DAY16 v Minister for Immigration

[2018] FCCA 1577

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAY16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1577

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority – application for protection/safe haven visa – erroneous issue of certificate under section 473GA of Migration Act – delegate of Secretary subsequently forwards certificate under section 473GB of the Act – allegation of jurisdictional error – inference that IAA has considered erroneous certificate or not been provided with proper review materials – alternatively IAA has not considered review material – no error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 7AA, 46A, 473

Cases cited:
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081

Applicant: DAY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 342 of 2016

Judgment of: Judge Brown

Hearing date: 1 February 2018

Date of Last Submission: 1 February 2018

Delivered at: Adelaide

Delivered on: 27 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: Tern Visa & Migration Lawyers

Counsel for the First Respondent: Mr O'Leary

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Submitting appearance

ORDERS

1. The applicant pay the first respondent’s costs fixed in the sum of seven thousand three hundred and twenty-eight dollars ($7,328.00).

2. The amended application filed 11 December 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 342 of 2016

DAY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an amended application for the judicial review of a decision of the Immigration Assessment Authority,[1] issued on 7 October 2016, which affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection,[2] not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act 1958 (Cth).[3] 

   [1]  Hereinafter referred to as the “IAA”

   [2]  As the Department for Home Affairs was formerly known and which will be referred to hereafter as “the Department”.  Similarly he Minister for Home Affairs will be referred to in these reasons for judgment as “the Minister” and the Secretary of the Department as “the Secretary”.

   [3]  Hereinafter referred to as “the Act”

2. Section 65 of the Act requires the Minister to grant any valid application for a visa arising under the Act if satisfied that any criteria attaching to the grant of that visa have been satisfied by the applicant concerned.

Background

1. The applicant is a citizen of Sri Lanka.  He arrived at Australian Territory, by boat, on 2 October 2012, without documents authorising his entry to this country.  On his arrival, he was interviewed by officers of the Department, and claimed to them that he and members of his family were affiliated with the LTTE and therefore were at risk of suffering persecution at the hands of the Sri Lankan authorities. 

2. Given the manner in which the applicant came to Australia, he is to be classified, under the provisions of the Act, as an unauthorised marine arrival.  The effect of this classification is to prevent him being automatically able to seek any form of visa to remain in Australia, including a protection visa, unless the Minister[4] authorises it.

   [4]  The Minister for Home Affairs, previously known as the Minister for Immigration & Border Protection

3. On 20 July 2015, the Minister lifted the bar, pursuant to section 46A of the Act. This enabled the applicant to make a valid application for a protection visa, as a consequence of his claim to be at risk of persecution, if returned to Sri Lanka, which he would have otherwise been unable to do, given his unauthorised manner of entry into Australia.

4. The visa application was made on 25 September 2015.  As a consequence of this application, the applicant became what is known as a fast track applicant. This expression is defined by section 5 of the Act in the following terms:

   “(i)       who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)     to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)   who has made a valid application for a protection visa in accordance with the determination; or”

5. The Minister’s delegate[5] determined on 14 July 2016 that the applicant was not a person to whom Australia owed any protective obligations.  Given that the Ministerial delegate declined to grant the applicant a protection visa,[6] the decision in question was subject to further review, pursuant to the provisions of Part 7AA of the Act.  This process is known as a fast track review process and is conducted by the IAA.

The nature of a fast track decision

[5]  Designated as “Sarah” in the applicable decision.  See Case Book at page 172

[6]  Section 35A creates a category of visa known as protection visas.  This category includes a class of temporary visas, known as Safe Haven Enterprise Visas (SHEV) or Temporary Protection Visas (TPV)

1. Section 5(1) defines what is meant by the term fast track decision.  In general terms, the applicable process is engaged when a decision has been made to refuse to grant a protection visa to a fast track applicant.  It is common ground between the parties that the applicant in these proceedings is a fast track applicant, given the circumstances surrounding his arrival in Australia and the fact. 

