Jani v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 52
•29 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 52
File number(s): SYG 3533 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 29 January 2024 Catchwords: MIGRATION – Where non-disclosure certificate issued pursuant to s 376 of the Act – Tribunal indicated during hearing that non-disclosure certificate would be sent for comment – before sending certificate for comment Tribunal approached Department and certificate was revoked and reissued – errors identified by Court – whether second certificate sent to applicant at all – error concerned by Minister that second certificate misstated effect of s 376 of Act denying applicant procedural fairness Legislation: Migration Act 1958 (Cth) ss 57, 316, 375A, 376, 379G, 476
Migration Regulations 1994 (Cth) cls 100.221, 189.215, 4020
Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 to 592
El-Jejiehv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta (2022) 296 FCR 307
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1
NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 15
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of hearings: 23 March 2023,13 June 2023, 21 December 2023 Place: Sydney Counsel for the Applicant: Mr A Byrne Solicitor for the Applicant: My Visa Lawyers Pty Ltd Solicitor for the Respondents: Ms S Roberts of Mills Oakley ORDERS
SYG 3533 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJ BANKIM JANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
29 JANUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 21 November 2018, into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
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 filed on 14 December 2018, made 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 21 November 2018. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent (delegate) refusing to grant the applicant a Skilled Independent (Permanent) (Subclass 189) visa (visa).
BACKGROUND
The background to this matter is primarily derived from the written submissions of the parties and a chronology prepared by Counsel for the applicant. Unless otherwise stated, the background does not appear to be in dispute.
On 5 January 2017, the applicant applied for the visa (Court Book (CB) 1 to 13). By his visa application form the applicant stated that since 9 November 2013 he had been employed by Python Technologies Sydney (the Company) as a computer network and systems engineer
(CB 9).
The applicant provided an array of supporting documentation with his application including (amongst other things):
(a)copies of payslips from the Company (CB 40 to 58);
(b)Australian Tax Office payment slips (ATO remittance slips) (CB 84 to 95 and 110 to 125);
(c)a letter from the Company dated 5 January 2017 certifying his employment from 10 December 2012 (CB 149 to 150);
(d)receipts for transfers of funds with the reference “PYTHON SUPER” (CB 152 to 155); and
(e)a copy of a superannuation election form relating to “Essential Super” (CB 156).
It was a requirement for the grant of the visa that the applicant satisfy the criterion prescribed by cl 189.215(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That subclause required that the applicant satisfy, among other things, Public Interest Criterion (PIC) 4020.
PIC 4020 relevantly required that:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) . … if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
“information that is false or misleading” in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
On 16 March 2017, the applicant was invited to comment on information associated with his visa application within 28 days, pursuant to s 57 of the Act (CB 166 to 171) (s 57 letter). The s 57 letter referred to a series of employment verification checks conducted by the Department, said to have given rise to concerns about the truthfulness of the applicant’s claim to have been employed by the Company in Sydney as a computer networks and systems engineer. That information included:
(a)statements made by the applicant’s referee that were inconsistent with information the applicant provided about how he was paid and when he started working for the Company;
(b)searches revealed that the ABN displayed on the ATO remittance slips was registered under the entity name “JANI, RAJ BANKIM” as an individual/sole trader in Victoria;
(c)receipts evidencing bank transfers with the reference name “Python Super” which the applicant submitted appeared to be transfers from one personal bank account to another; and
(d)that a superannuation choice form submitted by the applicant appeared to relate to a different entity (CB 168 to 169).
On 29 March 2017, the applicant responded to the s 57 invitation and submitted further documents (CB 173 to 193). By his response to the s 57 letter, the applicant said that:
(a)the information provided by his referee about when he started working at the Company was correct, and that the reason he had provided a later start date was because it was from that date that his experience with the Company had been assessed for the purpose of a skills assessment by the Australian Computer Society;
(b)the discrepancy between his payslips (which indicated payment by electronic funds transfer) and the referee’s statement that the applicant was paid in cash was because of “human error” when the payslips were generated using MYOB software;
(c)the ATO remittance slips included a reference to the applicant’s ABN because he was working as a contractor and issuing invoices to the Company for the work he completed, but he had since switched to an arrangement where he was “working on a Tax File Number”;
(d)the Company was run by a sole trader who used his own personal bank account to transfer the superannuation to the applicant’s personal bank account; and
(e)the applicant’s superannuation choice form attached to Commonwealth Essential Super and was given to all superannuation account holders with the Commonwealth Bank.
On 16 May 2017, the Department invited the applicant to comment on further information received by it (CB 166 to 171). The applicant responded with further documents on 16 May 2017 (CB 196 to 199).
On 14 July 2017, a delegate of the Minister refused to grant the applicant the visa (CB 209 to 216). Due to the discrepancies identified during the delegate’s employment verification checks and the lack of supporting evidence provided by him in response to the invitation to comment, the delegate was not satisfied the applicant had been employed in the nominated occupation at the Company as claimed (CB 214). As a result, the delegate found the applicant had provided false or misleading information in a material particular and accordingly that he did not satisfy PIC 4020 of Schedule 4 to the Regulations. In the absence of the applicant having not provided any information seeking a waiver of PIC 4020(1), the delegate found that cl 189.215 of Schedule 2 to the Regulations was not met (CB 215).
TRIBUNAL PROCEEDINGS
On 19 July 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 217 to 229) and appointed his registered migration agent as his authorised recipient (CB 224).
On 27 July 2017, the Department issued a non-disclosure certificate pursuant to s 376 of the Act (first certificate) (Supplementary Court Book (SCB) 2). The first certificate was said to apply to:
(a) folios from 176 to 184b – relate to internal communication about a pending investigation that did not influence decision
It is relevant to note that the first certificate appears to be a template document. That is, in and of itself unremarkable. The template provides a number of options for completion, presumably with the intention that irrelevant parts of the form will be deleted as part of its preparation. In the present case, while the delegate inserted the aforementioned information about the folios and the investigation, no other aspect of the form had been deleted. As a result it is both difficult to read and gives an impression of a degree of carelessness in its preparation.
