Ganegoda v Minister for Immigration
[2020] FCCA 135
•4 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GANEGODA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 135 |
| Catchwords: PRACTICE & PROCEDURE – Where certificates given under s 375A – where certificates conceded to be invalid – judicial review then turns on whether nondisclosure of certificates was material to decision – where Minister seeks order for confidentiality and to prevent disclosure of information to applicant – where applicant self-represented on judicial review – applicant referred for pro bono assistance – where undertaking of pro bono counsel not to disclose documents or information to applicant – Minister redacts documents covered by certificates – where extent of redactions may prevent counsel evaluating issues on review – practical approach to framing orders facilitating adequate disclosure. |
| Legislation: Court Suppression and Non-publication Orders Act 2010 (NSW), ss.7, 8 |
| Cases cited: Chen v Migration Agents Registration Authority (No.1) [2016] FCA 649 |
| Other texts cited: Daly, A Typology of Materiality (2019) 26 AJ Admin L 134 |
| Applicant: | SAMEERA CHINTHAKA GANEGODA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1068 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 15 October, 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 4 February 2020 |
REPRESENTATION
| The Applicant: | In Person (15 October 2019) Mr J. Barrington (5 December 2019) |
| Counsel for the Respondents: | Mr T. Goodwin (15 October 2019) Mr V. Murano (5 December 2019) |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 24 May 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,464.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1068 of 2017
| SAMEERA CHINTHAKA GANEGODA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 24 May 2017, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 26 April 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Partner visa pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. In summary, I have concluded that as the applicant could not fulfil the criteria for the grant of the visa, the Tribunal was correct in its conclusion to affirm the delegate’s decision. Although two admittedly invalid certificates purportedly issued pursuant to s.375A of the Act were not disclosed, the decision was not tainted by jurisdictional error by reason that the failure to accord procedural fairness was not material to the Tribunal’s decision. As the Tribunal could not have been satisfied that the criteria for the grant of a Partner visa could have been met, compliance with this obligation to afford procedural fairness would not have resulted in any different outcome.
Background
The matters below were accepted as being common ground.
The applicant is a male citizen of Sri Lanka aged ~50 years.
On 13 March 2015, the applicant applied for both a Partner (Provisional) (Class UF) (Subclass 309) visa (temporary visa) and a Partner (Migrant) (Class BC) (Subclass 100) visa (permanent visa). The applicant married Ms I.D.W.W.T. Mudiyanselage in Sri Lanka on 6 November 2014. It was an arranged marriage. Ms Mudiyanselage then became his sponsor in relation to each visa application.
On 9 November 2015, whilst still in Colombo, the applicant was granted a temporary partner visa. He first came to Australia on 23 November 2015 holding that visa. In the interim, on 17 November 2015, the sponsor notified the Department that she had withdrawn her nomination of her sponsorship of the applicant stating that the parties were no longer in a relationship.
By letter dated 26 November 2015, the Department invited the applicant to comment, within 28 days, on information it had received that his relationship with the sponsor had ceased. He did not do so. By letter dated 7 January 2016, the Department provided the applicant with a further opportunity to comment on that adverse information.
On 19 February 2016, the applicant provided the following responses to the Department:
a)he had married his wife on 6 November 2014 in Sri Lanka in an arranged marriage as was “common custom in our culture”;
b)the applicant and his wife had not had any intimate physical contact, as his spouse was living in Australia and he in Sri Lanka;
c)after the parties had spent three months together as a married couple, the applicant had returned to Sri Lanka to have his visa stamped;
d)when, after three weeks, and having obtained a temporary partner visa, he returned to Australia, he found his wife to be indifferent to him. While the parties had difficulty living together, the applicant stated that he tried unsuccessfully to reconcile with her;
e)because of his marriage, he had foregone a prestigious job in Sri Lanka (as a hotel manager in Kandy).
Section s 116(1)(a) of the Act confers power on the Minister to cancel a visa in circumstances where it had been granted, whether wholly or in part, on a fact or circumstance which no longer existed.
On the same date as the applicant’s letter above, 19 February 2016, a delegate of the Minister cancelled the applicant’s temporary partner visa pursuant to s.116(1)(a) of the Act. In doing so, the delegate had express regard to the applicant’s letter, being satisfied that the ground for cancellation of the visa outweighed grounds for not doing so.
