9 December 2015, some five years after first coming to Australia, the applicant made application for a Protection (Sub-class 866) visa. The applicant sought to invoke Australia’s protection obligations upon the basis of his sexual orientation. The application was lodged on the applicant’s behalf by a solicitor and migration agent. On 10 December 2015, the application was assessed as being a valid application.
On 28 January 2016, delegates of the Minister variously:
(a)determined that the application for a Protection visa be refused;
(b)notified the applicant of that decision; and
(c)wrote to the Tribunal providing it with the Certificate.
The Certificate stated that para 438(1)(b) applied to certain information contained within five designated folios of a file that had been given in confidence to an officer of the Department of Immigration and Border Protection. The Certificate expressed the delegate’s view that such information should not be disclosed to the applicant or to the applicant's representative on the stated basis that:
“There are documents belonging to a third party (applicant’s family member) who is not included in this visa application and whom the applicant fears harm from. The disclosure of these documents may breach the privacy of the third party.”
The Certificate concluded by stating that the Tribunals use and disclosure of the information was subject to sub-ss 438(3) and 438(4) of the Act.
A copy of the Certificate was not given to the applicant at this stage.
In February 2016, the applicant lodged with the Tribunal an application for a review of the Delegate’s decision.
On 26 February 2016, the applicant together with his solicitor and migration agent attended a hearing before the Tribunal.
On 4 May 2016, the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa. In the course of its reasons the Tribunal found that the applicant was a highly educated 33 year old with skills and work experience such that he did not need family support to gain employment or to live independently in Vietnam, as he had done in Australia.
On 6 June 2016, the applicant commenced a proceeding in this court seeking an order to quash the Tribunal’s decision. The stated grounds for the application were that the applicant believed the Tribunal “had made a mistake”, that he had applied for legal aid and that he was waiting upon a decision in relation to that application for legal aid.
The Minister filed a response to that application contending that, as the Tribunal decision dated 4 May 2016 was not affected by jurisdictional error, it was therefore a privative clause decision within the meaning of s 474(2) of the Act such that it was final and conclusive, not capable of challenge in any court and not subject to prohibition, or any other form of prerogative relief.
At a directions hearing held on 5 July 2016, orders were made by consent that a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with and that the application be listed for final hearing. Although the proceeding was listed for 1 August 2016, that hearing date was vacated and the application was re-listed for final hearing on 28 April 2017.
On 19 December 2016, a Full Court of the Federal Court delivered judgment in Singh: (2016) 244 FCR 305.The Full Court dismissed an appeal by the Minister from an order of this court that set aside a Tribunal decision in circumstances where that Tribunal had not disclosed to the applicant the existence of a certificate that limited what the Tribunal could disclose to the applicant. The Full Court’s holding in Singh was that, despite an exhaustive statement of the natural justice hearing rule as expressed in s 357A of the Act, general law notions of fairness might, and in that appeal did, require disclosure to the applicant of the existence of a certificate given under s 375A of the Act: (2016) FCR 183, [40], [52] (Kenny, Perram and Mortimer JJ).
In this proceeding, on 25 January 2017, the Minister wrote to the applicant enclosing a copy of the Certificate. The Minister sought the applicant’s consent to the adjournment of the hearing listed for 28 April 2017. Consent to such adjournment was sought on the basis that the result of the Minister’s application for special leave to appeal (and any subsequent appeal) from Singh may affect the result of the application in this proceeding.
On 13 February 2017, the applicant responded to the Minister’s request for an adjournment. He did not agree to the adjournment.
In the ensuing weeks, the parties agreed that this court should determine, ‘on the papers’, the opposed application for an adjournment. On 22 March 2017, the court made orders vacating the hearing fixed to commence on 28 April 2017: BJN16 v Minister for Immigration & Anor [2017] FCCA 511.
On 12 May 2017, the High Court of Australia heard, and dismissed, the application for special leave to appeal in Minister for Immigration and Border Protection v Singh & Anor [2017] HCATrans 107. In refusing the application, the Court (Keane and Gordon JJ), concluded that the proposed appeal did not enjoy sufficient prospects of success.
On 30 May 2017, the applicant filed an amended application stating that, as a show cause hearing had been dispensed with, the applicant now moved for final orders. The single amended ground for the relief was that:
The Tribunal’s decision is vitiated by jurisdictional error.
Particulars
(a)On 28 January 2016, a delegate of the Minister notified the Tribunal that section 438(1)(b) of the Migration Act 1958 (Cth) applied to the information in certain specified documents
(b)The Tribunal did not disclose the existence of the section 438 certificate to the applicant.
The application falls to be determined upon the principles applicable to summary judgment.
Summary judgment
Section 17A(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.07 of the Federal Circuit Court Rules2001 (Cth) authorise the Court to give summary judgment on a claim generally or in relation to any part of a claim where it is satisfied that the opposing party has no reasonable prospect of successfully defending the claim in whole or part. The rule is engaged where: (a) there is evidence of the facts on which the claim is based and; (b)(i) evidence is given that the opposing party has no answer to the claim; (ii) alternatively, the court must otherwise be satisfied that the opposing party has no reasonable prospect of successfully defending the claim: see r 13.07(1).
Where the requirements of r 13.07(1) are satisfied, the court may give judgment or make any order or directions that it considers appropriate: r 13.07(2).