2. The Minister is required to refer decisions, relating to fast track applicants, to the IAA, for a limited form of review [section 473BA] as soon as reasonably practicable [section 473CA] after a decision is made.  In the current matter, the decision was referred to the IAA on 28 July 2018 and a decision made by the IAA on 7 October 2016.

3. Section 473CB sets out the material, which the Secretary of the Department[7] must provide to the IAA.  It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.

   [7]  Hereinafter referred to as “the Secretary”

4. Section 473CC provides as follows:

   (1)     The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

   (2)     The Immigration Assessment Authority may:

   (a)     affirm the fast track reviewable decision; or

   (b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

5. Section 473CB is qualified by section 473GA(1) which authorises the Secretary not to give to the IAA any document, certified by the Minister, if its disclosure would be contrary to the public interest, on the basis of either of the following:

   ·It would prejudice the security, defence or international relations of Australia; or

   ·It would involve the disclosure of deliberations or decisions of the Cabinet.

6. Within the context of fast track decisions, the section codifies what at common law is referred to as public interest immunity, which historically has related to such matters as the defence of Australia; its international relations; and the deliberations of Cabinet. 

7. The section authorises the Minister to determine that information falls within the purview of the section and pursuant to subsection (2) to issue a written certificate to this effect.

8. Section 473GA is absolute in its terms. The Secretary must not give the IAA any document or information, certified by the Minister, on the basis that its disclosure would be contrary to the public interest on public interest immunity grounds. 

9. Section 473GB also qualifies the material to be provided to the IAA pursuant to section 473CB(1). The section (section 473GB) reads as follows:

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

   (a)     the Minister has certified, under subsection (5), 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 473GA(1)(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 Immigration Assessment Authority a document or information to which this section applies, the Secretary:

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

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

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

   (a)     may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)     may, if the Authority 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 referred applicant.

(4)     If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)     The Minister may issue a written certificate for the purposes of subsection (1).”

1. The distinction between the two types of certificate, which restrict the review material to be provided to the IAA, can be summarised as follows:

   ·Section 473GA is absolute in its term. The Secretary is forbidden to provide any documents to the IAA, which relate to cabinet confidentiality and national security;

   ·Section 473GB deals with broader matters of government privilege, germane to the public interest, which can be categorized as relating to broader public immunity, including matters provided to the Department in confidence, beyond core matters prejudicial to Australia’s defence, security and international relations;

   ·However, section 473GB(2)(b) grants the Secretary a discretion to provide information about the documents covered by the relevant certificate, as it thinks relevant vis-à-vis the document itself or the particular significance of the information contained in it;

   ·As a consequence of this discretion, the IAA in turn is granted a discretion [section 473GB(3)(a) to have regard both to any document and/or information provided to it, arising within the purview of the section;

   ·In this context, pursuant to section 473GB(3)(b) the IAA is granted its own discretion to disclose the document or the applicable information to the applicant whose case has been referred to it, pursuant to section 473CA.

2. In the current matter before the court, certificates were issued in respect of both section 473GA(1) and 473GB(5) of the Act. The former certificate was issued on 14 July 2016, the date of the Ministerial Delegate’s decision; the latter on 27 July 2016.

3. Accordingly, both certificates pre-date the IAA’s decision.  Both were executed by Adam Turner, who is described in them as Acting Assistant Director, Temporary Protection Visa Assessment Branch & Delegate of the Minister.

4. The 473GA(1) certificate makes reference to four documents identified by serial numbers[8] and certifies that the documents so identified should not be disclosed as it would be contrary to the public interest to do so because they: 

   “…contain a document or information that would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.”[9]

   [8]  CLD2015/20668988; CLD2016/7516603; CLD2016/12760087; and ADD2016/854240

   [9]  Case Book at page 214

5. In the case of the section 473GB(5) certificate, Mr Turner has certified that a document, again identified by a serial number[10] and described as a Draft Identity Assessment Form should not be disclosed to the referred applicant because:

   “the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest, if released to the applicant, would demonstrate the Department’s internal workings in relation to establishing an applicant’s identity.”[11]

   [10]  55239263499 – UDAA)19 Draft IMAPS PV Identity Assessment Form

   [11]  Ibid at page 215

6. The certificate goes on to indicate that IAA’s use of any document or information covered by the certificate are subject to the provisions of section 473GB(3) & (4) of the Act.