On 7 March 2016, the applicant sought review of the decision to cancel his temporary partner visa. The Tribunal found it had no jurisdiction to consider the application for review. The decision which is the subject of the present application is not concerned with the validity of the cancellation decision relating to his temporary partner visa.
On 12 October 2016, a delegate of the Minister refused the application for the permanent visa as the applicant did not meet a criterion for the grant of the visa. The application for a permanent visa was refused for the substantive reason that the applicant was no longer in a spousal relationship with his sponsor and did not satisfy sub-cll 100.221(2), (2A), (3), (4) or (4A) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Tribunal’s decision
On 28 October 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.
At some point before its decision was given, a delegate of the Minister provided the Tribunal with two certificates. Each certificate, purportedly issued pursuant to s 375A of the Act, certified that disclosure of the information in certain folios in the Departmental file would be contrary to the public interest, and that the Tribunal must do all things to ensure that such information and documents not be disclosed.
On 5 April 2017, the applicant was invited to appear before the Tribunal on 26 April 2017 to give evidence and present arguments relating to the decision under review. The applicant attended that hearing and was assisted by his migration lawyer.
On 26 April 2017, the Tribunal affirmed the delegate’s decision.
On 27 April 2017, the Tribunal notified the applicant of its decision and provided a written statement of reasons dated 26 April 2017 (Reasons).
The Tribunal noted, correctly, that the relevant issue was whether the applicant satisfied the criteria in cl 100.221 of the Regulations: [8].
The Tribunal explained to the applicant that the evidence before it suggested the applicant could not satisfy cl 100.221, as the applicant did not hold a temporary partner visa or did not hold one that ceased on notification of the decision to refuse the permanent partner visa: [12].
The evident basis for the Tribunal’s explanation was that the applicant’s temporary partner visa had been cancelled.
Clause 100.22 of the Regulations concerns the criteria to be satisfied at the time of decision. Sub-clause 100.221(1) of the Regulations specifies that an applicant must meet the requirements of par (2), (2A), (3), (4) or (4A) at the time of the decision. The Tribunal found that the applicant did not satisfy the requirements of any of the sub-clauses because he did not hold either a current Subclass 309 (Partner (Provisional)) visa, or a Subclass 309 (Partner (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 visa: [12].
At the hearing, the applicant had told the Tribunal that he knew he could not be successful in his review of the delegate’s decision, but that he wanted an opportunity to explain the circumstances of his application including that: he had been in an arranged marriage with the sponsor; how he had sacrificed his livelihood to move to Australia, and; how his sponsor had rejected him and spread false allegations about him which would damage his reputation in Sri Lanka: [13].
The Tribunal explained to the applicant that it did not have discretion to waive the legislative requirements so as to grant the applicant a Partner visa: [14].
The Tribunal affirmed the decision not to grant the Partner visa on the basis of its finding that the applicant did not meet the applicable legal criteria for the grant of that visa: [17]-[20].
Procedural history
The matter has had an elongated procedural history, much of which was the product of the decisions to issue the certificates under s 375A.
On 24 May 2017, the applicant filed an Application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application. The applicant merely deposed that he was not happy with the decision.
By a Response filed on 1 June 2017, the Minister opposed the application on the stated basis that the Tribunal’s decision was not affected by jurisdictional error.
On 20 December 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions; however, initially, those opportunities were not taken.
On 1 October 2019, the Minister filed submissions that were responsive to the grounds appearing in the application.
On the same date, a solicitor for the Minister filed an affidavit which exhibited copies of the certificates, each of which is undated. Somewhat curiously, the first certificate was signed by the delegate, but no folio numbers were specified so as to enable identification of the relevant documents and no reasons were provided explaining why s 375A applied to such documents or the information which they contained. Contrastingly, the second certificate specified folio numbers of the relevant documents (documents), but was unsigned by a delegate.
In the event, the Minister conceded that the certificates were invalid.
Of immediate concern, however, was that the affidavit made a claim with respect to the documents comprising one exhibit ((exhibit CZD-4) being the documents comprising the relevant folios in the departmental file), being a claim for confidentiality on the stated basis that the documents contained “sensitive information which, if known to the applicant, could endanger or pose a risk to the sponsor.” The Minister sought that the documents not be disclosed to the applicant.[1]
[1] At this point, the Minister disclaimed any claim for privilege.
