Oji v Minister for Immigration
[2019] FCCA 14
•17 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OJI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 14 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – Partner visa – applicant arrives in Australia on Business (Short stay) visa – Business visa expires – applicant applies for Protection (Class XA) visa – applicant forms relationship – applicant lodges application for a Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa – application refused by delegate of first respondent – Department notified that applicant no longer in relationship – applicant then pursues application for Partner visas on basis of exemption for domestic violence – delegate refuses application – applicant seeks merits review – application remitted by consent for reconsideration – delegate again refuses application – applicant again seeks merits review – amended application lodged seeking review of delegate’s decision to refuse Partner (Residence) (Class BS) (subclass 801) visa – application refused on basis that applicant did not meet criteria that he held a Partner (Temporary) (Class UK) (subclass 820) visa – judicial review – application for judicial review said to be refusal of Partner (Temporary) (Class UK) (subclass 820) visa – application adjourned – no submissions filed – grounds of application abandoned – certificate issued under s 375A – non-disclosure – no denial of procedural fairness – no practical injustice – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 130, 357A, 359AA, 359A, 360, 360A, 362A, 368, 375A, 437 |
| 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 BJN16 v Minister for Immigration and Border Protection (2017) 253 FCR 21 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 BRF038 v The Republic of Nauru [2017] HCA 44 DDN16 v Minister for Home Affairs [2018] FCA 1697 HFM045 v The Republic of Nauru (2017) 350 ALR 34 Kaur v Minister for Immigration and Border Protection (2016) 245 FCR 296 Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 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 and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 MZYPZ c Minister for Immigration and Citizenship [2012] FCA 478 Nobrani v Maricote [2018] HCA 36 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 92 ALJR 798 Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190 SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 |
| Applicant: | BENJAMIN CHIBUZO OJI |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 75 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 31 July 2017 |
| Date of Last Submission: | 17 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 January 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Mr G. Nwankwo |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Mr Hosking |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed on 14 January 2016 be dismissed.
The Applicant pay the First Respondent’s costs, including reserved costs, fixed at $9,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 75 of 2016
| BENJAMIN CHIBUZO OJI |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 14 January 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 December 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
As appears below, the matter has had a protracted history. The applicant abandoned the grounds of review and confined his claim to relief on the stated basis that non-disclosure of a certificate issued pursuant to s 375A of the Act entailed a denial of procedural fairness. Although the certificate was not disclosed, I have concluded that there was no denial of procedural fairness and that no practical injustice attended the conduct of that application, because, in substance, the applicant could not satisfy the criteria for the visa which he sought.
Background
The applicant, a Nigerian citizen aged 46 years, first arrived in Australia on 11 July 2011, as the holder of the Business (Short Stay) (Subclass 456) visa which expired on 11 August 2011.
On 8 August 2011, the applicant lodged an application for a Protection (Class XA) visa.
In August 2011, the applicant formed a relationship with an Australian citizen who shortly afterwards became pregnant.
On 22 July 2012, the applicant married his partner.
On 21 August 2012, the applicant applied for a Partner (Temporary) (Class UK) (subclass 820) visa and a Partner (Residence) (Class BS) (subclass 801) visa (Partner visas).
On 10 October 2013, a delegate of the first respondent wrote to the applicant’s migration agent notifying the applicant that his application for the Partner visas had been refused. The delegate’s decision was made on the basis that the applicant could not satisfy the requirements of sub-cl 820.211(2)(d)(ii) of Sched 2 to the Migration Regulations 1994 (Regulations) and that there were not sufficiently compelling reasons to waive the criteria in Sched 3. Relevantly, criterion 3001 required that the application must have been validly made within 28 days after the day the applicant last held the substantive visa.
As the applicant’s last substantive visa had ceased on 11 August 2011, the applicant could not have met the Sched 3, cl 3001 criterion. Accordingly, the delegate was required to refuse the application unless there were compelling reasons for waiving the criteria in Sched 3.
