CQZ15 v Minister for Immigration

[2019] FCCA 2239

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQZ15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2239

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether a notification under s.438(1)(b) of the Migration Act 1958 was valid – whether the Tribunal’s failure to disclose to the applicant the notification under s.438(1)(b) and the documents and information it covered was a jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.418, 438

Cases cited:
CQZ15 v Minister for Immigration & Anor [2016] FCCA 2788
CQZ15 v Minister for Immigration & Anor [2017] FCCA 130
Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1; (2017) 159 ALD 399; (2017) 355 ALR 25; [2017] FCAFC 194
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 163 ALD 38; (2019) 363 ALR 599; [2019] HCA 3
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; (2016) 155 ALD 98; [2016] FCA 1081

Applicant: CQZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2742 of 2015

Judgment of: Judge Riley

Hearing date: 12 April 2019

Date of last submission: 12 April 2019

Delivered at: Melbourne

Delivered on: 16 August 2019

REPRESENTATION

Counsel for the applicant: Lisa De Ferrari SC

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent:	Richard Knowles
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Clayton Utz

ORDERS

1. The time for the applicant to file an application to this court for review of the decision of the Administrative Appeals Tribunal made on 15 October 2015 in matter number 1315134 be extended to 11 November 2015.

2. The decision of the Administrative Appeals Tribunal made on 15 October 2015 in matter number 1315134 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2742 of 2015

CQZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time for an application to review 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.

2. When this matter came on for hearing of the applicant’s extension of time application on 20 October 2016, the applicant objected to the admission into evidence of an affidavit affirmed by Vincenzo Murano on 12 October 2016 and the exhibits thereto. The affidavit exhibited two certificates that were sent by the Secretary of the Department of Immigration (“the Department”) to the Tribunal pursuant to s.438 of the Migration Act 1958 (“the Act”) and the documents to which the certificates related. The Tribunal did not disclose to the applicant the certificates or the documents to which they related. In an ex tempore decision made on 20 October 2016, the court upheld the applicant’s objection. The reasons for that decision are set out in CQZ15 v Minister for Immigration & Anor [2016] FCCA 2778.

3. On 20 October 2016, the court also heard the applicant’s application for an extension of time.  The parties agreed that, if the court granted an extension of time, the court should also determine the substantive issues, on the basis that they were thoroughly argued. The court reserved its decision on 20 October 2016 in relation to the extension of time application and the substantive issues.

4. On 30 January 2017, the court delivered judgment granting the applicant an extension of time in which to make his application for review and finding that the Tribunal had made a jurisdictional error. The error was said to be of the type identified in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. The reasons of this court are set out in CQZ15 v Minister for Immigration & Anor [2017] FCCA 130. The court remitted the matter to the Tribunal for determination according to law.

5. The Minister appealed to the Federal Court on 20 February 2017. The Full Court of the Federal Court on 29 November 2017 allowed the appeal, set aside all of the orders made on 30 January 2017 and remitted the matter to this court for determination. The judgment of the Full Court of the Federal Court is in Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1; (2017) 159 ALD 399; (2017) 355 ALR 25; [2017] FCAFC 194. Essentially, the Full Court of the Federal Court held at [88] that the Murano affidavit and its exhibits should have been admitted into evidence.

6. On 2 January 2018, the applicant filed an application for special leave to appeal to the High Court. On 10 May 2018, Gageler and Keane JJ granted special leave. On 13 February 2019, the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 163 ALD 38; (2019) 363 ALR 599; [2019] HCA 3 (“SZMTA”) dismissed the applicant’s appeal. The matter returned to this court by reason of the order of the Full Court of the Federal Court made on 29 November 2017.  

7. The Full Court’s orders set aside the extension of time granted by this court. However, the parties did not address that issue on the remitted hearing. In the Minister’s original written submissions filed on 6 October 2016, the Minister indicated that he did not oppose the extension of time being granted.  I adopt what I said about this issue in CQZ15 v Minister for Immigration & Anor [2017] FCCA 130, save for the last sentence of paragraph 6. Instead, I note that the points raised by the applicant are certainly arguable. I will grant the extension of time.

The applicant’s claims

1. The applicant summarised his claims in his written submissions that were filed on 22 September 2016 as follows:

   2.Throughout, the Applicant’s claims have been of fear of harm from the Iranian authorities for reason of:

   a.political opinion (actual and/or imputed);

   b.religion (his lack thereof);

   c.having left Iran illegally; and

   d.membership of particular social groups:

   i.      persons who fail to adhere to strict Islamic mores/ westernised people;

   ii.     returned asylum seekers.

