Singh v Minister for Home Affairs

[2020] FCCA 140

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 140

Catchwords:
MIGRATION – Failure of Tribunal to notify Applicant of issue of certificates pursuant to the provisions of s.375A and s.376 of the Migration Act 1958 either before or during the course of the hearing before the Tribunal – withdrawal/revocation of certificates by Secretary after Tribunal hearing but before decision of Tribunal handed down – failure by the Tribunal to advise the applicant or his advisors/representatives of the withdrawal/revocation of the certificates before decision handed down – failure by Tribunal to allow Applicant to have access to material the subject of certificates before decision handed down – where the applicant was prevented from making submissions relevant to both helpful material and adverse material the subject of the certificates – finding of procedural unfairness – whether the failures of the Tribunal to afford procedural fairness to the applicant were material or not – where it was found that there was a realistic possibility that the Tribunal’s decision could have been different if it had received further submissions from the applicant on matters about which the applicant had been kept in the dark – where jurisdictional error established – where decision quashed.

Legislation:

Migration Act 1958 (Cth), ss.352(4), 362A(1), 375A, 376, 438
Migration Regulations 1994 (Cth), Schedule 2, Cl.801

Cases cited:

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88

Applicant: SARBJIT SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 3873 of 2018

Judgment of: Judge Egan

Hearing date: 22 January 2020

Date of Last Submission: 22 January 2020

Delivered at: Brisbane

Delivered on: 29 January 2020

REPRESENTATION

Counsel for the Applicant: Mr A. Aleksov

Solicitors for the Applicant: Bardo Lawyers

Counsel for the First Respondent: Mr A. Psaltis

Solicitors for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance save as to costs

ORDERS

1. That the Amended Application for review filed on 22 October 2019 be granted.

2. That the decision of the Administrative Appeals Tribunal made on 27 September 2018 be quashed.  

3. That a writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine, according to law, the applicant’s application for review of the second respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.

4. For the purpose of the Administrative Appeals Tribunal determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 27 September 2018.

5. That the First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 3873 of 2018

SARBJIT SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on a student visa in 2006. That visa expired in October 2010. After expiration of the visa, the applicant remained in Australia as an unlawful non-citizen.

2. The applicant met his sponsor, one Ms Ha, in January 2011. The applicant married his sponsor in March 2011.

3. On 14 June 2011 the applicant made application for a Temporary (Class UK) Visa and a Partner Residence Visa based upon the applicant’s relationship with his sponsor.

4. On 27 February 2015, a delegate of the Minister granted the applicant a Temporary Partner Visa.

5. On 14 June 2016, the Minister’s Department sent a letter [1] to the applicant advising the applicant that officers of the Department had visited the applicant’s family home in India to inquire about his family’s knowledge of his relationship with the sponsor, and further advising the applicant that he had the opportunity to provide a response “… to the unfavourable information received by the Department”. No particulars were given as to what the author of the letter considered to be “unfavourable information”.

   [1]        Court Book (CB) pp. 615 – 618.

6. It is of significance that the letter of 14 June 2016 only referred to the visit by departmental officers to the applicant’s family home in India where interviews were conducted with the applicant’s mother and father. The letter did not refer to the fact that such Departmental officers had also conducted interviews with close neighbours of the applicant’s parents concerning their purported knowledge of the nature of the applicant’s relationship with his sponsor, and that a record had been made by such departmental officers of answers given by neighbours to questions directed to them at the time of interview. Neither did the letter refer to the fact that a site report note was prepared by such officers wherein they had concluded – presumably based upon the questions and answers given during the conduct of the interviews with the parents and the neighbours, as well as the officers’ own assessment of such answers in what was asserted to be prevailing Indian cultural practice - that such relationship was “Non-Genuine”.