The delegate’s decisional record noted that on 1 August 2013, the applicant’s agent, Mr Nwankwo, had advised that the marriage relationship had ended but that the applicant now wished to pursue the application on the grounds of family violence.
The delegate did not accept that there were sufficiently compelling reasons to waive the Schedule 3 requirements.
The delegate also refused the application on the following basis:
As your Partner (Temporary) (Class UK) (subclass 820) (Spouse) has been refused, you consequently cannot meet any of the relevant criteria of at subclause 801.221 for a Partner (Residence) (Class BS) (subclass 801) (Spouse). Therefore, your application for a Partner (Residence) (Class BS) visa is also refused.
Criteria for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa are prescribed by Part 801 of the Migration Regulations 1994 (Regulations). Clause 801.22 prescribes the criteria to be met at the time of decision. Of central relevance to the present application is cl 801.221(2)(a) which requires that the applicant holds a Partner (Temporary) (Class UK) (Subclass 820) visa.
The applicant did not hold, and has never held, a Temporary (Subclass 820) visa.
The applicant applied to the Tribunal for a review of the decision of the delegate to refuse the Temporary (Subclass 820) visa. While that application is not before the court, it is apparent from the correspondence from the Tribunal to the applicant’s agent, Mr Nwankwo, and the reasons of the Tribunal for its decision to affirm the delegate’s decision, that the only application which was then before the Tribunal was an application for a merits review of the decision to refuse the Temporary (Subclass 820) application.
On 28 February 2014, the Tribunal affirmed the delegate's decision to refuse the applicant the Temporary (Subclass 820) visa. On 15 August 2014, that decision was quashed by an Order of this court, which Order was made by consent. The matter was remitted to the Tribunal and on 2 November 2014, the Tribunal again affirmed the delegate's decision to refuse the applicant a Temporary (Subclass 820) visa. No application for review of that decision was made within the time prescribed by the Act.
On 9 April 2015, the Department wrote to the applicant advising that upon review of the delegate's decision dated 10 October 2013, it had identified an error in its notification of the decision refusing to grant the applicant a Residence (Subclass 801) visa. The letter stated in part:
The department has assessed your case and found that you were not correctly notified of the decision in respect of the application for Partner (Residence) (Class BS) (Subclass 801) visa.
Because of this I am now re-notifying you that your application for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa has been refused.
After careful consideration of all the information provided, the delegate who signed the attached decision record was not satisfied that you met the relevant criteria for the grant of the visa as provided in Australian migration law.
Your application for the grant of a Subclass 801 visa was refused because you did not satisfy clause 801.221 of the Migration Regulations 1994 (the Regulations). . . These subclauses relevantly require that the applicant holds or held a subclass 820 visa. You could not satisfy any of the subclauses in clause 801.221 because your application for the grant of a subclass 820 visa was refused so you do not hold and have not held a subclass 820 visa.
The attached decision record also has the decision on your Partner (Temporary) (Class UK) (Subclass 820) visa application but you are not being re-notified of that decision. (emphasis added)
The letter advised that the time within which an application for review of the re-notified decision was 28 days from the date that the applicant received the letter. Copies of the delegate’s decision and cl 820.211 of Sched 2 of the Regulations were attached to the correspondence.
On 24 April 2015, Mr Nwankwo’s firm, Goz Chambers Lawyers, lodged an application for a review the delegate’s decision with the then Migration Review Tribunal. The application at [14] erroneously sought review of the refusal to grant a Temporary (Class UK) (Subclass 820) visa. As noted above, it was the Residence (Subclass 801) visa that had been refused pursuant to the decision which was re-notified on 9 April 2015. As the Tribunal’s communications made clear, there had been no re-notification of the decision to refuse the application for a (Temporary) (Class UK) (Subclass 820) visa. As a result, the only opportunity to seek a further merits review by the Tribunal was confined to the re-notified decision to refuse the application for a Residence (Subclass 801) visa.
On 27 April 2015, the Tribunal notified Mr Nwankwo of this error. Mr Nwankwo then filed an amended application seeking to review the delegate’s decision to refuse the Residence (Subclass 801) visa.
