Galecio v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 1029
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Galecio v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 1029
File number(s): SYG 1876 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 3 July 2025 Catchwords: MIGRATION – Where non-disclosure certificate issued the existence of which was not initially disclosed to applicant which failure was found on judicial review to be in error – on remittal to Tribunal second non-disclosure certificate issued and then revoked – first non-disclosure certificate remained extant – whether applicant denied procedural fairness – whether Tribunal under obligation to proactively provide documents the subject of revoked non-disclosure certificate Legislation: Migration Act 1958 (Cth) ss 104, 109, 359A, 362A, 375, 275A Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Hu v Minister for Immigration Citizenship and Multicultural Affairs(No. 3) [2024] FedCFamC2G 398
Kioa v West (1985) 159 CLR 550
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Parvinv Minister for Immigration and Border Protection (2019) 269 FCR 247
Zhao v Minister for Immigration and Border Protection [2019] FCA 1530
Division: General Federal Law Number of paragraphs: 74 Date of hearing: 2 September 2024 Place: Sydney Counsel for the Applicant: Ms T Baw Solicitor for the Applicant: Kah Lawyers Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 1876 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LUIS ENRIQUE OLIVARES GALECIO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application made on 23 July 2019, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act), by which the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 June 2019, affirming a decision of a delegate of the first respondent (delegate) to cancel the applicant’s Subclass 801 (Spouse) visa (visa).
The following background and summary of the Tribunal’s decision is derived from the parties’ respective written submissions, material in the Court Book (CB) and additional evidence of the parties. For that reason, it is sensible to first set out the evidence relied on at hearing.
EVIDENCE
At the hearing on 2 September 2024, the Court Book was tendered and marked Exhibit “1R”.
For the applicant were read the following Affidavits of Rachel Koo affirmed on each of:
(a)17 April 2024, with paragraphs [6] to [8] (inclusive) rejected upon objection by the first respondent (first Koo Affidavit);
(b)8 May 2024 (second Koo Affidavit); and
(c)26 August 2024 with paragraph [8] rejected upon objection by the first respondent (third Koo Affidavit).
For the first respondent were read the following Affidavits of Annabelle Victoria Jean Wilford affirmed on each of:
(a)13 May 2024 (first Wilford Affidavit); and
(b)26 August 2024 (second Wilford Affidavit) annexing (inter alia) a transcript of the applicant’s Tribunal hearing dated 2 August 2018 (Tribunal transcript), which document was ultimately tendered separately at hearing and marked Exhibit “2R”.
Neither Ms Koo nor Ms Wilford was required for cross-examination.
BACKGROUND
The background to this case is somewhat complicated and the Court has endeavoured to simplify it where possible, limited to the question for determination in the application. Factual and evidential disputes between the parties will be identified where they arise. In addition, the Court has endeavoured to anonymise non-parties where possible. In particular, there is a child who is tangentially relevant to these proceeding but who is not a party. Aspects of this case give rise to questions about that child’s parentage but it is not necessary to identify them by name in order to resolve the issues in the review.
The applicant is a citizen of Peru who arrived in Australia on 16 March 2009. Travelling on the same flight was a female friend of the applicant (Ms A).
On 9 June 2011, the applicant applied for a combined Partner visa on the basis of his spousal relationship with an Australian woman (applicant’s sponsor).
In February 2013, Ms A gave birth to a child (the child). Ms A was allegedly in a relationship with a third person who had sponsored her own partner visa (Ms A’s sponsor). Ms A’s sponsor was recorded on the child’s birth certificate as being the father of the child.
On 11 September 2013, a visa was granted to the applicant on the basis of his relationship with his sponsor (CB 1).
Cancellation
On 15 July 2016, the applicant was issued with a Notice of Intention to Consider Cancellation under s 109 of the Act (NOICC) (CB 1 to 4). The NOICC said, inter alia, that the Department held (anonymisation added):
…information from a credible source that you are the father of [the child]
and
…credible information that you and [Ms A] have been in a relationship for more than 16 years.
