Johal v Minister for Home Affairs
[2019] FCCA 459
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHAL v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 459 |
| Catchwords: MIGRATION – Partner visa – sponsor notifies that relationship with applicant has ended – power to grant visa to be exercised in accordance with applicable regulations – applicant seeking Partner visa on grounds of family violence required to satisfy criteria in Migration Regulations 1994 and IMMI 12/116 – no evidence adduced by applicant satisfying those criteria – Tribunal bound to refuse application – grounds of review seeking impermissible merits review or review of delegate’s decision to refuse application – court has no jurisdiction to review delegate’s decision – certificate issued by Secretary of Tribunal notifying it of obligation to do all things necessary to ensure that documents or the information which thy contain is not disclosed – certificate not disclosed to applicant for review – failure to disclose certificate notifying Tribunal of obligations under s 375A – failure to disclose triggers obligation of procedural fairness – whether breach of procedural fairness entailed jurisdictional error – no error by reason that applicant ordinarily not entitled to be notified of information which Tribunal would not take into account – whether error material – no material error – whether utility in granting relief – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.4E, 65, 338, 352, 357A, 359A, 359AA, 360, 360A, 362A, 363, 375, 375A, 437, 474, 476, 498 Migration Regulations 1994 (Cth), rr.1.22, 1.23, 1.24, 1.25, Sch 2 cl 100.221 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 BRF038 v The Republic of Nauru [2017] HCA 44 Craig v South Australia (1995) 184 CLR 163 DDN16 v Minister for Home Affairs [2018] FCA 1697 HFM045 v The Republic of Nauru (2017) 350 ALR 34 House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 Minister for Immigration and Border Protection vMZYTS(2013) 230 FCR 431 Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 Minister for Immigration and Border Protection v SZMTA; CQZ v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration; Border Protection [2019] HCA 3 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | HARMANDIP SINGH JOHAL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 545 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 23 November 2017 |
| Date of Last Submission: | 23 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr L. Brown |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application filed on 18 March 2016 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 545 of 2016
| HARMANDIP SINGH JOHAL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 18 March 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa pursuant to par 65(1)(b) of the Migration Act 1958 (Cth) (Act).
Background
The applicant, an Indian national aged 37 years, first arrived in Australia on 11 December 2013 on a Partner (Class UF) (Subclass 309) visa. The applicant applied for the visa on 14 May 2013 on the basis of his relationship with Harneet Kaur Mann (sponsor).
On 17 March 2014, the sponsor notified the Department that she was withdrawing her sponsorship because since 7 March 2014 she was no longer in a relationship with the applicant. The sponsor attributed the cessation of the relationship to irreconcilable differences. Her lawyers would later expand upon that issue.
By letter dated 7 April 2014, the Department invited the applicant to comment on this adverse information. The letter was emailed to the applicant’s authorised recipient and posted to the applicant’s last notified address. The letter outlined that the Department had received information that the applicant and sponsor’s relationship had ended. The applicant did not provide the Department with any response.
On 8 August 2014, the delegate refused the visa application. The delegate was not satisfied that the criteria for the grant of a Partner visa were met by the applicant.
On 27 August 2014, the applicant lodged an application for review to the then Migration Review Tribunal.
By letter dated 6 January 2016, the applicant was invited to appear before the Tribunal on 16 February 2016 to give evidence and present arguments relating to the decision under review.
On 16 February 2016, the applicant appeared before the Tribunal, and did so with the assistance of his brother and a Punjabi interpreter. The applicant provided the Tribunal with a photograph taken on 8 March 2014 of two of his fingers smeared with blood, and a letter from the sponsor’s solicitors dated 14 March 2014 confirming that the applicant and sponsor’s marriage had irretrievably broken down due to irreconcilable differences and incompatibility in personalities.
On 23 February 2016, the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a Partner visa and provided a written statement of reasons for its decision (Reasons).
The Tribunal recorded the applicant’s history, including that the applicant and sponsor had been married in an arranged marriage on 25 March 2013, that the applicant had told the Tribunal he had not had any contact with the sponsor since 8 March 2014, that the applicant claimed not to have received the Department’s invitation to respond to adverse information, and that the applicant claimed to be a victim of family violence perpetrated by the sponsor: Reasons, [6]-[12].