While the affidavit (save and excepting the documents comprising exhibit CZD-4) had been served on the applicant, the foreshadowed application for the making of a confidentiality order was problematic.
The matter was first listed for hearing on 15 October 2019. On that date the applicant was self-represented before me. As pointed out to counsel for the Minister, once the invalidity of the certificates had been conceded, the question of jurisdictional error arising from nondisclosure of the documents felt to be resolved upon whether the breach of this obligation of procedural fairness had been material to the Tribunal’s decision. In this respect, it was accepted that the documents comprising exhibit CZD-4 and the information they contained may be essential to consideration of the question of jurisdictional error and that a breach of the obligation of procedural fairness would be considered to be material “only if compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA.[2] Counsel submitted that the question of materiality would include consideration of whether the Tribunal could not reasonably have been satisfied that the criteria for the grant of the visa had been met: Hossain v Minister for Immigration and Border Protection.[3]
[2] (2019) 264 CLR 421, [45] (Bell, Gageler and Keane JJ).
[3] (2018) 264 CLR 123 (Hossain), [35] (Kiefel CJ, Gageler and Keane JJ).
Having regard to those matters, counsel accepted that the content of the documents may be essential to the determination of the question of materiality and, accordingly, that an order for confidentiality presented real and potential complications where, as here, the applicant was self-represented and an order was being sought to deny him access to them.
In all the circumstances, I acceded to an application made on behalf of the Minister for the proceeding to be adjourned. The adjournment was granted on the basis that the Minister was afforded an opportunity to file any further affidavit in relation to the question of confidentiality.
With a view to promoting the prospect of resolving this issue, a certificate was issued pursuant to r. 12.02 of the Federal Circuit Court Rules 2001 (Cth) requesting the appointment of pro bono counsel. Relevantly, the pro bono certificate stated that assistance was sought:
[I]n particular with reference to the applicant’s ability to make submissions in relation to whether the information the subject of those certificates could have made any realistic difference to the outcome of the application for review and how the applicant might be able to make such submissions if orders for confidentiality are made in relation to that information. The form which orders for confidentiality might take and the necessity for any such orders are related issues that pro bono counsel might also consider.
The application was adjourned to 5 December 2019 and orders were made so as to provide for the Minister to file any additional affidavits.
Following the issue of the referral certificate, the applicant received the assistance of pro bono counsel who also appeared at the adjourned hearing. The court records its gratitude for counsel’s assistance.
Confidentiality
On 25 October 2019, an affidavit was filed on behalf of the Minister exhibiting further copies of the documents comprising exhibit CZD-4, which had been partially redacted so as to delete certain email addresses and other contact details. Counsel for the applicant, who filed and served submissions, addressed difficulties posed by those redactions.
The Minister and the applicant’s counsel agreed that a redacted version of CZD-4 could be disclosed to the applicant’s counsel on an undertaking (which was given) that counsel did not reveal the contents of that document to any person, including the applicant. While no issue was taken with those redactions, however, further pages or parts of pages within the ten pages of documents comprising exhibit CZD-4 had been wholly redacted on the basis that disclosure was protected by public interest immunity, the several bases for which were explained by the affidavit. Counsel for the applicant maintained his objection to the Minister’s claim to resist disclosure of those further redacted portions of exhibit CZD-4, doing so on the basis that the claim for public interest immunity was misconceived.
Counsel drew attention to the recent consideration of a similar issue, albeit in a different context, in HT v The Queen.[4] In that case, the Crown had withheld ‘Exhibit C’ from the appellant and her lawyers but put that information before the court for consideration in sentencing the appellant. Exhibit C was a document detailing the appellant’s assistance to police, and contained amongst other things, highly sensitive criminal intelligence.[5] The Court held unanimously that withholding Exhibit C from the appellant resulted in a denial of procedural fairness in the Court of Criminal Appeal[6] and proceeded to consider whether the denial of access to a document that had been supplied to that court was justified. In rejecting the argument that withholding Exhibit C was justified upon public interest immunity grounds, the plurality stated:[7]
The immunity provided with respect to documents by the [public interest immunity] doctrine is from their production. The doctrine has nothing to say about whether a document should be admitted into evidence or, when it is admitted, whether it should then be seen by one party and the court but kept confidential from the other party. The application of the doctrine prevents the document being admitted into evidence at all.