On 13 October 2015, the applicant was invited to attend a hearing before the Tribunal which was scheduled for 30 November 2015. By his response to that invitation, Mr Nwankwo indicated that no interpreter would be required.
On 30 November 2015, the applicant, together with Mr Nwankwo, attended the hearing before the Tribunal, and on 10 December 2015, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Residence (Subclass 801) visa.
On 10 December 2015, the Tribunal notified the applicant of its decision. In a written statement of reasons (Reasons), the Tribunal affirmed the delegate’s decision not to grant the applicant a Residence (Subclass 801) visa.
Tribunal’s decision
Pursuant to par 368(1)(a), the Tribunal recorded its decision as follows:
The Tribunal affirms the decision not to grant the applicant
a Partner (Residence) (Class BS) visa.The Tribunal also noted the nature of the application before it at [1]:
This is an application for review of a decision made by
a delegate of the Minister for Immigration on 9 April 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).The Tribunal identified that the relevant primary criteria were in clause 801.221. The Tribunal noted, correctly, that the delegate had refused to grant the visa on the basis the applicant did not satisfy cl 801.221: Reasons, [3].
The Tribunal noted that to meet the requirements of cl 820.211 (sic)
at the time of decision, the applicant must either be the holder of
a Subclass 820 visa or have been the holder of a Subclass 820 visa that ceased on the notification of the Minister to refuse an application for the Subclass 801 visa: Reasons, [7]. The Tribunal recorded that the applicant and his representative had submitted to the Tribunal that at the time of the hearing the applicant was not a holder of the Subclass 820 visa, but was the holder of a bridging visa: Reasons, [8].
The Tribunal accordingly found that the applicant did not meet the requirements of clause 801.221(2), (2A), (3), (4), (5) or (6) at the time of decision and that he did not meet the requirements of cl 801.221(8). The Tribunal found that the applicant did not meet or satisfy the criteria of cl 801.221: Reasons, [8].
The Tribunal noted that the applicant’s desire that the Tribunal consider compassionate and compelling circumstances was not a relevant criteria under cl 801.221: Reasons, [12].
The Tribunal noted an application by the applicant for an adjournment to provide documents, but concluded the applicant had had a reasonable time to do so before the hearing and recorded that the applicant and his representative had not been able to identify the documents which were to be provided: Reasons, [15]. The Tribunal declined the application for an extension of time and found that the applicant did not meet the requirements of cl 801.221 at the time of the Tribunal’s decision: Reasons, [14]-[19].
Procedural history
On 14 January 2016, the applicant filed an application for judicial review of the Tribunal’s decision made on 10 December 2015.
The applicant swore an affidavit on 14 January 2016 which provided a history of the application and exhibited a series of decisional records along with the Tribunal’s decision and Reasons.
By a Response filed on 26 February 2016, the Minister opposed the making of the orders sought on the basis that the Tribunal’s decision was not affected by jurisdictional error.
By orders made on 21 June and 2 August 2016, the applicant was afforded an opportunity to file an amended application, affidavits and any supplementary court book. The parties were directed to file submissions. The applicant did not take those opportunities.
On 19 June 2017, an affidavit was filed on behalf of the Minister. The affidavit, which was made on 16 June 2017, exhibited a certificate, undated, that was expressed to have been given to the Tribunal pursuant to s 375A of the Act and which certified that disclosure of the information in five folios of the Departmental file would be contrary to the public interest and that the Tribunal must do all things to ensure that the information contained in those documents was not disclosed (certificate). A copy of the certificate was exhibited to the affidavit.
On 9 September 2016 and 19 June 2017, the Minister filed submissions which were responsive to the matters contained in the application.