The Tribunal was satisfied that on the information provided the applicant and sponsor were in a partner relationship and, on the basis of the applicant’s oral evidence and the sponsor’s written notification to the Department that the relationship had ceased. The Tribunal identified the issue that arose on the evidence of this case as whether the applicant had suffered family violence committed by the sponsor within the meaning of the Migration Regulations 1994 (Cth) (Regulations).
The Tribunal recorded the evidence given by the applicant and his brother in relation to the claim of family violence: Reasons, [13]-[16].
The Tribunal found that although the applicant was a credible witness, there were specific requirements in the Regulations that he did not meet. In particular, the applicant did not meet r 1.23 of the Regulations as he had not provided evidence that his sponsor had been convicted of an offence or made the subject of some other relevant order. As concerned a non-judicially determined claim of family violence, no evidence was adduced of any joint undertaking having been made to a court by the applicant and his former sponsor, or other evidence in accordance with r 1.24 being a statutory declaration under r 1.25 furnishing evidence of the type and number as specified by the Minister for these purposes: Reasons, [21]-[26].
The Tribunal noted that the applicant was represented at the time he had applied for the visa, and that he had consulted a migration agent at about the time he applied for review to the Tribunal. Although, the applicant maintained he did not receive the Department’s invitation to comment on adverse information, he did acknowledge that he came into possession of a copy of the delegate’s Decision Record in August 2014. The Tribunal recognised that the delegate’s Decision Record made it clear that the applicant had been given the opportunity to respond to information that the sponsorship was withdrawn.
The Tribunal also noted that although the applicant had had nearly two years since 8 March 2014 to provide evidence of family violence, it had not been until the day of the Tribunal hearing that the applicant provided any evidence, and such evidence as had been provided did not meet the requirements in the Regulations: Reasons, [27].
The Tribunal concluded that as the applicant had not provided the evidence required, a claim of family violence had not been made under r 1.23 and the applicant did not meet the requirements of cl 100.221(4)(b) and (c) of the Regulations for the grant of a visa. Accordingly, the Tribunal affirmed the delegate’s decision to refuse the partner visa application: Reasons, [28].
Procedural history
On 18 March 2016, the applicant filed an application for judicial review of the Tribunal’s decision and an affidavit exhibiting a copy of his Indian passport and the Tribunal’s Reasons but adducing no other evidence in support of the application.
By Response filed on 14 April 2016, the Minister opposed the making of the orders sought on the basis that the Tribunal’s decision was not affected by jurisdictional error.
The matter was listed for directions hearing on 3 August 2016. On that date orders were made, by consent, listing the matter for Final Hearing. Further orders were made regulating the filing by the applicant of any amended application, affidavits and written submissions.
The applicant did not take the opportunity to file any submissions.
On 27 September 2016, the Minister filed detailed submissions.
On 20 November 2017, the Minister filed supplementary submissions addressing a question whether the Tribunal’s decision was affected by the circumstance that a delegate of the Minister had served a certificate under s 375A of the Act (certificate) in relation to the disclosure of documents comprised in certain folios of the departmental file.
Judicial Review
Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]
[1] Section 474(2).
[2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Sub-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,[4] and where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[5] Minister for Immigration and Citizenship v SZMDS.[6]
[5](2004) 78 ALJR 992, [37]-[38].
[6](2010) 240 CLR 611, [40], [102].
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.[7] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[8]
[7]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).
[8] Section 65(1)(a).
Consideration
The amended application advanced twelve grounds of review:
1. I came to Australia on 11-12-2013 on partner visa.
2. Everything was going well between us and we were living a happy.
3. Due to personal issues, we were facing some problems within the family.
4. After 2 yrs, I applied for next visa (partner visa). On 14 May 2013 on the basis of my sponsor, Ms Harneet Kaur Manne.
5. On 8/08/2014, Department refused to grant my partner visa on the basis that we are not sharing a mutual relationship.
6. The reason to refuse the visa was not true so I applied in AAT department.
7. I provided all the documents with all verbal evidences.
8. AAT member took time to give decision as my case was strong & evidences.
9. Few days after hearing, MRT gave the decision not to grant my visa and (…) the decision of DIBP.
10. According to me, AAT payed no heed towards the provided evidences.
11. Hence, I am not satisfied with the decision made by MRT/AAT and DIBP.
12. So I wish to apply in Federal Circuit Court of Australia for right review of my application.
It may be assumed that the applicant was unfamiliar with court processes. With those observations in mind, I have re-examined the Tribunal’s reasons and the materials comprised in the court book.
