Singh v Minister for Immigration & Anor
[2016] FCCA 2464
•23 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2464 |
| Catchwords: MIGRATION – Procedural fairness – certificate issued under Migration Act 1958 (Cth) s.375A – where existence of certificate not disclosed to applicant – where existence of certificate required to be disclosed – operation of Migration Act 1958 (Cth) s.357A – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss. 359A, 375A, 376, 422B(2), 438 |
| Cases cited: Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20 Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | AVTAR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 730 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 20 September 2016 |
| Date of Last Submission: | 20 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent entering a submitting appearance |
ORDERS
A writ of certiorari issue quashing the decision of the Second Respondent dated 9 March, 2015;
A writ of mandamus issue remitting the matter to the Second Respondent to consider and determine according to law the application made to it by the applicant on 18 September, 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 730 of 2015
| AVTAR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of a migration review tribunal that affirmed a decision of a delegate of the first respondent to refuse the applicant a Skilled (Provisional) (Class VC) visa. The tribunal determined that the applicant had given to the first respondent’s delegate, as part of his application for the visa, a bogus document. The tribunal determined that the applicant fell foul of Public Interest Criteria 4020 which applied to his visa application. The tribunal further determined that it should not waive the necessity for the applicant to comply with that criterion and so, declined his application.
The applicant argues that the tribunal’s decision is wrong. He does not, either in his application for review or his submissions to me, identify any particular error with the tribunal’s decision, but understandably, feels aggrieved by the decision. In oral submissions before me he stated that he wanted the tribunal’s decision reviewed.
The first respondent opposes the application. He argues that the tribunal’s decision was open to it on the material before it and is demonstrably correct.
I have the benefit of written submissions from the first respondent. Despite directions for the filing of written submissions in support of his application for review, the applicant has not filed any written submissions to assist the Court.
At the conclusion of his submissions before me, the solicitor appearing for the first respondent brought to my attention, quite properly, a very recent authority of the Federal Court of Australia. Despite his valiant attempts to distinguish that authority from the present case, for the reasons that appear below, the principles that emerge from that case mean that this application must succeed.
Background
The applicant applied for a Skilled (Provisional) (Class VC) (subclass 487) visa on 15 July, 2009. For the purposes of his application the applicant needed to nominate an occupation and provide a skills assessment for his nominated occupation. His nominated occupation was motor mechanic. He indicated that he had obtained the necessary skills assessment on or about 2 June, 2008 from Trades Recognition Australia, an authorised skills assessment body. The applicant provided a copy of the TRA assessment with his visa application.
The applicant also provided a copy of a work reference from an employer with whom he had claimed to have worked on a voluntary basis. That reference attested that the applicant had undertaken more than 900 hours of unpaid work experience as a motor mechanic. The applicant had also provided that reference to TRA for the purposes of securing the skills assessment necessary for his visa application.
On 21 February, 2011 a case officer within the first respondent’s Department brought to the attention of the applicant concerns that the Department had about the veracity of the work reference upon which he had relied for his skills assessment. The applicant was informed that information that had been gathered by the Department indicated that the work reference was fraudulent. The applicant was invited to comment on the Department’s information.
In response the applicant, through his agent, sought more time to respond to the Department’s concerns than that permitted in the Department’s request. His response indicated that he was trying to locate his employer and that was difficult because the business had closed down.
A case officer from the first respondent’s Department sent further correspondence to the applicant (by his agent) on 18 July, 2012. That correspondence repeated the earlier concerns and provided more details about why the Department considered the work reference given by the applicant to TRA to secure his skills assessment was fraudulent. The applicant was again asked to comment on the Department’s information.
The applicant responded by correspondence and a statutory declaration on 7 August, 2012. He maintained that he had completed the work experience that was set out in the letter of reference from the employer who gave the reference. He pointed out that it was difficult to respond to the Department’s concerns because the applicant had not seen any statements from the person alleged to have been involved in the creation of the fraudulent reference.
On 30 August, 2012 the first respondent’s delegate refused to grant the visa. The delegate was not satisfied that the applicant met PIC 4020(1), which as I suggest below, applied in respect of the applicant’s visa application.
On 18 September, 2012 the applicant applied for a migration review tribunal to review the delegate’s decision.