The notification

1. The focus of all of the applicant’s grounds of review in the rehearing of the matter in this court was a notification dated 12 February 2015 given by a delegate of the Secretary of the Department to the Tribunal.  The notification is exhibit MAT-1 to the affidavit affirmed by Michael Anthony Thomas on 4 April 2019.  Mr Thomas is the Assistant Secretary, Border Intelligence Fusion Centre, in the Department. The notification said:

   I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to information provided to DIAC as an allegation relevant to file number CLF2012/237990.  The information was given to [the Minister for Immigration and Border Protection/an officer of the Department of Immigration and Border Protection] in confidence.

   In my view, this information should not be disclosed to the applicant or the applicant’s representative because information provided in the attached allegation was provided in confidence.  As a result this information should not be disclosed to the parties before the tribunal without appropriate consideration.

   The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsection 438 (3) and (4) of the Migration Act 1958.

2. It was common ground that the notification and its existence and the information it related to and its existence were not disclosed to the applicant. 

Section 438 of the Act

1. Section 438 of the Act provided as follows:

   438 Tribunal’s discretion in relation to disclosure of certain information etc.

   (1)This section applies to a document or information if:

   (a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

   (b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

   (2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

   (a)must notify the Tribunal in writing that this section applies in relation to the document or information; and

   (b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

   (3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

   (a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

   (b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

   (4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

The information to which the notification applied

1. A redacted version of the information to which the notification applied is contained in exhibit MAT-2 to the affidavit affirmed by Mr Thomas.  The redactions relate to the name, telephone number and email address of a departmental intelligence officer. The Minister claimed public interest immunity for the redactions. The applicant did not take issue with that.  An unredacted version of the information was provided to the court and to the Tribunal, but it is unnecessary to consider the redactions any further. Apart from the redacted material in MAT-2, the Minister did not suggest that MAT-2 was now confidential.

2. MAT-2 is a document titled “Job Details Report” dated 12 February 2015 (“Report”). Mr Thomas said at paragraph 9 of his affidavit that the information the subject of the notification consisted of two matters contained in the Report.  They were:

   a.information regarding an intervention order made against the applicant; and

   b.information regarding an investigation by the Australian Federal Police in relation to which the applicant was regarded as a possible witness.

3. The Report relevantly states:

   a)at page 1:

   Other Character Threats

   …

   Sub-Status:Allegation Assessment

   Date Opened:    06/02/2015  10:06:15

   …

   NSW [National Allegation Assessment Team (“NAAT”)] received Intervention order … against [the applicant] for threatening, stalking, harassing a female minor, and family of [X] …

   …

   b)at page 2:

   Related source information

   …

   Source Channel: Mail

   Date Received:    28/01/2015  00:00:00

   …

   Category:Other Character Threats

   Summary:NSW NAAT received intervention order … against [the applicant] for threatening, stalking, harassing a female minor, and family of [X] …

   …

   c)at page 3:

   Analysis

   Recommendation - Referral

   …

   Description:     Referral as per FARM to RRT

   …

   Results: Hi Ministerials/RRT please see attached information,

   NSW NAAT Ref: Job 1-7125344061

   National Allegation and Assessment Team NSW

   …

   d)at page 4:

   …

   Status:Complete

   …

   Description:     AFP link to source info 1-1311886330, POI was possible witness in [people] smuggling investigation.

   …

   Results:1. Show details Add to List(s) Remove from list Create Link(s)Use to support links 1-1311886330 Police/Prison/Court Referrals Australian Federal Police Email 10/01/2013 11/01/2013 VIC ‘HUGHES, MIHWA – PRMHMK’

   …

   e)at page 5:

   Description:      csp summary of POI

   …

   Results:Status & Alerts

   [applicant, gender date of birth] IRAN BAMS, SIEBEL, ICSE, TRIPS
   Alias
   [three names]
   Lawful Status: Onshore - Lawful – WE050
   Alerts: MAL (Green), RRT Review, Active Ministerial Intervention, CCMD Active Case,
   Biometric Acquisition
   Travel Document: EIS001412 AUSTRALIA
   Citizenship(s): IRAN
   Client ID (CID): 24844255106
   Trips ID (PID): 0095491593
   Siebel Client Identifier (SCID): 1-GHBAJJ
   Revenue Receipting ID: 1001552836
   BAMS ID: 1343129130227
   Relationship Status: Nev Mar/DeFacto
   Religion: Islam
   Ethnicity: Persian/Farsi
   Interpreter required: No
   Preferred Language: Farsi (Persian)