The application was first listed for hearing on 26 June 2017. Some days prior to that hearing date, on 20 June 2017, the applicant’s solicitor, Mr Nwankwo, sent an email to the Minister’s solicitor attaching a medical certificate which stated that it would be advisable if the applicant’s upcoming court case was postponed for a month by reason of a medical condition which was described as a work related adjustment disorder with generalised anxiety. Also attached was a report dated 21 March 2017 from a psychologist which stated that it had been prepared pursuant to a request from ACCS made on 28 February 2017. The report identified that the applicant had consulted the psychologist on four occasions in the period July 2016 – March 2017 following a referral from his treating general practitioner. The report stated that the applicant had an adjustment disorder coupled with anxiety and depression. The psychologist expressed the opinion that the applicant’s prognosis for a return to work was poor and that his employment was considered to be a significant contributing factor to his current psychological condition.
When the matter was called on for hearing, the applicant appeared in person. The absence of the applicant’s lawyer was not explained. No notice of withdrawal of solicitor had been filed. The hearing was adjourned to 31 July 2017 and an order made that the question of the liability of the applicant’s lawyer for the costs of the day was reserved.
On 24 July 2017, the applicant transmitted an email to the Minister’s solicitor advising that he was unable to locate a lawyer to represent him and attaching further work related medical reports.
On 31 July 2017, the applicant appeared accompanied by his lawyer, Mr Nwankwo who confirmed that he appeared on behalf of the applicant and stated that he was now doing so on a pro bono basis.
Although he had initially indicated that no adjournment was sought, Mr Nwankwo renewed an application for an adjournment, apparently relying upon a statement in the psychologist’s report or medical certificate to the effect that the matter should be adjourned for six months. As Mr Hosking indicated, the applicant had had since January 2016 to provide instructions in the matter. The psychologists report, which was only provided shortly before the hearing in June 2017 was dated 21 March 2017. Much of the content of that report appeared to concern the applicant’s fitness to undertake his work. The medical certificate produced at that time had suggested that an adjournment of one month be granted (and, fortuitously, that had occurred). Nothing in the report or medical certificate stated that the applicant was unable to provide instructions or that he was unable to attend court. The applicant in fact attended court on both 26 June and 31 July 2017. The application for an adjournment was opposed and it was refused.
Mr Nwankwo confirmed that the decision the subject of the application for judicial review was that which had been made on 10 December 2015 by which the Tribunal had affirmed the delegate’s decision not to grant the applicant a Partner (Residence) (Class BS) visa; the criteria for which are prescribed by Part 801 of Sched 2 to the Regulations.
The application erroneously identified the Tribunal’s decision that was the subject of the application as being “the decision not to grant the Applicant a Partner (Temporary) (Class UK) visa.” For the reasons above, this misconceived that which the Tribunal had been asked to review and that which it had reviewed. The Tribunal’s decision was solely concerned with the refusal of the Residence (Subclass 801) visa.
Although the Minister’s written submissions addressed reasons why the stated grounds of review were unsupportable, it now unnecessary to decide those grounds. Each of them was abandoned at the hearing.
Accordingly, the applicant’s grounds of application are not made out.
Consideration
In oral submissions, Mr Nwankwo confirmed that the only ground upon which the applicant pressed for judicial review was non-disclosure of the certificate.
Mr Nwankwo submitted that by force of s 362A, the applicant was entitled to access to any written material that had been given or produced to the Tribunal for the purposes of review. Contrary to Mr Nwankwo’s submission, sub-s 362A(1) expressly provides that such rights of access are subject, relevantly, to 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 the affidavit filed on 19 June 2017, attention was drawn to the fact that the certificate had been given under s 375A and that the Tribunal had decided the merits review of the application without alluding to that certificate or the document and information which it contained. The affidavit did not exhibit the documents to which the certificate related by reason that, as was submitted, the documents were of no relevance to the determination of the application for judicial review.
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;[1] Minister for Immigration and Border Protection v Singh.[2]
[1] [2016] FCA 1081.
[2] (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 the non-disclosure entailed a denial of procedural fairness.
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 the hearing. Such an entitlement might be grounded upon a Tribunal’s obligation to inform an applicant either before, or at, a hearing 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,[3] a 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.
[3](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. For example, in SZMUF v Minister for Immigration and Citizenship,[4] 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”[5]
[4][2009] FCA 182, [22]. See also ABV16 v Minister for Immigration and Border Protection [2017] FCA 184, [27] (Bromberg J) and cases cited.