On 4 June, 2014 a delegate of the first respondent gave to the tribunal a certificate and notification regarding the disclosure of certain information pursuant to s.375A of the Migration Act 1958 (Cth). I will return to the significance of that certificate and the terms of s.375A of the Act later in these reasons, but for the moment it is sufficient to observe that the certificate certified that the disclosure of the information described in the certificate otherwise than to a migration review tribunal would be contrary to the public interest. By reason of the certification, s.375A of the Act applied to the information specified in the notice and the tribunal was required to comply with the requirements of s.375A(2)(b). It could not disclose to anyone else, the documents or information that were the subject of the certificate.
By letter dated 27 June, 2014 the tribunal invited the applicant to comment on or respond to information and to provide information to the tribunal. On 13 August, 2014 after obtaining an extension of time, the applicant responded to the invitation.
On 27 November 2014, the tribunal again invited the applicant to comment on or respond to further information. The information this time extended to information that showed that the employer for whom the applicant claimed to have worked was included in a list of employers and businesses generated by the person said to be responsible for creating the false reference. The Department’s letter set out extracts from a written statement made by that person.
On 11 December, 2014 the applicant responded to that further invitation. On 9 January, 2015 at the invitation of the tribunal, the applicant appeared before the tribunal to give evidence and present arguments in support of his application.
On 9 March, 2015 the tribunal affirmed the delegate’s decision to refuse the applicant’s visa application.
The tribunal’s decision
The applicant sought to meet the criteria for a subclass 487 visa. As the respondent points out, after the applicant applied for the visa, the criteria for that type of visa were amended. The Migration Amendment Regulations 2011 (No 1) introduced Public Interest Criterion 4020 into Schedule 4 to the Migration Regulations 1994 and amended Schedule 2 to make PIC 4020 a criterion for a subclass 487 visa: Sch 3, items 3 and 4. The amendments applied in relation to applications for visas made, but not finally determined, before 2 April, 2011. Thus, the changes worked by the Amendment Regulations applied to the applicant’s visa application.
Relevantly, PIC 4020 was in the following terms:
4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act..
At the time of the tribunal’s decision, bogus document was defined in s .97 of the Act as follows:
97 Interpretation
In this Subdivision:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
The tribunal considered the information that was placed before it by the Department as part of the primary decision record. It considered the applicant’s evidence. It concluded that the TRA assessment contained a false or misleading assertion that the applicant had completed more than 900 hours of unpaid work experience. The tribunal placed particular weight on the admission by an individual (identified by the tribunal but not in these reasons) who pleaded guilty to the manufacture and sale of work references from employers including the applicant’s purported employer. The tribunal took into account that an identical copy of the applicant’s work experience reference was found in the relevant individual’s possession.
The tribunal found that the TRA assessment which was relied upon by the applicant had been obtained because of the false or misleading work experience reference. Consequently, the tribunal found that the work experience reference was a bogus document. The tribunal was satisfied that the applicant had provided, or had caused to be provided, a bogus document to an officer of the Department and that the applicant therefore did not meet PIC 4020(1).
The tribunal also found that in addition to providing a bogus document to the Department, the applicant had also given the Department information that was relevant to the applicant’s ability to meet the time of decision criteria and which was false and misleading in a material particular when he provided the work experience reference to the Department. For that reason also, the applicant did not meet PIC 4020(1).
The tribunal considered whether the requirements of PIC 4020(1) should be waived. The tribunal considered the authorities that explored the meaning of compelling and compassionate or compelling circumstances for the purposes of PIC 4020(4). The tribunal considered those matters in the context of the applicant’s claims based upon his relationship with his sister and nephew who were both Australian citizens. The tribunal accepted that failure to waive PIC 4020(1) would cause some distress to the applicant’s sister and nephew, but was not satisfied that this distress constituted compassionate or compelling circumstances for the purposes of PIC 4020(4).
The tribunal concluded that the applicant did not meet PIC 4020(1) and therefore did not satisfy cl. 487.224 of Schedule 2 to the Regulations. It affirmed the delegate’s decision.
The applicant’s grounds of review
On its face, the tribunal’s decision is unremarkable. Save for what follows, I can detect no want of procedure or other error on the part of the tribunal that might be said to be a jurisdictional error. The tribunal determined the matter after making findings about the work reference relied upon by the applicant to secure the necessary skills assessment. The findings that it made were open to it on the evidence before it. There was nothing irrational or illogical about its fact finding. The conclusion reached by the tribunal was the only conclusion that could be reached given the facts as found by it.