   1-7125344061 – SIEBEL NSW – Active 06 Feb 2015
   Compliance Job 1-1311886348 SIEBEL VIC – Finalised – Insufficient Resources 29 Jun 2014

   SIEV384 TRIPS Arrival – CHRISTMAS ISLAND – SIEV384 08 Aug 2012

   …

   f)at page 7:

   …

   Description:     PVAAT assemment (sic) tool

   …

   Results:“OVERALL PRIORITY RATING – HIGH (100)/Q1. Media and other interest – Current Ministerial/Exec interest / Q2. Applications – No

   / Q3. Source – Law enforcement or other regulatory body / Q4. Evidence – Substantial evidence is available to support integrity concerns. Q5. Grounds – No relevant cancellation grounds exist / Q6. History – Past integrity concerns of a different nature to current concerns / Q7. Onshore – Visa holder (and any family members) is currently offshore

   …

   g)at page 8:

   … Results:NSW NAAT received Intervention order … against [the applicant] for threatening, stalking, harassing a female minor, and family of [X]. OPD2015/15294. Job 1-7125344061.

   …

   h)at page 15:

   Related jobs

   Specific Co-horts as Advised:     Finalised – Insufficient Resources

   …

   Status:  Finalised

   …

   Date Finalised: 03/04/2013  15:31:48

   …

The source of the information about the intervention order

1. The applicant gave the Minister a notice to produce Source info number: 1-7125343922 referred to on page 2 of the Report. The Minister in response produced the document contained in exhibit MAT-5 to the affidavit affirmed by Mr Thomas.  MAT-5 is headed Source Information.  It says:

   …

   Source Type: Community

   Source Channel: Mail

   …

   Source Anonymous:   þ

   …

2. Mr Thomas said in his affidavit in effect that Source info number: 1-7125343922 was a copy of an intervention order received in the mail by the Department.  That evidence was not disputed and I accept it. It was common ground that there was no covering letter with the intervention order.  It follows that the person who provided the intervention order to the Department did not ask that it remain confidential. 

The intervention order

1. Exhibit MAT-7 to Mr Thomas’s affidavit contains the application dated 20 November 2014 for the intervention order against the applicant, an interim intervention order dated 20 November 2014 made against the applicant in his absence, and a final intervention order made on 12 January 2015 against the applicant in his absence. The final intervention order was expressed to last for two years.  The applicant for the intervention order was a person who I will call X. He and three members of his family were listed as the protected persons in the intervention order.

2. In the application for the intervention order, X gives the following reason for needing an intervention order:

THE RESPONDENT IS MY OLDEST DAUGHTERS EX BOYFRIEND. MY DAUGHTER WAS IN A RELATIONSHIP WITH THE RESP FOR OVER A YEAR BUT THEY ARE NOT DE FACTO. MY DAUGHTER BEGAN A RELATIONSHIP WITH THE RESP WHEN SHE WAS 16YO AND THE RESP IS 26YO OR OLDER. OVER THE PAST 9 MONTHS, THE RESP HAS BEEN CALLING AND TEXTING ME THREATENING TO TAKE MY DAUGHTER. THE RESP HAS STALKED MY ELDEST DAUGHTER AND THE FAMILY SINCE THEY SEPARATED. THE RESP CONTINUES TO PRESSURE MY DAUGHTER INTO MARRYING HIM AS SHE HAS A PERMANENT VISA FOR AUSTRALIA. MY DAUGHTER WAS TOO FEARFUL TO LEAVE THE HOUSE TO GO TO SCHOOL BECAUSE OF THE RESP, AND HAS CONFIDED IN MY OTHER DAUGHTER THAT SHE IS VERY SCARED OF THE RESP. MY OTHER DAUGHTER HAS SEEN THE RESP AT OUR HOUSE 1-2 TIMES A WEEK AND IS SCARED TO BE HOME ALONE. MY WIFE AND ELDEST DAUGHTER HAVE LEFT AUSTRALIA DUE TO THE RESPS BEHAVIOUR AND ARE TOO SCARED TO COME BACK. THE RESP HAS DESTROYED MY FAMILY. MY YOUNGEST DAUGHTER (9YO) HAS STARTED TO WET THE BED DUE TO THE STRESS THE RESP HAS CAUSED HER. ON 8.11.14 THE RESP CAME TO MY HOUSE AFTER I HAVE REPEATEDLY TOLD HIM NOT TO COME. THE RESP THREATENED TO TAKE MY DAUGHTER AND ATTEMPTED TO INTIMIDATE ME. THE RESP THEN PUSHED MY WIFE OUT OF THE DOOR WAY IN AN ATTEMPT TO GET TO MY DAUGHTER. MY DAUGHTER SAID SHE DID NOT WANT TO GO WITH THE RESP, AND THE POLICE WERE CALLED. THE RESP ONLY LEFT MY PROPERTY WHEN THE POLICE INTERVENED. I AM SEEKING THIS ORDER TO STOP THE RESP HARASSING AND INTIMIDATING MY FAMILY AS I WANT MY FAMILY TO FEEL SAFE AT HOME.