On 30 August 2018, the applicant was invited (via his authorised recipient) to attend a hearing of the Tribunal, in-person, in Sydney[1] (CB 238 to 245). That document also invited the applicant to provide any documents to the Tribunal by 23 October 2018. On a date which is not clear (but by reference to the response to hearing invitation form attached to it (CB 253) can be inferred to be on or around 22 October 2018) the applicant’s representative emailed the Tribunal to:
(a)request permission for the representative to appear at the Tribunal hearing via videolink or telephone, because “we”[2] are in Melbourne (CB 246);
(b)attach a written statement from the applicant (CB 247 to 250);
(c)attach a Form 1023 “Notification of incorrect answers” and annexure thereto (CB 254 to 258); and
(d)attach the response to hearing invitation form (CB 251 to 253).
[1] Noting that the applicant’s address given in connection with the review was in New South Wales (CB 219)
[2] Presumably a reference to the representative’s migration agency (see preceding footnote)
On 30 October 2018, the applicant attended the hearing of the Tribunal (in person) to give evidence and present arguments in relation to the review (CB 260 to 268). The applicant’s migration agent appeared via videolink at the same hearing (CB 260). The applicant provided further documents on that occasion (CB 265 to 268).
In the early part of the hearing, the following exchange took place (applicant’s emphasis[3]):[4]
[3] Applicant’s written submissions filed 9 March 2023 at [8]
[4] Stanton Affidavit at pp 9 to 10
Tribunal:We're here today because the Department of Immigration and Border Protection declined to grant - or refused to grant you a 189 visa, and they did this because they formed the view that you had provided documents which were false or misleading information in relation to visa application, and that is because of the subclause 4020, which is in the criteria for the visa you applied, was filled independent[ly]. So that's - they've set that out in the decision, have you read that decision carefully? And I note that you did address in your submissions those issues. … So I just want to make sure you understand—
Applicant: I do understand.
Tribunal: --that is the issue. And we -you should also understand the Tribunal is here today as an independent tribunal. I'm looking at the Department's decision and I'm making a decision about whether I agree with their decision, I'm reviewing it, or if l don't agree, in which case I would remit it and ask them to reconsider. If l agree then I would affirm their decision. So, this is your chance today to tell me about issues that you feel are relevant and important, and it's your opportunity to go through those. If I put things to you it's not because I've made up my mind, but because I'm giving you the opportunity to comment on those issues. Also, should know there is a - there is what is referred to as a certificate on Department's file, a 376 certificate. In that certificate they've - they've put a certificate that certain information is to be disclosed only at the discretion of the Tribunal and that certificate here states that the folios relate to internal communication about a pending investigation that did not influence the decision[.] So they were, it is referencing a pending investigation and it lists, at some page it lists the concerns the Tribunal had, which were set out in your decision anyway so you're well aware of those concerns?
Applicant: Yes.
Tribunal: But you can ask, certainly comment on whether you think that is a valid certificate and I would make a decision on that and it might be something that your representative wants to comment on?
Representative: I have not seen the certificate Member, so I can't see how exactly it fits in [inaudible].
Tribunal: Well I can send you a copy of it.
Representative: Yeah, that would be ... [inaudible]
Tribunal: If you want to, comment on the validity of it and then I'll make a decision[.] [I]t's an internal communication because if anything was released it'd have all that information, the third parties redacted. But in my view it is an internal communication going on, so anyway but I'll provide it to [the] representative after the hearing.
Applicant: Thank you.
Tribunal: And in what I've read of it[,] in my view, it simply, where it does relate to you going through the issues which is set out quite clearly in the decision but anyway I'll send it to you. …
Despite the above exchange, the Tribunal did not send the first certificate to the applicant. Instead, on 31 October 2018 (being the day after the hearing) a Tribunal officer wrote to the Department about the first certificate. That correspondence was sent to an email address which appears to specifically relate to non-disclosure certificates. The email, sent at or about 12:34pm, was in the following terms[5] (original emphasis):
Good afternoon
We note there is reference on the certificate to a pending investigation. Does the department have any concerns about this certificate being forwarded in full as we are not aware of the status of the investigation. A copy of the certificate is attached.
Can you please confirm the above by reply email ASAP? This is an urgent request as we are about to send a 376 certificate to representative.
Please provide the response by 8 November 2018.
Kind regards
Meena
Tribunal Officer
[5] SCB 1 to 2 and replicated at SCB 18 to 19
At 10:21am on 2 November 2018, the delegate[6] appears to have escalated the Tribunal’s enquiry internally with the Department by writing to a person named Kevin. The email to Kevin from the delegate was in the following terms (errors in original):
Hi Kevin,
I have discussed the revocation of previous s376 to my Manager and both agreed to submit a fresh s376.
Please see attached docs.
Thank you and kind regards
Cynthia
Immigration and Citizenship Services
Department of Home Affairs
[6] Or someone with the same first name as the delegate
By an undated email[7], Kevin responded to the Tribunal officer by an email in the following terms:
Hello Meena
Please see the revised documents for this case.
Regards
Kevin
[7] but which, from the date of the email to Kevin referred to in the preceding paragraph and the date of the Revocation and Second Certificates it attached, I infer to be 2 November 2018)
On 2 November 2018, the Department issued a revocation certificate which stated (CB 269):
In accordance with subsection 33(3) of the Acts Interpretation Act 1901, I hereby:
REVOKE the certificate regarding the disclosure of certain information to the Administrative Appeals Tribunal under section 376 of the Migration Act 1958, dated 27 July 2017, on the basis that the original certificate divulged information that may be viewed by the client.
On 2 November 2018, the Department issued a new non-disclosure certificate pursuant to
s 376 of the Act (second certificate). Like the first certificate, the second certificate also applied to “folios 176 to 184b” of the Department’s file, but on the basis that disclosure would be contrary to the public interest because disclosure would:
disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
(CB 270).
On 5 November 2018, the Tribunal wrote to the applicant (via his authorised recipient) to invite comment on the validity of the second certificate (albeit without highlighting that it was in fact a different certificate that had been discussed/foreshadowed at hearing), with the reply to be made by 19 November 2018 (CB 273) (November letter). The body of the November letter stated, inter alia:
The Department has provided information to the Tribunal in its file and has issued a certificate pursuant to s.376 of the Act which requires the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person.
