Le v Minister for Immigration
[2019] FCCA 445
•13 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 445 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal erred in finding that there was non-compliance with s.101 of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred in finding that the applicant’s answer that he was not “related to his partner by blood” was an incorrect answer – whether the Administrative Appeals Tribunal erred in failing to give information to the applicant for comment – whether failing to give certain information to the applicant was a material breach – whether giving information to the applicant would have resulted in a different decision – whether the Administrative Appeals Tribunal breached s.362A of the Migration Act 1958 (Cth) in failing to give the applicant the documents the subject of a s.375A certificate – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 12, 100, 101, 109, 362A, 375A, 474, 476 |
| Cases cited: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
| Applicant: | CHI CONG LE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1104 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 19 February 2019 |
| Date of Last Submission: | 19 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nicholas Poynder |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the Respondents: | Mr Martin Smith |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1104 of 2017
| CHI CONG LE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 22 March 2017 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 28 September 2016 cancelling the applicant’s Class BS (Subclass 801) (Spouse) visa.
The proceeding before this Court
The applicant was represented before this Court by Mr Nicholas Poynder, of counsel.
By consent, leave was granted to the applicant to rely on an Amended Application, filed in Court identifying the following grounds:
“1. The second respondent erred in affirming the delegate's decision under s 109 under the Act.
(a) The first respondent had not reached the state of mind to engage s 107 because the applicant's answers to questions 76 and 77 of the visa application form were not incorrect. The notice issued under s 107 was therefore invalid.
2. The second respondent erred in finding that there was non-compliance with s 101 (b) of the Act.
(a) The second respondent relied upon an incorrect interpretation of "related by blood" as set out in questions 76 and 77 of the visa application form.
3. The second respondent's decision was infected with jurisdictional error because it proceeded on a certificate that was invalidly issued under section 375A of the Act.
4. The second respondent denied the applicant procedural fairness.
(a) The second respondent did not provide the applicant with an opportunity to make submissions on the validity of the certificate issued under s 375A of the Act.
5. The second respondent erred by failing to provide the applicant with documents requested by the applicant under s 362A of the Act.”
The cancellation regime, the background and the Tribunal proceeding were accurately summarised in the submissions of counsel for the first respondent, Mr Martin Smith, as follows:
“The cancellation regime
2. Before consideration is given to [the] background to this matter, and the grounds of review that have been advanced, some features of the relevant statutory scheme should be noted.
3. By sections 98-106 of the Migration Act 1958 (Cth) (Migration Act), a visa-applicant is required to provide correct information in his or her visa application and passenger card. Those sections also oblige a visa-applicant to not provide bogus documents and to notify the Minister's department of any incorrect information or changes in circumstances. Relevantly for the purposes of the present case, s 101 of the Migration Act provides as follows:
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
4. Section 107 of the Migration Act establishes a scheme by which the Minister may inform a visa-holder that his or her visa may be cancelled because the Minister considers that the visa-holder provided false information etc as part of the visa-application process. A notice under s 107 must, amongst other things, specify the particulars of non-compliance and indicate that the visa-holder may respond in writing: s 107(1)(a)-(b). A notice under s 107 can include instances of non-compliance that occurred at any time: s 107A.
5. Section 108 provides that the Minister is to consider any response given by the visa-holder and make a decision about whether there was non-compliance by the visa-holder in the way described in the notice. In Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 at [45], the Full Court explained the role that s 108 plays in the visa-cancellation process. According to the Full Court:
The Minister's power to cancel a visa under s 109 only arises if the Minister decides under s 108 that there has been non-compliance by the holder of the visa. By reason of s 108 the Minister's inquiry is limited to the question of whether there was non-compliance in the way described in the notice. In other words, it would be beyond the Minister's power to inquire into whether there was non-compliance in a way not described in the notice. In this way the giving of a notice under s 107 becomes a key step in the process which may lead to the cancellation of a visa under s 109 and performs the function of providing the procedural fairness identified in s 107 to the holder of the visa. If the notice under s 107 does not describe the non-compliance, or if the Minister decides that there has been non-compliance in a way not described in the notice, then the Minister has exceeded the power given in s 108 and s 109.
