Khanom v MIBP

[2016] FCCA 3259

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHANOM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3259

Catchwords:
MIGRATION – Application for Regional Employer Nomination (Class RN) (Subclass 187) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal denied the applicants procedural fairness in the conduct of the hearing – whether the Tribunal failed to exercise its discretion to adjourn the hearing and await the outcome of the approval application of the employer – whether the Tribunal failed to consider relevant factors – issuing of Certificate under s.376 Migration Act 1958 (Cth) – MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081 distinguished – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 376, 359A, 424A, 438

Migration Regulations 1994 (Cth), cll.187.233, 187.234, reg.519(4)(h)

Cases cited:

BEG15 v Minister for Immigration & Border Protection [2016] FCCA 2778
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41

MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081

R v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546; [1969] HCA 10
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

First Applicant: JAHEDA KHANOM

Second Applicant: MD GAHURUZ ZAMAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 513 of 2016

Judgment of: Judge Smith

Hearing date: 11 November 2016

Date of Last Submission: 11 November 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

Counsel for the Applicants: Ms L Robb Vujcic

Solicitors for the Applicants: M S Nair & Co

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 513 of 2016

JAHEDA KHANOM

First Applicant

MD GAHURUZ ZAMAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister to refuse to grant the applicants a Regional Employer Nomination (Class RN) (Subclass 187) visa.

2. The first applicant applied for a Class RN visa on 20 June 2014. At that time that class of visa had one subclass: Subclass 187 (Regional Sponsored Migration Scheme). The applicant, as the primary visa applicant, was required to satisfy the criteria of one of three alternative visa streams: the “Temporary Residence Transition stream”, the “Direct Entry stream”, or the “Agreement stream”. The first applicant sought to satisfy the criteria for the second of these streams. The second applicant sought only to satisfy the secondary criteria for the grant of the visa, relying upon his relationship to the first applicant. For that reason, it is convenient to refer to the first applicant as the applicant and to focus on the issues that arise in relation to her.

3. The criteria relevant to that stream required the position to which the application related to be nominated in an application to the Minister for approval. Further, the person who was to employ the applicant had to be the nominator in the application for approval, the Minister had to approve the nomination, and the nomination could not have been withdrawn: cll.187.233(2), (3) and (4) in sch.2 to the Migration Regulations 1994 (Cth).

4. The applicant nominated the position of cook in her application and indicated that her proposed employer was ANRR Pty Ltd (“ANRR”) trading as Cross Country Cafe Restaurant in Scone, a town in country New South Wales. The day before the applicant’s visa application was lodged, ANRR had sought approval from the Minister of its nomination of the position of cook in respect of the applicant.

5. On 16 October 2014 a delegate of the Minister made a decision to refuse to grant the applicant a visa. The delegate’s decision was not based on any criterion relating to the nomination of the position of cook. Rather, the application was refused because the delegate was not satisfied that the applicant met the criterion relating to the applicant’s skills, in particular, cl.187.234(b). However, on the same day, the same delegate made a decision refusing to approve the nomination made by ANRR.

6. The applicant applied to the Migration Review Tribunal[1] for review of the delegate’s decision to refuse to grant her a visa. ANRR did not seek review of the decision not to approve its nomination. However, on or about 5 November 2015, it made a further application to the Minister for approval of its nomination of the cook position in respect of the applicant.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

7. By letter dated 11 November 2014, a delegate of the Minister notified the Tribunal that s.376 of the Migration Act 1958 (Cth) applied in respect of the documents or information contained in a number of portfolios in the Department’s file relating to the applicant. In spite of the flaws in that document, I will refer to it as the “s.376 Certificate”.

8. On the 16 December 2015 the Tribunal wrote to the applicant inviting her to a hearing to be conducted on 22 January 2016. By email dated 21 December 2015 the applicant’s migration agent wrote to the Tribunal requesting that the hearing be postponed in light of the recent application by ANRR for approval of its nomination. The Tribunal did not accede to that request. A further request for an adjournment was made by the applicant on the basis that her migration agent was on annual leave until after the hearing date; however, that request too, was refused. The applicant attended the hearing on 22 January 2016 together with a migration agent and the director of ANRR.