7. The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment.  The section reads as follows:

   “Exhaustive statement of natural justice hearing rule

   (1)     This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

   (2)     To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

8. In this context, Subdivision C provides the IAA with the power to obtain additional review material, which was not before the Minister.  However that power is closely delineated subject to the requirement that the IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material [see section 473DD].

9. If the IAA is satisfied that such exceptional circumstances arise, it is required, pursuant to section 473DE, to give the information so obtained to any referred applicant whose fast track review is being considered by it.

10. Otherwise section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned.  In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.

The ground for review

1. The sole ground for review, on which the applicant relies in the current proceedings arises as a consequence of these certificates.  This ground is as follows, the other grounds in the application having been abandoned by Mr Ower, on behalf of his client:

   “The decision of the Authority made on 7 October 2016 was subject to jurisdictional error as:

   1.2 A necessary precondition to the Authority’s exercise of jurisdiction under s. 473CC of the Migration Act 1958 (Cth) was that the Secretary comply with s. 473CB by “giv[ing]” the review material to the Authority, and the Secretary failed to do this.

   Particulars

   (a) By s. 473GA, the Secretary was required to not give to the Authority a document certified by the Minister under that section. On 14 July 2016, a delegate of the Minister certified that certain documents fell within the section. The purported compliance with s. 473CB took place on 15 July 2016. Subsequently, on 27 July 2016, the Minister issued a further certificate under s. 473GB relating to the same documents. The certificate under s. 473GA was not revoked. There is no evidence that the documents were ever given to the Authority, or that the Minister complied with subs. 473GB(2), or that the Authority considered the documents in accordance with subs. 473GB(3).

   (b)     Further particulars of the First Respondent’s failure will be provided after further disclosure from the First Respondent as to any purported acts or conduct that he asserts constituted compliance with s. 473CB, and s. 473GB.”

The decision of the IAA and other considerations and material

1. The classical definition of jurisdictional error has been provided by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf.[12]  It described an error, which leads to the vitiation of the jurisdiction of an administrative body, in the following terms:

   “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

   [12]  Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

2. The decision of the IAA summarises the applicant’s claims for protection in Australia based on his allegations of his and members of his family’s connection with the LTTE; the possible consequences of his involvement with a person related to a high ranking officer in the Eelam People’s Democratic Party (EPDP); and fears relating to him being returned to Sri Lanka, as a failed asylum seeker and a person who left the country illegally.

3. There is no assertion that the IAA did not consider those claims or, in doing so, considered any irrelevant material or ignored relevant material relating to the claims themselves. Rather, the claim of jurisdictional error relates solely to the section 473GB(5) certificate and the referred information contained in it.

4. It is Mr Ower’s submission that the relevant certificate was referred to the IAA but there is no cogent evidence that it was actually considered by it or that it exercised any of its authority arising under section 473GB(3) & (4) of the Act to disclose it to the relevant applicant. In these circumstances, he contends that the Authority has failed to exercise the jurisdiction conferred upon it.

5. A further point arises in respect of the section 473GA certificate, which ostensibly, at least, raised issues relating to national security relating to the referred applicant. In this context, Mr Ower and those instructing him have been provided with documents, relating to the production of the two certificates by the Department.

6. This reveals that the certificate, purportedly initially issued under section 473GA, was apparently issued in error. Mr Ower submits that there is no reference, in the decision of the IAA, that it was aware of the erroneous issue of the 473GA certificate and therefore had not been disabused of the fact that the applicant in this case was apparently a person who has some special significance relating to Australia’s security or some other issue relevant to important matters of state.