[4] [2019] HCA 40.
[5] HT v The Queen [2019] HCA 40, [9] (Kiefel CJ, Bell and Keane JJ).
[6] [2019] HCA 40, [27].
[7] [2019] HCA 40, [29].
Relatedly, the Court also dismissed an assertion that withholding Exhibit C was justified by ss 7 and 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The plurality observed that s 8 of that Act was “not concerned with access to documents required by the parties to proceedings”.[8] Section 8 of that Act is in similar terms to s 88F of the Federal Circuit Court of Australia Act 1999 (Cth).
[8] [2019] HCA 40, [38].
Kiefel CJ, Bell and Keane JJ considered that the real question was “how to provide a sufficient level of procedural fairness whilst at the same time maintaining a sufficient level of confidentiality of the sensitive information”[9] and discussed the tailoring of confidentiality orders by analogy with the approach taken in trade secrets litigation, stating:[10]
In cases such as the present it is difficult to accept that orders could not have been tailored to meet the concerns of the Commissioner, for example, by providing the appellant’s counsel with access to Exhibit C on terms which would have enabled him meaningfully to take instructions and make submissions.
[9] [2019] HCA 40, [42].
[10] [2019] HCA 40, [45].
Separately, Gordon J discussed precisely how orders might be framed:[11]
A court could restrict inspection of confidential information to a specified person or persons – for example, a nominated member or members of a party’s legal team – on an express restriction on the further communication and use of the information obtained. Such a restriction could, in an appropriate case, be achieved through a direction or order that the material be disclosed only to one or more of a party’s legal representatives and not to the party.
[11] [2019] HCA 40, [77].
Counsel for the applicant submitted that the Minister’s reliance on the public interest immunity doctrine as a basis for withholding CZD-4 from the applicant, but disclosing it to the court, was misconceived. Although it had not been submitted before me, I note that in CHZ19 v Minister for Immigration and Border Protection (No.2), Colvin J observed that to resist production on the ground of public interest immunity may face difficulty where such a claim had not been raised before the Tribunal.[12]
[12] [2019] FCA 1112, [27]; see also [41]-[42].
It was further submitted that the nature and extent of the redactions in CZD-4 made it difficult to make meaningful submissions about materiality. In particular, it was said that while large portions of that document remained undisclosed, the extent to which their contents may have had an impact upon the course of the review hearing remained unknowable. In turn, this was submitted to lead to the result that it necessarily impeded the applicant’s counsel in seeking instructions and advancing submissions.
Upon the making of those submissions, the parties then agreed upon a less redacted form of CDZ-4 being provided to counsel for the applicant, which was achieved by the making of a suppression order pursuant to s 88F of the Federal Circuit Court of Australia Act. It is well established that a high threshold is faced by an applicant for a suppression order and that mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice: Chen v Migration Agents Registration Authority (No.1).[13] However, the second affidavit filed on behalf of the Minister identified, in effect, the potentially chilling effect upon the supply of information to the Department if confidentiality was not maintained over communications received from third parties in relation to visa applications. The court was supplied with a number of authorities supportive of the adoption of that course.[14] I was satisfied that an order was appropriate. The order having been made, a less redacted version of the exhibit was supplied to counsel who conceded that the contents of the document were irrelevant to the issues arising on review.
[13] [2016] FCA 649, [10]-[11] (Griffiths J).
[14]Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36, [7]-[18] (Besanko J); NBCM v Minister for Home Affairs [2019] FCA 1013, [81] (Markovic J); CEF15 v Minister for Immigration and Border Protection [2018] FCCA 656, (Driver J); ASI17 v Minister for Immigration and Border Protection [2018] FCCA 2734, (Smith J); ASI17 v Minister for Immigration and Border Protection [2019] FCA 1235, (Perry J).
When regard is had to the foregoing, it is apparent that the careful consideration of the manner in which information that might properly be the subject of protection from disclosure is a matter that may ultimately avoid long delays in the determination of applications for judicial review. To say as much, it cannot be ignored that administrative decision-makers are frequently burdened by a very high caseload.