The applicant responded to the NOICC on 27 July 2016 (CB 11). The applicant acknowledged he was the father of the child, whom he said had been conceived during an affair with Ms A. On 19 September 2016, the delegate made a decision to cancel the applicant’s visa under s 109 of the Act for non-compliance with s 104 of the Act, on the basis that he did not declare a “change of circumstances”, being that he had a child with Ms A. The delegate considered whether the applicant was aware that he was the father of the child before the visa was granted, and whether the applicant was in a genuine spousal relationship with his sponsor. In the course of the delegate’s reasons, the delegate referred to information the Department had received from a “community informant” (see CB 20 at [10] and [12]).
On 22 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 25) and provided a copy of that decision with his application.
The first certificate
On 14 October 2016 a certificate was issued pursuant to s 375A of the Act (CB 40) (first certificate) in respect of the following folios of file number BCC2015/1460280 (the Department file):
(c)1 to 20 (inclusive);[1]
(d)38 to 40 (inclusive);[2] and
(e)54;[3]
on the basis that it would be contrary to the public interest because those folios:
contain information that could reveal the identity of the informant and possibility adversely affect their safety.
[1] Folios now in evidence at Exhibit “AW-1” to the second Wilford Affidavit at pages 38 to 57
[2] Folios now in evidence at Exhibit “AW-1” to the second Wilford Affidavit at pages 58 to 60
[3] Folio now in evidence at Exhibit “AW-1” to the second Wilford Affidavit at page 61
On 19 April 2017, the Tribunal affirmed the decision under review (first Tribunal decision) (CB 83 to 93). The Tribunal had not disclosed the existence of the first certificate to the applicant prior to making its decision. By that decision the Tribunal made reference to having put to the applicant (anonymisation added):
the allegation received by the Department that he was in a relationship with [Ms A] for 16 years
which allegation the applicant denied.
On 24 May 2017, the applicant commenced proceedings in the (then) Federal Circuit Court (first judicial review proceedings). On 2 November 2017, a Judge of the Court made orders by consent quashing the first Tribunal decision and remitting the matter to the Tribunal on the basis of the following, agreed, jurisdictional error:
1. The first respondent concedes that the second respondent denied the applicant procedural fairness and that this constituted a jurisdictional error of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:
(a) A delegate of the first respondent issued a certificate pursuant to sections 375A of the Migration Act 1958 (Cth) on 14 October 2016 (Court Book 40) and the existence of the certificate was not disclosed to the applicant in the course of the review by the second respondent; and
(b) at least some of the documents subject of the certificates were relevant, or potentially relevant, to the issues arising on the review by the second respondent.
The second certificate
On 13 November 2017, a further certificate was issued under s 375A (second certificate) in respect of the following folios of the Department file:
(a)folio 40, except for the paragraph “relating to Job Number 1 – 1602829845” (Job Details Report);[4]
(b)folio 41;[5]
(c)folio 51; and[6]
(d)folio 53, except for the paragraph relating to the Job Details Report;[7]
on the basis it that it would be:
…contrary to the public interest because most of the information in these folios is not relevant to the review application and disclosure would result in breach of privacy.
[4] Folio now in evidence at Exhibit “AW-1” to the second Wilford Affidavit at 84 (see [5(b)] above and [32] below)
[5] Ibid
[6] Ibid
[7]Ibid
On 2 August 2018, the applicant attended a hearing at the Tribunal (CB 143 to 145). The applicant provided written submissions (CB 117 to 126) and statutory declarations (CB 130, 136 to 137) including from Ms A’s brother-in-law (CB 141 to 142) by which he identified himself as being the community information and sought to retract the previous information he had provided to the Department in that capacity.
The applicant was represented in the first judicial review by the same legal representative who continued to represent him[8] in the remittal and attended the second Tribunal hearing before the (differently constituted) Tribunal on 2 August 2018 (CB 143). At that hearing, the following exchanges, relevant to the issue of non-disclosure certificates in this matter, took place (Tribunal transcript at 11):[9]
[8] Until being replaced by the applicant’s current representative, Ms Koo, on 28 February 2019. Ms Koo is from the same law firm as the previous representative and has represented the applicant in the instant proceedings since their inception
[9] Irrelevant sections (for example, directions to the interpreter) omitted
Tribunal: Mr Olivares, you have had your visa cancelled by the Department. And you’re seeking a review of that decision in the Tribunal for the second time.