6. Section 109 in turn provides that if satisfied that there was non-compliance by the visa-holder, the Minister, after having regard to various matters, may cancel the visa-holder's visa. In determining whether a visa should be cancelled, the Minister is obliged to take account of the matters prescribed in reg 2.41 of the Migration Regulations 1994 (Cth): s 109(1)(c). The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57]. The weight to be given to the prescribed circumstances is, however, a matter for the decision-maker: Khadgi (2010) 190 FCR 248 at [68].
7. Some further provisions should be noted. Section 110 provides that "to avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder". Section 111 provides that "[t]o avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent". Finally, s 112 provides as follows
(1) A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.
(2) The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.
Background
8. On 24 December 2007, the applicant applied for a Prospective Spouse (subclass 300) visa, which was granted on 10 November 2009. The applicant was sponsored by his then-wife, Ms Thi Trang Duong (the sponsor). The applicant arrived in Australia on 15 November 2009. On 21 December 2009, the applicant lodged an application for a Partner (subclass 820) visa, which was granted on 16 March 2010. On 3 April 2012, the applicant was granted the permanent Partner (subclass 801) visa.
9. On 24 August 2016, a delegate sent the applicant a Notice of Intention to Consider Cancellation under s 109 of the Migration Act (Section 107 Notice): The Section 107 Notice informed the applicant that the delegate was considering cancelling his partner visa on the basis of his apparent non-compliance with s101(b) which required that he complete his visa application form in such a way that no incorrect answers were given or provided. The Section 107 Notice identified two instances of alleged non-compliance, as follows:
(a) In response to question 77 in his subclass 300 visa application form (First Visa Application Form); and
(b) In response to question 76 in his subclass 820/801 visa application form (Second Visa Application Form).
the applicant answered "no" to the questions "if you are in a de facto spouse fiancé(e) or interdependent relationship are you related to your partner by blood, marriage or adoption".
10. The Section 107 Notice noted that subsequent to the applicant being granted the subclass 801 visa, the Department obtained information which indicated that the applicant's mother is the sister of the sponsor's mother (i.e. the applicant and the sponsor are first cousins).
11. The applicant responded to the Section 107 Notice by way of a submission sent by his representatives on 13 September 2016.
12. On 28 September 2016, the delegate cancelled the applicant's partner visa pursuant to s 109(1) of the Migration Act.
The Tribunal proceedings
13. The applicant, having sought review of the delegate's decision, appeared before the Tribunal with his migration agent and two witnesses (a third appearing by telephone) on 14 March 2017. On 22 March 2017, the Tribunal affirmed the decision under review.
14. The Tribunal's decision records that at the start of the hearing, the Tribunal had brought to the applicant's attention the existence of a certificate issued pursuant to s 375A of the Migration Act that was on the Department file. About this issue, the Tribunal said as follows in its reasons:
At the start of the hearing the Tribunal advised the applicant's representative that there is a certificate under section 375A of the Act on the folios in the Department file. The certificate states that the information on these folios relates to internal Department procedures and third-party information. The Tribunal is satisfied that the certificate is valid but that the information in these folios is not relevant to the matter. The documents relate to Departmental procedures and third parties and are not relevant to whether the applicant answered the questions on the visa application form correctly.
15. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the Section 107 Notice complied with the relevant statutory requirements.
16. Turning to consider whether there was non-compliance by the applicant as described in the Section 107 Notice, the Tribunal set out the details of the possible non-compliance. The Tribunal noted that the applicant
(a) did not dispute that he answered "no" in response to the two questions;
(b) did not dispute that his sponsor was his first cousin;
but nevertheless contended that:
(c) he did not know that his sponsor was his cousin at the time he completed the visa application;
(d) he and the sponsor were not "related by blood".
17. In considering whether the applicant was related to his sponsor "by blood", the Tribunal noted the representative's submissions as follows:
(a) The term "related to your partner by blood" was not defined in the Migration Act or the Migration Regulations 1994 (Cth). With reference to the ordinary meaning of "blood relation" in the English Oxford Dictionary, "related by blood" could be as broad as any two people with a common ancestor, which would capture a cousin 50 times removed, which would be an absurd result;
(b) The term "related by blood" should be interpreted with regard to the context and purpose of the provision, being the criteria for the grant of a partner visa, and the marriage between the visa applicant and the sponsor. With reference to the definition of "spouse" in the Migration Act as two people who are "in a married relationship", the representative observed that under the Marriage Act 1961 (Cth), a marriage between first cousins is not a "prohibited relationship", and would not necessarily preclude the grant of the visa.