These provisions were introduced in response to what was a perceived increase in the institution and pursuit of unmeritorious litigation. Analogue provisions were also introduced in the Federal Court of Australia Act1976 (Cth) and in legislation regulating summary judgment by State courts.
The regime for granting summary judgment created by s 17A and r 13.07 should be understood as requiring an inquiry that is different from that which was to be made under earlier regimes or by application of the tests applied in the United Kingdom or United States: compare Spencer v The Commonwealth (2010) 241 CLR 118, [56]-[57] (Hayne, Crennan, Kiefel and Bell JJ) (Spencer).
It is clear that caution must be exercised when considering whether to grant summary judgment. For this reason the facts of Spencer are instructive. The Court held that a claim (based upon allegations that certain State laws which restricted the appellant’s ability to clear his land of vegetation), left open the possibility that Commonwealth laws were invalid by reason of an informal arrangement or understanding between the State and Commonwealth, and ought be allowed to go to trial: (2010) 241 CLR 118, [28]. The power to summarily give judgment in a proceeding is not to be exercised lightly.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, the power is not engaged unless the court is satisfied that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim.
In Spencer, French CJ and Gummow J emphasised that a practical judgment was required as to whether the applicant had a more than fanciful prospect of success. Their Honours distinguished between cases where the issues capable of being disputed were purely factual in nature, those where the issues were of mixed fact and law and those which raised an issue of law alone. Importantly, their Honours held that it was not sufficient the court had formed a view that the claim was unlikely to succeed: (2010) 241 CLR 118, [25]-[26]. That is not the test. Their honours held that:
Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
The plurality in Spencer cautioned against the use of terms in substitution for the text that was used in the provision: no reasonable prospect, observing that the application of labels such a ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ (whether with or without ‘intensifying epithets such as ‘clearly’, ‘manifestly’, or ‘obviously’), were neither a sufficient nor complete description of the content of the phrase “no reasonable prospect” when employed in provisions conferring power to grant summary judgment. It was in this context that their Honours emphasised that “full attention must be given to the expression as a whole”: (2010) 241 CLR 118, [59].
The reasoning of the plurality is important for a further reason. Their Honours emphasised that the statutory power then under consideration should be informed by other considerations, including that: (1) the elucidation of what amounted to “no reasonable prospect” should best proceed through a succession of the decided cases; (2) at that point in the development of an understanding of the expression “no reasonable prospect” and its application to a power to grant summary judgment, it was both sufficient and important:
“. . . to emphasise that the evident legislative purpose as revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.” : (2010) 241 CLR 118, [60].
It is then appropriate to examine some of the decided cases.
In Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499, Sundberg J distilled a series of propositions relevant to the standard appropriate to an application for summary judgment based upon the Full Court’s discussion of those principles in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) (Jefferson Ford). His Honour’s analysis illustrates the essentially predictive nature of the assessment that is required in the determination of an application for summary judgment by reference to the causes of action and the evidence relied upon:
·. . . the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28](Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
·In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford167 FCR at [73] (Rares J) and [130] (Gordon J).
·The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
·As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6](Gilmour J).
·Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: see Jefferson Ford 167 FCR at [126] (Gordon J).”
[2009] FCA 499, [38]. See also George Fletcher (Trustee) [2010] FCAFC 53, [74]-[76] (Ryan and Logan JJ); J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581, [8] (Pagone J); Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192, [26] (Markovic J) which confirm that, upon an application for summary judgment, it is permissible to consider the pleading, affidavits and other evidence.
More recently, in Upaid Systems Ltd v Telstra Corporation Limited[2016] FCAFC 158, (Upaid Systems) Perram, Jagot and Beach JJ considered the principles not to be in doubt and, after referring to the principles enunciated by the plurality in Spencer, stated a series of further propositions, including the following:
(a)first, a proceeding or claim need not be hopeless or bound to fail for it to have no reasonable prospect of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification (citing Spencer at [22]);
(c)thirdly, the exercise of the power should be used with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets like ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power given to grant summary judgment.
See [2016] FCAFC 158, at [46]-[49]. The propositions stated above in Upaid Systems were recently endorsed by the Full Federal Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ).
I apply those principles in determining this application.
Evidence relied upon at hearing
Little attention was given by the applicant to the evidence being relied upon. When the question of evidence was raised it elicited the response that the relevant evidence was that contained in the court book. Although the court book may be treated as containing evidence of the facts on which the claim is based, no direct evidence was given that the first respondent had no answer to the claim. Instead, the applicant sought to establish that the court must otherwise be satisfied that the first respondent had no reasonable prospect of successfully defending the claim. It was submitted that a change in circumstances, constituted by the refusal of special leave to appeal in Singh supported a conclusion that the applicant was entitled to summary judgment.
As concerned the first respondent’s attempt to establish that he had a reasonable prospect of successfully defending the proceeding, reliance was placed upon an affidavit sworn by the Minister’s solicitor to which had been exhibited a sealed envelope said to contain the documents referred to in the Certificate. The adoption of that course is explained by the Full Court’s observations in Singh that in future cases, such documents should be provided manually in a sealed envelope before any debate was held on whether they should be received and by this means any inadvertent or premature disclosure of the documents could be avoided: (2016) 244 FCR 305, [67].