However, in submissions the solicitor for the first respondent brought to my attention MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 delivered on 7 September, 2016. In that case Beach J was dealing with an application for an extension of time within which to apply for leave to appeal, an application for leave to appeal and a consequent appeal from an interlocutory determination of this court to summarily dismiss an applicant’s application for judicial review of a refugee review tribunal. A delegate of the first respondent had purported to issue a certificate pursuant to s.438 of the Migration Act. That section is in the following terms:
438 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
For reasons that are not presently relevant, his Honour determined that the certificate was invalid. However, had the certificate been valid the applicant had nonetheless been denied procedural fairness because the tribunal had not made the applicant aware of the existence of the certificate or the material that it covered. His Honour said, at [50]–[53]:
50. Procedural fairness required that the Tribunal ought to have (but did not in the present case):
(a) disclosed the existence of the certificate to the applicant; on this aspect, I do not propose to follow what was said in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [29] per Dowsett J who was in any event discussing s 375A and was influenced by the strictures thereof that did not contain an equivalent to s 438(3) (his Honour was not discussing s 376);
(b) given the applicant the opportunity to make submissions on the validity of the certificate if she so chose; of course there is an air of unreality to affording such an opportunity to a self-represented litigant who requires an interpreter, but that does not deny the existence of any such requirement;
(c) disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant;
(d) given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).
51. Putting to one side for the moment s 422B, given that the Tribunal ex hypothesi would have relevant documents covered by the certificate, for the applicant not even to have knowledge of the existence of the certificate is antithetical to her interests. Only with knowledge of the certificate would she then be able to:
(a) challenge its validity;
(b) enquire of the Tribunal how it was going to use the material; and
(c) seek an exercise of power under s 438(3)(b).
52. To deny her knowledge of the existence of the certificate would effectively preclude her from taking any one or more of steps [51] (a) to (c). Moreover, the fact that s 438 does not itself contain an express statutory obligation to disclose the certificate does not foreclose any procedural fairness requirement, subject of course to the operation of s 422B.
53. Further, if the applicant was told of the existence of the certificate, it would be a denial of procedural fairness for the applicant not to be given the opportunity to take steps [51] (a) to (c) (cf NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473 at[35] to [43] per Moore J). The applicant may be seen as a beneficiary of any exercise of power under s 438(3)(b). It is counter-intuitive to suggest that as such a beneficiary she should be denied the opportunity to take any one or more of steps [51] (a) to (c).
Whilst there is no certificate of the same type in the present application, there are analogies between the s.375A certificate that was issued to the tribunal by the first respondent’s delegate in this case and the certificate dealt with in MZAFZ. Section 375A of the Act is in the following terms:
375A Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
It will be immediately apparent that there are significant differences in the text of s.438 and s.375A of the Act. Section 376 of the Act is the more directly analogous provision to s.438 of the Act.
In Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686, Dowsett J determined that where a certificate was issued under s.375A of the Act, neither the Minister nor the tribunal were required to give notice of the existence of the certificate or a copy of it to an applicant. At [29] his Honour said:
29. The applicant complains that the certificate under s 375A is signed by an officer of the Department rather than by the Minister. It is not asserted that the Minister lacked the power to delegate the relevant function. It is rather submitted that the applicant ought to have been given the certificate at such a time as to allow her to make inquiries as to its validity prior to the Tribunal’s decision. There is no statutory obligation to disclose the existence of the certificate to the applicant. In some cases disclosure may involve no adverse consequences. In others, disclosure may seriously undermine the confidentiality which s 375A was designed to protect. The existence of the certificate, by itself or coupled with questions asked by the Tribunal or matters raised by the Tribunal, may, in effect, disclose the confidential material. Given that the Tribunal may not override the certificate, no point would be served by disclosing its existence. In any event there is no reason to doubt that the delegation was lawful or effective. By the time of the hearing before me, the applicant, I infer, had access to the certificate and therefore an opportunity to discover any irregularity. None has been suggested. There is nothing in this point.
It will be recalled that s.359A of the Act prescribes a detailed regime whereby a tribunal must give to an applicant clear particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The tribunal is obliged to invite the applicant to comment on or respond to that information.
As to the relationship between the obligation imposed by s.375A and the obligation imposed by s.359A of the Act his Honour said:
28. Whatever the merits of these criticisms in other circumstances, they can have no force in face of the fact that all of the withheld material was withheld pursuant to a certificate under s 375A. The Tribunal was not at liberty to disclose either the documents or the information contained in them. As I have observed above, the obligation imposed by s 375A inevitably displaced any obligation which the Tribunal may have had pursuant to s [359A] or s 362A. The Tribunal had no discretion to go behind the Minister’s certificate. There is nothing in this ground.