A copy of the certificate is attached.
On 9 November 2018, the applicant provided a response (CB 274 to 275) in the following terms (errors in original, emphasis added):
Dear Member,
Thank you for inviting me to comment on the Certificate issued by the case officer dated 02/11/2018. However, there are no details mentioned in that certificate that I could comment upon.
If there are queries or concerns of the case officer, then I would be happy to address the issues, if any.
Without having the details of the concerns that the case officer has, it will be difficult for me to comment anything. It appears to me that I am in the situation where I have to defend myself without the knowledge of what the crime is.
I believe that I have provided all the information that I have during the hearing on 30th of Oct 2018.
Thus, I would much appreciate if the case officer’s concerns are disclosed to me so that I can look forward to appropriately respond to her concerns.
(certificate response letter)
The Tribunal did not respond to the certificate response letter at all, nor provide any additional document or information to the applicant. Instead, on 22 November 2018, the Tribunal notified the applicant (via his authorised recipient) of its decision made the previous day (CB 276 to 291).
TRIBUNAL DECISION
The Tribunal identified that the issue on review was whether the applicant met PIC 4020 as required by cl 189.215(1) of the Regulations (CB 280 at [6]) and, if so, whether there were any prescribed compelling or compassionate reasons justifying a waiver of PIC 4020 (CB 280 at [7]).
The Tribunal summarised principles relating to the application of PIC 4020 (CB 281 at [8] to 10]). In relation to discrepancies which had been raised by the delegate’s s 57 letter, the Tribunal found that the applicant attempted to explain the discrepancies by providing new documents and attributing the inconsistencies in his evidence to “confusion and a mistake” and found “no other persuasive or convincing evidence was provided” (CB 282 at [28]).
The Tribunal found that while the applicant claimed to have worked for the Company for four to five years, he could not name one client until he consulted his written notes (CB 283 at [31] to [32]). The Tribunal found that one of these clients was a business whose name was listed on an invoice the applicant submitted with his visa application as evidence of having attended a training course (CB 283 at [33]).
The Tribunal did not accept that an unsigned, undated form from “Essential Super”, transfer receipts from a bank account in the name of “Python Super” and a statement from the applicant’s employer saying he transferred his employees’ superannuation payments from his personal bank account was credible evidence that the applicant was paid superannuation by an employer (CB 283 at [35] to [36]). The Tribunal had regard to a “Hostplus” superannuation statement the applicant provided at the hearing that showed he joined the fund in 2016 and contributions had been made since that time. The Tribunal found that “Hostplus” was a superannuation fund for the hospitality industry, which indicated that the applicant had worked in hospitality and had changed evidence of that work when he listed his current employment as a computer network and systems engineer in his visa application form dated January 2017 (CB 283 at [37]).
The Tribunal was not satisfied that the documents the applicant provided established that he worked at the Company because:
(a)his tax assessments for 2013 to 2018 did not indicate who his employer was two PAYG summaries he provided for 2016 and 2017 that named the Company as his employer bore very little detail and recorded no superannuation payment (CB 283 to 289 at [38]);
(b)the payslips he provided were not dated and showed payment via EFT whilst his employer told the delegate he was paid in cash (CB 284 at [40]); and
(c)multiple letters were provided by his employer with inconsistent explanations for the discrepancies with the payslips (CB 284 at [41] to [42]).
The Tribunal found that in response to the delegate’s concern that the applicant’s ABN was registered in Victoria, and that he had provided the delegate and the Tribunal with inconsistent evidence about his past addresses. When the Tribunal raised this with the applicant at hearing, the applicant responded that he had provided the Tribunal with a completed “Notification of incorrect answers” form. The Tribunal did not accept that this explained the applicant’s previous inconsistent evidence (CB 284 to 285 at [46] to [47]).
Overall, the Tribunal found that the applicant was unable to provide persuasive and consistent answers to simple questions about who his clients were or where he worked (CB 285 at [49]), and that the written evidence from his employer was in generic form and in some cases inconsistent (CB 285 at [50]). After reviewing the evidence, the Tribunal was satisfied that the applicant had manufactured documents to corroborate his claim to have worked in a skilled occupation since 2012 (CB 285 at [51]). The Tribunal found that the applicant had given the Minister, and the Tribunal, information that was false and misleading as defined in cl 4020(5) and that he did not meet PIC 4020(1) of Schedule 4 to the Regulations (CB 285 at [52] to [53]).
Given the grounds which are raised, the following parts of the Tribunal’s decision, addressing the non-disclosure certificate, warrant setting out in full. As the applicant’s representative had attended the hearing via video link and was not able to view the s 376 certificate the Tribunal, at the hearing, the Tribunal said it would send a copy of the s376 certificate to him inviting comments on its validity. The Tribunal recorded the steps it purportedly took thusly:
55There was no response from the representative in relation to the validity of the certificate.
56The applicant sent a response in which he commented that there were no details mentioned in that certificate that he could comment upon. He indicated he would like the concerns disclosed to him so that he can respond to concerns.
57At the hearing, in the presence of the representative, the Tribunal had explained that the relevant information covered by the certificate had been set out in the decision record which the applicant had provided to the Tribunal. This information was discussed in detail at the hearing. The applicant has been made aware of all adverse information which is relevant to him. The Tribunal is satisfied that the other information relating to general investigations being conducted is not relevant and was not considered in relation to this decision.
The Tribunal identified that in order to waive the requirements of PIC 4020(1) and PIC 4020(2) of Schedule 4 to the Regulations, it must be satisfied that there existed compelling or compassionate circumstances, citing Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 (CB 286 at [58]).
The Tribunal found there to be no information or evidence provided which would indicate the existence of any compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen (CB 286 at [61]).
The Tribunal was therefore not satisfied that the requirements of PIC 4020(1) or PIC 4020(2) should be waived (CB 286 at [63]).
Accordingly, the Tribunal affirmed the delegate’s decision (CB 286 at [65]).
APPLICATION TO THIS COURT
The applicant commenced the instant proceedings by an application to show cause filed with the Court on 14 December 2018. The applicant has been represented by his current solicitors since the commencement of the proceedings.