Objection was taken to the tender of that affidavit and, more particularly, to the court reading any document comprised in the exhibit. A further objection was taken to form, as the affidavit was said to contain a description of the documents in a manner that might itself be said to reveal the nature of the information contained in the documents. While the Minister’s counsel explained that the manner of description reflected the deponent’s attempt to comply with the courts requirement in Singh to provide a clear statement of the contents of the envelope, the objection was addressed by the deponent redacting that text in the affidavit about which complaint was made.
Migration Act 1958
Part 2, Div 3 of the Act concerns Visas for non-citizens. Within that division s 36 identifies the criteria for eligibility for a Protection visa. Authority is conferred on the Minister to grant or refuse a valid application for a visa upon consideration whether the criteria for such visa have been satisfied: s 65. Where a valid application for review of a decision to refuse a protection visa application is made, the Tribunal must review that decision: sub-s 414(1).
My attention was drawn to provisions within Divisions 3-8 of Part 5 of the Act (Review of Part 5-reviewable decisions), and to comparable provisions within Part 7 of the Act (Review of Part 7-reviewable decisions). The parties identified comparable provisions within Parts 5 and 7, and some of the respects in which they differed.
Part 7 relates to the review of decisions on protection visas. One of the decisions that falls within the definition of Part 7-reviewable decisions is a decision to refuse to grant a protection visa (unless excluded): para 411(1)(c). By sub-s 414(1) the Tribunal must review a valid application for review of a Part 7-reviewable decision. Section 415 prescribes the powers available to a Tribunal on the review of a Part 7-reviewable decision.
Section 418 contains reciprocal provisions which obtain when an application for review is made. Upon the making of an application, the Registrar of the Tribunal must, as soon as practicable, notify the Secretary of the making of that application: sub-s 418(1). In turn, the Secretary is obliged to give the Registrar of the Tribunal a statement about the decision under review that sets out the Tribunal’s findings, refers to the evidence on which those findings were made and gives the reasons for the decision: sub-s 418(2). Further, the Secretary must give the Registrar each other document or part of a document that is in the possession or control of the Secretary and which is considered by the Secretary to be relevant to the review of the decision: sub-s 418(3).
It follows that if the Secretary has given the Registrar a document in performance of the obligation expressed in sub-s 418(3) that such document is considered by the Secretary to be relevant to the review of the decision.
In reviewing a Part 7-reviewable decision, the Tribunal is not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case: paras 420(a)-(b).
Division 4 of Part 7 concerns the conduct of review Part 7-reviewable decisions and is comprised of ss 422B – 429A. The conduct of the Tribunal’s review is governed by Div 4 of Part 7. The Act does not provide for the consequences of non-compliance with any of the provisions of Div 4: Minister for Immigration and Citizenship v SZIZO [2009] HCA 37, [1].
Section 422B is entitled Exhaustive statement of natural justice rule. By sub-s 422B(1), Div 4 of Part 7 is taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to the matters it deals with: sub-s 422B(2). Further, by operation of sub-s 422B(3), in applying Div 4, the Tribunal must act in a way that is fair and just.
In conducting a review the Tribunal may get any information that it considers relevant and, where it does so, must have regard to such information when making a decision: sub-s 424(1). Where the Tribunal seeks, but does not obtain, information, it is authorised to proceed to make a decision without taking any further action to obtain that information: sub-s 424C(1).
Unless an applicant is not entitled to appear before a Tribunal, the applicant must be invited by the Tribunal to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: ss 425(1)-(3), 425A, 441G. The obligation under s 425A with respect to giving notice of the hearing is directed to ensuring that an applicant has adequate time in which to prepare his or her case.
By s 426, an applicant may request the Tribunal to call witnesses, which request the Tribunal must have regard to; however the Tribunal is not required to obtain evidence orally, or otherwise, from the persons so identified.
By sub-s 427(6), a person appearing before a Tribunal to give evidence is neither entitled to be represented nor to examine or cross-examine any other person appearing before the Tribunal to give evidence.
The hearing of an application for review must be in private: s 429. By contrast, subject to certain exceptions, any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public: cf s 365.
The content of a Tribunal’s decision is regulated by s 430. Relevantly, where the Tribunal makes a decision (other than orally), the decision must set out the decision of the Tribunal on review, set out the reasons and set out the findings on any material questions of fact; and refer to the evidence or any other material on which the findings of fact were based: paras 430(1)(a)-(d).
The applicant also pointed up sub-s 430D(6) which provides that in the case of an oral decision, a Tribunal is obliged to return to the Secretary any document that had been provided to it in relation to the review.
By Division 7 of Part 7, a number of miscellaneous provisions are given. Section 437 concerns restrictions on disclosure by the Secretary to the Department of a document or information where the Minister certifies in writing that disclosure of any matter contained in such document or information may be contrary to the public interest.
The present application entails the consideration of s 438. I note that s 375A is the comparable provision to s 438 and lies within Div 8, Part 5 of the Act.
Section 438 confers discretion on the Tribunal in relation to certain disclosure. Sub-section 438(1) identifies the documents and information to which the section applies. It includes a document, matter contained in a document or information that was given in confidence to the Minister or an officer of the Department: para 438(1)(b). Sub-section 438(2) addresses the circumstances in which the Tribunal has been given a document or information to which s 438 applies. It requires that the Secretary must notify the Tribunal in writing that the section does apply to the document and information and allows that the Secretary may give the Tribunal written advice that the Secretary considers relevant about the significance of the document and information. Sub-section 438(3) authorises the Tribunal to employ such a document and information for the purposes of exercising its powers, including by disclosure to the applicant. Sub-section 438(3) provides that 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.