Grounds 1-9 and 11-12 of the application do no more than express general dissatisfaction with the Tribunal’s decision and seek, in effect, an impermissible merits review of that decision by this court. Further, Ground 11 expresses dissatisfaction, in part, with the decision of the delegate to refuse the application: Reasons [24].
The court has no jurisdiction in relation to a ‘primary decision’ which, relevantly includes a privative clause or purported privative clause decision that is reviewable under Part 5 of the Act: s 476(2), 476(4)(a). A decision of a delegate of the Minister refusing to grant an application for a Partner visa is a decision that is reviewable under Part 5: s 338(2). It is also a privative clause decision: ss 4E, 474(2). It follows that the court has no jurisdiction to conduct the review of the delegate’s decision to refuse the visa application.
Ground 10, contends, contrary to the fact, that the Tribunal overlooked evidence that had been provided by the applicant. Although the applicant did not identify what evidence had been overlooked, it is apparent that the Tribunal identified the evidence which had been given by the applicant and his brother including a photograph of two bleeding fingers, which he provided to the Tribunal said to be taken on 8 March 2014. The applicant first provided that evidence to the Tribunal at the hearing on 16 February 2016: Reasons, [12]-[16], [25]-[27].
The power conferred by s 65 to grant or refuse a visa application must be exercised in accordance with any applicable regulations under the Act: s 498(1). In Part 1, Div 1.5, regs 1.21 – 1.25 together with Sched 2 of the Regulations provide criteria which must be satisfied for the grant of a Sub-class 100 – Partner visa.
The expression ‘relevant family violence’ is defined by reg 1.22. A reference to a person having suffered family violence is a reference to a person being taken under reg 1.23 to have suffered such violence. For the purposes of the Regulations, reg 1.23 explains when a person is taken to have committed and suffered family violence respectively. In summary, reg 1.23 draws a distinction between family violence which has been determined judicially, and non-judicially determined family violence. In particular, for the purposes of the Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence where the criteria in reg 1.23(9) are met.
Regulation 1.24 identifies the evidence that is required for the purposes of meeting the criteria in reg 1.23(9) as comprising a statutory declaration and the types and number of items of evidence specified by the Minister by instrument in writing. In turn, reg 1.24 addresses certain requirements of that statutory declaration, while instrument IMMI 12/116 dated 22 November 2012 specifies the requisite types and number of items of evidence for the purposes of reg 1.24(b). Schedule 1 to IMMI 12/116 details the several types of evidence and the type of detail which must be provided.
The Tribunal identified the applicable provisions in those Regulations.
The Tribunal found, correctly, that the applicant had not met the evidentiary requirements of those Regulations.
The applicant did not suggest that there had been any court order respecting any type of relevant family violence. Nor had he furnished a statutory declaration under reg 1.25 or any type of evidence of the kind listed in the schedule to IMMI 12/116. In particular, the applicant had not provided a police record or report of any kind or any evidence that he had seen a doctor, psychologist or social worker respecting his claim: Reasons, [26].
Contextually, and as noted at [14] above, the Tribunal observed that the applicant had been represented when he had applied for the visa and that he had not responded to the invitation to comment upon adverse information (being the communication from the former sponsor that the relationship had ended). The applicant maintained that he had not received that invitation. However, he had been provided a copy of the delegate’s Decisional Record for the purposes of the Tribunal hearing and so may be taken to have known that amongst the issues arising on the decision under review was whether the evidentiary requirements to be satisfied under the Regulations would comprise a significant part of the merits review before the Tribunal. The Tribunal was entitled to take into account, as it did, that the applicant had taken practically no action in the two year period from 2014 – 2016 to obtain or adduce any evidence of a relevant form of family violence for the purposes of the Tribunal hearing: Reasons, [27].
Although the applicant was given the opportunity to adduce evidence and present arguments on the issues arising in relation to the decision under review, the evidence before the Tribunal was not capable of satisfying the requirements of rr 1.23 – 1.25 or IMMI 12/116.
Accordingly, the Tribunal’s finding was not merely open on the evidence that was before it but was the only finding that was open to be made. In the result, the Tribunal was bound to form the view that it was not satisfied that the criteria for the grant of a visa were made out and so affirm the delegate’s decision to refuse the visa application. It follows that, by para 65(1)(b) the Tribunal was required, just as Minister’s delegate had been required, to refuse the visa application.