[5]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-s 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.[6]The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision.[7]
[6] HFM045 v The Republic of Nauru (2017) 350 ALR 34, [51].
[7] BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530, [162]-[163].
As noted above, in SZSSJ the Court held[8] 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.
[8] (2016) 259 CLR 180, [83].
In Snedden v Minister for Justice for the Commonwealth of Australia,[9] 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. . .
[9] (2014) 230 FCR 82, [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.[10]
[10] (2015) 256 CLR 326, [30] (Kiefel CJ, Bell and Keane JJ).
The Minister bore the onus of establishing that non-disclosure of the certificate and the information contained in the documents within the relevant folio of the Department’s file were immaterial to the decision and could have made no difference to the result of the application.[11] Consideration of the issues presented by the certificate arises in the context that the Minister’s submissions addressing this issue were served on the applicant’s lawyers on 19 June 2017.
[11]Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, [72]-[73] (Kenny, Tracey & Griffiths JJ).
The Minister submitted that the certificate was valid. On its face, the certificate claimed that the documents contained information and had been given to the Department in confidence.[12]
[12]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).
Irrespective of any such challenge, invalidity does not necessarily compel a conclusion that the decision of an administrative decision-maker is tainted by jurisdictional error. [13] 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.[14]
[13]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).
[14] CQZ15, supra [2017] FCAFC 194, [69].
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. The 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 the material covered by the certificate could have in no way been relevant to the review and did not, by inference or otherwise, form part of the Tribunal’s reasoning in that review.
The only issue in the application for review was whether the applicant could satisfy cl 801.221 of Sched 2 to the Regulations which required the applicant, at the time of the decision, to be the holder of, or to have previously held, a Temporary (Subclass 820) visa. Before the Tribunal, the applicant and his representative conceded that applicant did not hold and never had held a Temporary (Subclass 820) visa: Reasons, [8].
Upon that concession, the Tribunal could never have been satisfied that the criteria in cl 801.221(2)(a) and (8) 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 s 65(1)(b). The conclusion that the applicant could not satisfy that criterion was 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. For completeness, I accept the Minister’s submission that 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.[15]
[15]Cf AVO15 v Minister for Immigration and Border Protection [2017] FCA 566, [85]-[91] (Barker J).
In all of those circumstances, 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, I also consider that it was immaterial to the Tribunal’s decision and could have made no difference to the result of the application. Despite any suggested 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.[16] In the present case, I would also conclude that the applicant should be denied relief on this basis.
[16]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).
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.[17] The applicant could not have established the factual circumstance required by cl 801.221 by reason that he did not and had never held a Temporary (Subclass 820) visa. It is therefore clear that the applicant could not have complied with those criteria which are essential to ground satisfaction that a Partner visa should be granted. Accordingly, despite any complaint of non-disclosure, there would be no utility in the grant of relief.
[17]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).
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,[18] or occasioned any practical injustice,[19] 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.[20]
[18]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [52]-[59].
[19]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).
[20]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-147 (per curiam); Nobrani v Maricote [2018] HCA 36, [38]-[39] (per curiam).
On 17 December 2017, the parties were afforded an opportunity to file further submissions respecting the scope and operation of s 375A. The opportunity was afforded to them in light of CQZ15 v Minister for Immigration and Border Protection;[21] BJN16 v Minister for Immigration and Border Protection;[22] BEG15 v Minister for Immigration and Border Protection.[23] The parties took this opportunity.
[21] (2017) 253 FCR 1.
[22] (2017) 253 FCR 21.
[23] (2017) 253 FCR 36.
As the Minister correctly submitted, principles to be derived from the Full Court decisions in those appeals include that:
a)the mere fact that a certificate issue under s 438 was invalid does not of itself require a conclusion that the Tribunal’s decision is affected by jurisdictional error.[24] 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;[25]
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.[26] Whether or not an applicant was denied procedural fairness will depend upon the circumstances of the case and the consequences for the particular applicant.[27] 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;[28]
c)even where jurisdictional error is shown, the court may decline to grant relief on judicial review.[29] 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.[30]
While those principles were stated with respect to a s 438 certificate, it was not suggested that those principles do not apply under s 375A.