Applicable principles
If the Tribunal’s decision was a privative clause decision[15], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[16] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[17] Whether it should do so is a separate issue.
[15] Act, s 474(2).
[16]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[17] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[18] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[18]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[19]
[19]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
The application for review contained four grounds of review.Those grounds essentially complained about the merits of the decision and stated that the Tribunal had “ignored the situation” and “not considered full facts of the case and it was unreasonable for me”. They read:
I have been accused by my wife of being a gay and had spread stories among my family members which created me a very unpleasant and shameful situation. Therefor[sic] I couldn’t face my family members back home, because homosexuality is not an acceptable thing in the society which I lived.
Because of this, in few instances I felt like taking of my life. She had written to the department of immigration and said to cancel my visa, and blaming me that I have married her just to get the Australian visa, which is not true.
Prior to our marriage, I was doing a respectable job as a hotel manager. After my marriage broke out I have lost everything including all my savings and my career.
I was abused by wife number of times due to above situation. My wife humiliated me in the public and fight with me number of times. I have explained the abuse and violence situation to the AAT. However AAT has ignored the situation and rejected my case. I believe they have not considered full facts of the case and it was unreasonable for me.
The applicant’s complaints related to the merits of the case and do not provide a proper basis for an application for judicial review.
Counsel for the applicant submitted, because the Minister had conceded that the Tribunal had made legal errors in conducting the applicant’s review hearing, the only question on the application was whether those legal errors were sufficiently material to establish jurisdictional error. It was submitted that the Tribunal had committed two errors:
a)the incorrect notifications purportedly given under s 375A were an unauthorised breach of a statutory procedure;[20]
b)the failure to disclose the existence of the certificates was a breach of the obligation to afford the applicant procedural fairness.[21]
[20]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), [44] (Bell, Gageler and Keane JJ).
[21]SZMTA (2019) 264 CLR 421, [27].
Accepting that each of those matters entailed error and that the second of them was an error committed by the Tribunal, I do not accept that it committed the first of those errors. To the contrary, if there was error in giving an invalid notification to the Tribunal, it was the Secretary of the Department,[22] not the Tribunal, who had committed such error. It was the Secretary who was obliged to supply the Tribunal with all relevant documents[23] and any certificate issued under the Act.[24] While this was not conduct committed by the Tribunal, it affected its ensuing merits review of the delegate’s decision inasmuch as the notification operated to trigger in the Tribunal an obligation to disclose the fact of notification.[25] At all events, the application was conducted on the basis that the sole question was whether those legal errors were sufficiently material to establish jurisdictional error.
[22] Act, s 5.
[23] Act, s 352(4).
[24] Act, s 375A(2).
[25] SZMTA, (2019) 264 CLR 421, [2].
It was common ground that the applicant bore the onus of proving materiality[26] and that to do so he must establish that the Tribunal’s failure to accord him procedural fairness could realistically have resulted in a different decision.[27] Counsel for the applicant submitted that reaching such a conclusion required this court to evaluate a counterfactual; namely, what might have occurred if there had been compliance with a particular statutory obligation.[28] As to this, it is important to recognise that it is not for the court to form its own view as to what it would have done. As Colvin J stated in CHZ19 v Minister for Home Affairs (No 2),[29] the question to be asked on judicial review is “whether it is realistic to say that there could have been a different decision by the decision-maker . . . It is not for the Court to usurp that power on the basis of its own view as to the significance of the material. It must lack materiality in the sense that it could not realistically have affected the outcome as determined by the Tribunal.” Later, his Honour reiterated that care was required to be taken in forming a view about what the Tribunal might have decided, as distinct from assessing the significance of the material from the perspective of what the court might have done itself, adding:
It is relevant to look at what the Tribunal actually decided. It is not enough that undisclosed material was not brought to account by the Tribunal. Rather, there must be further consideration as to what might have happened if the material had been disclosed.
As noted above, counsel for the applicant conceded that the information contained in the documents which were the subject of the certificates was irrelevant to the issues before the Tribunal.
[26] SZMTA, (2019) 264 CLR 421, [4].
[27] SZMTA, (2019) 264 CLR 421, [45].
[28] CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112, [34], [46] (Colvin J).
[29] Ibid.