7. On 8 July 2016 the applicant’s representative provided submissions and statutory declarations by the applicant and his sponsor in response to the invitation to provide commentary upon what was contained in the 14 June 2016 letter. Because the applicant had not been provided with either a copy of the site report note, or a precis of what was contained in the report note relating to the neighbours of the applicant’s parents, or as to cultural practice in India as referred to in such note, and because the applicant therefore did not know of the existence of the site report prepared by the Departmental officers, the applicant and his representatives, when so replying:

   a)Did not have the opportunity to address each and every matter as recorded in the site report.

   b)Made no submissions concerning what was either asked of the neighbours by the officers of the Department, or otherwise comment upon what was recorded as having been said by such neighbours in response to questions asked of them.

   c)Made no submissions concerning the accuracy or otherwise of the recording by the officers of what they asserted was normal cultural practice in India concerning what the applicant’s parents ought to have known of the applicant’s sponsor had the relationship between the applicant and his sponsor been genuine.

   d)Made no submissions as to the recording in such file report that the relationship between the applicant and the sponsor was “Non-Genuine”.

8. On 11 August 2016 a delegate of the Minister refused the application made by the applicant for the Partner Residents Visa on the basis that the delegate was not satisfied that the applicant and his sponsor were in a genuine spousal relationship for the purposes of Clause 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

9. On 27 August 2016, the applicant made application to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.

10. On 7 September 2016, the Department issued two (2) certificates – one (1) issued pursuant to the provisions of s.375A of the Migration Act 1958 (Cth) (‘the Act’) and another issued pursuant to the provisions of s.376 of the Act. [2] Neither the applicant nor his advisors/representatives were at any time advised of the issue of the said certificates.

    [2]        Certificates at CB pp. 724 – 725.

11. The documentation the subject of notification in the two (2) certificates included the site report prepared by the departmental officers. [3]

    [3]        CB pp. 726 – 742.

12. On 27 June 2018, the Tribunal invited the applicant to attend a hearing scheduled for 25 July 2018, and to provide to it, before such proposed hearing, any further statutory declarations to be relied upon by the applicant, as well as any further written submissions also to be relied upon. On 17 July 2018, the applicant provided further statutory declarations and further written submissions to the Tribunal.

13. On 25 July 2018, the applicant, his sponsor, and the applicant’s representative, attended a hearing before the Tribunal.

14. On 14 August 2018, the Department issued two (2) revocation notices concerning the s. 375A and s. 376 certificates. However, neither the Department, nor the Tribunal, advised the applicant of the withdrawal/revocation of the two (2) certificates. The applicant was kept in the dark not only concerning the fact of the issue of the certificates, but also concerning what written material was rendered privileged by the issue of the certificates.

15. On 27 September 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the visa.

16. On 19 December 2018, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing of the amended application filed on 22 October 2019, the Court granted to the applicant an extension of time to file the Originating Application for Review, notwithstanding that such application was filed 37 days out of time. In respect of that application, the first respondent, by and through counsel, had conceded that the Minister was not prejudiced as a result of the late filing of the Originating Application for Review.

17. The Grounds for Review as set out in the Amended Application filed on 22 October 2019 were as follows:

    “Grounds of application

    Ground 1

    1. The Tribunal, constructively, failed to consider important evidence in relation to the social aspects of the lives of applicant and his wife, including that:

    a. the applicant provided an accurate account of his wife’s social life, albeit that social life was primarily directed to spending time with her husband (cf Reasons [36]);

    b. the applicant never gave “vague” evidence about his wife’ social life and in fact he and she gave consistent and spontaneous evidence about their social lives (cf Reasons [36], [37]).

    Ground 2

    2. The Tribunal did not comply with the rules of procedural fairness because it did not tell the applicant about the existence of certificate material (under s 376 of the Act), which was a material error because:

    a. the certificate material contained some helpful, and some prejudicial information well beyond that which the applicant was informed about;

    b. fairness required that the applicant be given an opportunity to obtain that information and rely on the helpful aspects and to challenge the prejudicial aspects; and

    c. the Tribunal in fact placed “little weight”, impliedly at least some weight, on the prejudicial material.”