Dowsett J’s conclusion about the relationship between the obligations imposed by s.375A and s.359A of the Act was considered by Wilcox J in Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20. In that case his Honour, amongst other things, considered the efficacy of a certificate issued pursuant to s.375A of the Act and its relationship to the obligations imposed upon a tribunal by s.359A of the Act. His Honour considered the conclusion reached by Dowsett J about that matter in Davis and then said:
40. At para 29 above, I set out the whole of Dowsett J’s reasoning, in Davis, on this point. His Honour did not advert to the distinction, drawn by Ms Cotter-Moroz before me, between the provision of ‘particulars of any information’ that the Tribunal considers would be a reason, or part of a reason, for affirming a delegate’s decision (covered by s 359A(1)) and access to the written material itself (covered by s 362A(1)). There is a real distinction. I think it is analogous to the distinction, familiar to all litigators, between particulars of a claim and the evidence that supports the claim. The command of s 375A(2)(b) is that the Tribunal ‘do all things necessary to ensure that the document or information is not disclosed’ otherwise than to the relevant Tribunal member. Provision of particulars about information need not reveal the information itself, and certainly need not involve access to any particular document. Take the example mentioned in argument. Suppose the Department has received a letter from a person who deposes to having seen a visa holder pay $5,000 to the relevant nominator on their wedding day. A valid s 375A certificate would prevent the Tribunal allowing the visa holder to have access to that letter, or providing detailed information about it, as would otherwise be the former visa holder’s right under s 362A. However, it seems to me s 375A would not prevent the Tribunal informing the former visa holder, by way of particulars of the information that could constitute a reason, that it was alleged that he or she had paid $5,000 to the nominator on that day. Such particulars would not reveal either the source or the detail of the information conveyed to the Department; they would allow the former visa holder to understand the nature of the case he or she needed to meet.
41. If it had been intended to make the obligation contained in s 359A(1) subject to s 375A, one would have expected Parliament to say so. Parliament could readily have done this, either by inserting a reference to s 375A in the opening words of s 359A(1) or by adding an additional paragraph to s 359A(4). Neither of these things was done, despite the fact that s 375A was already in the Act when s 359A was enacted.
42. The principle discussed by Gleeson CJ in Plaintiff S157 is long established and of great importance. The principle is that courts will import into statutes unexpressed provisions restrictive of individual rights and liberties only where it is impossible otherwise to give effect to a clearly-expressed policy of the Parliament. In the present case, it is possible simultaneously to give effect to the command, and the policy behind, s 375A and the policy and purpose of s 359A. I have hesitated in reaching a view different to that of Dowsett J, but I have concluded his Honour was clearly wrong in this aspect of Davis. Accordingly, I hold that, even if the s 375A certificate was valid, the appellant was nonetheless entitled to particulars under s 359A(1). The Tribunal fell into jurisdictional error in failing to provide those particulars.
Wilcox J did not consider whether there was an obligation upon the tribunal or the Department to provide a copy of the certificate to the applicant when it was issued or received by the tribunal.
In MZAFZ, Beach J did not follow Dowsett J’s approach in Davis concerning the requirement to disclose the existence of the relevant certificate to the applicant, although his Honour did acknowledge that Dowsett J was dealing with a different provision to the Migration Act.
Notwithstanding the approach to this issue in Davis, having regard to MZAFZ, it seems to me that disclosure of the existence of the certificate is necessary even when the certificate is issued pursuant to s.375A of the Act. As Beach J points out at paragraph [51] of MZAFZ that an applicant may not have knowledge of the existence of a certificate of the nature under discussion is antithetical to an applicant’s interests. It is only with knowledge of a certificate would an applicant be able to challenge its validity and enquire of the tribunal how it was going to use the material. As his Honour points out at [52] of MZAFZ, to deny an applicant the knowledge of the existence of a certificate would effectively preclude the applicant from doing either of those things.
Whilst s.375A does not contain an expressed statutory obligation to disclose the certificate (as s.438 similarly does not) it does not contain a prohibition against disclosure of the existence of the certificate or its terms. If it was the case that even the existence and terms of the certificate were not to be disclosed by the tribunal, one might have expected s.375A to provide for that. It does not.