The applicant’s grounds of application fail to identify a basis on which any jurisdictional error is shown in the Tribunal’s decision and are, in my opinion, devoid of merit. Subject to what follows, from my examination of the Reasons and the materials comprised in the court book, no other basis for jurisdictional error is shown.
Certificate s 375A
Where it applies, par 375A(2)(b) proscribes that the Tribunal must do all things necessary to ensure that a document or information that it contains is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the review.
By an affidavit filed on 20 November 2017, attention was drawn to the fact that a certificate had been given under s 375A of the Act and that the Tribunal had decided the merits review of the application without alluding to that certificate or the documents and information to which it referred. The certificate stated that disclosure of the matter or information contained in certain folios comprised in the Departmental file relating to the visa application would be contrary to the public interest, and for that reason the Tribunal must do all things necessary to ensure that the documents or information contained in those folios were not disclosed to any person other than a member of the Tribunal. The certificate was undated.
The affidavit exhibited the certificate and the documents to which it related. Those documents were contained in a sealed envelope and were documents in respect of which no privilege was claimed and for which no claim to confidentiality was made.
A failure to notify the applicant of the existence of a certificate so as to enable him or her to challenge or otherwise take steps in relation to it and the documents to which it relates may support a conclusion that a Tribunal’s decision is affected by jurisdictional error: MZAFZ v Minister for Immigration and Border Protection;[9] Minister for Immigration and Border Protection v Singh.[10]
[9] [2016] FCA 1081.
[10] (2016) 244 FCR 305.
The substantive basis of an application for judicial review grounded upon non-disclosure of a certificate issued pursuant to ss 375A or 437 is that such non-disclosure entailed a denial of procedural fairness.
Together with s 375, s 375A “operates against the background of the general obligation of the Secretary under [s 352(4)] to give the Registrar of the Tribunal all documents in the Secretary’s possession or control that are considered by the Secretary to be relevant to the review and the general obligation of the Secretary under s 363(1)(d) to investigate and report where so requested by the Tribunal”: cf Minister for Immigration and Border Protection v SZMTA; CQZ v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection.[11] Seen from this perspective, s 375 operates as an exception to those obligations by prohibiting the Secretary from giving certain documents or information to the Tribunal.[12] Where notification is given by the Secretary to the Tribunal under par 375A(2)(a), it does not operate to prohibit the provision of the documents or information by the Secretary to the Tribunal. Instead, it imposes “a procedural duty on the Secretary and confer[s] procedural powers on the Tribunal in the event of the Secretary giving the Tribunal information or a document to which the section applies.”[13] For that reason, the fact of notification by the Secretary that s 375A applies to documents or information provided to the Tribunal, triggers an obligation of procedural fairness in the Tribunal to disclose the fact of notification to the applicant for review.[14]
[11] [2019] HCA 3, [15] (Bell, Gageler and Keane JJ).
[12] Ibid, [16].
[13] Ibid, [17].
[14] Ibid, [2], [5] (Bell, Gageler and Keane JJ), [78] (Nettle and Gordon JJ).
The Tribunal was obliged to afford the applicant procedural fairness. This meant that the applicant was entitled to a fair process and hearing. It is not the existence of the obligation, but its scope and operation in the circumstances of the particular case which is in issue.
As the applicant had made application for a Partner visa, the conduct of his application for a review by the Tribunal was governed by Part 5.
For the purposes of Part 5 of the Act, Div 5 contains an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals: s 357A(1). Within Div 5, ss 359A(1) and 359AA require that a Tribunal must give to an applicant in a way which it considers to be appropriate, clear particulars of any information that it considers would be the reason or a part of the reason for affirming the decision under review. In turn, where the Tribunal is to conduct a hearing before making a decision by way of review, it must invite an applicant to such hearing: s 360A. In doing so, it must afford the applicant an opportunity to give evidence and present arguments on the issues arising on the decision under review: s 360(1).
It is settled that an applicant so invited to a hearing is entitled to a real and meaningful opportunity to give evidence and present arguments on those issues. To exercise that opportunity, the applicant might have been entitled to be informed of the existence of the documents that were contained in those folios of the Departmental file in order that he might have had an opportunity to at least consider whether to request that the documents should be produced, whether at, before or even after that hearing. Such an entitlement might be grounded upon a Tribunal’s obligation to inform an applicant of information which was in its possession which it considered would be the reason or a part of the reason for affirming the delegate’s decision. It might also be discerned from the fact that the information could on occasion be considered supportive of the applicant’s claims.