1. It appears that the documents in MAT-7 were not sent by the delegate of the Secretary to the Tribunal.

The applicant’s response to the intervention order

1. In paragraph 24 of his affidavit affirmed on 15 March 2019, and filed in this court, the applicant said he is now married to X’s oldest daughter and has the support, to varying degrees, of every member of her family.

Jurisdictional fact

1. The High Court (Bell, Gageler and Keane JJ) said at [18] of SZMTA that:

   Section 438, it will be observed, operates at the level of a particular document or particular information. Whether or not the section applies in respect of a particular document or particular information depends on whether one or other of the preconditions set out in either s 438(1)(a) or s 438(1)(b) is met in respect of that document or information. Whether or not such a precondition is met in respect of a document or information is in turn a question of jurisdictional fact as to which the Secretary and the Tribunal must each in practice form a view in order to attempt to comply with the section but which can be authoritatively determined only by a court (subject to appeal), including by the Federal Circuit Court on judicial review of a decision of the Tribunal.  

2. Their Honours then said at [20]:

   The precondition in s 438(1)(b) is met if the document, the matter contained in the document, or the information in question was given to the Minister, or to an officer of the Department, in confidence. The circumstances in which the document, matter or information was given need not be such as would give rise to an equitable obligation on the part of the recipient to keep the document, matter or information confidentialhttp:// - . (footnote omitted)

3. Their Honours went on to explain at [69] the findings that should be made in cases such as this. Paragraph 69 is as follows:

   His Honour's approach was erroneous in four respects.  First, his Honour failed to find on the evidence before the Court whether, and if so what, documents and information covered by the certificate had in fact not been given to the Minister or to an officer of the Department in confidence.  Second, his Honour failed to hold that the notification was invalid in its application to documents and information which had not in fact been given in confidence.  Third, his Honour failed to make a finding as to whether the Tribunal had in fact failed to take such documents and information into account in reaching its decision.  Finally, in the event of finding that the Tribunal had failed to take such documents and information into account, his Honour erred in not going on to determine whether the Tribunal's decision could have been different if the Tribunal had taken the documents and information into account.

The notice to admit

1. The applicant sent a notice to admit to the Minister.  The notice to admit, with the propositions the Minister did admit being shown in bold, is as follows:

   (1)The document titled 'Jobs Detail Report - As at 12/02/2015' (the Report) was created by an officer in the Department of Immigration and Border Protection.

   (2)The Report was not given to the Minister or to an officer of the Department:

   (2.1)by a third party

   (2.2) in confidence

   (3)The information on pages 1, 2 and 8 of the Report: 'NSW NAAT received Intervention order E13850880 against [the applicant] for threatening, stalking, harassing a female minor, and family of [X], [’] was not given to the Minister or to an officer of the Department:

   (3.1) by a third party

   (3.2) in confidence

   (4)The information on page 1 of the Report: 'Other character threats -Active-Allegation Assessment', was not given to the Minister or to an officer of the Department:

   (4.1) by a third party

   (4.2) in confidence

   (5)The information on page 2 of the Report: 'Other character threats', was not given to the Minister or to an officer of the Department:

   (5.1) by a third party

   (5.2) in confidence

   (6)The information on page 3 of the Report: 'Recommendation Referral as per FARM to RRT Hi Ministerials/RRT please see attached information NSW NAAT Ref Job 1-7125344061 Kind regards [name redacted by those acting for the Minister] National Allegation and Assessment Team Department of Immigration and Border Protection Telephone [number redacted by those acting for the Minister] Mobile [Mobile] Email [email redacted by those acting for the Minister]', was not given to the Minister or to an officer of the Department:

   (6.1) by a third party

   (6.2)in confidence

   (7)The information on page 4 of the Report: 'AFP link to source info 1-1311886330, POI was possible witness in peop0le smuggling investigation' [sic], was not given to the Minister or to an officer of the Department:

   (7.1) by a third party

   (7.2) in confidence

   (8)The information on page 4 of the Report: '1-1311886330 Police/prison/Court Referrals Australian Federal Police Email 10/01/2013 11/01/2013 VIC "HUGHES, MIHWA- PRMHMK', was not given to the Minister or to an officer of the Department:

   (8.1) by a third party

   (8.2) in confidence

   (9)The information on page 5 of the Report beginning from 'Status and alerts' and concluding with 'SIEV384 TRIPS Arrival-CHRISTMAS ISLAND- SIEV384 08 Aug 2012', was not given to the Minister or to an officer of the Department:

   (9.1) by a third party

   (9.2) in confidence

   (10)The information on page 7 of the Report in the 'Results:' section was not given to the Minister or to an officer of the Department:

   (10.1) by a third party

   (10.2) in confidence

   (11)The information on page 15 of the Report: 'Specific Co-horts as Advised: Finalised Insufficient Resources', was not given to the Minister or to an officer of the Department:

   (11.1) by a third party

   (11.2) in confidence

Were any documents or information not given in confidence?

1. The applicant argued, firstly, that the Report was not given to the Minister or to an officer of the Department in confidence because the Report was an internal document generated within the Department. As such, the applicant argued, the Report was incapable of satisfying s.438(1)(b) of the Act.

2. That argument fails to take account of the fact that s.438 of the Act does not apply only to documents, but also applies to any matter contained in the document or information. In the present case, in fact, the notification said that s.438(1)(b) of the Act applied to information provided to DIAC as an allegation that was given to the Minister or his officer in  confidence.  The notification went on to say that information provided in the attached allegation was provided in confidence.  That is, the notification did not apply to the Report as such, but to the information within it.

3. In his response to the notice to admit, the Minister admitted that the some of the information in the Report, as set out in bold above, was not given to the Minister or an officer in confidence.  I find accordingly.

4. The information in paragraph 3 of the notice to admit, that NSW NAAT received [an] intervention order … against the applicant, was information generated by a departmental officer. However, the information in paragraph 3 of the notice to admit that the Intervention order … against [the applicant] was  for threatening, stalking, harassing a female minor, and family of [X] was not generated by a departmental officer.  As discussed above, that information was derived from an intervention order which was sent in the mail to the Department without a covering letter.

5. The Minister did not seek to argue that the information in the Report about the intervention order was given to the Minister or a departmental officer on a confidential basis, although the Minister did not actually concede the point.

6. It is clear that the information about the intervention order in the Report was not itself confidential.  Intervention orders are made in open court.  Anyone in the world could know the terms of an intervention order against a particular person and the reasons the order was made. 

7. The identity of the person who sent the intervention order could, in appropriate circumstances, have been confidential, because the sender might have wanted his or her identity to be kept private, as he or she had essentially dobbed in the applicant.  However, in this case, there was no information about who sent the intervention order to the Minister or his officer, so there was no information on that topic that was confidential.

8. For these reasons, including the reason that some of the information in the Report about the intervention order was generated by a departmental officer, and in the circumstances that the Minister has not argued that the information in the Report about the intervention order was confidential, I find that it was not.

9. In relation to paragraph 7 of the notice to admit, regarding the applicant being a possible witness in a people smuggling investigation, the Minister argued that the court should infer that the Australian Federal Police (“AFP”) had given that information to an officer of the Department in confidence.  The only evidence from which that inference could be drawn was paragraph 9 of the affidavit affirmed by Mr Thomas.  That paragraph is as follows:

   In light of my experience and having regard to the structure of the file, I believe that the information the subject of the Notification was information relating to at least two matters contained in the Report. They are:

   (a)information regarding an intervention order made against the applicant; and

   (b)information regarding an investigation by the Australian Federal Police in relation to which the applicant was regarded as a possible witness.

10. As can be seen, Mr Thomas did not say that the information about the applicant being a possible witness in a people smuggling investigation was provided by the AFP in confidence, although it is reasonably obvious that the information to that effect was provided by the AFP.

11. The applicant argued that the court should not infer that the information about the applicant being a possible witness in a people smuggling investigation was given by the AFP in confidence.  That was particularly because the notification referred to an allegation, in the singular, rather than the allegations, in the plural, so the notification could only have been intended to apply to either the allegation related to the intervention order or the allegation related to the people smuggling investigation.  The applicant argued that the intention could only have been that the notification applied to the allegation about the intervention order because it is not a proper use of language to say that the AFP alleged that the applicant was a possible witness in a people smuggling investigation. The applicant argued that, as a matter of fact, not allegation, the applicant was a possible witness in a people smuggling investigation.