9. At the hearing the applicant requested that the Tribunal postpone making its decision until the application for approval by ANRR was determined. The Tribunal considered that request but decided not to wait before making its decision. The reasons given by the Tribunal are examined in some detail later in these reasons.

10. On 10 February 2016 the Tribunal made a decision to affirm the decision of the delegate to refuse to grant the applicant a visa. The Tribunal’s reasons for its decision, was that there was no evidence before it to show that the nomination by ANRR had been approved, had not subsequently been withdrawn. The Tribunal was not satisfied that cl.187.233 was met and so affirmed the delegate’s decision.

Grounds of Application

1. The applicant seeks judicial review of the Tribunal’s decision. At the hearing of this matter the applicant relied solely upon two grounds, neither of which were contained in the applicant’s amended application. I will proceed on the basis that the grounds in the amended application had been abandoned.

2. The grounds pressed by the applicant were:

   a)Denial of procedural fairness in the conduct of the hearing;

   b)Unreasonable failure by the Tribunal to exercise its power to adjourn the review pending the outcome of a decision by the DIBP in relation to a new business nomination application by [ANRR]; and

   c)Taking into account irrelevant considerations and failing to take into account relevant considerations in affirming the delegate’s decision.

3. In addition to those grounds, an issue arises in these proceedings in light of the s.376 Certificate referred to at [7] above and the decision of Beach J in MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081 (“MZAFZ”).

Consideration

First ground: denial of procedural fairness

1. The applicant argued that the hearing conducted by the Tribunal was unfair in four respects:

   i)the Tribunal appeared to have formed a view prior to the hearing that there were two key weaknesses with the applicant’s application and, in addition, actively controlled the discussion at the hearing to address mainly those two weaknesses;

   ii)the hearing as a whole created a misleading impression that the weakness in the applicant’s case was the level of wages to be paid, whereas in fact the review was ultimately decided on a different basis that was never discussed at the hearing;

   iii)the Tribunal encouraged the applicant to provide supplementary information on only one issue whereas the review was decided on another issue; and

   iv)the director of ANRR was prevented from giving evidence on a number of occasions and yet the Tribunal made a decision on the basis of lack of evidence.

2. One part of this ground can be dealt with briefly. The fact that the Tribunal appeared to, or had in fact, formed a view prior to the hearing about the weaknesses or strength of the applicant’s case does not support any conclusion that there was unfairness in the procedure adopted by it. First, a statutory pre-requisite to the Tribunal’s obligation to invite an applicant to a hearing, is that it is not able to make a favourable decision on the review simply by regards to the papers: sub-s.360(2)(a). Secondly, the rules concerning bias in the form of prejudgment require that a decision-maker not have, or appear to have, a closed mind, not an empty mind: see R v Commonwealth Conciliation & Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 554; [1969] HCA 10; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [72]; [2001] HCA 17 (Gleeson CJ and Gummow J); Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 at [38]; [2012] FCAFC 45 (Rares and Jagot JJ).

3. The extent of the obligation to afford procedural fairness depends on the context of the decision to be made including the statutory framework: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503‑504; [1963] HCA 41 (Kitto J). Here, the nature of the obligation to be heard was contained in s.360 of the Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) at [33]. That provision relevantly required the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

4. In SZBEL the plurality explained, at [35]:

   …The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.

5. The first question is whether the applicant was on notice of the issues that were ultimately dispositive of the review. The second issue is whether the applicant was prevented in some way (other than by lack of notice) from giving evidence or presenting arguments about those issues.

6. The applicant argues that the critical issues were: first, the applicant’s qualifications and skills; and secondly, whether the applicant would be paid adequate wages. It will be recalled that the delegate’s decision was based on the first of these issues. For that reason, the applicant was on notice that that might be an issue on the review.

7. Shortly after the commencement of the hearing, the Tribunal referred to ANRR’s second application for approval of nomination of the position of Cook, commenting that it was still in process, and said[2]:

   Tribunal:… So the issue before me today primarily is the issue of the nomination. And I’ve got a few questions about that. But just - first of all, I’m just going to get some information about your employment and background to that, because that’s relevant to this other question of skills. …

   [2] Transcript 4.27.