Considered from these perspectives, a complaint of want of procedural fairness is informed in part by the determination of whether the information in the subject documents was of a kind which would have been the reason or a part of the reason for affirming the delegate’s decision. It might, in the alternative, have founded a conclusion that the information would have been supportive of the applicant’s claims and available to be relied upon had it been known.
In Minister for Immigration and Border Protection v SZSSJ,[15] the Full Bench of the High Court held that:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
[15](2016) 259 CLR 180, [83] (Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32], (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59]).
It may be accepted that it is necessary to identify, at some level of specificity, the nature of the inquiry to be conducted and the issues that are to be considered on a merits review. For example, in SZMUF v Minister for Immigration and Citizenship,[16] Flick J stated:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”[17]
[16][2009] FCA 182, [22]. See also ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, [27] (Bromberg J) and cases cited.
[17]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
Thus, the scope of the obligation of procedural fairness is not at large. Indeed, sub-ss 357A(1)-(2) confirm as much in exhaustive terms in the context of an application for the review of a Part 5 Reviewable Decision. Generally, where the obligation is engaged, procedural fairness will require that the applicant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant.[18]The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision.[19]
[18] HFM045 v The Republic of Nauru (2017) 350 ALR 34, [51].
[19] BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530, [162]-[163].
As noted above, in SZSSJ the Court held[20] that ordinarily there was no requirement to notify a person of information which is in the possession of, or accessible to, the decision maker which he or she has decided not to take into account at all in the conduct of the inquiry. Nor is the Tribunal required to give a person a running commentary upon their prospects of success, so that there is, in effect, a forewarning of all possible reasons why a decision may be made to affirm a decision that is the subject of a merits review.
[20] (2016) 259 CLR 180, [83].
In Snedden v Minister for Justice for the Commonwealth of Australia,[21] Middleton and Wigney JJ observed that:
The rules of procedural fairness do not have an immutably fixed content. . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts.
[21] (2014) 315 ALR 352, [177].
Consideration of what procedural fairness requires in a particular case will depend upon all the facts and circumstances of that case having regard to the legal framework in which the decision is to be made: Minister for Immigration and Border Protection v WZARH.[22]
[22] (2015) 256 CLR 326, [30] (Kiefel CJ, Bell and Keane JJ).
It is as well to say something of the question of onus of proof.
First, neither the applicant nor the Minister bore a legal onus in the conduct of the proceedings before the Tribunal.[23] Secondly, it is for an applicant to put forward the evidence which he or she wishes the Tribunal to consider,[24] and to establish that the claims are made out.[25] Thirdly, an applicant for judicial review bears the onus of establishing jurisdictional error by the Tribunal.[26] Nothing in the Act displaces the usual position that it is for the moving party to make out its case.[27] Fourthly, where the Tribunal has failed to properly notify an applicant for review of the existence of a certificate and so failed to disclose documents to which an applicant might seek access (or the information which they contain), the question of the materiality of the breach of the obligation of procedural fairness is a question of fact upon which the applicant for judicial review bears the onus of proof.[28]
[23]Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, [40] (Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ).
[24] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [67], [91]-[92]; see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs(2006) 228 CLR 152 at 164, [40] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
[25] SZBEL, supra (2006) 228 CLR 152 at 164, [40].
[26] SZGUR (2011) 241 CLR 594, [67], [91]-[92].
[27]Plaintiff M64/2015 (2016) 258 CLR 173, [24]; SZGUR (2011) 241 CLR 594 at [67]; Minister for Immigration and Border Protection vMZYTS(2013) 230 FCR 431 at [53]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, at [81(g)].
[28]SZMTA, CQZ and BEG15, supra [2019] HCA 3, [4], [41]-[46] (Bell, Gageler and Keane JJ); contra [93]-[95] (Nettle and Gordon JJ); cf Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, [72]-[73] (Kenny, Tracey & Griffiths JJ).
The Minister’s submissions accepted that the certificate was invalid. On its face, the certificate claimed that the documents contained information and had been given to the Department in confidence.[29]
[29]See s 130(4)(e); Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227, (Heerey, Moore and Tracey JJ).