The proceedings were initially docketed to another Judge of the Court. On 23 January 2019, a Registrar of the Court made orders in Chambers by consent for the preparation of the matter for hearing, which included leave to the applicant to file any amended application and evidence by 7 March 2019. The proceedings were stood over for either callover or hearing before the first primary Judge, on a date which was to be administratively advised to the parties.
On 8 March 2019, a Registrar of the Court made orders by consent extending the time for the applicant to file and serve any amended application and Affidavits, to 11 March 2019. On 11 March 2019, an Amended Application was filed together with the Affidavit of Gillian Hawkins sworn on 11 March 2019 (Hawkins Affidavit). By the Hawkins Affidavit, Ms Hawkins deposes to being a legal secretary and to having prepared a transcript from an audio recording of the Tribunal’s hearing with the applicant held on “1 October 2018”[8] by typing the words she heard (Hawkins transcript). Ms Hawkins deposed that where she had been unable to discern what was being said from the audio file, she indicated this by typing “[inaudible]”. A copy of the Hawkins transcript prepared by Ms Hawkins was annexed to her Affidavit.
[8] This is presumed to be a typographic error as the hearing was on 30 October 2018
The proceedings were later placed in the central migration docket as part of an administrative reform for all migration cases in the Court that were not at that time listed for final hearing. The proceedings remained in the central migration docket until when, on 7 December 2022, they were docketed to me and I made orders in Chambers on the same date, listing the matter for final hearing on 23 March 2023, together with procedural orders for the preparation of the matter for that hearing (December Orders). The December Orders included a further grant of leave to the applicant to file any further amended application and evidence on or by 16 February 2023. The matter was listed for final hearing before me on 23 March 2023 (first hearing).
On 16 February 2023, a Further Amended Application and Affidavit of Annalise Mary Therese Stanton affirmed on 15 February 2023 (Stanton Affidavit) were filed. Annexed to the Stanton Affidavit is an engrossed version of the Hawkins transcript. At [5] of the Stanton Affidavit, Ms Stanton says:
Annexed to this affidavit and marked ‘A’ is a marked up version of the transcript in which I have made a number of small amendments based on my having listened to the audio recording. Where I have inserted words, they are underlined. And where I have removed words, they are struck-through.
On 16 March 2023, the Supplementary Court Book was filed for the first respondent to place the first certificate before the Court, together with related documents.
Written submissions were filed for the parties in accordance with the December Orders. At the first hearing the applicant was represented by his Counsel and the first respondent by a solicitor.[9] The Stanton Affidavit was read for the applicant without objection.
[9] Being the same representative for the parties at all subsequent hearings also
The Court Book and Supplementary Court Books were each tendered and marked as Exhibits “1R” and “2R”, respectively. An aide memoire prepared by Counsel for the applicant in support of ground 1 was marked “MFI-1” for identification. A chronology was also provided by Counsel for the applicant. The content of those documents was not disputed.
In the course of the submissions of Counsel for the applicant at the first hearing, it became apparent that contentions were being advanced, in part, based on speculation as to which documents were the subject of the respective non-disclosure certificates. As it appeared that such factual disputes could be settled by the provision of further evidence by the Minister, the proceedings were adjourned to further hearing to enable further material to be filed.
The hearing resumed on 13 June 2023 (second hearing). At the second hearing, the Affidavit of Allana Michelle Meaney sworn 20 April 2023 was read, without objection, for the first respondent (Meaney Affidavit).
Error conceded
Following the second hearing, in the course of preparing reasons for judgment, two matters became apparent to the Court which had been neither identified nor addressed by the parties at hearing.
On 15 November 2023, the Court wrote to the parties to set those issues out and to seek a joint response as to how it was the parties proposed the additional issues might be addressed. The issues were described as follows:
1.At the first hearing, there was a suggestion that the Court Book did not make clear whether or not the letter to the applicant (CB 273) (November letter), which was sent under cover of letter to the authorised recipient (CB 272) in fact attached any s 376 certificate and, if so, which certificate? Upon examination, despite the body of the November letter stating that a certificate is attached, the footer to the letter is blank in terms of any attachments, which is in contrast to the other letters from Tribunal to the applicant at CB 233, CB 241, CB 272 and CB 278. Similarly, the index to the Court Book reflects that in each other instance where letters from the Tribunal attached documents, those documents are listed (see CB index items 59, 61 and 72). By contrast, the index (CB index item 70) lists only the November letter itself as being attached to the letter from the Tribunal to the authorised recipient of 5 November 2018. The letter from the applicant in response to the November letter (CB 275) is also equivocal in clarifying whether any certificate was received.
2.What, if any, effect is caused by the fact that the November letter refers to a certificate issued pursuant to s 376 of the Act, but goes on to explain the effect of a non-disclosure certificate by reference to the language of s 375A of the Act?
On 29 November 2023, a joint response was received to indicate that the parties were unable to reach agreement on the appropriate way forward. The proceedings were subsequently listed for directions, on which occasion the Court made orders listing the proceedings for a further hearing on 21 December 2023 in order that oral submissions could be made (third hearing).
At the third hearing, the solicitor for the Minister conceded an error as identified by the Court in the preceding paragraph (namely, issue 2 as set out at [48] above), but contended that said error was not material.
The error which is conceded by the Minister falls within the ambit of ground 2 raised by the applicant. The Minister concedes that the applicant was denied procedural fairness. It is convenient to address that concession and the issue of materiality, before turning to the grounds as raised, to the extent that becomes necessary.
Issue 1 – which certificate, if any was, sent?
As notified to the parties and recorded at [48] above, the November letter does not appear to have attached any document.
The November letter was sent to the applicant via his authorised recipient as required by s 379G of the Act.[10] The covering letter to the authorised recipient concludes following the signature block with (original emphasis):
[10] Albeit the Tribunal at hearing appears to take the view that the representative, and not the applicant, ought be afforded the opportunity to comment upon the validity of the non-disclosure certificate (see transcript extracted at [16] above)
Attachments
Letter to applicant with attachments
By contrast, the November letter to the applicant simply concludes (CB 273):
Attachments
This blank space under that heading “Attachments” is in contrast to other letters from the Tribunal to the applicant which can be found in the Court Book (CB 233, CB 241, CB 272 and CB 278), in each of which document under the heading “Attachments” is a detailed list of the precise document/s attached.