The evaluation of what might have happened is to be undertaken in the statutory context that the Tribunal is obliged to:
a)give an applicant clear particulars of the information that would be the reason or part of the reason for affirming a decision under review.[30] The fact of this statutory obligation, coupled with the absence of any such particulars may support a conclusion that the failure to separately disclose the certificate or the information contained in the document[s] to which it related could not have affected the outcome of the merits review.[31] Where the material is not referred to, the court can safely conclude that if information contained in document[s] the subject of a certificate had been material, the applicant would have been notified;[32]
b)give reasons which: set out its findings on any material questions of fact; refer to the evidence or other material on which its findings are made; state whether it has rejected or failed to accept evidence on a material issue. Thus its reasons are themselves evidence of the findings that were actually made. Where a Tribunal’s reasons concern the formation of a state of satisfaction, the absence of any reference to a particular matter will support an inference that it was not material.[33]
[30] Act, s 359A(1)(a).
[31] CHZ19 (No 2), [2019] FCA 1112, [40].
[32] CHZ19 (No 2), [2019] FCA 1112, [47].
[33] CHZ19 (No 2), [2019] FCA 1112, [43]-[44].
Counsel for the applicant submitted that, had the applicant been aware of the certificate, he would have been able to submit that he wanted to obtain legal advice in relation to that certificate and that he would have sought an adjournment for that to occur. In this context, attention was brought to the facts of Hossain so as to demonstrate that the present case was distinguishable. In Hossain, two prescribed criteria had been in issue before the Tribunal in relation to a Partner visa application; first, the timing of the application for merits review (the application was required to be made within 28 days); secondly, a public interest criterion (that the applicant did not have any outstanding debts at the time of the decision).[34] While the Minister conceded the Tribunal had committed error as to the first of those matters, the appeal was dismissed on the basis that the failure to meet the second criterion provided an independent basis on which the Tribunal had been bound to affirm the decision under review. Contextually, counsel had accepted that because the second basis for affirming the decision was unimpeachable, any error in relation to the first criterion was immaterial.
[34] Hossain, (2019) 264 CLR 123, [5], [10].
Here, counsel further emphasised the Court’s analysis of the dissenting judgment in the Full Court where Mortimer J had considered that, properly instructed, the Tribunal might have been persuaded to delay its decision.[35] The plurality considered that her Honours analysis entailed conjecture as there had been no application for an adjournment.[36] Edelman J, with whom Nettle J agreed on this issue, observed[37] that the assessment of whether an error had been material did not take place in a universe of hypothetical facts, but was to be assessed on the facts existing at the time of decision. Relevantly, there was no evidence the applicant had sought an adjournment or to delay the hearing.
[35] Hossain, (2019) 264 CLR 123, [14], [15].
[36] Hossain, (2019) 264 CLR 123, [36].
[37] Hossain, (2019) 264 CLR 123, [78].
By contrast, it was submitted that here the applicant did not know all of the existing facts because he had been unaware of the certificates and so was unaware of facts that may have grounded an application to delay the decision until advice had been obtained as to that issue.
While non-disclosure of the existence of the certificates resulted in a breach of procedural fairness, a number of brief observations should be made respecting the operation of the applicable principles. First, if materiality is in issue, it is to be resolved as a question of fact and is to be determined upon the inferences available from the evidence. Secondly, it is settled that the applicant bears the onus of proof on the issue of materiality. That is, the applicant must establish, to the requisite standard, that he or she was deprived of the possibility of a successful outcome by reason of the non-disclosure. Thirdly, “procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration of the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.” Fourthly, and accordingly, nondisclosure of a certificate will constitute, without more, a breach of the implied obligation of procedural fairness. Fifthly, for that breach to constitute jurisdictional error, the breach must give rise to a practical injustice in the sense that it must result in the denial of an opportunity to make submissions or adduce evidence, and that denial must be material to the ultimate decision. Sixthly, absent a contrary indication, a Tribunal can ordinarily be expected to leave documents or information which are the subject of a certificate out of account when reaching a decision. For that reason, where the documents have not been referred to, a court on judicial review can be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.[38]
[38]cfParvin v Minister for Immigration and Border Protection [2019] FCAFC 86, [46]-[51] (O’Callaghan J, Perram and Perry JJ agreeing) citations omitted.
In my opinion, there was no practical injustice to the application arising from the non-disclosure of the certificates.