Invalidity does not necessarily compel a conclusion that the decision of an administrative decision-maker is tainted by jurisdictional error. [30] In particular, irrespective of the validity of such a certificate, if the documents withheld from production were found on inspection to be incapable of having any bearing on the decision of the Tribunal, the court will in general conclude that non-disclosure could not have deprived the applicant of an opportunity to advance his or her case before the Tribunal.[31]
[30]CQZ15, supra (2017) 253 FCR 1, 15 [74]; BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36, [30] (Kenny, Tracey & Griffiths JJ).
[31] CQZ15, supra (2017) 253 FCR 1, [69].
I have examined the 74 pages of material which comprise the folios of documents in respect of which the certificate had been issued.
It was common ground that the relationship between the applicant and his former sponsor had ended. To the extent that the information in those documents bore upon that issue, it was an issue which the Tribunal did not need to decide. To the extent that it bore upon any question of family violence, it contained no evidence of any judicially determined family violence. No suggestion was made at any stage, whether by the applicant or those who represented him, that there was any claim of judicially determined family violence. Nor was there any statutory declaration the applicant attesting to family violence. In any event, had such a declaration existed, the applicant would have been aware of its existence and had a copy thereof. Nor did the folios contain any evidence of the kinds that are specified by IMMI 12/116. There was, in short, no information which might have had any bearing upon the question of non-judicially determined family violence. Applying the principles stated in SZSSJ, the nature and content of the information contained in those documents was not information that would be taken into account. Accordingly, it was not information of a kind about which the applicant was entitled to be put on notice.
For the foregoing reasons, an available inference which I draw, is that although the Tribunal may have been in possession of, or had access to, those documents, the matter or information which they contained was of a kind that the decision-maker had not taken into account: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection.[32]
[32] [2019] HCA 3, [47]-[48] (Bell, Gageler and Keane JJ), cf [93]-[95] (Nettle and Gordon JJ).
The Minister submitted correctly that it is open to the court to find that the non-disclosure of the certificate entailed no denial of procedural fairness to the applicant. Non-disclosure of the certificate, the subject documents or any information within them did not, in my opinion, entail any want of procedural fairness. That is because, for the reasons above, the material covered by the certificate was not relevant to the review, would not have been taken into account and would not, by inference or otherwise, have formed part of the Tribunal’s reasoning.
The only issue in the application for review was whether the applicant could satisfy cl 100.221 of Sched 2 to the Regulations which required the applicant to establish that he was the alleged victim of and had suffered as a consequence of family violence and that the former sponsor had been the alleged perpetrator of that violence and harm.
Upon the conclusion that the requirements of cl 100.221 had not been satisfied, the Tribunal could not have been satisfied that the criteria for the grant of the visa were met. Once that position obtained, the Tribunal was obliged to affirm the decision to refuse the visa application pursuant to par 65(1)(b). For that reason, the conclusion that the applicant could not satisfy those criteria were dispositive of the merits review by the Tribunal.
Indeed there is nothing in the Reasons to indicate that the Tribunal took account of any other consideration in reaching its conclusion to affirm the delegate’s decision. It cannot be said that the Tribunal had acted in some unspecified way on the certificate or that the circumstances of the case demanded disclosure of the certificate or that such non-disclosure deprived the applicant of any opportunity to advance his case in relation to non-fulfilment of the criteria for this visa.[33]
[33]Cf AVO15 v Minister for Immigration and Border Protection [2017] FCA 566, [85]-[91] (Barker J).
I conclude that non-disclosure of the certificate entailed no denial of procedural fairness.
If I am wrong in the conclusion that such non-disclosure did not give rise to a failure to accord procedural fairness to the applicant, a separate question arises whether relief should be denied on the basis that there would be no utility in doing so. Despite any suggestion of error on the part of the Tribunal in failing to make disclosure, the grant of relief may be denied on discretionary grounds where it would be inutile to do so.[34] In the present case, I would also conclude that the applicant should be denied relief on this basis.
[34]SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [28]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [88] (Kirby J), [91] (Hayne J); Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-147 (The Court).
Considered from the viewpoint of materiality, no information contained in those documents had any bearing supportive of a conclusion whether the applicant had been the alleged victim, or whether his former sponsor had been the alleged perpetrator, of any relevant form of family violence. It follows that none of the matter or information in any of those documents could have had any bearing upon the Tribunal’s merits review of the delegate’s decision.