8. In this way, the Tribunal clearly raised the two issues that it saw arose on the review: first, the nomination (meaning, ANRR’s second application for approval of nomination of the position of Cook); and secondly, the qualifications and skills of the applicant. The first of these issues was broader than that suggested by the applicant in these proceedings. The question of the nomination was important because, as noted above, one of the criteria for the grant of the visa was that the application for nomination be approved by the Minister. As I have noted, the applicant asked the Tribunal to delay making its decision until such a decision had been made. The Tribunal’s response was that it would make a decision whether or not to delay its own decision based upon its view of the prospects of approval being granted. One of the issues relevant to those prospects was whether or not adequate wages would be paid to the applicant by her employer.

9. Immediately after the passage in the hearing set out at [20] above, the Tribunal then proceeded to ask the applicant a number of questions concerning the second of those issues. Those questions cover approximately 6 pages of the transcript of the hearing and were asked by means that generally invited full responses from the applicant. At the end of that line of questioning the Tribunal said[3]:

   [3] T10.24.

   Tribunal:… So if I come to decide on this issue, I will just consider what we’ve talked about here. … And – but, as I said, the issue that is the primary issue now is the question of a nomination.

   …

10. At that point of the hearing, the Tribunal asked the director of ANRR to come forward to give evidence. The Tribunal first asked the director a number of questions about the previous application for approval and the fact that the Department had imposed a sponsorship bar upon him. It is fair to say that, at this point, the Tribunal prevented the director from giving further evidence about that topic. However, the following passage at the hearing explains why. The Tribunal said to the director: “So I’ll just leave you now for the moment.”[4] It then said:[5]

    [4] T12.27.

    [5] T12.37.

    Tribunal:Okay. So in looking at your matter and in these types of cases, I have to be – well, you’re asking me to postpone making my decision until the new nomination was determined, okay? My view in these cases is, well, why should – the only reason I might do that is if I am satisfied that the new nomination is likely to be successful because what would be the point of postponing if it was refused on the same or similar or different grounds, all right? So if I’m not satisfied that it’s got reasonable prospects of success, well, then I’m not going to postpone making the decision, all right? So what that requires from you and you, the representative, is to provide me with all the documents that you provided to the department with that nomination on the 5th of November last year.

    …

11. The Tribunal next identified a particular issue concerning the application for approval of nomination:

    Tribunal:…You have to satisfy every requirement that’s relevant under the regulation, not just the RCB[6], and, for instance, the issue that comes to my attention from the information that you’ve provided is the wages that you’re being paid.[7]

    [6] RCB is the Regional Certifying Body which is the body specified to give advice to the Minister about terms and conditions of employment and the genuine need for the position: see sub-reg.5.19(4)(h)(ii)(F) of the Regulations. The Tribunal accepted that the nominator had received a certificate from the RCB: T11.23.

    [7] T13.25.

    …

    So you’ve got a problem there and that may well be a reason that I would not be satisfied that the nomination would not be approved. So you’re going to have to sit down with your representative and have a look at that along with the file and all the materials you provided in relation to the nomination. You’re going to have to address that issue in particular because that’s what – one that has come up from the information before me.[8] …

    [8] T13.44.

12. The Tribunal then indicated that it would give the applicant some time in order to obtain that information. It is not entirely clear from the transcript, but it appears that the applicant’s agent suggested a period of one or two weeks because the Tribunal (at T14.23) refers to that period as suitable and then granted the applicant two weeks within which to provide information.

13. After some further discussion about the issue of wages, the applicant’s agent indicated that he wished to make further submissions on the question of skills[9]. However, in response, the Tribunal indicated that the applicant’s evidence in that respect was plausible and that they needed to concentrate on the nomination.[10] Before closing the hearing, the Tribunal once again explained the relevance of the nomination and confirmed that once the applicant had provided information on that issue, it would consider whether to either make a decision because the nomination had no chance of success or postpone making the decision.[11]

    [9] T16.9.

    [10] T16.35.

    [11] T16.45 – 17.23.

14. By email dated 4 February 2016, the applicant’s agents submitted additional documents to the Tribunal and stated that on the basis of that material the nomination application was likely to be approved. The Tribunal disagreed and made its decision on 10 February 2016. There were two decisions: the first was not to wait for the nomination approval decision; and the second was to affirm the delegate’s decision.