18. However, the Tribunal found that the applicant and the sponsor were "related by blood", and noted as follows:
(a) With reference to the ordinary meaning of "blood relation" in the English Oxford Dictionary, the Tribunal found that the parties, as first cousins, are "related by blood". The Tribunal acknowledged that the term "related by blood" casts a wide net, and considered that it lacked clarity, as it is not defined, and could be so broad as to include very distant relatives, which could go to the point of absurdity. However, the Tribunal considered that the form of the question required the applicant to disclose the existence of any known blood relationship no matter how distant.
(b) The relevant questions did not ask whether the applicant was a "relative" of the sponsor, "relative" being a term defined in reg 1.03 of the Migration Regulations. The Tribunal considered that the use of the term "related by blood" instead of "relative" indicated that the legislature purposefully included a broader category of people.
19. The Tribunal then turned to consider whether the applicant knew that the sponsor was his cousin. The Tribunal did not consider the applicant's evidence that he was unaware that the sponsor was his first cousin to be credible, and it considered that the applicant would have been "well aware" that the sponsor was his cousin, and that it was unlikely that they would not have met each other in the years before the sponsor moved to Australia.
20. For these reasons, Tribunal found that there was non-compliance with s 101(b) of the Migration Act as described in the Section 107 Notice.
21. Having determined that there had been non-compliance by the applicant in the manner described in the Section 107 Notice and having regard to all the relevant circumstances, the Tribunal concluded that the applicant's visa should be cancelled. The decision under review was therefore affirmed.”
(Citations omitted)
The applicant’s counsel, Mr Poynder, agreed that the above was an accurate summary of the relevant topics it covered.
Grounds 1 and 2
The issue arising in Grounds 1 and 2 concerns the answer given by the applicant to question 77 on the first visa application form and question 76 on the second visa application form. Both questions were in similar terms, namely, “If you are in a de facto or fiancé relationship…are you related to your partner…by blood, marriage or adoption?”. The applicant ticked the box, “No”.
It is common ground that the applicant and the sponsor are first cousins.
Counsel for the applicant submitted that the words, “related to your partner by blood”, ought to be construed to give effect to the purpose of the legislation having regard to their context (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] (McHugh, Gummow, Kirby and Hayne JJ); Islam v Minister for Immigration (2007) 158 FCR 579 at [21]).
“Relative” is a word defined by the Act and does not include first cousins. The applicant contended that the phrase “related to you partner by blood” does not, on a proper reading, extend to a marriage between cousins. This is because the expression has the potential consequence to apply to any two persons descended from a common ancestor, having potentially absurd consequences.
Counsel submitted that the phrase “related to your partner by blood” suggests that the blood relationship must be looked at in the context of a partner or spousal relationship. Counsel for the applicant suggested that to construe that phrase otherwise as applying to any two person descended form a common ancestor would disclose an unlimited group. Counsel referred to dicta of Latham CJ in Adelaide Motors v Federal Commissioner for Taxation (1942) 66 CLR 436 at 444 where Latham CJ agreed with criticism of similar provisions by the Kings Bench in Himley Estates Ltd v Commissioners of Inland Revenue (1933) 1 K.B. 482 and 487-487, as follows:
“A cousin fifty times removed is a relative under this definition. Possibly a sufficiently extensive investigation would show that nearly everybody in Australia, and millions of people outside Australia, are "relatives" of nearly everybody else in Australia within this definition. It was pointed out in Himley's Case that the definition produces the result that persons who have nothing whatever to do with a company in any capacity are nevertheless "deemed" to be in control of the company e.g. sons and nephews, as "relatives" of their mothers and aunts, are "nominees" of the latter who are therefore themselves "in control" of a company in which the sons and nephews happen to hold the majority of shares - though the mothers and aunts have never even heard of the company. This provision was properly described in Himley's Case as both bewildering and ridiculous.”
Counsel for the applicant submitted that the context of the phrase “related to your partner by blood” is governed by ss.12 and 5F(2) of the Act which expressly import the requirements of the Marriage Act 1961 (Cth) to determine whether a marriage is valid for the purposes of the Act. Thus, counsel for the applicant contends that the context and purpose of the blood relationship questions is therefore to determine whether an applicant is involved in a marriage that would be permitted under the Marriage Act 1961 (Cth); and marriages between first cousins are not so prohibited. For that reason, the applicant’s answer “No” to the question “are you related to your partner by blood”, was correct.