It is apparent that sub-s 438 (3) authorises the Tribunal to have regard to any matter contained in the document or to the information so provided and confers a discretion to disclose any matter contained in the document or the information so provided where the Tribunal concludes that it is appropriate to do so having regard to any advice that may be given by the Secretary.
Section 440 allows that the Tribunal may restrict publication of evidence that is given before it, information given to it or the contents of any documents produced to it. Sub-sections 440(2) and (3) respectively provide for the consequences of such restriction including that: (1) the Tribunal is not relieved of its obligation to provide a written statement of its decision; (2) such evidence, information or documents may be communicated between persons, each of whom have knowledge of that matter, and; (3) proscribes a person from contravening a direction given under the section.
In contrast with Part 5, Division 5, Part 7 does not contain a provision which entitles an applicant to a copy of any written material that is given or produced to the Tribunal for the purposes of the review: cf s 362A. Instead, Div 7A of Part 7, which is comprised of ss 441AA – 441G regulates the giving and receiving of documents in the review of Part 7–reviewable decisions. The manner of giving and receiving documents for the purposes of the review is governed by Div 7A, which is an exhaustive statement of the hearing rule in relation to those matters: sub-s 425(2); Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 [1].
The parties’ identification of provisions within Parts 5 and 7 invites attention to why and how those provisions inform the present application. Although the precise ambit of each provision is readily subject to more precise qualification, and will in many cases have been the subject of amendment, the following general propositions may be stated: First, the provisions are to be seen as defining the essentially inquisitorial or adjudicative nature of the administrative decision-making for which they provide. Secondly, at a Tribunal level, the process is not adversarial or inter partes and is not one in which the applicant or the Minister carries an onus. Thirdly, those provisions serve to regulate a procedure that is not a trial but a proceeding for the purpose of allowing an applicant to give evidence and present arguments. Fourthly, the procedure is governed by rules of procedural fairness. Fifthly, the application of principles of procedural fairness must always be moulded to the particular circumstances of a case. Sixthly, in identifying what a Tribunal should do so as to afford an applicant procedural fairness, it must also be recognised that there is a public interest in ensuring that information that may supplied to the Secretary is not denied to the Executive government when making its decisions. Seventhly, Part 7 contains provisions that deny, limit or qualify the extent to which an applicant may participate in the process; Eighthly, for example: (a) the Tribunal may not be required to obtain evidence when requested to do so by an applicant; (b) if the applicant appears before a Tribunal to give evidence, he or she is not entitled to be represented by any other person or to examine or to cross-examine any other person who appears before the Tribunal. Ninthly, relevantly, in Part 7, s 422B identifies each of ss 416 and 437 and in particular, s 438, as being what is described as an exhaustive statement of the natural justice hearing rule of the matters they deal with. Tenthly, the cogency of the applicant’s evidence may be of central importance in an evaluation of the claim before the Tribunal: see, for example, Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82, [61] (Gaudron and Gummow JJ, Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128, [23]-[24], [27] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [48]-[52] (Kirby J); SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 [8], [17], (Gleeson CJ); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, [25] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZIZO [2009] HCA 37. In stating those general propositions I do not ignore that the majority of those authorities were decided before the enactment of s 422B.
In my view, a significant corollary of this statutory regime is that such rights as are conferred on an applicant assume particular importance. That is because the regime prescribes in several respects the extent of an applicant’s ability to prepare for, and participate in, the hearing before the Tribunal. As stated, the cogency of the applicant’s evidence may be of central importance in an evaluation of the claim before the Tribunal. It is in this context that the scope and operation of s 438 falls for consideration in the present application.
Section 438
I have described s 438 earlier and do not consider that setting out the text in its entirety to be of particular assistance. Of immediate significance is that the provision has recently been the subject of detailed examination.
MZAFZ v Minister for Immigration
In MZAFZ v Minister for Immigration & Anor (2016) 243 FCR 1 (MZAFZ), Beach J held that s 422B(2) did not exclude any obligation to give an applicant procedural fairness concerning s 438: see at [3], [60]-[61], [65]. In that application for leave to appeal, a citizen of Pakistan had been refused a Protection visa. Her application had been refused by a delegate of the Minister and that decision was affirmed by the Tribunal. The applicant had attended hearings on 8 April 2014 and 7 May 2014, being unrepresented on each occasion but assisted by an interpreter. The applicant was not found to be a credible witness. Relevantly, the Tribunal’s reasons disclosed that it had been provided information by the Department which had been supplied by a third party and which contained material adverse to the applicant’s credit. The applicant was made aware of that information before the Tribunal conducted the hearings. Further, the Tribunal expressly referred to this information in terms stating that it had placed no weight upon it in reaching a decision. Moreover, a certificate purportedly issued pursuant to para 438(1)(a) by a delegate of the Minister identified certain information by folio, the disclosure of which, it was said, would be contrary to the public interest.
As here, it was common ground that the existence of that certificate and the material which it covered was not disclosed to the applicant at any relevant stage: (2016) 243 FCR 1, [29]. Thus, MZAFZ’s preparation for, and her conduct of the hearing had occurred in ignorance of the existence of that certificate and the documents or information which it identified.