Ground 2

1. The decision of the Tribunal under review is a Part 5-reviewable decision.

2. The Secretary of the Minister’s Department must, as soon as practicable after being notified by the Registrar of the Tribunal of the making of an application for review by the Tribunal of the delegate’s decision, give to the Registrar “… each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision”. [4]

   [4] Section 352(4) of the Act.

3. As to an applicant having an entitlement to have access to written material before the Tribunal, s. 362A(1) of the Act provided as follows:

   “Section 362A – Applicant entitled to have access to written material before Tribunal

   “(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.”

4. It is to be noted that the right of the applicant to access written material provided to the Tribunal by the Secretary was overridden insofar as any such material was identified as privileged documentation in certificates issued pursuant to the provisions of s. 375A and s. 376 of the Act. In this matter, it is clear that the privileged documentation included in the s. 375A and s. 376 certificates was no longer embargoed from examination by the applicant or his advisors/representatives upon the withdrawal/revocation of both such certificates on 14 August 2018.

5. It was submitted on behalf of the applicant that the Tribunal did not comply with the rules of procedural fairness because it neither told the applicant about the existence of the certificate material, nor availed to the applicant the opportunity for him, or his advisors/representatives, to have access to such material. Specifically, it was submitted that the applicant was never given the opportunity to read the parts of the site report note prepared by the two departmental officers which had not been paraphrased in the 14 June 2016 letter sent by the Department to the applicant – namely everything other than the matters recorded as relating to the involvement of the applicant’s parents at the site interview.

6. It was submitted by Mr Aleksov of Counsel on behalf of the applicant that the provisions of s. 362A(1) of the Act had clearly been breached. It was submitted that the applicant was deprived of a meaningful opportunity to make relevant submissions in support of his claim relating to parts of the site report note said to be helpful to his claim (such as the fact that prior to his marriage he had sought his parents’ permission to marry) [5], as well as in relation to matters recorded in the site report note relevant to :

   a)Questions asked of, and answers given by, neighbours of the applicant’s parents; and

   b)Whether or not there was any justification for the cultural practice conclusion in such note that:

   “In India parents have detailed information about their daughter-in-law even if they reside in another country. In earlier site visits where genuine relationship was verified, it has been noted that parents had detailed information about SP and PA’s relationship. Hence, this is of concern.

   Also, PA’s parents were aware about all the details of PA’s brother’s marriage. Given this they were expected to know similar details about PA’s marriage as well.” [6]

   c)The significance of it having been concluded in the site report note that the applicant’s relationship with his sponsor was “Non-Genuine”, something which was submitted on behalf of the applicant as being “highly probative and extremely prejudicial”.

   [5]        CB pp. 729 and 730.

   [6]        CB pp. 730 and 731.

7. It was submitted by Mr Psaltis of counsel on behalf of the first respondent that it was made clear by the Tribunal, at [42] of its reasons, that the Tribunal had placed little weight on the information gathered by the Department during its interviews with the applicant’s parents and that, therefore, the non-disclosure of the contents of the site report note to the applicant, or to his advisors/representatives, was in all of the circumstances immaterial to the decision arrived at. It was further submitted that because the Tribunal made no reference in its reasons to those parts of the site report note relating to cultural practice, or to the questions asked of, and answers given by, neighbours of the applicant’s parents, that it ought to be inferred that the Tribunal paid no heed to such material. The Court does not accept such submissions.

8. The Tribunal, at [42] of its reasons, was particular in its explanation of why it gave the applicant the benefit of any doubt relating to the respective explanations of the applicant’s parents as to the nature of the applicant’s relationship with his sponsor. Reference was made to inconsistencies and contradictions in such answers. The statement by the Tribunal that it placed little weight on the information gathered by the Department during the course of the interview with the applicant’s parents does not, however, do anything other than quarantine its treatment of such information from the other information contained in the site report note relating to cultural practice, the content of neighbour interviews, and as to the conclusion made by the departmental officers that the applicant’s relationship with his sponsor was a non-genuine spousal relationship.