…
The reason for the fact that you’re here for the second time is that the court remitted, or sent, the case back to the Tribunal to be reheard. And the reason for that was because the previous member had neglected to informed you about the section 375A certificate which is attached to the Department file.
Now, you might ask yourself what is that particular certificate? What does it mean? What’s it all about? Well, it’s a document that sits on the department file which prevents the disclosure of certain information other than to us here at the tribunal. The reason why that form has information that can’t be disclosed is for the following reason. I will explain it to you by reading the front page of this particular certificate to you.
…
I certify that in accordance with section 375A of the Migration Act 1958 the disclosure otherwise than to the tribunal of the information contained in folios 40, 41, 51 and 53 of folio number BCC2015 except for the paragraph in folio 40 and 53 relating to job number 1-
- and it has got some other numbers:
would be contrary to the public interest. And the reason why it is contrary to the public interest is because most of the information in these folios is not relevant to the review applicant and disclosure could result in a breach of privacy. As section 375A applies to the document information identified above, the AAT –
- the tribunal -
must do all that is necessary to ensure the document of information is not disclosed to any person other than to a member of the tribunal.
And that’s enacted pursuant to section 375A(2)(b) of the Migration Act 1958. So being a layperson, that probably sounds like a lot of legal talk to you, so let me explain a little bit more. If the Department puts one of those certificates on there, I have to do a couple of things. All right? Well, firstly, I have to alert you to that certificate, by law. I have to decide whether I think the certificate is valid. And lastly I have to give you the opportunity of commenting. So I observe, Mr Olivares, that you’re here with…your representative…would you like him to make some comment?
Representative: Perhaps a question, if that’s okay, Member.
Tribunal: Please.
Representative: I believe that that certificate might be different. Is that newly issued to the previous certificate?
Tribunal: Well, this certificate was issued on the 13th of the 11th of 2017.
Representative: So there’s another certificate as well, or does that supersede the previous certificate?
Tribunal:Well, this is the most current one that’s on here. And just looking at questions to do with its validity. All right?
Representative: Yes. Sorry.
Tribunal: Your representative would like to know how current it is, you know. So if you will just excuse me while I speak to him for a couple of minutes, and then we will interpret them for you. So, yes, go ahead, please, Mr Matherson. You seem to think there’s a later certificate?
Representative: No. An earlier certificate.
Tribunal:Okay.
Representative: So I wasn’t aware of this certificate.
Tribunal:Okay.
Representative: But there was an earlier – I believe that the reason for the remittance was the earlier certificate dated 14 October 2016, which has different folio numbers.
Tribunal: Okay.
Representative: Some are the same, but some would appear to be different from what you just read now.
…
Tribunal:…He’s asking me about there being an earlier certificate, and it having different folio numbers. All right? You’re probably thinking, ‘What has this got to do with the price of fish?’ But it is important at this early stage, because there has been a court hearing about it. Okay? Mr Matherson, what often happens and sometimes it’s induced by the tribunal, is where we may have some concerns about the certificate and we seek to have it revised, and at other times the revision just happens by bureaucratic fiat by the Department for some reason best known to themselves, over which we have no control. But only the other day I send one back because I wasn’t satisfied it was valid, for instance. Okay?
Mr Olivares, Mr Matherson, the crucial thing in looking at the validity is the identification of the reasons for it, and you can’t just put some broad-brush thing, ‘These pages are off limits because I think they are’ – no. There has to be a reason for it, and some explanation given in the document so that it can be checked for validity. So there it is. I think it’s valid. You have made some comments about it. Would you want to make further comments about it down on another time, or would you like to refer to it? Would you like me to send you a copy of it or something like that?
Representative: Yes. A copy would be great, please.
Tribunal:Okay.
Representative: Thank you, Member.
Tribunal:Well, in view of what you have just said, it’s fair enough. And I’m happy to do that for you. You might want to write some little submission or something like that.