15. The Tribunal’s reason for not waiting was that it considered that the nominator did not have reasonable prospects of gaining approval of its nomination of the position of Cook in respect of the applicant. That is precisely the test which the Tribunal would apply in determining whether to delay its own decision.

16. In determining the prospects of the nominator obtaining approval, the Tribunal was troubled by the level of wages that was proposed to be paid to the applicant; however, its greatest concern was that it was unlikely that the sponsor would satisfy sub-reg.5.19(4)(h)(ii)(C) of the Regulations. That provision required that “the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area” as the location of the employment.

17. With those matters in mind it is necessary to return to the specific complaints made by the applicant in respect of the procedure adopted by the Tribunal.

18. The first complaint is that the Tribunal did not raise all critical issues at the hearing. This complaint involves the assertions that the hearing was dominated by the question of adequate wages; that the Tribunal member intervened to actively control the discussion at the hearing to address mainly two points (the wages and skills issues); that the Tribunal did not permit those present to speak freely and that there was no suggestion at any point that any other issue was critical for the success of the applicant’s review.

1. These complaints do not attempt to distinguish between the subject matter of the various issues. The decision under review was to refuse to grant the applicant a visa. The issues that related to that decision were the skills and qualifications of the applicant and the fact that there was no approval of nomination of the position of cook. It is fair to say that most of the questions asked by the Tribunal went to the first of those issues. However, there was no real issue that there was no approval of nomination. That plain fact was accepted by the applicant and formed the basis of her request that the Tribunal not make its decision immediately. There can be no doubt that the applicant was aware that that was an issue: not only did it form the basis of her request just mentioned, but also the Tribunal referred to it expressly on a number of occasions at the hearing. There was in fact nothing that could be said about it other than for a request to be made, as it was, for the Tribunal to await a decision on the application for approval.

2. Leaving that request to one side, in those circumstances there was no unfairness in the procedure adopted by the Tribunal. There was, at the time of the Tribunal’s decision on review, as at the time of the hearing, only one outcome possible, namely, that the delegate’s decision be affirmed.

3. That leads to consideration of the request that the Tribunal delay its decision. The outcome of that request depended, as already noted, on the Tribunal’s view of the prospects of obtaining approval of the employer’s nomination. The issues of wages and whether the position could be filled by an Australian citizen or permanent resident were relevant to those prospects. On one view, and I consider, the better view, they were not issues “arising in relation to the decision under review” within the meaning of s.360(1). However, I do not need to finally determine that question. That is because, on the basis of the excerpts from the transcript of the hearing set out above, I am satisfied that both of those issues were on the table. Principally, that is because the Tribunal said that “every requirement” had to be satisfied. Even though it specifically referred to some requirements, it was obvious that the matters it would consider were not limited to those.

4. The second complaint is that the conduct of the hearing created a misleading impression regarding the applicant’s case. The claim is that the Tribunal implied that the weakness in the applicant’s case was the wages, when in fact the review was ultimately decided on a different basis. Once again, this complaint focuses upon the issue relating to whether or not the Tribunal would delay its decision rather than its review of the decision of the delegate. In any event, I do not agree that there was any misleading impression created by the conduct of the hearing. As I have said, the Tribunal plainly said that it would consider “every requirement” in respect of the approval of the nomination and gave the applicant and her adviser the opportunity to provide all of the information that had been sent to the Department in support of the application to that approval.

5. The third complaint is that the Tribunal influenced the applicant and the employer to provide supplementary information on the wage issue in terms that suggested that this information would dispose of the potential weaknesses in the application, and that the applicant then followed its direction and supplied further information in relation to the wage issue. That submission is not factually correct. First, the Tribunal specifically stated that the applicant had to provide it “with all the documentation relating to the nomination”[12]; secondly, that is apparently what the applicant’s agent did. Included amongst the documents provided undercover of the agent’s email dated 4 February 2016, were “various receipt and email confirmation of the advertisement for the nominated position”. Those documents did not relate to wages.

   [12] T14.3.

6. The fourth complaint is that the Tribunal did not ask the director of ANRR as to whether he had adequately tested the job market in Scone. In light of that, the applicant claims that it was unfair for the Tribunal then to determine the matter on the basis that the applicant had been given the opportunity to provide evidence, but the evidence provided did not satisfy the Tribunal. This complaint proceeds on a misunderstanding of what occurred at the hearing. The question posed by the Tribunal in respect of the application that it delay its decision, was whether the application to the Department had any prospects of succeeding. That application did not include any oral evidence that might be given to the Tribunal by the director of the nominator and it was not suggested that the director might later produce such evidence to the Department.