9. In circumstances where the Tribunal was at pains to deal with one aspect of adverse information contained in the site report note, [7] but where it otherwise clearly failed, in its reasons, to in any way deal with, or otherwise disavow its reliance upon, other adverse information contained in the same report, the Court is not satisfied that the Tribunal did not place some, if not some considerable, reliance upon the latter adverse information. That is particularly so in circumstances where, because of the applicant’s lack of knowledge of the existence of such information, he was prevented from making any relevant submissions in response to same. In that respect, though the Court accepts as a matter of principle that a decision maker is generally not required to make reference in their decision to each and every step taken by them in arriving at a decision, the Court is of the view that it is incumbent upon a decision maker to do so in circumstances where, as here, no reason has been given as to why it has differentiated in its recognition and treatment of one part of the evidence before it, as contained in the one document, as opposed to other adverse information contained in the same document about which it made no mention. 

   [7]        [42] of the reasons of the Tribunal.

10. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [44], Justices Bell, Gageler and Keane held that the provision by the Secretary of an incorrect, and therefore invalid, notification under s. 438 of the Act ought not to necessarily give rise to a finding that the decision of the Tribunal should be set aside because of jurisdictional error – on the basis that no notice of the making of the notification had been given to an applicant – unless the breach of that procedural fairness requirement was material. At [48] – [50] inclusive of their joint judgment, their Honours said:

    “[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” (78), the task is not impossible (79) and can be done in these appeals.

    [50] In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.”

1. Reliance was also placed for that proposition upon the decision in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134 – 135 at [29] – [31] where it was said:

   “[29] That a decision-maker “must proceed by reference to correct legal principles, correctly applied” (34) is an ordinarily (although not universally (35)) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.

   [30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality (36), the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome” (37), or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made (38).

   [31] Thus, as it was put in Wei v Minister for Immigration and Border Protection (39), “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.”

2. The Court considers that the Tribunal erred in three important respects, and that the applicant has been denied natural justice as a result:

   a)First, the Tribunal failed to notify the applicant or his advisors/representatives of the fact of the issuing of the s. 375A and s. 376 certificates.

   b)Second, after the withdrawal/revocation of such certificates, the applicant was denied the opportunity of looking at all of the documentation embargoed from his examination by the prior issue of such certificates, and therefore prevented from making submissions both as to each of the helpful and adverse aspects of information contained in the site report note.

   c)Third, after the withdrawal/revocation of the certificates, the Tribunal, knowing of such withdrawal/revocation, failed to give notice to the parties that it intended to reconvene the hearing before it so as to allow the applicant and the first respondent to make relevant submissions, on matters the subject of the certificates, before it handed down its decision.  

3. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88 it was held that the Tribunal ought to have told the appellant of the substance of allegations made in an unsolicited letter earlier sent to the department, such that the appellant had an opportunity to respond to those allegations before the Tribunal reached its decision. It was found that the appellant had been denied procedural fairness by the Tribunal when it failed to do so. When discussing what procedural fairness was required in such circumstances, the Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) said at [14] – [21] and [29] as follows:

   “[14] In the courts below much emphasis was given to the Tribunal’s statement, in its reasons, that it gave no weight to the letter or its contents. This statement was treated as inviting two questions: was the statement to be taken at face value and, if it was, could the letter nonetheless have had some influence upon the outcome of the matter? As these reasons will show, it is not useful to begin the inquiry about procedural fairness by looking to what the Tribunal said in its reasons. Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.

   [15] The appellant and the Minister each began their analysis of what procedural fairness required by examining the well-known statement of Brennan J, in Kioa v West (18), of what is to be done when a decision-maker has information available that is adverse to the interests of the person who will be affected by an administrative decision. Particular emphasis was given in argument in this Court, as it had in the courts below, to two propositions stated (19) by Brennan J. The first proposition was that “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”; the second proposition was that “[i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information”. At once it can be seen why argument was directed to what, if any, significance was to be attached to the Tribunal’s statement that it gave no weight to the letter. Did this, as the Minister contended, show that the letter and the information it conveyed was not relevant or significant to the Tribunal’s decision? Was there, nonetheless, a real risk of subconscious prejudice? Was this a case, as the Minister contended, where the “problem of confidentiality” required some different treatment of adverse information even if that information appeared to be credible, relevant and significant?