12. The Minister argued that the court should infer that the AFP gave to the Minister or a Departmental officer the information that the applicant was a possible witness in a people smuggling investigation in confidence because the people smuggling investigation was ongoing at the time the information was given.

13. I infer that, when the AFP gave the Minister or a departmental officer the information that the applicant was a possible witness in a people smuggling investigation, the investigation was ongoing and the information was given in confidence.

14. However, I do not accept that the information about the applicant being a possible witness was the allegation referred to in the notification, for the reasons expressed by the applicant. 

15. In addition, the Report primarily dealt with an Allegation Assessment, as was made clear on page 1 of the Report.  The Allegation Assessment was of the information about the intervention order. The Report was primarily concerned with information received from the National Allegation Assessment Team, being the information about the intervention order. The information about the intervention order was referred to three times, in the Report, on pages 1, 2 and 8, whereas the information about the applicant being a possible witness was referred to only once in the Report, on page 4.  The information about the applicant being a possible witness is there described as an AFP link. It seems to me that the AFP information was included in the Report only as background, or because it was information in the system that affected the applicant.

16. That is, I do not accept that the notification was concerned with the information that the applicant was a possible witness.  I do not accept that the notification meant that the information about the applicant being a possible witness was still confidential at the time the notification was sent on 12 February 2015.  That is because, realistically, the only thing that the comment on page 15 of the Report, namely, Specific Co-horts as Advised: Finalised – Insufficient Resources, could have meant was that the investigation for which the applicant was a possible witness had been finalised.

17. That reading of page 15 of the Report accords with the statement on page 4 of the Report that the POI was [a] possible witness.  In other words, he was no longer a possible witness, because the investigation had been finalised due to a lack of resources.

18. It is clear from page 15 of the Report that the related job, being the AFP report that the applicant was a possible witness in a people smuggling investigation, was opened on 11 January 2013 and finalised on 3 April 2013. That was almost two years before the intervention order was made against the applicant, almost two years before the intervention order was received by the Department on or about 6 February 2015 and almost two years before the notification was sent by a delegate of the Secretary to the Tribunal on 12 February 2015.

19. Any confidentiality in the AFP notifying the Department that the applicant was a possible witness had ceased by the time of the notification, because the investigation was no longer ongoing.

20. It follows that the notification was invalid in relation to the Report.

21. The applicant argued, secondly, that the delegate of the Secretary gave the Report to the Tribunal when it had no power to do so. The applicant said that s.438(2) of the Act began with the words:

    If in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information …

22. The applicant noted that the only requirement of or under the Act that the Minister could point to was s.418 of the Act, which was as follows:

    418  Tribunal to notify Secretary of application for review of Part 7‑reviewable decisions

    (1)If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

    (2)The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

    (a)sets out the findings of fact made by the person who made the decision; and

    (b)refers to the evidence on which those findings were based; and

    (c)gives the reasons for the decision.

    (3)The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

23. The applicant argued that s.418 did not give the Secretary power to give the Report to the Tribunal because the Secretary had previously given the departmental file to the Tribunal. That argument was based on the chronology of events. The delegate’s decision refusing the protection visa was dated 7 October 2013. The applicant then sought review by the Tribunal. A delegate of the Secretary sent the Tribunal the departmental file on a date that was not made known to the court, but which was probably within a few weeks of the application to the Tribunal being lodged. The Tribunal formed the view that the applicant could not succeed on the material then before it, so, on 24 December 2015, the Tribunal invited the applicant to a hearing on 9 April 2015. A delegate of the Secretary sent the Tribunal the notification on 12 February 2015.

24. The applicant argued that the delegate of the Secretary had no power to send the notification when he did, because the power in s.418 of the Act was exhausted when the delegate sent the Tribunal the departmental file shortly after the applicant applied for review by the Tribunal.

25. The applicant argued that, after sending the file to the Tribunal, it was not open to the delegate to subsequently construct what the applicant described as a dirt file on him and send it to the Tribunal.  The applicant conceded that, if relevant medical or psychiatric information had come to the attention of the Department after the file had been sent to the Tribunal, it would have been possible for the Secretary to send that information to the Tribunal.  However, the applicant maintained that it was not open to the Secretary to send negative information about the applicant to the Tribunal, after the departmental file had been sent.