7. In these circumstances, after the compilation of the initial court book, the Department has produced a supplementary court book, which contains documents, which it asserts were within the purview of the section 473GB certificate.  These documents are described as follows:

   ·Initial Identity Data Mining (IMAPS) –Identity Assessment Form;

   ·Departmental internal emails regarding identity request from UNHCR in respect of the applicant;

   ·UNHCR Consent to Share and Release Information form dated 8 November 2013 executed by the applicant.

1. In addition those advising the Minister have provided to the court, the bureaucratic history of the issue of the certificates in question, which is set out in an affidavit of Alexander Lochland.[13]  Mr Lochland is an employee of the Department and is the manager of the Protection Visa Section for Illegal Maritime Arrivals. 

   [13]  See affidavit of Alexander Lochland filed 22 December 2017

2. The delegate of the Minister, who made the decision on 14 July 2016, not to grant the applicant a protection visa, is also a delegate of the Secretary.  In this case, she is Sarah Sanders.  In Departmental jargon, she is known as an IMAPS review officer.

3. Upon her completion of her role to determine whether the applicant should be granted a protection visa, as a delegate of the Secretary, she was also authorised to provide the necessary documents, pursuant to section 473CB, to the IAA, to enable it to complete the required fast track review. She also had responsibility for the issue of any accompanying certificates required under either section 473GA or 473GB.

4. Ms Sanders is an executive level 1 officer of the Department.  Mr Turner was, at relevant times, her superior and signed off on necessary certificates generated by her in the course of her preparing the necessary file of documents to be sent to the IAA.

5. All such documents are forwarded to the IAA, from the Department, in a digital form, known as a PDF Portfolio.  The PDF Portfolio is compiled by the Ministerial Delegate concerned (in this case Ms Sanders) following a computer derived checklist entitled IAA and Disclosure Checklist.  

6. All IMAPS review officers have access to the Home Affairs Department Records Management System “HPE”, on which is stored all records relevant to each applicant, including fast track applicants.  It is through this data base that the referral checklist is generated, in cases involving fast track applicants. 

7. Through it, an IMAPS review officer, such as Ms Sanders may, in her dual role as a delegate of both the Minister and the Secretary, refer to the relevant departmental file and isolate all documents required to be forwarded to the IAA to complete the fast track review process.

8. The actual transmission of the documents concerned occurs via the Secure Transport Service “STS”, which delivers the PDF portfolio to the IAA’s email address, which is the same address as used by members of the general public, who wish to contact it. 

9. It was Ms Sanders’ responsibility to prepare the PDF portfolio, in respect of the applicant concerned in this matter, from the HPE and, once complete, sent it to the IAA via the STS.  This process generates an automatic email notification, if it occurs successfully.

10. Attached to Mr Lochland’s affidavit is a copy of the checklist[14] completed digitally by Ms Sanders in respect of the applicant’s file transmitted to the IAA by her.  It is primarily a list of generic documents set against a click list designated “Yes” “No” and “N/A”. 

    [14]  Ibid at annexure AL 1

11. Running alongside this is a column head “Non-disclosure considerations”.  Against some of the classifications of documents in this column is entered the phrase “s473GB may apply”.  Footnotes containing directions attach to some of these entries.

12. On the final page of the checklist is a section headed “Non-disclosure” which the relevant IMAPS review officer is required to complete electronically.  In response to the question “Is a section 473GA certificate required” Ms Sanders has clicked on the bottom entitled “Yes” and ticked the following box, which indicates that such a certificate is included in the PDF portfolio file.

13. In response to the same question regarding a section 473GB certificate, she has clicked “No”.  The form is completed with the indication it was transferred on 14 July 2016.  Asterisks attach to both these questions, which link to the following comments on the foot of the form:

    “Section 473GA covers restrictions on disclosure or information that would be contrary to the public interest for reasons set out in that section.  The document or information must not be disclosed to the IAA.

    Section 473GB covers documents or information the disclosure of which would be contrary to the public interest for any other reason.  Section 473GB does not prohibit disclosure, however, the IAA must be notified in writing of the significance of the document or information.”