In a contextual vacuum, it might be thought that the omission of any listed attachment/s from the November letter to the applicant was because there was no need to enumerate or describe them, because the list at the conclusion of the covering letter to the authorised recipient covered the field.
However, a review of previous letters in the Court Book in which there was a covering letter from the Tribunal to the authorised recipient with attachments, shows that despite similar notations in covering letters, the attachments were themselves again listed in detail under the heading “Attachments” in the applicant’s letter: see CB 231 and 233, CB 239 and 241, CB 277 and 278.
That is also consistent with the index to the Court Book. In the instances of letters from the Tribunal to the applicant’s representative referred to at [55] above, the index to the Court Book also sets out the attachments to the letters (see CB index items 59, 61 and 72). By contrast in relation to the November letter, the index (CB index item 70) lists only the November letter itself as being attached to the cover letter to the authorised recipient. To be clear, neither the revocation certificate, nor the second certificate is listed as being attached to either the November letter, nor the covering letter.
At the third hearing, Counsel for the applicant submitted the Court should infer that either:
(a)nothing was attached to the November letter by reason of the fact that there is reference to attachment but nothing else, which is inconsistent with other documents within the bundle; or
(b)only the revocation certificate was attached, but not the second certificate.
For the first respondent it was submitted that the Court should infer that the second certificate was attached to the November letter to the applicant. That was said to be because the response from the applicant, being the certificate response letter[11] said (emphasis added):
Thank you for inviting me to comment on the certificate issued by the case officer dated 2 November 2018.
[11] CB 275
Given that the November letter which invited the applicant to comment (CB 273) does not refer to the certificate/s by date at all, the first respondent says there is no way the applicant could have been aware of the date of the second certificate, unless he had been provided with a copy of it.
However, and as the solicitor for the first respondent also properly acknowledged at the third hearing, the revocation certificate is also dated 2 November 2018. Accordingly, the statement extracted at [60] above could support the inference that if the applicant was sent a copy of a certificate dated 2 November 2018, it was the revocation certificate only. It was submitted for the first respondent that because the applicant was represented, if he had been sent only the revocation certificate, one would have expected a further request for the second certificate to be provided if it was missing. The difficulty with this submission is that it is open to read the applicant’s certificate response letter as requesting just that, when he went on to say (CB 275) (errors in original):
However, there are no details mentioned in that certificate that I could comment upon.
If there are queries or concerns of the case officer, then I would be happy to address the issues, if any.
…
Thus, I would much appreciate if the case officer’s concerns are disclosed to me so that I can look forward to appropriately respond to her concerns.
It is open to infer, and I do, that the fact that there is no reference to the second certificate under the heading “Attachments” in the November letter indicates that the Tribunal failed to send the applicant the second certificate for comment. It is more difficult to reconcile the complete absence of any attachments listed with the fact that the applicant did make reference to 2 November 2018, being the date of a certificate in question. Having regard to the content of the certificate response letter making reference to there being a distinct lack of detail upon which to comment, I am of the view that if the letter included any documents at all, it was the revocation certificate only, and that the certificate response letter was requesting that the substantive non-disclosure certificate be sent for comment. A request which, on any version of events, the Tribunal ignored.
As such, I am not satisfied that the applicant was sent the second certificate for comment. This is an error, despite the fact it is not conceded as being so by the Minister.
To the extent that the Minister says that even if it were found to be an error, it is not material, I disagree.
Applying a counterfactual, had the applicant been sent the second certificate there is a realistic possibility that he might have commented upon it in a manner which resulted in the Tribunal exercising its discretion to disclose the information and/or documents the subject of the second certificate. What submissions might have flowed therefrom cannot be speculated upon. However, at the very least the applicant might have been able to make submissions about the validity of the second certificate, perhaps apprehending that it was not in fact the certificate to which the Tribunal had been referring at the hearing. This in turn may have resulted in different processes, including potentially another hearing of the Tribunal, at which he would have again been given an opportunity to give evidence and present arguments including potentially as to waiver of PIC 4020. Overall, there is a realistic possibility that the decision made may have been different. As such I am satisfied that by failing to provide the applicant with the certificate for comment the Tribunal erred and the error was jurisdictional.
Even if that is incorrect, and the Tribunal did provide the applicant with a copy of the second certificate for comment, there is a further error present, being the other issue addressed by the parties at the third hearing, resulting in the error which the first respondent does concede.
Issue 2 – misstatement of law in invitation to comment
The invitation to comment upon the second certificate said the following (emphasis added):
Department has provided information to the Tribunal in its file and has issued a certificate pursuant to s.376 of the Act which requires the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person.
Despite referring to a certificate issued pursuant to s 376 of the Act, the substance of the foregoing statement is in fact the language of s 375A of the Act.
Even if the Court was wrong about the error identified at issue 1 above, and the Tribunal did send the applicant the second certificate for comment, he was being invited to comment on an incorrect basis.
Contrary to the content of the November letter, a certificate issued pursuant to s 376 of the Act does not require the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person. That description is for a certificate issued pursuant to s 375A, which neither of the certificates in this case was.
As observed, s 376 of the Act confers on the Tribunal a discretion to disclose, if it considers it appropriate to do so, any matter contained in the document/information to the applicant or any other person who has given oral or written evidence to the Tribunal.
The offer which was included in the November letter was an invitation to the applicant to comment on the validity of the second certificate on an incorrect premise. By misstating the content of s 376 of the Act, the Tribunal was misdirecting the applicant in relation to his response and describing to him an incorrect position at law by giving the impression that it had no discretion to disclose information to him.
Had the Tribunal properly described the s 376 discretion, any response the applicant might have sought to make could have directed itself to the question of the validity of the certificate and also sought to persuade the Tribunal to exercise its discretion to disclose. By misstating the content of s 376, the Tribunal denied the applicant that opportunity. The Minister accepts that the applicant was misinformed as to the nature of that discretion as described to him as being by reference to s 376 of the Act, but in substance explained the effect of a non-disclosure certificate by reference to the language of s 375A of the Act.