In SZMTA, the plurality identified that the onus of proof was to be applied in relation to the question of materiality like any ordinary question of fact to be determined by the inferences drawn from the evidence. Their Honours framed the proposition in this way:[39]
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. (emphasis added)
[39] (2019) 264 CLR 421, [46].
It was common ground that to be granted a permanent visa, the applicant needed to satisfy cl 100.221 of Sch 2 to the Regulations. At the time of decision, he was required to meet the requirements of sub-cll (2), (2A), (3), (4) or (4A) of cl 100.221 of Sch 2. The applicant did not meet those requirements because, at the time of its decision, he was not, relevantly, the holder of a temporary visa. In my view, at the time of decision, affirming the delegate’s decision was the only decision legally available to be made by the Tribunal.
Assessed from the perspective of whether the breach operated to deny the applicant an opportunity to adduce evidence, the evaluation is not to be undertaken in a vacuum. Critically, the applicant accepted that the information contained in the documents the subject of the certificates was irrelevant. Considered in that way, there could have been no practical injustice arising from a denial of an opportunity to file evidence in response to documents that were admittedly irrelevant. This conclusion is reinforced by consideration of the statutory context considered above. In particular, nothing in the Reasons provides any basis for a conclusion that the impugned information had been the reason or a part of the reason for affirming the delegate’s decision. Nor do those Reasons provide a basis for a conclusion that the Tribunal regarded that information as being in any way material to the findings that it made.
Further, in terms of whether the breach operated to deny the applicant an opportunity to make submissions, I consider that the applicant framed the counterfactual on which he relied too narrowly. Admittedly, if apprised of the existence of the certificates, a legal option may have been open to the applicant to seek an adjournment.[40] However, the evaluation of materiality is not to be undertaken from the perspective of what the court would do if informed of the relevant facts. As Colvin J made clear in CHZ19 (No.2), [41] the question of materiality requires consideration as to what might have occurred if there had been compliance with the obligation to notify the applicant of the existence of the certificates.[42]
[40] Cf SZMTA, (2019) 264 CLR 421, [46].
[41] CHZ19 v Minister for Home Affairs (No.2) [2019] FCA 1112, [34], [46] (Colvin J).
[42] Ibid, see also Daly, A Typology of Materiality (2019) 26 AJ Admin L 134, 138.
I do not consider it is realistic to say that there would have been a different decision or outcome as determined by the Tribunal.[43] It was essential to the formation of a state of satisfaction for the grant of a permanent visa that the applicant held a temporary visa at the time of decision. It was common ground that the applicant did not so hold a temporary visa and that such visa had been cancelled. Absent satisfaction of that criterion, the Tribunal was obliged to refuse the visa application.[44] To adapt the language of Colvin J from CHZ19 (No 2), in my view there is little doubt that, had the existence of the certificates been disclosed, this is the way that the matter would have played out. That is because, when viewed within the universe of objective facts existing at the time the matter was before the Tribunal, the decision-maker would have: (1) considered the information contained within the documents the subject of the certificates to be irrelevant; (2) regarded the absence of a temporary visa as being fatal to the merits review; (3) accordingly, considered any adjournment to be devoid of utility.
[43]Tam v Minister for Immigration and Border Protection [2019] FCA 780, [78]-[79] (White J).
[44] Act, s 65(1)(b).
I do not accept that, had there been disclosure of the certificates, there is a realistic possibility that the applicant could have achieved a successful outcome by the adducing of evidence or making legal submissions in relation to the information the subject of those certificates. It follows that I do not accept the breach of the obligation of procedural fairness was material, and for that reason the error in failing to observe that obligation was jurisdictional in character. Further, I do not accept that in the circumstances of this case the error in failing to notify the applicant of the existence of the certificates was of such gravity that it should be regarded as being jurisdictional in nature.[45] If I am wrong in that conclusion, I would in any event have refused relief in the exercise of discretion on the basis that no useful result would ensue.[46]
[45]Cf Hossain (2019) 265 CLR 123, [19].
[46]Cf Hossain (2018) 264 CLR 123, [43] (Nettle J), [73]-[74] (Edelman J); SZMTA (2019) 264 CLR 421, [85] (Nettle and Gordon JJ); R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ).
Conclusion
For the reasons above, the application must be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 4 February 2020
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