14. The email confirming the despatch of the PDF portfolio file to the IAA and its subsequent uploading there was produced on 15 July 2016.  The PDF portfolio file included an index of all the documents which had been referred to the IAA.[15] 

    [15]  Ibid at AL 3

15. This purported to include an undated section 473GA certificate and a draft IMAPS identity assessment form; and other documents relating to requests for UNHCR checks. As indicated above, these documents are now asserted, by the Minister, to be referrable to section 473GB.

16. On 27 July 2016, Ms Sanders forwarded a further email to the IAA, in the following terms:

    “I have realised that the incorrect non-disclosure form was provided with this application.

    I apologise for this error and wanted to know if it was possible for the new form to be sent to IAA.”[16]

    The email is marked High Importance and is referenced to the identification number of the applicant in these proceedings.

    [16]  Ibid at AL 4

17. On 27 July 2016, a member of the IMAPS review team other than Ms Sanders forwarded the section 473GB certificate to the Tribunal Liaison section of Home Affairs and requested that it be forwarded on to the IAA, which was done on 28 July 2016.

18. The actual text of the email, which is sent by Mr Mark Hankinson reads as follows:

    “Good morning IAA.  Please see attached correct non-disclosure form.  Please let me know if you require further details.”[17]

    [17]  Ibid at AL 5

The applicant’s submissions

1. Mr Ower is critical of what he impliedly submits is a lackadaisical approach to the Secretary’s statutory obligations arising under both sections 473GA and 473GB. He submits that it is apparent from this material that the Secretary’s delegate concedes an incorrect disclosure form – the initial section 473GA certificate – was sent but there is no indication that this fact was explicitly drawn to the IAA’s attention and it was formally excluded from its deliberations.

2. Significantly, Mr Ower submits that the only means by which the court can determine whether the IAA correctly discharged the jurisdiction conferred upon it, in respect of its review function of fast track matters, is by its reading of the IAA’s decision. 

3. In this context, he points to the fact that the IAA does not make any explicit reference to either certificate, in the sense of noting the incorrect forwarding of the 473GA certificate, which on its face potentially tied to the applicant to matters of the highest national security or what it made of the more recent certificate sent latter pursuant to section 473GB.

4. The reasons of the IAA do not specifically refer to either certificate or allude to the fact that one certificate was issued on 14 July 2016 and the other on 27 July 2016 or that the former had apparently been revoked because it was issued in error.  Rather, in generic terms, the IAA indicated as follows:

   “I have had regard to the material referred by the Secretary under section 473CB of the Migration Act 1958 (the Act).”[18]

   [18]  See Case Book at 227 [2]

5. In the context of the various documents revealed as falling within the ambit of section 473GB, namely the identity working documents, in respect of which a wide public interest indemnity had been sought, Mr Ower contends that, at best, there is only a cursory allusion to this category of documents in the IAA decision, when it indicated as follows:

   “On the evidence before me, I accept that the applicant is who he claims, and that he is a Tamil male from Sri Lanka.  I have assessed his claim on this basis.”[19]

   [19]  Ibid at 229 [7]

6. In these circumstances, Mr Ower contends that the ground of review relied upon has been made out and it is implicit that the IAA has failed to discharge the jurisdiction referred upon to review all the material referred to it, by the Secretary, pursuant to section 473CB. Therefore its jurisdictional task to review, arising under section 473CC is incomplete.

7. In support of this contention, Mr Ower submits, as follows:

   ·An inferences arises that the IAA did not consider the section 473GB certificate, which it should have done;

   ·It did consider the section 473GA certificate, which it should not have done.

   Therefore the IAA has committed jurisdictional error because it has reviewed material that should not have been before it and mistakenly considered a certificate which was issued in error and which, at the very least, required further explanation from the Secretary given the significance arising from the issue of such a certificate under section 473GA.

The first respondent’s submissions

1. Mr O’Leary submits, on behalf of the Minister, that there is no indication that the Secretary did not comply with the requirements of section 473CB by any failure to give the review material specified by that section to the IAA. 