The Minister contends however, that despite misstating the discretion in the November letter, the Tribunal cannot be taken to have misunderstood its power with respect to the certificate (citing CB 285 at paragraphs [54] to [57], presumably to distinguish the matter from El-Jejiehv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103 at [73] per Wigney J, upon which the Minister had relied in another context).
Despite conceding the error, the Minister says it was not material and is therefore not jurisdictional. I again disagree.
In the present case, it is not determinative that the Tribunal, in mis-informing the applicant about the nature of its discretion did so without mistaking the discretion for itself. In order to accord the applicant procedural fairness, it needed to have explained the discretion correctly to him, so that his submissions could meet it. By failing to explain the nature of the discretion, even if the Tribunal understood the nature for itself, it would be receiving information which was at odds with the matters it needed to assess. The lost opportunity was that of the applicant. Procedural fairness required that the Tribunal give the applicant at least an opportunity to seek a favourable exercise of the relevant discretion: see MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [50(d)] per Beach J.
Aside from resulting in a potential further hearing opportunity, which might have led to matters which could realistically resulted in a different decision, there is another reason why I am satisfied that the applicant has established the error is material. The documents which were covered by the second certificate are included in the Supplementary Court Book. A not inconsiderable portion of the second hearing was devoted to analysis by the applicant’s Counsel of those documents, which includes not only content of investigations which had been taken into the Company but also gives rise to a number of questions in relation to how, and by whom, the delegate’s decision was made. While it can be accepted that the delegate’s decision in the Court Book was, on its face, made and issued by the delegate, the content of a number of emails to which the second certificate applied, gives rise at least to questions about that decision making process. Had the applicant been given the opportunity to comment on the validity of the second certificate and, more specifically, the opportunity to cajole the Tribunal to disclose the content of the documents, there is a possibility that additional information might have been revealed to him upon which he could have made additional submissions in relation to his visa, the manner in which the delegate’s decision had been made and the application of PIC 4020. In particular, he might have been able to better explain the alleged discrepancies upon which the Tribunal sought to rely and which, at least in its mind, had been made clear to the applicant (Cf CB 282 at [28]). He might also have advanced matters towards the question of waiver of PIC 4020, upon which he had been silent until that point.
For all of the above reasons, I am satisfied that there was a realistic possibility that the applicant, having been properly informed as to the nature of the discretion the Tribunal was exercising may have been able to make salient submissions which could have realistically led to a different decision being made.
Accordingly, on the basis of the matters identified above I am satisfied that the Tribunal erred in two respects, denying the applicant procedural fairness and that each error was material. Accordingly, writs should issue and I will so order.
Grounds of review as raised
By the Further Amended Application the applicant raised the following two grounds of review (particulars omitted):
1. The Second Respondent fell into jurisdictional error, in making the decision, by contravening section 359A of the Migration Act 1958 (Cth) (Act).
2. The Second Respondent breached its implied obligation of procedural fairness (in circumstances where, but for such breach, the Second Respondent could have decided the application differently) by failing to (together or separately):
(a) disclose to the Applicant the revocation of the First Certificate;
(b) provide the Applicant with an opportunity to make submissions (or meaningful submissions) in relation to the revocation of the First Certificate or the implications of its revocation for the Applicant’s application;
(c) provide the Applicant with an opportunity to make submissions (or meaningful submissions) in relation to the validity of the second certificate or its implications for the Applicant’s application.
It is strictly unnecessary to address the grounds, as raised, because ground 2 has been made out albeit on the basis of different particulars. However, the following matters warrant discussion in respect of the grounds as raised. They will be dealt with in reverse order which is the order in which the parties addressed them at the second hearing.
Ground 2
By the second ground, the applicant alleges a denial of procedural fairness in the manner in which the Tribunal dealt with the non-disclosure certificates. The submissions of the parties which follows were made before the identification of the errors identified by the Court, and must be understood in that context.
Ground 2 as it was raised by the applicant turns upon the following chronology:
(a)on 27 July 2017, the first certificate was issued;
(b)on 30 October 2018, the applicant appeared at a hearing of the Tribunal. The Tribunal’s decision record at [54] (CB 285) records that after the hearing it:
sent a copy of the s376 certificate to the representative inviting comments on its validity.
(c)between 31 October 2018 and 2 November 2018 the Tribunal corresponded with the Department in the terms set out at [17] to [20] above; following which
(d)on 2 November 2018:
(i)the first certificate was revoked by the revocation certificate (CB 269); and
(ii)the second certificate was then issued (CB 270);
(e)on 5 November 2018 the Tribunal wrote to the applicant, via his authorised recipient in the terms set out at [22] above; and
(f)on 9 November 2018 the applicant sent the certificate response letter to which the Tribunal did not respond.
The applicant says that although the Tribunal told the applicant she would provide him with a copy of “the 376 certificate” (emphasis added) during the hearing, that did not occur. That is said to be because the certificate in existence at the Tribunal hearing on 30 October 2018 was the first certificate, which following the hearing was revoked and replaced with the second certificate. It was the second certificate which the first respondent says was subsequently sent to the applicant via his authorised recipient on 5 November 2018, for comment. While the Court has found as a matter of fact that the second certificate was not sent, even if it had been, the statement by the Tribunal that it had provided the applicant/his representative with “the certificate” is incorrect.
The applicant says that the exchanges between the applicant and the Tribunal at hearing reveal that, at the time of the hearing, the Member had available the full “Department file” including the first certificate (which must be so as it was the only certificate in existence at that time). The applicant says that the Tribunal member had considered some of its contents.[12] The materials were said to include an internal document about the Department’s pending investigation and to list “the concerns the Tribunal had”. The applicant says that the Tribunal did not explain what those concerns were, yet asked the applicant to agree understanding them.
[12] From the description “in what I’ve read of it” the applicant accepts it can be inferred the Tribunal had not reviewed all of the file
The first respondent says the contention that the Tribunal consequently relied on an invalid certificate and the applicant was “deprived” of an opportunity to respond to material that was withheld, is misconceived. The first respondent says that the revocation of the first certificate was immaterial in circumstances where the second certificate was issued in respect of the same folios as the first certificate, citing El-Jejieh (supra) (in order to distinguish it).