Towards the end of the hearing, the Tribunal returned to the issue of the certificates in summarising the hearing and discussing a timetable for next steps, at the conclusion of which the following exchange took place (Tribunal transcript at 34):
Representative: …I just had a thought on the time issue. It might be because the folio numbers are different in the tow certificates, there’s certain documents when we requested the file that weren’t given the first time, possibly. So we may want to request those documents now that seem not to be included in the second certificate.
Tribunal:Okay. I will give you a copy of the front of the certificate.
Representative: Yes. Sure.
On 6 August 2018, the applicant’s representative wrote to the Tribunal (CB 146 and 149), relevant parts of which were as follows (numbering and errors in original):
2.During the hearing on 2 August 2018 the Member advised that a copy of the ‘s 375 Certificate’ placed on the file by the Department of Home Affairs would be provided to the applicant’s for comment.
3.We ask that a copy of the Certificate be provided and sufficient time be given for a response before the Member makes a decision on the review application.
On 10 August 2018, the Tribunal wrote to the applicant (via his authorised recipient) (CB 150 to 152) attaching a copy of the second certificate.
On 20 August 2018, the applicant’s representative wrote to the Tribunal by email attaching a completed Tribunal form[10] seeking access to written material made under s 362A of the Act
(s 362A request) (CB 154 to 155), being:All documents held on the Department file BCC2015/1460280 excluding those covered by the s 375A Certificate.
[10] Dated 13 August 2018
By the covering email referred to in [24] above, it was acknowledged that the applicant had been given until 24 August 2018 (error in original):
…to comment (in relation to a s 375A Certificate on the file.
and the applicant’s representative requested that documents in response to the s 362A request be returned as soon as possible, to enable comments to be provided in respect of them within the same time period (see CB 154).
On 23 August 2018, a letter was sent to the Tribunal seeking an extension of time in which to provide comments (CB 158 to 159) by a letter which stated (errors and numbering in original):
3. The applicant has no comment as to the validity of the certificate.
4.However, on viewing the certificate it was noted that the protected folios in the Department file were different to those in the original certificate. As such, it is possible that the applicant may be able to access certain information that was not previously available to him.
5.For this reason, the applicant submitted a Request for Access to Written Material on 20 August 2018. At the time of writing the requested information has not been provided.
6.Once the applicant has reviewed the requested he may like to comment or provide further information. In the interests of procedural fairness, we respectfully request that he be allowed a reasonable amount of time to provide his additional comments, once the material shave been received.
On 31 August 2018, the Department revoked the second certificate on the basis that it:
did not provide sufficient reasons for non-disclosure on ‘public interest’ grounds.[11]
[11] Second Koo Affidavit at Annexure “K”
On 27 September 2018, the Tribunal responded to the s 362A request (via the applicant’s authorised recipient) (CB 160 to 163). Certain of the documents produced in response thereto are contained in the Court Book and are enumerated at [27] of the second Wilford Affidavit. Documents produced in response to the s 362A request which were not reproduced in the Court Book are reproduced in the second Wilford Affidavit at [28] and form (part of) Annexure “AW-1” thereto.
Significantly, among the documents which were given to the applicant in response to the s 362A request was each of:
(a)the first certificate;[12]
(b)the second certificate;[13] and
(c)the document evidencing revocation of the second certificate.[14]
[12] Second Wilford Affidavit at [27(f)] and CB 40
[13] Second Wilford Affidavit at [27(g)] and CB 153
[14] Second Wilford Affidavit at [28(a)] and Annexure “AW1” at page 87
On 18 June 2019, the Tribunal (differently constituted) affirmed the decision of the delegate. It that Tribunal decision which is the subject of these reasons for judgment.
It is (now) not in dispute between the parties that the first certificate was never revoked and, accordingly, remained extant at the time of the Tribunal decision being made.
Without setting out the entirety of the relevant paragraphs of the second Wilford Affidavit,[15] I accept that unchallenged evidence. On the basis of it, and the submissions made for the first respondent at hearing which traversed that evidence in detail,[16] I am satisfied that:
(a)of the four folios the subject of the second certificate, none was directly relevant to the applicant with the exception of the Job Details Report which was expressly carved out from that certificate (see [18(a) and (d)] above); and
(b)the Job Details Report remained the subject of the first certificate.