The applicant MZAFZ succeeded on her second ground of appeal, being that she had been denied procedural fairness due to the erroneous application of s 438. Two contentions were relied upon: (1) the certificate was invalid, with the result that the Tribunal was not permitted to withhold the material contained in the folios so identified; (2) irrespective of the validity of the certificate, the applicant ought to have been given notice of the existence of the certificate and the non-disclosure of the material provided to the Tribunal. Each was said to impugn the decision making process. In particular, it was submitted, that such non-disclosure deprived the applicant of an opportunity to make submissions on the exercise of the discretionary powers in s 438(3) to disclose such information to the applicant: (2016) 243 FCR 1, [28], [32]-[33].
His Honour held at [38] that the certificate was invalid with the result that:
. . . , for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error. And as so expressed, that category of jurisdictional error may not be impacted by s 422B(2). (2016) 243 FCR 1, [44].
While I consider that this holding was dispositive of the proceeding, Beach J also examined in detail an alternative scenario, being identification of the consequences that flowed from an assumption that the s 438 certificate was valid. His Honour reasoned that, had the Tribunal treated the certificate as being valid, it was still ‘entirely unclear’ how the Tribunal considered the potential operation of sub-s 438(3) or whether it had considered sub-s 438(3) at all. It will be recalled that sub-s 438(3) confers powers on the Tribunal to have regard to the documents and information so provided to it (coupled with a discretion to disclose to the applicant anything in such documents or information). On the face of the Tribunal’s reasons in MZAFZ, nothing appeared to indicate that the Tribunal gave consideration to exercise of the discretion conferred by para 438(3)(b) and so the court could not be certain of the extent to which the Tribunal had had regard to such documents or information. Insofar as it was open to make some inference as to the content of the documents or information, Beach J’s reasoning included that: (a) the Tribunal had expressly attached no weight to the subject information; (b) accordingly, the information did not constitute the reason or part of the reason for affirming the delegate’s decision; (c) in those circumstances, no occasion arose for the Tribunal to make disclosure to the applicant of adverse information (pursuant to ss 424AA or 424A); (d) it followed that the subject information could be regarded as being either neutral or positive as concerned the applicant; (e) whether and how far the Tribunal had had regard to the documents or information covered by the certificate was both opaque and a matter of speculation; (f) further, the material could have been employed in support of the applicant’s case: (2016) 243 FCR 1, [24]-[27], [43], [46], [48].
Upon that foundation, Beach J identified the content of the Tribunal’s obligation of procedural fairness to the applicant as including: (1) disclosure of the existence of the s 438 certificate; (2) an opportunity to make submissions on the validity of the certificate; (3) disclosure of the extent to which the Tribunal proposed to take into account such information; (4) an opportunity to make submissions for a favourable exercise of the discretion to disclose to the applicant such matter as was contained in the documents or information provided to the Tribunal as covered by the certificate.
His honour held that whether or not the certificate had been disclosed, the applicant had been denied procedural fairness in either event, for only with such knowledge could the applicant have considered and taken the opportunities referred to above and obtained disclosure from the Tribunal of the extent to which it proposed to take into account such information: (2016) 243 FCR 1, [50]-[53]. Considered from those perspectives, it is apparent that the opportunities denied to the applicant were opportunities that may have been of utility, both in preparation for, and during the conduct of, the hearing. Such opportunities as existed could have been employed to prepare for or meet adverse information or, as Beach J noted, to adduce evidence or make submissions that could affirmatively assist the applicant at the hearing.
Although application was made to adduce into evidence the documents covered by the certificate, Beach J refused that application (see below).
His Honour then turned to address what he regarded as a ‘tricky issue’; being how the exhaustive statement of natural justice provided for by s 422B applied to the Tribunal’s discretion to disclose matter pursuant to sub-s 438(3)(b). Beach J preferred that a narrower construction should be adopted with the result that sub-s 422B(2) would not exclude an obligation for the Tribunal to give an applicant procedural fairness by:
(a)disclosing the existence of the certificate;
(b)affording the applicant an opportunity to make submissions:
i)on the validity of the certificate;
ii)on the Tribunal’s approach under s 438(3)(a);
(c)perhaps, affording the applicant an opportunity to seek a favourable exercise of power under para 438(3)(b).
Orders were made setting aside the Tribunal decision: see at (2016) 243 FCR 1, [58]-[66].
Minister for Immigration and Border Protection v Singh
The reasoning in MZAFZ was endorsed by a Full Court of the Federal Court in Singh (2016) 244 FCR 305, [39]-[40] (Kenny, Perram and Mortimer JJ). Relatedly, in Singh the Full Court also held in relation to the comparable provisions in Div 8, Part 5, that the exhaustive statement of the natural justice hearing rule contained in s 375A did not impair general law notions of procedural fairness to disclose the existence of a certificate issued under s 375A. The Full Court further held that while a Tribunal might not ordinarily be required to disclose the contents of such a certificate, disclosure of its existence was required: (2016) 244 FCR 305, [40], [58]
Special leave to appeal the orders made in that appeal was refused: Minister for Immigration and Border Protection v Singh & Anor [2017] HCATrans 107 (Keane and Gordon JJ).