26. I consider that the applicant’s second argument is without merit. In effect, s.418(2) of the Act requires the Secretary to give the Registrar of the Tribunal a copy of the delegate’s decision within 10 days of the Secretary being notified of the decision. Subsection 418(3) of the Act requires the Secretary to give the Registrar of the Tribunal, as soon as practicable after being notified of the application for review, any other document the Secretary has that he or she thinks is relevant to the review.

27. There is no suggestion in s.418(3) of the Act that it is a power that can only be exercised once in relation to each application for review. Such a reading of s.418(3) of the Act would be contrary to the purpose of the provision, which is obviously that the Tribunal is given any relevant documents that the Department has. It would be contrary to that purpose to restrict the Secretary to providing documents only once in respect of each application.

Were the documents or information taken into account?

1. In the present case, there is nothing in the Tribunal’s reasons for decision or in the material before the court generally that demonstrates that the Tribunal did or did not take into account the information in the Report.   Nevertheless, as explained in SZMTA at [46], it is open to the court to draw appropriate inferences. In that regard, in SZMTA, Bell, Gageler and Keane JJ said at [47]:

   The 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. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the 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.

2. In accordance with that dicta, I infer that the Tribunal paid no regard to the Report in reaching its decision.

Could the decision have been different?

1. As discussed above, the next question posed by SZMTA is whether the decision could have been different if the Tribunal had taken the Report into account.  In SZMTA, it was said that:

   48.In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account.  The court must be careful not to intrude into the fact-finding function of the Tribunal.  Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.

   49Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions.  Whilst "[i]t is no easy task for a court ... 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" , the task is not impossible  and can be done in these appeals. (footnote omitted)

2. I do not consider that the Tribunal’s decision could have been different if the Tribunal had taken into account the Report.  That is because the information in the Report was irrelevant to the questions before the Tribunal. Moreover, the information in the Report regarding the intervention order was negative.  If anything, it may have reinforced the Tribunal’s negative view of the applicant’s claims.  The applicant argued that the information about him being a possible witness in a people smuggling investigation was also negative, because it implied he might be a criminal.  That information, again, at most, may have reinforced the Tribunal’s negative view of the applicant’s claims.  The information in the Report could not realistically have resulted in a different decision.

3. The situation in SZMTA was different, because in that case, the information and documents covered by the notification included documents that were supportive of the applicant’s case: [67].

1. The question posed by paragraph 49 of SZMTA is a little different.  It requires firstly that there was a denial of procedural fairness.  At [2] of SZMTA, Bell, Gageler and Keane JJ said:

   The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review.  Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material.  The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. 

2. The applicant argued that the decision could have been different if the Tribunal disclosed the notification to the applicant, because then the applicant would have done the things set out in his affidavit affirmed on 15 March 2019.  That is, he would have sought to persuade the Tribunal that the notification was not valid.  He would also have told the Tribunal that:

   a)X took out the intervention order against him in respect of X’s daughter, Y;

   b)the applicant was secretly dating Y, although her father did not approve of the relationship at that time;

   c)she was 17 at the time and the applicant was 25;

   d)the applicant is now married to Y;

   e)the applicant’s relationship with X is now okay;

   f)the applicant’s relationship with Y’s other family members is better than okay;

   g)the applicant did not ever threaten, stalk or harass Y;

   h)he had given evidence in a people smuggling case; and

   i)he thought that the Tribunal might interpret the note that he was a POI, being a person of interest, as an indication that he was suspected of people smuggling.

3. The Minister objected to that and other evidence given by the applicant on the grounds that it was speculative, opinion and irrelevant.  The particular paragraphs that the Minister objected to were paragraphs 8 to 16, 22, 27, 37, 39, 40 to 41 and 44 to 45 of the applicant’s affidavit affirmed on 15 March 2019. 

4. I do not accept that the applicant’s evidence on these matters is irrelevant.  It deals with the precise issue that the court is required to consider under paragraph 49 of SZMTA.  Nor do I consider that it is speculative in the relevant sense.  It was necessary for the applicant to say what he would have said and done in certain circumstances.  To the extent that the applicant expressed opinions about what the Tribunal might have done or thought, those opinions were only expressed to explain what the applicant’s response may have been.  I do not consider that any parts of the applicant’s affidavit affirmed on 15 March 2019 are objectionable.