[15] Second Wilford Affidavit at [11] to [17]
[16] Transcript T22.37 to T24.07
APPLICATION TO THIS COURT
By an application to show cause filed with the Court on 23 July 2019 the applicant sought review of the Tribunal’s decision. The applicant has been represented by his solicitors since the inception of these proceedings, being the same firm who represented him at the Tribunal stage of proceedings.
The proceedings were initially docketed to another Judge of the Court. On 14 August 2018, a Registrar made orders, by consent which included a grant of leave to the applicant to file an amended application by 26 September 2019 with the proceedings to be stood over for either callover before a Registrar or final hearing before the first primary Judge, on a date to be advised administratively to the parties. The proceedings were later placed in the central migration docket where they remained until 18 March 2024 when they were docketed to me and I made orders for the preparation of the matter for hearing, including an additional grant of leave to the applicant to amend his application. The hearing was initially listed before me on 22 May 2024.
On 17 April 2024, the applicant filed an amended application within the time allowed by the aforementioned grant of leave, and an Affidavit made by his solicitor. On 8 May 2024, an additional Affidavit of the applicant’s solicitor was filed.
On 14 May 2024, the first respondent filed an application in a proceeding seeking adjournment of the hearing with a timetable for further preparation of the matter to enable the first respondent to meet the evidence filed for the applicant which is referred to in the preceding paragraph (adjournment application). The hearing fixture was utilised for the hearing of the adjournment application, at the conclusion of which, the Court made orders for the filing of further Affidavit material and listing the matter for hearing on 2 September 2024. Costs of that adjournment were reserved.
Prior to the final hearing the parties filed the following written submissions:
(a)applicant’s written submissions in-chief filed on 8 May 2024 (in advance of the initially listed hearing, adjournment application and additional evidence of the first respondent);
(b)first respondent’s written submissions filed on 19 August 2024; and
(c)applicant’s written submissions in reply filed on 26 August 2024.
I have been assisted by the submissions of the parties, in particular those at hearing where they were each represented by their respective Counsel.
GROUND OF REVIEW
By the Amended Application the applicant raises the following ground of review:
1.The second respondent (the Tribunal) denied the Applicant procedural fairness, and/or breached s 359A and/or s 360(1) of the Migration Act 1958 (Cth).
a.A delegate of the First Respondent (the Minister) had issued a certificate pursuant s.375 of the Migration Act. The existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal (the first Tribunal). The Minister conceded that the Applicant was denied procedural fairness. In a previous proceeding before this Court (file no. SYG1614/2017), by consent, the Court remitted the matter back to the Tribunal for a rehearing.
b.By those consent orders, the Minister conceded that: “at least some of the documents the subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the second respondent”.
c.In the Tribunal decision, the second Tribunal stated that the s 375A certificate had been subsequently removed by the Minister. The removal of the s 375A certificate was not disclosed to the Applicant in the course of the second review by the second Tribunal.
d.In making its decision, the second Tribunal had before it material that was no longer confidential and was relevant, or potentially relevant to the review.
e.It was necessary for the Applicant to be put on notice of that material or for the second Tribunal to have disclosed that material to the Applicant.
f.No such notice was given and no such disclosure was made.
By the reply submissions referred to at [37(c)] above, the applicant abandoned his allegation in ground 1 that s 359A of the Act had been breached, but continued to press the remainder of the ground.
It should be observed that the ground of review, and the applicant’s submissions were premised, to a degree, on an incomplete understanding of the background, chronology and evidence and, in particular, the import and significance of what the second Wilford Affidavit (eventually) revealed. That is not intended as a criticism, having regard to the fact that the second Wilford Affidavit was not available to the applicant for most of the duration of the proceedings and that, even then, ascertaining the content of the four folios which were the subject of the second certificate was somewhat complicated because they appear to have been renumbered over time. The second Wilford Affidavit includes a comparative review of the available documents to cross-check those folios in order to assist in resolving the effect of the non-disclosure certificates and the documents to which they related. That is because there was some dispute between the parties as to whether the second certificate related to documents which were not otherwise the subject of the first certificate. That controversy is now resolved at [32] above. However, because of the incomplete understanding of the material, many of the arguments advanced for the applicant by his submissions in-chief, were speculative at best.
