KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
MZAPC APPELLANT
AND
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
MZAPC v Minister for Immigration and Border Protection
[2021] HCA 17
Date of Hearing: 5 March 2021 Date of Judgment: 19 May 2021
M77/2020
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation
D J Hooke SC with S H Hartford Davis, S G Lawrence and D J Reynolds for the appellant (instructed by Conditsis Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, with M A Hosking for the first respondent (instructed by Clayton Utz)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
MZAPC v Minister for Immigration and Border Protection
Immigration – Refugees – Application for protection visa – Where appellant applied to Refugee Review Tribunal ("Tribunal") for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) ("Act") – Where s 438 notification issued under Act in relation to material including appellant's criminal record – Where Tribunal did not disclose existence of s 438 notification to appellant – Where first respondent conceded failure to disclose amounted to breach of procedural fairness – Where information covered by s 438 notification not referred to in reasons for decision – Whether breach material – Whether Tribunal in fact took s 438 notification information into account in making decision – Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account – Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision – Whether appellant or first respondent bore onus of proof of materiality – Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences.
Words and phrases – "counterfactual inquiry", "credit", "discharging the burden of proof", "failure to disclose", "judicial review", "jurisdictional error", "lost opportunity to present legal and factual argument", "materiality", "onus of proof", "opportunity to be heard", "practical injustice", "presumption", "procedural fairness", "realistic possibility", "reasonable conjecture", "statutory interpretation", "subconscious impact", "threshold of materiality".
KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ. This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection[1] as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.
Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA[2] to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Case
[2021] HCA 17
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by MZAPC against a decision of the Minister for Immigration and Border Protection concerning an application for a protection visa. The dispute arose from the Refugee Review Tribunal's failure to disclose to the appellant the existence of a notification under section 438 of the Migration Act 1958 (Cth) regarding certain information, including the appellant's criminal record. The Minister conceded that this failure constituted a breach of procedural fairness. The core of the appeal concerned whether this breach was material to the Tribunal's decision to affirm the refusal of the protection visa.
The legal issues before the High Court included whether the Federal Court had erred in presuming that the Tribunal did not take the undisclosed section 438 notification information into account when making its decision. The Court was also required to consider whether the disclosure of the notification could realistically have led to a different outcome for the appellant, and who bore the onus of proof regarding the materiality of the undisclosed information. Furthermore, the Court had to determine if the Federal Court had wrongly confined its consideration of materiality to offences of dishonesty, to the exclusion of other offences contained within the undisclosed information.
The High Court reasoned that the Tribunal's decision was not affected by the failure to disclose the section 438 notification. It found that the Tribunal did not consider the information covered by the notification when reaching its decision. Consequently, the Court held that the breach of procedural fairness, while established, did not result in jurisdictional error because it was not material to the outcome. The appeal was therefore dismissed.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
SZMTA was correctly applied in the result in the decision under appeal[3] to hold that a breach of an implied condition of procedural fairness by the Refugee Review Tribunal ("the Tribunal") in the conduct of a review under Pt 7 of the Migration Act 1958 (Cth) ("the Act") did not result in jurisdictional error in the decision of the Tribunal which affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a protection visa. The breach was constituted by a failure on the part of the Tribunal to disclose to the appellant the existence of a notification by the Secretary of the Department of Immigration and Border Protection under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary under s 418(3) of the Act.[3]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024.Facts and procedural history The appellant is a citizen of India. He arrived in Australia in 2006 on a student visa which expired in 2008. He applied in 2007 for a further student visa which a delegate of the Minister refused in 2012. He then applied to the Migration Review Tribunal ("the MRT") for merits review of the decision of that delegate under Pt 5 of the Act. The MRT decided that it lacked jurisdiction because the application was lodged out of time. He then applied to the Federal Circuit Court for judicial review of the decision of the MRT. The Federal Circuit Court dismissed that application in 2013. Having failed to obtain a further student visa, the appellant applied in 2014 for a protection visa. Amongst the claims he made in support of that application was a claim to fear that his uncle would kill him on his return to India in connection with a dispute between his uncle and his father over land in Punjab. He claimed that he was his father's oldest son and that his uncle had threatened to kill him if the land went under his name. He claimed that he had been kidnapped when visiting Punjab from Delhi in 2004. The kidnappers demanded that his father sign papers putting the land in their names. They released him after his father paid them a settlement amount. Another delegate of the Minister refused the protection visa in June 2014. The appellant then applied to the Tribunal for merits review of that decision under Pt 7 of the Act. As required by s 418(3) of the Act, the Secretary gave to the Tribunal documents within the Secretary's possession or control which the Secretary considered to be relevant to the review by the Tribunal. Accompanying the documents so given was a letter notifying the Tribunal under s 438(2)(a) that s 438(1)(b) applied to information contained in specified documents on a specified departmental file. By way of advice under s 438(2)(b), the letter expressed the view that the information should not be disclosed to the appellant or his representative because the information had been "shared by Victoria Police with the Department for investigative purposes only".
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ
GORDON AND STEWARD JJ
The appellant's second ground of appeal – that Mortimer J had erred in concluding that only dishonesty offences were capable of adversely impacting upon the credibility of the appellant before the Tribunal – can be dealt with briefly. Her Honour's conclusion that there was nothing in the Tribunal's reasons for decision that suggested that its reasoning was affected by the presence of the "state false name" dishonesty offence reflected the appellant's own "appropriately restrained" approach, which asserted that this was the only information the subject of the s 438 notification that might have made a difference[313]. But even if the appellant's case had been put more broadly, and had relied upon all of the information in the Court Outcomes Report as matters to which submissions by the appellant might have made a difference, that submission would have failed due to Mortimer J's correct conclusion that the Tribunal did not consider any of the Court Outcomes Report.[313]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [54], [57].Conclusion The appeal must be dismissed with costs.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ,
GORDON AND STEWARD JJ