Counsel for the applicant also referred to the reasons of Perry J in Salama v Minister for Immigration & Anor [2017] FCA 2 (“Salama”) in support of the above contention. In Salama the applicant applied for a visa using an online visa application form. As a part of that online form the applicant was required to select an option from a drop down menu beside the words ‘relationship status’. A question mark beside that drop down menu, when clicked, opened a pop up that provided an explanation of the available options. Salama is not relevant to the case before this Court as it was considering different facts and issues.
It is common ground that visa applicants are under an absolute obligation to give truthful answers to questions in visa application forms as stated in s.101 of the Act. Moreover, s.100 of the Act makes clear that there will be non-compliance with s.101 of the Act if an answer to a question is incorrect even though the person providing the answer did not know that it was incorrect.
The Tribunal noted that the relevant questions did not ask the applicant whether he was a “relative” of his sponsor. As stated above, that term is defined and does not include first cousins. The Tribunal found that the wording of the question casts the net wider in that it includes other people to whom the applicant is related by blood, other than those defined as ‘relatives’.
The Tribunal found the question required the applicant to disclose the existence of any known blood relationship no matter how distant. The Tribunal found that where a distant relationship existed, that distance would be considered as not relevant to the decision of whether or not to grant the visa. The Tribunal found that where the relationship was as close as first cousins, and was a fact about which the Tribunal found the applicant was aware, answering, Yes, would have indicated to the Department that it may need to investigate the relationship more fully. The Tribunal stated that being first cousins did not automatically preclude the applicant from being granted the visa.
However, no absurdity arises in the case before this Court.
In my view, the Tribunal was correct to find that an applicant who knew that he was the first cousin of the sponsor provided an incorrect answer to the question, “Are you related to your partner by blood”, when he answered, “No”.
The Tribunal found that the applicant did not declare his blood relationship with the sponsor because he did not want the Department to investigate the genuineness of the relationship in more detail. The Tribunal made those findings in the context of acknowledging in certain circumstances the term “related by blood” could be extended to the point of absurdity, such that it would be unclear as to what the correct response might be.
The Tribunal’s rationalisation that it may well be relevant to the Department in considering the genuineness of a relationship to have regard to the closeness of that relationship, without it meaning an automatic preclusion from the granting of the visa, is correct.
In the circumstances, the Tribunal’s findings were open to it for the reasons it gave and are without error.
Accordingly, Grounds 1 and 2 are not made out.
Grounds 3 and 4
Grounds 3 and 4 contend that the information contained in documents the subject of s.375A certificate, contained adverse information which should have been disclosed to the applicant for comment. The adverse information that the applicant contends arises from the documents is the notion of the contrivance of various relationships of the applicant’s family members.
I accept that some of the documents the subject of the s.375A certificate raise the issue of contrivance in respect of the relationship between the applicant and the sponsor. I also accept that the Delegate had regard to the applicant’s family’s history of adverse applications.
However, the Tribunal makes no reference in its decision record to the contrivance or genuineness of the relationship between the applicant and the sponsor.
The Tribunal found that the applicant’s answer to the question was incorrect, and, by providing such an answer the applicant breached s.101 of the Act. The Tribunal found the applicant’s failure to give the correct information was to avoid the possibility that the Department may examine the genuineness of the relationship. As stated above, the Tribunal made that finding in the context of acknowledging that while the incorrect answer provided was not directly relevant to the grant of the visa, it was relevant in that the Department may have examined the issues involved in the application more fully and possibly decided to refuse the visas.
In relation to the s.375A documents, the Tribunal stated as follows:
“Now, before I proceed any further, Mr Representative, there is a certificate on a number of documents on the department file, and that's a certificate under section 375A. The first group of certificate contains information relating to internal procedures and third party information, and the second lot of documents again relates to third party information in internal 45 procedural documentation. I find that that certificate is valid and therefore they can't be released to the applicant. However, anything that I refer to in those documents I will specifically address, if I do need to refer to them.”