7. For those reasons there was no unfairness in the conduct of the review by the Tribunal in the first ground is rejected.

Second ground: unreasonable failure by the Tribunal to exercise its discretion to adjourn

1. The applicant argues that the Tribunal’s decision not to adjourn the review until the outcome of the approval application was legally unreasonable because, in the event, the application for a nomination was ultimately successful. While, in a practical sense, the ultimate success of the approval application is relevant to these proceedings, it is not relevant in determining whether or not the Tribunal’s decision not to adjourn was legally unreasonable. It is relevant in a practical sense because, on one view, it would be futile to bring these proceedings in the absence of such approval, as the applicant would inevitably have been refused a visa. However, the reasonableness of a decision cannot be judged by events occurring after that decision because that would be beyond the proper scope of judicial review.

2. The role of legal unreasonableness as a basis for review is to ensure that administrative decisions are justifiable. This is in the sense that they are made on the basis of a proper understanding of the relevant law, and logical inferences drawn from the material before the decision-maker.

3. Here, the decision of the Tribunal to proceed to make its decision was based upon its view of the prospects of the nominator obtaining approval. The applicant has not suggested that, on the material before the Tribunal, that view was not open. In light of that, the decision had an evident and intelligible justification and so could not be described as legally unreasonable: Minister for Immigration v Li (2013) 249 CLR 332 at [76]; [2013] HCA 18. The second ground is rejected.

Third ground: failure to take into consideration relevant factors while taking into consideration irrelevant factors.

1. It is well-established that the ground of failure to take into account a relevant consideration can only be made out if a decision‑maker fails to take into account a consideration which he or she is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd 162 (1986) CLR 24, 39-40 (Mason J); [1986] HCA 40. His Honour explained further:

   … What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors … are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. …

   (Citation omitted)

2. The applicant asserts that the Tribunal failed to consider relevant considerations and took into account irrelevant considerations in the following respects:

   a)In deciding that [ANRR’s director] was unlikely to receive a nomination, the Tribunal failed to take into account the fact that [the director] had addressed the problems that led the DIBP to place a ban on sponsorship, while instead taking into account matters that never appear to have been raised by DIBP as a potential problem;

   b)The Tribunal failed to give proper weight to the opinion of Gary Fry, Project Officer at Regional Development Australia for Northern Inland NSW, who provided RCB advice on two separate occasions expressing the view that there was a genuine need for the position in Scone;

   c)The Tribunal failed to take into account the fact that at the time of the review, the sole basis for the delegate's decision to refuse the applicants' visa (i.e. the first applicants lack of job qualifications) had been remedied; and

   d)The Tribunal appears to have drawn inferences and speculated without foundation.

3. The applicant also argued that, by failing to arrive at a decision different to another Tribunal, the Tribunal failed to give proper weight to the need for consistency in administrative decision making.

4. None of these matters is either relevant or irrelevant in the legal sense required. They are not considerations prescribed or proscribed in the Act or Regulations, in relation to the Tribunal’s power to adjourn the review.

5. In reality, they are matters put forward by the applicant as matters that should have been given more weight by the Tribunal. That is an argument about the merits of the Tribunal’s decision not to adjourn, not its legality. For that reason, the third ground is rejected.

Additional ground: the s.376 certificate

1. The s.376 certificate relevantly stated:

   …

   I notify the Migration Review Tribunal that s376 applies to the document/s, any matter contained in the document/s or information contained in folio/s 22-23 – View Activity Statements from 1/7/2013 to 31/12/2013, and 43-54 – View Activity Statements from 1/07/2012 to 30/09/2012 of file number BCC2014/1506396 and I certify that disclosure of this material would be contrary to the public interest.

2. In light of that certificate, the Minister raised the possible application of the decision of the Federal Court in MZAFZ. That case concerned a certificate that was purportedly issued pursuant to s.438 of the Act. That provision is similar to s.376 of the Act which relevantly provides:

   376 Tribunal’s discretion in relation to disclosure of certain information etc.

   (1)     This section applies to a document or information if:

   (a)     the Minister:

   (i)has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate … that could form the basis for a claim by the Crown in the right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; …

3. In MZAFZ at [36] his Honour Beach J construed the phrase “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed” to be a reference to public interest immunity, also known as Crown privilege.