[24] CQZ15, supra, (2017) 253 FCR 1, [74]-[76].
[25] CQZ15, supra, (2017) 253 FCR 1, [76].
[26] CQZ15, supra, (2017) 253 FCR 1, [68]-[69].
[27] CQZ15, supra, (2017) 253 FCR 1, [68].
[28] CQZ15, supra, (2017) 253 FCR 1, [69].
[29] CQZ15, supra, (2017) 253 FCR 1, [87]-[88].
[30]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).
On 10 September 2018, the High Court of Australia reserved judgment in respect of appeals brought from the Full Federal Court of Australia in each of CQZ15 and BEG15.[31]
[31]Minister for Immigration and Border Protection v SZMTA; CQZ15 and BEG15 v Minister for Immigration and Border Protection [2018] HCATrans 177.
Beyond making a submission that the court should defer its decision in this matter pending the delivery of judgment in those appeals, nothing further was said as to why, in the circumstances of this case it was appropriate to do so. In this case, irrespective of the result of those appeals, the Tribunal was entitled, indeed required, to be satisfied that the criteria for a Partner visa could not be satisfied. As the criteria for the grant of the visa could not be satisfied, the Tribunal was required to affirm the decision of the delegate to refuse the visa.[32] It must follow, that irrespective of the content of the subject documents, no practical injustice was entailed in the decision of the Tribunal or the process by which it was reached including by non-disclosure of the certificate.
[32] S 65(1)(b).
In the circumstances of this case, I consider that I should not defer a decision in the matter until judgment in those appeals and continue to apply the law as decided in CQZ15, BJN16 or BEG15.
Compelling Reasons?
By way of his post-hearing submissions, the applicant sought to advance a further ground of review. I have reflected on whether I should entertain that further submission. As I consider that it was without merit it is as well to address it.
The applicant submitted that the Tribunal failed to comply with cl 801 and 820.211(2)(d)(ii) of the Regulations. The submission of failure to comply with those regulations was that the Tribunal had refused to allow the applicant to make submissions in support of his claim for compelling reasons.
It may be accepted that a failure to consider and evaluate whether compelling reasons existed to waive the criteria which must otherwise be satisfied for the grant of a Temporary (Subclass 820) Partner visa may constitute jurisdictional error: MZYPZ c Minister for Immigration and Citizenship.[33] As stated above, on 2 November 2014, the Tribunal affirmed the delegate's decision to refuse the applicant a Temporary (Subclass 820) visa and no application for review of that decision was made within the time prescribed by the Act. Instead, on 9 April 2015, the applicant sought review of the delegate’s decision to refuse the application for a Residence (Subclass 801) visa.
[33] [2012] FCA 478, [30] (Bromberg J).
Clause 801.2 sets out the primary criteria to be satisfied for a Subclass 801 Partner visa and, by cl 801.221(1), the applicant was required to meet certain criteria, one of which was that he held a Subclass 820 visa: cl 801.221(2)(a). Before the Tribunal the applicant and his agent had agreed that the applicant did not and never had held such visa.
Contrary to the applicant’s submission, the Tribunal did address the question of compelling and compassionate reasons but concluded that they were not relevant in the circumstances of the case: Reasons, [17]. The Tribunal was not satisfied that compelling and compassionate reasons were relevant in an evaluation whether the criteria under cl 801.221 were satisfied. In my opinion, the Tribunal was correct in doing so. The question of compelling and compassionate reasons to waive the visa requirements applied to cl 820, not cl 801. In those circumstances, s 65(1)(b) mandated that the application be refused.
Conclusion
As the Tribunal could not have been satisfied that the criteria for the grant of the visa were met and so would have been obliged to refuse the visa application in accordance with para 65(2)(b), the application for judicial review must be dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly.
Date: 17 January 2019
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