2. To the contrary, he submits that a reading of Mr Lochland’s affidavit demonstrates that the Secretary did what was required – a correct certificate was provided under section 473GB and the IAA was advised that the first certificate had been issued in error.

3. Although Mr Ower may be askance at the informal and somewhat imprecise manner in which the secretarial delegate chose to inform the IAA of the error, it was done.  Accordingly, in Mr O’Leary’s submission, all relevant review material was forwarded to the IAA, which thereafter conducted the type of review envisaged by section 473DB.

4. Mr O’Leary also relies on the decision of the Full Court in Minister for Immigration & Border Protection v BBS16,[20] which distinguished an earlier decision of Beach J, MZAFZ v Minister for Immigration & Border Protection.[21]  This latter case dealt with the issue of analogous certificates by the Minister to those applicable in this matter but under the regime arising in respect of reviewable decisions conducted by the Administrative Appeals Tribunal under Part 7.

   [20]  Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176

   [21]  MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081

5. It is Mr O’Leary’s submission that BBS16 drew a significant distinction between Parts 7 and 7AA of the Act, with the latter regime providing, in effect that no jurisdictional error can attach to provision of an incorrect nondisclosure certificate to the IAA, given the content of section 473DA. 

6. The section providing an exhaustive statement of the IAA’s natural justice hearing obligations and in turn incorporating the provisions of sections 473GA and 473GB, the former prohibiting the disclosure of material arising under that section and the latter granting an unfettered discretion, to the IAA, in respect of the dissemination of any material arising under it.

7. As such, even it could be said there has been a breach of section 473CB, which Mr O’Leary does not concede, the contents of the two certificates in question was immaterial to the IAA’s exercise of jurisdiction. In this context, he contends that the erroneously sent section 473GA certificate, which appears in the index to the PDF portfolio sent by Ms Sanders, is in reality a blank document. Therefore nothing can turn on it.

8. In addition, Mr O’Leary submits that the decision of the IAA did indicate that it considered the nature of the documents contained in the section 473GB certificate, which dealt with issues of the applicant’s identity, when it concluded the applicant was as he said he was. It was under no obligation to refer either certificate or the material arising under them – in the case of the first erroneously issued certificate, nothing – and in the case of the second corrected certificate, the identification material – to the referred applicant.

Conclusions

1. In MZAFZ Beach J concluded that the issue of an invalid nondisclosure certificate had the consequence of infecting the jurisdiction of the Administrative Appeals Tribunal and for it to proceed on an invalid certificate was “not a process according to law and of itself constituted a jurisdictional error.”

2. Pursuant to section 473GA, the Secretary is expressly prohibited from giving the IAA any material falling within the purview of any certificate issued under that section. Accordingly, other than that such a certificate exists, it must be irrelevant to the review process to be undertaken by the IAA. Certainly, no referred applicant is entitled to know or comment about such a certificate.

3. In BBS16 the Full Court was of the view that any material arising under a section 473GB certificate or notification was not to be regarded as new information for the purposes of section 473DD and therefore requiring its automatic dissemination to the referred applicant concerned pursuant to the provision of section 473DE.

4. In addition, the Full Court noted the wide scope of the discretion conferred upon the IAA as a consequence of the issue of a section 473GB certificate. The IAA is firstly able to decide, at its absolute discretion, whether it will have any regard to the material covered by the certificate and secondly, whether, subject to any advice provided by the Secretary, it will disclose the material to the applicant concerned.

5. As such, the only possible opportunity that an applicant will get to comment on any nondisclosure certificate is if the IAA decides to disclose the existence only of certificates relevant to the broad public interest immunity.  In this context, the Full Court said as follows:

   “The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not nor whether the IAA should accept or reject any written advice provided to it by Secretary under section 473GB(2)(b).”[22]

   [22] Ibid at [97]

6. The Full Court further endorsed the characterisation of the regime, arising under Part 7AA, as being “truly a remarkable scheme” particularly because of the “severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be.”[23]

   [23] Ibid at [98]

7. It conceded that the discretion provided to the IAA under section 473GB(3)(b) would have to be exercised in a legally reasonable manner but even so, in practical terms, the opportunity for any applicant to challenge the discretion would be limited because such a person would normally have no knowledge of the existence of such a certificate.