It would be pointless to do so in circumstances where the applicant could not have satisfied the statutory criteria for the grant of a Partner visa.[35] The applicant could not have established the factual circumstances required by cl 100.221 by reason that he had not complied with the evidentiary requirements of reg 1.25. It is therefore clear that the applicant could not have complied with the criteria which were essential to ground satisfaction that a Partner visa should be granted on the basis of family violence. Despite any possible complaint of non-disclosure, there is no utility in the grant of relief.
[35]cf Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 at [6], [45]-[47] (Perry J): Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 92 ALJR 798, [10] (Kiefel CJ, Gageler and Keane JJ), [30] (Edelman and Nettle JJ).
From another perspective, any failure in the observance of the obligation or procedural fairness or compliance with ss 359AA, 359A or 362A could not have had a material effect on the outcome,[36] or occasioned any practical injustice,[37] to the applicant. That is so because, had the Tribunal observed the requirements of those provisions, this could not have deprived the applicant of the possibility of a successful outcome.[38]
[36]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [52]-[59].
[37]Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, [38] (Gleeson CJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [57] (Gageler and Gordon JJ); DDN16 v Minister for Home Affairs [2018] FCA 1697, [37] and cases cited (Robertson J).
[38]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-147 (per curiam); Nobarani v Mariconte [2018] HCA 36, [38]-[39] (per curiam).
I have reviewed my conclusions in light of the Full Court’s decisions in CQZ15 v Minister for Immigration and Border Protection;[39] BJN16 v Minister for Immigration and Border Protection;[40] BEG15 v Minister for Immigration and Border Protection.[41] I have also reviewed those conclusions in light of the High Court’s decisions in Minister for Immigration and Border Protection v SZMTA; CQZ v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection.[42]
[39] (2017) 253 FCR 1.
[40] (2017) 253 FCR 21.
[41] (2017) 253 FCR 36.
[42] [2019] HCA 3.
The principles to be derived from those decisions include that:
a)the mere fact that a certificate issued under s 375A was invalid does not of itself require a conclusion that the Tribunal’s decision is affected by jurisdictional error.[43] Whether the decision is affected by error will depend upon the validity of the certificate and whether or not the documents said to be covered by it could be regarded as material to the decision on review;[44]
b)the mere fact that a certificate was before a Tribunal and that its existence was not disclosed, does not compel a conclusion of jurisdictional error.[45] Whether or not an applicant was denied procedural fairness will depend upon the circumstances of the case and the consequences for the particular applicant.[46] If the documents the subject of the certificate were incapable of having any bearing on the decision of the Tribunal, there will be no denial of procedural fairness;[47]
c)even where jurisdictional error is shown, the court may decline to grant relief on judicial review where it wold be inutile to do so.[48] In particular, the court may properly refuse relief where it is shown that the failure to disclose the certificate did not deprive the applicant of the possibility of a successful outcome.[49]
Nothing in the High Court’s reasoning in SZMTA, CQZ15 or BEG15[50] causes me to alter my conclusions that in this case there was no denial of procedural fairness or that relief should be refused on discretionary grounds on the basis that there would be no utility making an order remitting the application for reconsideration.
[43] CQZ15, supra, (2017) 253 FCR 1, [74]-[76].
[44] CQZ15, supra, (2017) 253 FCR 1, [76].
[45] CQZ15, supra, (2017) 253 FCR 1, [68]-[69].
[46] CQZ15, supra, (2017) 253 FCR 1, [68].
[47] CQZ15, supra, (2017) 253 FCR 1, [69].
[48] CQZ15, supra, (2017) 253 FCR 1, [87]-[88].
[49]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [60] (Gageler and Gordon JJ); House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112, [31] (Greenwood J), [138]-[139] (Gilmour J), [168] (Logan J).
[50] [2019] HCA 3.
Nor is there a need in the present case to explore the very different paths of reasoning employed by the plurality and the minority respectively in SZMTA, CQZ15 or BEG15 concerning the role which materiality[51] plays, or does not play, in the determination of whether an administrative decision is affected by jurisdictional error or where the onus of proof[52] lies on such issues.
[51] [2019] HCA 3, [3]-[4] (Bell, Gageler and Keane JJ), [89]-[94] (Nettle and Gordon JJ).
[52] [2019] HCA 3, [4], [41]-[46] (Bell, Gageler and Keane JJ), [93]-[95] (Nettle and Gordon JJ).
Conclusion
The application should be dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 28 February 2019
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