Decision vitiated by error
The analyses of the issues by Beach J and the Full Court in MZAFZ and Singh appear, with respect, to be unanswerable. The obligation to disclose the existence of a certificate (whether issued under ss 375A or 438 respectively), was not a matter expressly addressed in the statement of the natural justice hearing rule (contained in ss 357A and 422B respectively) and in those circumstances the exhaustive effect of those rules did not operate. As those provisions were not engaged they did not pose a barrier to the obligation to observe the rules of procedural fairness by disclosing the existence of the certificates. In those cases, breach of those rules entailed jurisdictional error.
So here, in this case non-disclosure of the Certificate served to diminish the applicant’s entitlement to prepare for and participate in the Tribunal hearing. For that reason, the applicant had an interest sufficient to give rise to an entitlement to natural justice. Such entitlement engaged an obligation in the Tribunal that he be afforded procedural fairness. The performance of that obligation required that he be informed of the existence of the Certificate.
BJN16 was not informed of the existence of the Certificate. He was thereby denied each of the opportunities identified in MZAFZ and Singh and, to adopt the reasoning in those decisions, such denial of procedural fairness was of a kind that entailed jurisdictional error.
Jurisdictional error describes an important aspect of the limits of authority conferred on those exercising public power. Writing extra-judicially, Leeming JA considered two matters to be ‘perfectly’ clear. First, that failure to accord procedural fairness can amount to jurisdictional error. Secondly, that statute can reduce the content of the duty of a decision maker to accord procedural fairness: Authority to Decide, The Law of Jurisdiction in Australia (Federation Press) [2012], p.50. Each of those matters is at issue here.
In the present case, the applicant’s amended application is that the Tribunal’s decision is vitiated by jurisdictional error grounded upon a failure to disclose to him the existence of the Certificate at any time before the Tribunal proceeded to hear and determine the application for review. Moreover, the Minister relies upon s 422B of the Act as reducing the content of the Tribunal’s obligation to accord procedural fairness to the applicant.
Leeming classified a jurisdictional error grounded on a denial of procedural fairness as a category of case in which the donee of executive power has authority to deal with the application before it but exceeds some other limitation on the grant: Authority to Decide at pp.66-68. In Re Refugee Review Tribunal; Ex parte Aala (2004) 204 CLR 82, [168] Hayne J identified that competing views had been expressed as to whether the requirements of procedural fairness arose from common law or depended upon an implication to be drawn from the statute. His Honour observed that “[o]n either view, the obligation to accord procedural fairness is an obligation affecting how the decision maker is to go about the task of decision making.”
In Saeed v Minister for Immigration and Citizenship, French CJ, Gummow, Hayne, Crennan and Kiefel JJ considered it to be settled that when a statute conferred power to destroy or prejudice a person’s rights or interest, principles of natural justice operated to regulate the exercise of that power: (2010) 241 CLR 252 at [11] citing Annetts v McCann (1990) 170 CLR 596 (Mason CJ, Deane and McHugh JJ); Kioa v West (1985) 159 CLR 550, 609 (Brennan J). Their Honours explained that the implication of principles of natural justice in a statute was arrived at by a process of statutory construction – it being assumed that the legislature (taken to be aware of the common law principle) would have intended the principle to apply. The Court characterised the observance of those principles as a condition attached to the statutory power, such that the failure to fulfil such condition meant that the exercise of power was inefficacious, and the decision arrived at without fulfilling the condition as being unauthorised and so, invalid: (2010) 241 CLR 252 at [12]-[13].
To adapt the reasoning in MZAFZ and Singh, in this case the court should infer that the documents were not a reason or part of a reason for affirming the decision under review. Otherwise, the Tribunal would have acted conformably with its obligation to give the applicant clear particulars of that information. Instead, not being adverse to the applicant’s position, the documents and information may be regarded as being neutral or of positive benefit to his case. Section 438 was engaged by dent of the provision of the documents under cover of the Certificate. Accordingly, the applicant was entitled to be informed of the existence of the Certificate.
Had the applicant been so informed, there would have been occasion for the applicant to prepare for, and conduct the hearing in a manner that included the making of submissions as to the validity of the Certificate and to ascertain whether the Tribunal’s approach under para 438(3)(a) was to have regard for any matter contained in the documents covered by the Certificate. The applicant could also have given consideration whether to seek a favourable exercise of the Tribunal’s power under para 438(3)(b) to disclose matter contained in those documents.
And in those circumstances, there existed for the applicant an opportunity to adduce that information in evidence and to make submissions that the matter ought be taken into account in the determination of the review Had any of those opportunities been availed of, the applicant may have been able to rely upon such information in support of submissions before the Tribunal. In this connection, I note that the Tribunal reasons contain either expressly or as a matter of inference, references to the applicant which are unfavourable: see, for example, Tribunal reasons at [31], [35]-[41], [43], [48], [53]-[54], [58]-[59] and [64].
I conclude that the breach of the obligation of procedural fairness in this case as described above was of a kind that entailed jurisdictional error.
Precedent
It was submitted that there were not one, but two, ratio decidendi in MZAFZ; the first being that the certificate in that case was invalid by reason of the failure to state within the body of the certificate any reason that could be the basis for a claim of public interest immunity; the second being that procedural fairness required disclosure of the existence of the certificate such that failure to observe that requirement vitiated the Tribunal’s decision.
Before BJN16 gave notice that he proposed to apply for summary judgment, I had expressed a view that the reasoning in MZAFZ was obiter and that this may have explained why no appeal was filed from that decision: [2017] FCCA 511, [33]. I now see that the report of MZAFZ also characterises the reasoning of his Honour on this issue as obiter: (2016) 243 FCR 1, 2.