The applicant’s submissions
This summary of the applicant’s submissions is to be understood in the context of the observations made in the preceding paragraph.
The first ground ultimately contended that, in order to afford the applicant procedural fairness, the Tribunal was obliged to inform him of the revocation of a s 375 certificate by the Minister prior to making its decision in the review application, so that the applicant could have accessed the material that was no longer confidential and was relevant, or potentially relevant to the review.
By his written submissions, the applicant drew the Court’s attention to [3] (CB 200) of the Tribunal’s decision which states that (emphasis added):
The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal for reconsideration because the applicant was not informed of the presence of a s.375A certificate. This certificate has been subsequently removed by the Department.
The applicant says that it may readily be inferred by the use of the word “this” in the aforementioned passage that the s 375A certificate referred to by the Tribunal was the first certificate, being that which was the subject of the Court orders made in the first judicial review proceedings (see [17] above).
The Tribunal subsequently referred to two invitations to the applicant sent on each of 15 February 2019 (CB 176) and 14 March 2019 (CB 188) to comment on information pursuant to s 359A of the Act (collectively, s 359A letters). The s 359A letters referred to “confidential information”. The applicant says that this appears to contradict the earlier statement of the Tribunal that the s 375A certificate had been revoked (see [27] above).
By documents given to the applicant on 19 November 2019 in response to a request from his solicitor (Second Koo Affidavit, Annexure “K”), a copy of the revocation of the second certificate was provided, which indicated that the second certificate had been revoked on 31 August 2018. The applicant’s initial position was to says that unless there exists a revocation of the first certificate which was somehow missing from the subpoena documents, the Tribunal was incorrect in thinking that it was the first certificate that was revoked.
The applicant says that the above circumstances ultimately reveal a misunderstanding on the Tribunal’s part as to which of the certificates was revoked, and therefore, a misunderstanding of which material was subject to confidentiality (particularly in the context of the s 359A letters). The applicant submits that the Tribunal’s decision relies heavily on confidential information to support its ultimate finding. The Tribunal’s confusion in relation to which of the certificates was revoked gives rise to the question of whether or not the confidential information relied upon was in fact not confidential and should have been disclosed to the applicant during the review.
In support of the ground, the applicant relies primarily on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (Applicant VEAL) at [14] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ that:
…it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review
The applicant also relies on the following propositions identified by Brennan J (as his Honour then was) in Kioa v West (1985) 159 CLR 550 at 628 to 629 at [15]:
…The first proposition was that “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”; the second proposition was that “[i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.
The applicant says that, in the absence of any anterior decision to not take the material into account, material that is credible, relevant and significant in the sense identified in Applicant VEAL is material that “might” be taken into account in reaching a conclusion adverse to the applicant, citing Hu v Minister for Immigration Citizenship and Multicultural Affairs(No. 3) [2024] FedCFamC2G 398 at [112] to [113] per Judge Humphreys. The applicant says that having previously conceded the material was “relevant or potentially relevant to the issues arising on the review”[17], it would be self-serving and ultimately inconsistent with the first respondent’s duty as a model litigant to withdraw from that concession in the instant proceedings and with respect to the second Tribunal.
[17] See [17] above
The applicant’s solicitor, having obtained the formerly confidential documents, says the documents produced included material in the nature of dob-in letters (from A’s brother-in-law which were subsequently retracted (see [19] above)) and other information adverse to the applicant, and that those documents were not referred to in the s 359A letters or put to the applicant (at all) by the second Tribunal. It is the applicant’s position that the ‘dob-in’ letters were relevant or potentially relevant to the issues arising on the review, particularly in relation to the adverse credibility finding against the applicant and the finding that he was in an ongoing relationship with Ms A.