The first respondent concedes that once the first certificate was revoked, it no longer operated to restrict the Tribunal from disclosing any information to the applicant but says that, despite this, there was no obligation to invite the applicant to comment on the validity of the revoked certificate in those circumstances and the Tribunal complied with its procedural fairness obligations in respect of the second s 376 certificate.
Next, the first respondent says that even if the Tribunal did breach its procedural fairness obligations by failing to invite the applicant to comment on the validity of the revoked certificate (which is not conceded), any breach would not have been material to the Tribunal’s decision because the applicant was already aware of the relevant particulars of the information covered by the certificate (CB 281 at [12]).
The first respondent says that the Tribunal relied on information from the Department’s investigation which was expressly put to the applicant by the delegate by letter dated 16 March 2017 (CB 166 to 171) and expressly found that the remainder of the information covered by the certificate was not relevant to the applicant and it was not considered in the Tribunal’s decision (CB 285 at [57]).
The first respondent further says that it is crucial to observe that the Tribunal relied on the inability of the applicant to provide persuasive and consistent answers to simple questions about who his clients were or where he worked (CB 285 at [49]) and the generic and inconsistent evidence the applicant provided from his employer (CB 285 at [50]) in reaching its conclusion that he had given the Minister and the Tribunal, information that was false and misleading in a material particular (CB 285 at [52] to [53]).
Consideration
Procedural fairness is concerned with, and requires, a fair procedure not a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The statutory framework within which the decision-maker exercises statutory power is critical when it comes to consideration of what procedural fairness will require in a particular case, and will be tied to the facts of that case: see SZBEL (supra) at [26].
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 to 592,[13] Northrop , Miles and French JJ said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.
[13] cited with approval in SZBEL (supra) at [29] and BRF038 v Republic of Nauru (2017) 349 ALR 67 at [59] per Keane, Nettle and Edelman JJ
The decision of El-Jejieh (supra), relied upon by the first respondent, warrants closer scrutiny. Firstly it must be acknowledged that in a specific respect, the Full Federal Court found that El-Jejieh was incorrectly reasoned: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta (2022) 296 FCR 307 at [46] to [48] per Farrell, Snaden and Abraham JJ. The Full Court corrected an erroneous interpretation of cl 100.221(4) of theRegulations, being a clause which applied to the spouse visa in that case. However, that aspect of the decision was discrete and separate to the non-disclosure certificate issue and does not appear to affect the principles arising therefrom regarding procedural fairness (and materiality) in the context of non-disclosure certificates generally.
The first respondent cited El-Jejieh as being authority for the proposition that unless there is a difference in the information the subject of a first certificate which is later revoked and replaced by a subsequent certificate (in the sense that the latter does not extend as far as the former), there can be no material procedural unfairness. With respect, that proposition is overly simplistic, and misunderstands the nuance of El-Jejieh. It can be accepted that, unlike El-Jejieh, it was (ultimately[14]) not in dispute between the parties that the first and second certificates in the instant case covered the same folios, being the basis upon which the first respondent sought to rely on El-Jejieh. However, that is not the only relevant enquiry as to whether there was a denial of procedural fairness in relation to the revocation and re-issue of a non-disclosure certificate. The factual circumstances of this case present a number of bases for disquiet as to the procedures the Tribunal undertook, many intersecting with the facts of El-Jejieh (Supra).
[14] See [45] above
The first respondent submitted that it was difficult to see how the applicant lost any opportunity to seek access to that information once he was provided with a copy of the second certificate which, in essence, expressed the Department’s preference that certain information not be disclosed to the applicant. That was said to be because it remained open to the applicant to make submissions as to the validity of the second certificate which was issued pursuant to the same section of the Act and in respect of the same information. The first respondent submitted that this would not have improved the applicant’s situation because the new certificate did specify a valid public interest reason for not disclosing the information, which is that disclosure could potentially prejudice an investigation. This submission is not truly directed to an analysis of materiality. Rather, it contends for a position which is antithetical to that set out at [92] above, namely that provided one reaches the same outcome, the process can be disregarded. Such a contention must be rejected. That the second certificate remedied perceived maladies in the first certificate, such that it sought to achieve what the first one did not, might reflect an optimal position for the first respondent or even the heights of certificate perfection, but did not result in the applicant being accorded procedural fairness.
The issue with the submission above is that it proceeds on the flawed basis that the applicant was given a copy of the second certificate which, as already established above is not a matter about which the Court has been satisfied, and constitutes an error.
In terms of the ways in which the applicant was denied procedural fairness, many (if not all) of the areas of concern expressed by the Court in El-Jejieh are present in the instant case: see El-Jejieh (supra) at [41], [45], [46] and [54].
There is also additional cause for concern. In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 the High Court found the Tribunal constructively failed to exercise jurisdiction by saying that it would write to the applicant seeking comment but then proceeded to issue its decision without doing so. The error was a failure to complete the review pursuant to s 425 of the Act (the analogue in the instant case being s 360 of the Act) because the Tribunal had expressed that its review function was incomplete without that step, but nevertheless proceeded to make a decision on the review without taking it.
A similar issue arises in the present case in circumstances where the Tribunal:
(a)foreshadowed a process whereby the applicant would be given the opportunity to comment on the validity “the certificate”, being the first certificate;
(b)by reason of the steps taken following the hearing on 30 October 2018 and 2 November 2018 by which the first certificate was revoked and the second certificate issued, never fulfilled the process it foreshadowed in the previous subparagraph;
(c)the Tribunal purported to invite comment on the validity of the second certificate, which was in different (and clearer) terms than the first certificate;
(d)does not appear to have provided the second certificate to the applicant (see [52] to [67] above);
(e)invited the applicant to comment based on a flawed premise by misstating the effect of s 376 of the Act (see [68] to [80] above); and
(f)when the applicant indicated that he required more information in order to reply to the Tribunal (which having regard to [100(d)] above was hardly surprising), took no steps to further contextualise the invitation but instead finalised the decision.
In addition to the misalliance between the opportunity comment which was foreshadowed at the Tribunal hearing as being in relation to “the certificate” (being the first certificate), and the subsequent invitation purporting to attach the second certificate for comment, there are two significant defects in the invitation to comment on the validity of the certificate, being the November letter which is extracted at [22] above. It was these matters which precipitated the third hearing and in respect of which errors have now been found.