Although I have difficulty in accepting the submission that MZAFZ contains two ratios, in the end it seems to me that greater importance is to be attached to the doctrine of precedent and the risks which attend its dilution. In the present case, it is sufficient to recognise that the reasoning disclosed in MZAFZ is seriously considered dicta which, moreover, has now been endorsed by a Full Court in Singh as being correct. By contrast, I do not consider that the fact of refusal of special leave to appeal in Singh is a factor that should be weighed in the balance as affecting the precedential significance of Singh or MZAFZ: see Mason, The Use and Abuse of Precedent (1988) 4 ABR 93, 95-96; Gageler and Lim, Collective Irrationality and the Doctrine of Precedent (2014) 38 MULR 525, 545-6; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] (per curiam); Murphy v Electoral Commissioner [2016] HCA 36, [239]-[240] (Nettle J); Miller v The Queen; Smith v The Queen [2016] HCA 30, [105] (Gageler J).
Discretion to deny relief
The applicant, having established a breach of the rules of natural justice is entitled to relief unless the court is satisfied that such relief ought to be withheld on discretionary grounds: Re Refugee Review Tribunal; Ex parte Aala (2004) 204 CLR 82. Further, in this respect, the distinction between right and remedy is well recognised: Abebe v Commonwealth (1999) 197 CLR 510, [143] (Gummow and Hayne JJ).
A number of discretionary grounds may be identified. Commonly the grounds may involve consideration of delay, waiver, acquiescence or unclean hands.
In the present case, the Minister relied upon notions of futility, submitting that the documents and information covered by the Certificate would not have made any difference to the Tribunal’s consideration of the matter or to the decision that was reached: see Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead). Application of the principles stated in Stead may produce different results, depending, for example, upon whether the denial of natural justice precluded a party from making a submission on a matter of law or upon an issue of fact.
More particularly, a court should proceed with caution in the consideration of a submission that a retrial should be refused on the ground that an issue of fact would have made no difference to the result of the trial. In Stead, Mason, Wilson, Brennan, Deane and Dawson JJ said at 145, 147:
It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
. . .
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. (emphasis added)
Those statements of principle have been endorsed repeatedly: see, for example, Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [47]-[48] (Kiefel, Bell and Keane JJ); [55]-[60] (Gageler and Gordon JJ); Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 2014] HCA 2, [65] (Gageler J); SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, [27]-[29] (per curiam); CSR Ltd v Della Maddalena (2006) 224 ALR 1, [33]-[42] (Kirby J, Gleeson CJ agreeing), [107]-[109] (Hayne J); SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, [137]ff (Gummow J), [174]ff (Kirby J); [210]ff (Hayne J); Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541, [83]-[99] (Lee, Goldberg and Weinberg JJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [2]-[5] (Gleeson CJ), [57]ff (Gaudron and Gummow JJ, Hayne J agreeing).
This is not a case in which it is said that a question of law was bound to be answered unfavourably to the applicant or that, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, [38] (Gleeson CJ).
The present case is one that involves application of Stead principles to an issue of fact – was the matter contained in the documents of information covered by the Certificate of such a nature that it may have assisted in an evaluation of the applicant for the purposes of the review.
In WZARH at [55] Gageler and Gordon JJ affirmed that the concern of procedural fairness which operates as a condition to the exercise of statutory power is with procedures rather than outcomes. This principle serves to underline why, in the present case, the submission grounded on futility ought to be rejected. The Minister’s submission sought, in effect, to reverse engineer the supposed consequences of the breach of procedural fairness, rather than to engage with the effect which non-disclosure of the Certificate had upon the proper procedures of the Tribunal. More specifically, non-disclosure of the Certificate meant that the applicant lost opportunities to prepare for and participate in the hearing before the Tribunal.
Objection to evidence
It remains to address the objection made to the tender in evidence of the exhibit to an affidavit made on behalf of the Minister.
The affidavit made on behalf of the Minister deposed to the provision of an electronic copy of the file retained by the Department relating to the applicant, which file had been reviewed by the deponent. The file had been designated file No CLF2015/76881. The deponent exhibited the Certificate dated 28 January 2016 (described in the affidavit as a Notification), and recorded that the Notification stated that it applied to the documents at folios 90 – 95 of that file. The deponent swore that he had placed in a sealed envelope copies of the documents located at folios 90 – 95 of the file. The deponent further stated that the Minister made no claim for privilege over the communications contained, and did not contend that any confidentiality inhered, in the documents located at folios 90 – 95 of the file. It was also deposed that the subject documents had not been provided to the applicant and that a copy of the Department’s file, including the Certificate and the documents located at folios 90 – 95 of the file, were provided to the Tribunal for the purpose of the conduct of its review.
I am invited to examine the contents of the sealed exhibit being documents that were provided to the Tribunal and which are the subject of the Certificate.
I conclude that the evidence is not relevant and that the tender should be rejected. Subject to the exclusionary rules in Pts 3.2 to 3.11 of the Evidence Act 1995 (Cth), evidence that is relevant in a proceeding is admissible in the proceeding: sub-s 56(1). Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue: sub-s 55(1). Both at common law and under s 56 of the Evidence Act evidence which is not relevant is inadmissible: HG v Queen (1999) 197 CLR 414, [24] (Gleeson CJ).