8. In this case, I am satisfied that the Secretary complied with the obligations arising under section 473CB. All stipulated documents were provided to the IAA. As such, there arises no error of jurisdiction. The document purportedly issued under section 473GA was a cipher. In any event, the IAA was not obliged to indicate its existence to the applicant for his comment or otherwise.

9. The IAA had a discretion to refer the documents encompassed in the section 473GB certificate to the applicant for comment, subject to any comment made by the Secretary. In this case, there was such a comment, namely the Secretary’s view that the disclosure of the identity drilling document had the potential to demonstrate the Department’s internal working in respect of identify establishment.

10. The applicant does not challenge this conclusion and is not in a position to characterise the decision of the IAA not to release the relevant documents to him for comment pursuant to its discretion under section 473GB(3)(b). There is no suggestion that the IAA exercised this discretion in a legally unreasonable way.

11. In addition, on the basis of BSS16, the certificate documents are not new information, within the ambit of section 473DE, and so requiring disclosure to the applicant.  I am satisfied that there was no error in the jurisdictional processes of the IAA.  It considered the documents, as far as it was necessary for it to do, to confirm the identity of the applicant.  It was not required to do anything further in respect of these documents.

12. As such, I do not consider that an inference arises that the IAA did not consider the section 473GB certificate and therefore it has failed to acquit its jurisdiction. I do not consider that it was obliged to indicate explicitly to the applicant concerned that it had exercised its jurisdiction, arising under the section regarding possible disclosure to him.

13. Similarly, I do not consider that any jurisdictional error arises because the IAA is said to have impliedly considered an erroneous section 473GA certificate, merely because there is no explicit reference to it in the reasons of the IAA. In its strict terms, the section prevents the IAA considering any matters certified by the Secretary as falling within the narrow public policy exclusion of national security, defence and international relations.

14. In my view, there is an illogicality in any apparent criticism of the IAA  that it has not actively considered something, which it is not entitled to consider in any event, under the relevant statutory scheme, given the Secretary has certifies it as being relevant to Cabinet deliberations, even if this was done erroneously.  

15. In addition, regardless of the fact that it was done in an apparently semi-informal manner, through the agency of the emails sent first by Ms Sanders and then Mr Hankinson, the IAA was informed the section 473GA certificate had been erroneously issued and therefore could not be part of the review materials for the purpose of section 473CB. Given the nature of the scheme arising under Part 7AA, which the Full Court characterised as truly remarkable I do not consider that it was incumbent upon the IAA to indicate to the applicant anything explicitly about these certificates.

16. In these circumstances, I am satisfied that the erroneous section 473GA certificate was not part of the IAA’s deliberations and for the same reasons outlined above, the Authority was not obliged to inform the applicant about the certificate, in any event. As such, I am not satisfied that there has been any tainting of the jurisdiction conferred on the IAA arising from either of the two certificates in question.

17. In DBE16 v Minister for Immigration & Border Protection Barker J, after considering the fact that section 473DA(1) provides an exhaustive statement of the natural justice hearing rule, in respect of fast track reviews to be conducted by the IAA concluded that the IAA did not appear to be required to give any applicant particulars of any information that it considered was likely to give it cause to affirm the decision under review.

18. In all these circumstances, given that the IAA was under no obligation to provide any information, to the applicant, about the erroneous section 473GA certificate and was not required to give the material arising under the section 473GB certificate to the applicant, I consider that the Authority has not properly failed to exercise its decision making task under Part 7AA.

19. Further, I am satisfied that the Secretary did what was required of the Department pursuant to section 473CB. As such I do not consider any jurisdictional error has been demonstrated by the applicant.

20. Accordingly, the application should be dismissed.  The Minister seeks costs.  I will award costs as calculated pursuant to the applicable schedule attached to the court’s rules in an amount of $7,328.00.

21. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         27 June 2018