The first respondent’s submissions
By his written submissions, the first respondent accepts that the revocation of the second certificate is something that the Tribunal was required to disclose to the applicant as a matter of procedural fairness: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. The first respondent, however, denies that the Tribunal breached its procedural fairness obligations in this respect, because the Tribunal gave the applicant the revocation of the second certificate (together with other documents) on 27 September 2018.[18] Furthermore, it is the Minister’s contention that the Tribunal did not have to directly or explicitly tell the applicant of the revocation, citing Zhao v Minister for Immigration and Border Protection [2019] FCA 1530 (Zhao) at [56] per Beach J.
[18] Second Wilford Affidavit at [28(a)]
In the alternative, the first respondent contends that any denial of procedural fairness in relation to any non-disclosure of the revocation was not material because it would not have deprived the applicant of the realistic possibility of a successful outcome, citing Parvinv Minister for Immigration and Border Protection (2019) 269 FCR 247 at [60] per O’Callaghan and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. This is particularly so in circumstances where the applicant was afforded the opportunity to make submissions with respect to the documents the subject of both certificates in so far as they contained information potentially adverse to him.
Further, the first respondent says that the Tribunal did not deny the applicant procedural fairness by not giving him access to, or putting to him the “formerly confidential information”, as the Tribunal does not have a freestanding duty to provide an applicant with every document before it. The first respondent submitted that the applicant was put on notice of the substance of the adverse material contained in the documents the subject of both the first certificate and the second certificate at hearings before it (and before the previous Tribunal) held pursuant to s 360 of the Act, and in the s 359A letters referred to at [46] above.
Consideration
By ground 1, the applicant alleged a jurisdictional error constituted by a breach of either ss 359A or 360 of the Act. At hearing, the applicant’s Counsel confirmed that the allegation was no longer pressed in respect of s 359A of the Act.[19] Particulars (a) to (c) set out factual matters. The balance of the particulars allege that the Tribunal had before it material which was no longer confidential and was potentially relevant to the review and that it was necessary for the Tribunal to have disclosed that material or at least put the applicant on notice of it.
[19] Transcript T04.28 to T04.42
By submissions in reply filed with the Court on 17 April 2024, the applicant more specifically particularises how it is that the Tribunal is said to have denied him procedural fairness in the context of the ground of review, which can be distilled as follows:
(a)disclosure of the revocation certificate is “no defence” because the Tribunal did not signpost to the applicant the ongoing existence of the first certificate;
(b)the Tribunal left the applicant’s representative with the understanding that the second certificate was the operative certificate and most likely superseded the first certificate;
(c)there was confusion on the part of the Tribunal as to which documents the respective certificates applied; and
(d)non-disclosure of the documents the subject of the second certificate was material in the sense they would have made a difference to the outcome of the review.
From the exchange which is set out at [20] to [21] above, the applicant’s representative was aware of the first certificate and identified to the Tribunal that the folios which the Tribunal read out from the second certificate differed from those which had been the subject of the first certificate. So much can be accepted from his statement to the Tribunal that:
I believe that the certificate might be different.
Following this, the events which are recorded at [22] to [25] above transpired.
Clearly, by reason of the fact that the first Tribunal decision was remitted as a result of judicial review proceedings, the applicant had access to the first certificate which was disclosed to him as part of those proceedings and was specifically and expressly referred to in the remittal orders of the Court as being the basis of the extant jurisdictional error. I accept that the applicant (and his representative) was clearly on notice of the existence of first certificate because of the first judicial review proceedings.
I also accept the submission of the first respondent that there is no authority for the proposition that the Tribunal needs to read a certificate aloud to an applicant. Rather, what procedural fairness requires is disclosure of the fact of the certificate because it is that which changes the procedural landscape within which the review is to be conducted.
There is no dispute between the parties that on 27 September 2018, the Tribunal released the Departmental file together with each of the first and second certificates and the revocation certificate pertaining to the second certificate pursuant to s 362A of the Act (see [28] to [29] above). In this context, it will be recalled that at the Tribunal hearing one of the reasons the applicant had given for wanting to make the s 362A request was the apparent differences in the folio numbers between the first and second certificates and a desire to have an opportunity to potentially access additional documents.