For the purposes of the summary judgment application, I consider the two critical facts are that the Tribunal was given the Certificate together with the subject documents and information, and that the Tribunal did not disclose to the applicant the existence of that Certificate. By reason of those matters it is now said that the applicant was denied procedural fairness in a way that constituted jurisdictional error and that such error vitiated the Tribunal’s decision. In seeking to establish relevance, the Minister sought to rely on the contents of the exhibit so as to prove a negative; namely, that those documents were irrelevant, and so, made no difference, to the Tribunal’s decision to affirm the Delegate’s decision to refuse the applicant a protection visa.
In light of the conclusions I have reached respecting s 438 and how it engaged an obligation of procedural fairness in the Tribunal to inform the applicant of that Certificate, nothing in the documents comprising the sealed exhibit could be relevant to whether that obligation arose or whether and how it was breached. The Minister’s submission amounted, in substance, to an attempt to demonstrate that irrespective of any use of information in the documents there would have been no different outcome to the hearing before the Tribunal. In my opinion, that is not the point. The matter is not to be assessed in terms of possible outcomes but by reference to the procedure that was to be observed and upon consideration that such procedure was not observed in this case. That, in my view, was essentially a matter of statutory construction as applied to uncontested facts. Speculation that the information in the documents would have made no difference to the outcome is not relevant.
Although there may be circumstances in which evidence might be admissible in a proceeding for judicial review, I consider that they do not extend to circumstances in which the point for resolution was, in substance, a matter of statutory construction. I accept that evidence may be admissible in proceedings for judicial review upon some questions, but the current proceeding does not present a question of a kind where the documents are relevant: cf Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, 540 (Lockhart J); Demir v Minister for Immigration and Multicultural Affairs [1998] FCA 1308, (Ryan J); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, [276], [455]-[457] (Weinberg J); East Melbourne Group v Minister for Planning (2009) 23 VR 605, [73], [90]ff (Warren CJ diss’); Mentink v Minister for Justice [2016] FCA 1094, [89]-[90] (Rangiah J); SZIHM v Minister for Immigration and Multicultural Affairs [2006] FCA 1614, [14]-[17] (Middleton J); SZICS v Minister for Immigration and Multicultural Affairs [2006] FCA 1615, [19] (Middleton J); MZAFZ, [55]-[56] (Beach J).
To adapt the points made convincingly in MZAFZ, the s 438 Certificate had been issued and the documents provided to the Tribunal. At the point where the hearing was conducted and the decision was being made, it was the Tribunal’s task to review the documents (and not the courts). But even if the documents were otherwise admissible, critically, the applicant was ignorant of the existence of the certificate and thus denied any opportunity to prepare for and participate in the hearing seized of that knowledge. In the present context, it is nothing to the point to try and remedy that situation by suggesting that the content of the documents was in truth, anodyne. The submission is also undermined in part by consideration that the Minister had certified the matter contained in such documents to be of sufficient importance as to be quarantined from disclosure in the public interest. The forensic decision to strip the documents of that character by now deposing that the claims for confidentiality and that any claim for privilege was no longer maintained does not affect the conclusion that non-disclosure of the Certificate before the Tribunal hearing had the consequence that the applicant was denied procedural fairness in a way that constituted jurisdictional error.
In other circumstances it would have been necessary to rule on the objection. As a general rule, where objection is taken to the tender of evidence at trial it is generally desirable that a ruling be made upon that evidence immediately after the objection has been made and argued, or otherwise, as soon thereafter as possible: see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [19]. As the plurality explained, this is generally desirable for the twofold purposes that the party who tenders the disputed evidence then knows whether it must try and mend its hand and that the opposite party knows the evidence which they must answer.
However, in the present case it was not necessary to adopt that course. It was not necessary because the present application is an application for summary judgment and to adapt the reasoning of Sundberg J in Adnunat, supra, when deciding such an application the court is not to undertake a fact finding role. Instead it proceeds at the level of assessing the strength of the allegations and undertakes that assessment by reference to the pleadings, affidavits and any other evidence adduced. In such an application, the assessment is being undertaken in order to determine whether the circumstances are sufficient as to warrant a trial. Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require determination at a trial. No purpose would be served by examining the documents in the sealed exhibit. That was because I considered that non-disclosure of the Certificate affected the applicant’s opportunities to prepare for and participate in the hearing. As a result, the assessment of relevance fell to be considered at the level of the procedure adopted (and not followed) in relation to the hearing, and not whether the outcome of the application before the Tribunal would have been any different.
Conclusion
In this matter I have concluded that the applicant is entitled to the relief claimed. My conclusion is arrived at having applied the reasoning in MZAFZ and Singh. I am satisfied that the respondents have no reasonable prospect of successfully opposing the claim that the Tribunal decision is vitiated by error. I am further satisfied that there is no reason why relief should be refused on discretionary grounds.
From my conclusion it follows that the decision of the Tribunal should be quashed and that the Tribunal should be directed to determine the application according to law. It also follows from the fact that I have declined to examine the contents of the sealed exhibit that these reasons should not be taken to indicate what relevance, if any, may attach to any matter disclosed by such documents or any information covered by the certificate: cfMZAFS v Minister for Immigration and Border Protection [2016] FCA 75, [10] (Edelman J) citing Weiss v R (2005) 224 CLR 300, [45] (per curiam).
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 30 June 2017
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