   “Credible, relevant, and significant”?

   [16] What is meant by “adverse information that is credible, relevant and significant to the decision to be made”? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made (20) only a few sentences earlier: that “[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons (21) to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

   [17] It follows that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

   [18] It follows that the Tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness.

   Subconscious effect?

   [19] Is it nonetheless relevant to ask whether the letter had or might have had some subconscious effect on the Tribunal in this case? Again, what Brennan J said about subconscious effect and prejudice must be read in its context. It was said in explanation of why it is that fairness requires that the person whose interests are likely to be affected by a decision should be given an opportunity to deal with the adverse information. As has later been rightly said (22), “the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision”. It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.

   The letter and its contents

   [20] The information set out in the letter about the appellant could not be dismissed from further consideration by the Tribunal as not credible, or not relevant, or of little or no significance to the decision. The author of the letter purported to record what the appellant had told him; the author alleged that the appellant was working for the present government of Eritrea. What the appellant was alleged to have admitted, and whether the appellant was working for the present government of his country of origin, were matters that bore upon whether he had a well-founded fear of persecution for a Convention reason. Both what he was alleged to have done, and the fact that the allegation had been made, could be seen as a reason not to wish to return to Eritrea. His alleged support of the current government of Eritrea reflected upon whether he had a well-founded fear of persecution in that country. Neither the alleged admission nor the allegation of support for the current government could be dismissed as a matter of no relevance or of little or no significance to the decision. Further, neither the alleged admission, nor the allegation about where the appellant’s political sympathies lay, could be dismissed from consideration as material to which the Tribunal could not give credence.

   [21] It follows that procedural fairness required that the Tribunal draw the appellant’s attention to the information. But how should that have been done? The appellant contended that he should have been shown the letter.

   …

   [29] So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. No doubt the appellant’s response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa (27) as the “problem of confidentiality”. Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.”

4. The fact that the Tribunal had, in the 14 June 2016 letter, summarised to the applicant the nature of the applicant’s parents’ responses to questions asked of them during the course of the site interview with the departmental officers, makes it even more stark that the Tribunal had failed to do so in respect of the cultural practice conclusion, the non-genuine relationship conclusion, and the neighbours’ responses to questions evidence as set out in the site report note. In that respect, the Tribunal failed to fulfil its procedural fairness obligations as set out in [29] of VEAL. The Court considers that in all of the circumstances such failure to afford procedural fairness to the applicant was material.

5. The statement by the Tribunal in [42] of its reasons that it gave “little weight” to the contents of the site report note relating to the interview with the applicant’s parents does not mean that the Tribunal did not give “some” weight to what was so relevantly recorded. One inference open on such question is that it did. To the extent that the Tribunal failed to express whether it had or had not had some regard to such information, this Court is left in a quandary on such issue.

6. The failures of the Tribunal referred to above prevented the fair hearing and determination of all aspects of the applicant’s claims. The applicant was unable to make submissions on issues relevant to the applicant’s claims, nor was he able to adduce further evidence on such issues. The Court finds that the absence of such opportunity having been afforded to the applicant could have realistically affected the result of the application before the Tribunal. The applicant was denied procedural fairness and the Tribunal fell into jurisdictional error in acting as it did.

7. The amended application for review is granted based upon a consideration of the matters raised in Ground 2 of such application.

8. The decision of the Administrative Appeals Tribunal made on 27 September 2018 is quashed and the matter is remitted back to the Tribunal for re-hearing by a different member of the Tribunal.

9. Because the Court has arrived at its decision based upon a consideration of Ground 2 of the amended application for review, it has been unnecessary to consider the matters raised in Ground 1 of such application.

10. The Court will hear the parties as to costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  29 January 2020