4. Unlike the certificate in that case, the s.376 certificate did not give any reason for the certification that disclosure of the relevant material would be contrary to the public interest. For that reason, the certificate was not correct insofar as it stated that s.376 applied to it and could readily be described as an invalid certificate.

5. In MZAFZ Beach J found that the Tribunal had acted in some unspecified way on the certificate and that was a jurisdictional error: [44]. I explained his Honour’s reasons for the conclusion in BEG15 v Minister for Immigration & Border Protection [2016] FCCA 2778 in the following passage:

   [43]… There were three steps critical to this conclusion. Firstly, his Honour stated:

   [40]First, if the Tribunal acted on the invalid certificate it followed a procedure contrary to law. In the absence of evidence to the contrary, I am entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents the subject thereof in its possession. So much can be implied from the Tribunal’s reasons at [19] (see my later discussion at [47] and [48]). Relatedly, the purported issue of an invalid certificate by the delegate of the Minister infected the process or procedure adopted by the Tribunal in relation to such documents.

   [44]At [47] and [48] of the judgment, Beach J infers that the Tribunal had regard to the documents covered by the certificate because it had said, at [19] of its reasons, that it had the Department’s file relating to the applicants and had also “had regard to the material referred to in the delegate’s decision”. His Honour supported that reasoning by reference to sub-s.430(1)(d) of the Act which requires the Tribunal, in its statement of reasons, to refer to the evidence or any other material on which its material findings of fact were based. His Honour then noted that how the Tribunal “had regard in relation to the documents covered by the certificate is opaque.” I infer from that, that the documents were not expressly referred to by the Tribunal in its statement of reasons.

   [45]The second step in his Honour’s reasoning was as follows:

   [41]Second and relatedly, in acting on the invalid certificate, it is open to infer that the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s 424AA or s 424A. I cannot confidently say that the Tribunal:

   (a)     properly read the documents the subject of the invalid certificate;

   (b)    determined that the documents did not contain information that would be a reason, or part of a reason, for affirming the decision under review; and

   (c) then decided that no disclosure was required under s 424AA or s 424A.

   [42]But if the Tribunal had realised that the certificate was invalid, it would have had to have undertaken all such steps.

   [46] The final step in his Honour’s reasoning was:

   [43]Third, if the Tribunal had realised that the certificate was invalid, it would have, in contrast to the conditions triggering s 424AA or s 424A, also had to consider (but apparently may not have) whether:

   (a)     the documents supported the applicant’s visa application;

   (b)    disclosure should be made to the applicant (assuming, for the moment, that s 422B was no bar to or excluded such a requirement), perhaps as part of ss 425 and 427(1)(c).

   (Emphasis in original)

6. Here, there were two sets of documents covered by the certificate. Both were from the Department file concerning the refusal to approve the nomination on 16 October 2014. The first set of documents (folios 22 and 23) were provided by the applicant’s agent to the Tribunal. For that reason, whether or not the Tribunal acted on them could not have made a difference. Section 359A (the equivalent to s.424A) could not apply to them, and there was no requirement to put the applicant on notice of information that she herself had provided.

7. The second set of documents (folios 43 to 54) were provided by the applicant’s agent to the Department. For that reason, they are arguably in a different position to the first set of documents. Even though the agent must have had knowledge of them, that knowledge may not be able to be imputed to the applicant because it arose in connection with another matter. In any event, I am not satisfied that the Tribunal acted on the certificate in respect of those documents at all.

8. First, it did not expressly state that it had had regard to them; secondly, there was no mention of them, or of the file in which they were contained, in the Tribunal’s reasons; and thirdly, at the hearing, the Tribunal made it clear that it was not considering what occurred in relation to the 2014 decision to refuse to approve the nomination.[13] For those reasons, even if the applicant cannot be taken to have been aware of the documents, the decision of MZAFZ is distinguishable and there was no jurisdictional error brought about by reason of the invalidity of the s.376 Certificate.

   [13] T10.42

9. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 16 December 2016