5. In relation to whether the decision may have been different if the applicant had been allowed to make submissions in relation to him being a possible witness in a people smuggling investigation, the applicant said that he was concerned that the Tribunal might have thought he was a people-smuggler and criminal himself.  There is no proper foundation for such a concern.  The information was clear that the applicant was a possible witness, meaning that he would possibly assist the authorities. There is no reason to interpret POI as meaning that the applicant could have been perceived to be a criminal or people smuggler himself.  That interpretation seems to me to be fanciful.  I do not accept that the decision could have been different if the applicant had had an opportunity to make submissions to the Tribunal about that issue.

6. In relation to whether the decision may have been different if the applicant had been allowed to make submissions in relation to the intervention order, it seems to me that the applicant’s evidence summarised above could have made a difference. Although it was strictly irrelevant to the decision to be made by the Tribunal, I accept that an allegation that the applicant had threatened, stalked and harassed a female minor could have coloured the Tribunal’s view of the applicant and his credibility. The applicant’s credibility was a very significant issue before the Tribunal, as the Tribunal decided that the applicant was not a credible witness: [36]. While the Tribunal nominated various inconsistences in the applicant’s evidence that led to that conclusion, there is a realistic possibility that the Tribunal’s assessment of the applicant’s credibility was affected by the information in the Report that the applicant was alleged to be a danger to girls.

7. I appreciate that this finding is inconsistent with the inference drawn above that the Tribunal did not take into account the information in the Report.  However, in the hypothetical scenario in which the applicant was able to make submissions about the Report, the Tribunal’s attention would have been focussed on the Report in general and the intervention order in particular.  In that situation, it is a realistic possibility that the Tribunal’s assessment of the applicant and his credibility could have been adversely affected by the information that an intervention order had been made against him for threatening, stalking and harassing a female minor.  

8. As the decision of the Tribunal could have been different if the applicant had been permitted to make submissions in relation to the Report, it follows that the Tribunal made a jurisdictional error.

Ground of application

1. The single ground of review in the application filed on 11 December 2015, amended on 15 September 2016 and further amended on 21 March 2019 is:

   1.The Tribunal’s decision is vitiated by jurisdictional error.

2. There were eight particulars to that ground, which I will address in order. 

Particular (a)

1. Particular (a) is as follows:

   Non-existence of the jurisdictional fact conditioning the power and duty of the Secretary in s 438(2), in that the precondition in s 438(1)(b) of the Act was not met – i.e., the second certificate [i.e., the notification] is invalid.

2. For the reasons discussed above, I accept that the notification is invalid.

Particular (b)

1. Particular (b) is as follows:

   Additionally and/or alternatively to (a), the Secretary had no duty and no power under s 438(2), hence the second certificate is invalid, because:

   a.by the time of it (i.e., 12 February 2015), the Secretary had already discharged the duty in s 418(3) of the Act, and the Tribunal had already considered ‘on the basis of the material before it’ that it would not decide the review in the applicant’s favour; and

   b.there was therefore no ‘requirement of or under this Act’ pursuant to which the Secretary could give to the Tribunal the documents to which the second certificate purports to relate.

2. For the reasons discussed above, I consider that this ground is without merit.

Particular (c)

1. Particular (c) is as follows:

   Breach of procedural fairness, in that the Tribunal failed to disclose to the applicant that the Secretary had given to it the second certificate.

2. For the reasons discussed above, there was a breach of procedural fairness in relation to the Report.

Particular (d)

1. Particular (d) is as follows:

   Failure to give to the applicant a copy of the second certificate.

2. As discussed above, the Tribunal failed to give the applicant a copy of the second certificate, or the notification as it has been called in these reasons.

Particular (e)

1. Particular (e) is as follows:

   Failure to give to the applicant a copy of the document behind the second certificate.

2. As discussed above, the Tribunal failed to give the applicant a copy of the Report.

Particular (f)

1. Particular (f) is as follows:

   Alternatively to (e), failure to disclose to the applicant the gist of the document behind the second certificate.

2. There was no suggestion that the Tribunal gave the applicant the gist of the Report.

Particular (g)

1. Particular (g) is as follows:

   Apprehended bias.

2. In view of the findings above, it is unnecessary for the court to consider this ground.

Particular (h)

1. Particular (h) is as follows:

   Each of (a) to (g) above was an error that operated to deprive the applicant of the possibility of a successful outcome.

2. As discussed above, the failure to disclose the Report to the applicant and seek his response to it was a jurisdictional error.

Conclusion

1. As the Tribunal made a jurisdictional error in this case, the matter will be remitted to the Tribunal for determination according to law.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:              16 August 2019