The Court has accepted the error conceded by the Minister is present and gone on to find it to be material and, therefore, jurisdictional. However, as has been set out above there are a number of ways in which the applicant appears to have been denied procedural fairness in this matter.
The Tribunal clearly had concerns about the validity of the certificate, such that it reverted to the Department. Arguably, and having regard to the content of the first certificate, the first certificate was invalid. The applicant ought to have been given the opportunity to comment upon that fact and to put to the Tribunal any submissions he wished to contend that the documents covered by the first certificate ought to be disclosed or given to him in accordance with the discretion conferred by s 376.
Accordingly, even if the first respondent had not conceded the error identified by the Court, the failure of the Tribunal to follow the procedure foreshowed by it, namely provision of the first certificate for comment, in circumstances where the Tribunal had essentially precipitated the revocation and reissue of the certificate, failed to disclose that process with clarity and failed in any event to provide the second certificate for comment, would have been found to be a separate jurisdictional error by reference to Applicant NAFF and El-Jejieh.
As it is not advanced by the applicant, the Court will not delve into a consideration of the potential difficulties arising from the interactions between the Tribunal and the Department which are detailed at [17] to [21] above. However, those emails and the chronology of events spanning 30 October 2018 to 2 November 2018 is a source of not inconsiderable disquiet. On one view, the manner and terms in which the Tribunal consulted and deferred to the Department on the question of the certificate could give rise to an allegation of bias were it to be established that the Tribunal was so committed to ensuring a particular outcome, being that that the applicant did not gain access to the documents, that steps were taken to remedy defects in an otherwise invalid certificate. Further, there may be some force to the proposition that to the extent the Tribunal had a discretion under s 376 of the Act to whether and how it might be appropriate to disclose any matter contained in the documents or information to the applicant, it ceded the exercise of said discretion, to the Department. However, having not been raised by the parties the Court has not made findings in this regard and has not allowed those concerns to affect consideration of the questions of procedural fairness which were raised, unless otherwise stated.
Ground 1
Again, having found jurisdictional error, it is strictly unnecessary to determine the additional ground raised by the applicant.
The first respondent construes that ground as making 3 contentions, namely that the Tribunal failed to:
(a)comply with s 359A of the Act in relation to information which was the subject of the first and second certificates issued pursuant to s 376 of the Act;
(b)provide the applicant with an opportunity to make submissions in relation to the revocation of the first certificate and validity of the second certificate; and
(c)address the revocation of the first certificate and validity of the second certificate in its decision.
It can be accepted, in particular based on the findings made above in respect of ground 2 and the error established, that the Tribunal did not give the applicant an opportunity to comment on the validity of either the first or second certificates, nor the intervening revocation process.
It is difficult to make an assessment of whether the obligation under s 359A of the Act was engaged in this matter in relation to the material which was the subject of the first and/or second certificates because of the imprecision of [57] of the Tribunal’s reasons for decision which states:
At the hearing, in the presence of the representative, the Tribunal had explained that the relevant information covered by the certificate had been set out in the decision record which the applicant had provided to the Tribunal. This information was discussed in detail at the hearing. The applicant has been made aware of all adverse information which is relevant to him. The Tribunal is satisfied that the other information relating to general investigations being conducted is not relevant and was not considered in relation to this decision.
I accept the submissions for the applicant that a review of the transcript of the Tribunal hearing does not reflect that relevant information the subject of the first certificate was discussed with the applicant “in detail at the hearing”.[15]
[15] Applicant’s written submissions filed 9 March 2023 at [45] read in conjunction with [8]
Further, at [57] the Tribunal seemingly categorises information into two separate categories, namely (emphasis added):
(a)adverse information relevant to the applicant; and
(b)other information relating to general investigations which was not considered relevant to the decision.
The language of s 359A of the Act is clear that any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review must be put for comment unless it is otherwise exempt.
Neither of the categorisations used by the Tribunal in describing or defining information at [57] of its decision engage directly with the language of s 359A, not seemingly properly apply that section. To the extent that the Tribunal said that material relating to investigations was not considered relevant to the decision, this is even further removed from being even a vague statement that it was not relied on, Cf El-Jejieh at [79] per Wigney J. This is concerning given that, as the applicant observes,[16] the Tribunal acknowledged having the entirety of the Department file before it, parts of which it had considered as at the time of the hearing.
[16] See [87] above
Even if the applicant had been made aware of “all adverse information which is relevant to him” (CB 285 at [57]), if that information was information which would be the reason, or a part of the reason, for affirming the decision that is under review, the Tribunal was required to put it to him and invite comment. The Tribunal appears to have stopped short of doing so.
It is, at the very least, unclear as to whether the Tribunal properly applied s 359A in relation to that information, or even attempted to make an assessment as to whether the section was engaged. It may be that the sentence about “adverse information relevant to the applicant” is intended to be a reference to the content of the delegate’s decision. It may be broader. If s 359A of the Act was engaged, I accept that nothing said by the Tribunal at the hearing met the requirements of s 359AA of the Act as being a method of satisfying the s 359A obligation.
Overall, it is not possible to discern what the Tribunal was saying at [57] of its reasons for decision. Suffice it to say that on remittal, whether and what information might need to be put to the applicant pursuant to s 359A of the Act should be the subject of detailed and careful consideration by the Tribunal, newly constituted.
CONCLUSION
As noted at [80] above, jurisdictional error having been found, writs should issue and I will make orders to that effect.
I will hear the parties as to costs. In advance of doing so, it should be observed that while objectively the two errors which have been established in this case were identified by the Court and not by the applicant. However, they were also not identified by the Minister, despite the fact that they fell within the ambit of a ground which was raised by the applicant, namely a denial of procedural fairness in relation to the issuance, and revocation, of non-disclosure certificates. Had the Minister identified the errors at an earlier stage, the need for (at the very least) multiple hearings might have been obviated and the parties might have been able to use the hearing time (if required at all) to address the very narrow compass of the issue of materiality.
I will, however hear the parties as to what they wish to say further in that regard and as to costs generally.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 29 January 2024
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