Josan v Minister for Immigration

The applicant, Josan, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the Minister for Immigration and Border Protection's refusal to grant him a Skilled (Residence) visa. The refusal was based on the applicant's failure to meet Public Interest Criterion 4020 (PIC 4020), with the delegate considering material suggesting the applicant's work reference was a "bogus document." The central dispute concerned whether the MRT was authorised to refuse the applicant access to this material and whether the failure to provide it constituted a breach of procedural fairness.

The court was required to determine two primary legal issues. Firstly, whether the Migration Review Tribunal was required or authorised to refuse the applicant access to certain material that was subject to a section 375A certificate, which certified that disclosure would be contrary to the public interest due to containing third-party details not relevant to the merits review. Secondly, the court had to consider whether the failure to provide this material to the applicant constituted a breach of procedural fairness, and consequently, whether declaratory relief should be granted.

Justice Dowdy reasoned that while section 375A of the Migration Act 1958 (Cth) imposed secrecy obligations, the MRT was still entitled to provide particulars of information that would form the basis of its decision, even if that information was otherwise subject to a section 375A certificate. This was in accordance with the decision in *Burton v Minister for Immigration and Multicultural and Indigenous Affairs* (2005) 149 FCR 20. The court found that the particulars provided in the section 359A letter, which indicated concerns about the applicant's work reference being a bogus document or containing false or misleading information, must have originated from the documents covered by the section 375A certificate. The court concluded that the MRT had complied with its procedural fairness obligations by providing the applicant with particulars of the information that would be relied upon, allowing him an opportunity to respond.

The court dismissed the applicant's application for judicial review. The applicant was successful in proceedings only after filing an amended application with substantially altered grounds and relief sought. Therefore, the court ordered that the first respondent pay the applicant's costs only from the date of the filing of the amended application.