(Emphasis added)
It is common ground that the Tribunal was incorrect to find that the s.375A certificate was valid and that the documents could not be released to the applicant. However, it is also common ground that the mere finding that the certificate is invalid was not sufficient to establish jurisdictional error on the part of the Tribunal.
As is clear, the Tribunal notified the parties of the certificate issued in respect of a number of documents. The Tribunal said in specific terms that if it refers to any of those documents, it would specifically address them. It did not do so because the Tribunal did not refer to any of those documents.
In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, Bell, Gageler and Keane JJ stated as follows:
“2. The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
…
45. Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
46. Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
…
48. In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.
49. Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome", the task is not impossible and can be done in these appeals.”
(Emphasis added)
Plainly here there was a disclosure of the existence of the certificate but not of the documents to which it related. The question is, did the failure to disclose the documents result in a denial of procedural fairness? In considering that issue, one must consider was the breach “material” to the Tribunal’s decision, in that compliance could realistically have resulted in a different decision.
I accept that if the Tribunal considered the issue of contrivance or revisited the genuineness of the relationship, the documents subject of the s.375A certificate were relevant material and contained information which the applicant had no opportunity to address.
However, the Tribunal told the applicant of the existence of the certificate at the outset of the hearing and that, if it referred to those documents the subject of the certificate, it would specifically address those documents with the applicant.
Having found a breach of s.101 of the Act, the Tribunal was required to consider if it should waive the non-compliance.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave consideration to the prescribed circumstances in reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) in the consideration of the exercise of its discretion. The Tribunal also acknowledged that having found non-compliance, cancellation is discretionary and there are no mandatory cancellation circumstances prescribed under s.109(2) of the Act. The Tribunal also noted that the prescribed circumstances in reg.2.41 of the Regulations was not an exhaustive statement of the circumstances that might properly be considered to be relevant. The Tribunal’s determination in relation to the various factors referred to in reg.2.41 of the Regulations were not determined adversely to the applicant.
The rationale of the Tribunal’s exercise of discretion appears to be in the applicant’s failure to give information to the Department which may have caused it to examine the genuineness of the relationship in greater detail in determining whether to grant the visa. As stated above, the Tribunal itself did not proceed to consider the genuineness of the relationship or whether it was contrived in any way. The Tribunal concluded in stating as follows:
“64. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.”
The Tribunal clearly stated that it confined the relevant circumstances to those it discussed in its decision.
The Court is entitled to take the Tribunal at its word in assuming that if there was anything in the s.375A documents, that the Tribunal “specifically address” those with the applicant. The information contained in the documents was not ultimately relevant to the rationale which the Tribunal applied in exercising its discretion to cancel the applicant’s visa.
Accordingly, I find that the Tribunal’s breach in failing to give the applicant an opportunity to comment on the information was not a material breach and that the disclosure of the documents would not have resulted in a different decision, having regard to the way in which the Tribunal framed its decision.
I am satisfied there is not a realistic opportunity that the Tribunal’s decision could have been different if the documents had been disclosed so as to allow the applicant to provide submissions for those reasons.
Accordingly, Ground 3 and 4 are not made out.
Ground 5
Ground 5 contends that the Tribunal committed jurisdictional error because it breached s.362A of the Act by failing to give the applicant documents the subject of the s.375A certificate.
The applicant relied on Sandhu v Minister for Immigration (2015) 236 FCR 63 (“Sandhu”) where Logan J found a breach of s.362A of the Act per se would amount to jurisdictional error.
However, the applicant acknowledged in the more recent case of Singh v Minister for Immigration [2017] FCA 1443 at [138], Siopis J read Sandhu as qualified by the observations of the Full Court of Minister for Immigration v Dhillon (2014) 227 FCR 525 (Allsop CJ, Murphy and Pagone JJ). In Dhillon at [15], the Court found that s.362A of the Act would be breached only in circumstances where access might reasonably have affected the decision of the Tribunal.
For the same reasons I gave in determining that there was no denial of procedural fairness in failing to give the applicant the information in the documents covered by the s.375A certificate, Ground 5 must fail.
In short, the Tribunal’s disavowance of any reliance on the documents, its failure to mention the documents and its failure to raise any issue to which they may be relevant, has the result that, had the documents been produced under s.362A of the Act, they could not have reasonably affected the decision of the Tribunal.
Accordingly, Ground 5 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 March 2019
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