Upon release by the Tribunal of those documents, it should have been clear to any reasonable person that the:
(a)first certificate had not been revoked, remained extant and was before the Tribunal; and
(b)second certificate had been revoked.
I accept the submissions of the first respondent that the question of the content of the requirements of procedural fairness is not judged by reference to whether the applicant’s representative did or did not look at the documents properly or, as the applicant submitted in his written submissions in reply, whether the representative noticed the revocation certificate and/or understood the significance or ramifications of it. In the circumstances of this case, I also accept that, even if the applicant’s representative left the Tribunal hearing with a subjective belief or understanding that the second certificate had replaced the first certificate, there was no proper basis for that assumption. Any such assumption would have been even less reasonably held after the release of documents by the Tribunal under s 362A of the Act at which point it was sufficiently and objectively clear from the combination of released documents that the second certificate had been revoked, and the first certificate had not.
Accordingly, I am not satisfied that the applicant was denied procedural fairness in the manner that is now understood to be alleged by the reply submissions referred to at [57(a)] to [57(b)] above.
In terms of the alleged confusion caused in respect of which documents were and were not covered by the certificates, the folios were set out in the certificates themselves. That reconciliation of those folios may have been somewhat laborious, I am not satisfied this gives rise to error. Discussion of the certificates both at the second Tribunal hearing and in correspondence might have benefited from greater precision to carefully identify them. However, as to the suggestion that the Tribunal was somehow confused or misunderstood which certificate/s remained extant, I am not satisfied that this is borne out by reference to the Tribunal transcript (see [20] to [21] above), the correspondence from the Tribunal, its reasons for decision or any other material before me. Accordingly, I am not satisfied that the applicant was denied procedural fairness in the manner that is now understood to be alleged by the reply submissions referred to at [57(c)] above.
As to the suggestion that revocation of the second certificate imposed positive obligations on the Tribunal, the applicant has not taken me to any authority in support of that proposition. The revocation of the second certificate did nothing more than that. The documents the subject of the second certificate were no longer the subject of a prohibition on disclosure pursuant to s 375A of the Act, but this did not impose on the Tribunal an obligation to actively furnish them to the applicant. Even if that is incorrect, having accepted the matters set out at [41] above, I am not satisfied that disclosure to the applicant of those documents was material.
In Zhao per Beach J, his Honour observed the following at [56] to [58]:
56. Now in relation to the first s 375A certificate, the appellants do not contend that they were prior to the Tribunal making its decision unaware of the existence of that certificate. Furthermore, the evidence supports the inference that the existence of this certificate was disclosed to them by the Tribunal in its letter dated 24 July 2015.
57. Rather the appellants argue that the Tribunal failed to disclose to them the existence of the second s 375A certificate. But I note that by reason of the Tribunal’s letter of 24 July 2015, the appellants were informed of the operation of s 375A covering certain folios of the Department’s file referred to therein. And significantly, those folios were collectively covered by both certificates.
58. Accordingly, in my view the appellants’ complaint that there was a failure to disclose that there were two s 375A certificates rather than one certificate does not greatly matter.
Having provided to the applicant each of the certificates and in addition, the revocation certificate in respect of the second certificate, and provided him time to comment, I am satisfied that there was no further obligation on the Tribunal in respect of the certificates.
Lastly, by reference to the Job Details Report, the applicant sets out the various ways in which the Tribunal’s failure to disclose it to the applicant denied him a number of avenues of enquiry and therefore resulted in a denial of procedural fairness. The Job Details Report was expressly excluded from the second certificate, it remained the subject of the first certificate and therefore the Tribunal was precluded from disclosing it to the applicant.
Accordingly, I am not satisfied that the applicant was denied procedural fairness in the manner that is now understood to be alleged by the reply submissions referred to at [57(d)] above.
CONCLUSION
I am not satisfied that there was any denial of procedural fairness to the applicant as alleged (including by the manner in which the ground developed in the applicant’s reply and oral submissions at hearing), or at all.
In the absence of a jurisdictional error, the decision of the Tribunal is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs, including as to the costs reserved by order 6 made on 16 May 2024, at judgment delivery.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 3 July 2025
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