Mr Rogers, who appeared for the first respondent, sought to distinguish MZAFZ on the basis that the terms of s.375A are quite different to s.438 of the Act. He submitted that MZAFZ would have a more direct application in the present case if the subject certificate was issued pursuant to s.376 of the Act. And indeed it would. However, whilst there are differences between the text of s.438 and s.375A, it seems to me that the reasoning in MZAFZ insofar as it concerns the necessity to disclose the existence of the certificate under s.438 has direct application to the facts of the present case, s.375A and the certificate in this case.
In my view, the tribunal was obliged, upon receipt of the certificate issued by the first respondent’s delegate pursuant s.375A of the Act, to disclose the existence of that certificate and its terms to the applicant.
Consequently, two further matters arise for consideration. First, was the existence of the certificate issued pursuant to s.375A of the Act disclosed to the applicant? Second, were particulars of the information given to the applicant under s.359A(1) of the Act?
The evidence before me does not permit of an answer to either question. As to the first matter, there is simply no evidence that would suggest that the applicant was made aware that the relevant certificate was issued. The applicant was entitled to an opportunity to make submissions on the validity of the certificate if he so chose. Before the tribunal, the applicant was represented by an agent who may have made submissions about the validity of the certificate. Whether they would have or not, is not to the point. It was the opportunity to consider that course which was important.
Nor is it to the point to suggest that the existence of the certificate has been disclosed because it has been included in the court book filed on 11 December, 2015 for the purposes of the hearing of this application. It is the task of the tribunal to make the necessary findings of fact to determine the application for review before it. The information seemingly protected by the s.375A certificate may have been relevant to the factual findings made by the tribunal. Disclosure of the existence of the certificate was required before the application for review was determined by the tribunal.
It is also not apparent from the evidence whether the tribunal discharged its obligation under s.359A(1) to provide the applicant with particulars of the relevant information that was otherwise covered by the certificate. There is in evidence, a letter written by the tribunal to the applicant dated 27 November, 2014 in which information relating to the alleged fraudulent production of a false work experience reference was brought to the attention of the applicant. According to the terms of the letter, that information was comprised in a summary of a taped record of interview between the Department and the person involved in the production of the false work references and a copy of that persons signed statement to investigators. Particulars of that information, including extracts from the signed statement were included in the tribunal’s letter. There was also reference to an extract from a spreadsheet of exhibits submitted to the County Court in Melbourne in relation to the criminal charges against the person responsible for the production of the false work references.
It is unclear whether the information contained in the letter could be said to constitute particulars of the information contained in the electronic files which are the subject of the certificate issued pursuant to s.375A of the Act. The text of the certificate and the text of the Department’s letter suggest a similarity between the two which might support an inference that particulars of the relevant information have been given and the obligation under s.359A of the Act discharged. Equally, it may be that the particulars given under the letter of 27 November, 2014 do not relate to the information protected by the certificate. One indication against that inference is the assertion in the Department’s letter that the relevant summary of the taped record of interview, the signed statement and the extract from the spreadsheet was provided to the tribunal on 17 February, 2014. The certificate was not issued until 4 June, 2014. It would seem at least curious that if the Department provided information to the tribunal which it considered should not be disclosed otherwise than to the tribunal so as to protect the public interest, there should be such a delay between the provision of the information to the tribunal by the Department and the certification under s.375A.
For completeness, one further matter requires consideration. Section 357A of the Act provides:
357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Section 357A of the Act relates to matters dealt with under Division 5 of Part 5 of the Act (which generally relates to decisions other than those relating to protection visas). Section 422B of the Act is the equivalent provision that relates to protection visa decisions. In MZAFZ, Beach J dealt with the relationship between s.422B(2) of the Act to s.438 of the Act. His Honour recognised that the text of s.422B(2) (which for all intents and purposes is identical with s.357A(2) save for the statutory references therein) permits of two realistic possibilities as to how the phrase “in so far as they relate to this Division” applies to s.438 of the Act. His Honour said
59. …
(a) First, it could relate to any matter concerning a s 438(1)(a) certificate including validity, how the Tribunal uses the documents or information covered by the certificate as contemplated by s 438(3)(a) and any disclosure under s 438(3)(b).
(b) Second, it could relate simply to the narrowing of an otherwise procedural fairness obligation such that for documents covered by a s 438(1)(a) certificate, they may be taken into account by the Tribunal without the applicant having access to them, subject to any exercise of power under s 438(3)(b) (see also s 427(1)(c)).His Honour considered that under the narrower possibility s.422B(2), and I consider by analogy s.357A(2), would not cover off or exclude any obligation to give an applicant procedural fairness by disclosing the existence of the relevant certificate and affording the applicant an opportunity to make submissions on the validity of the certificate.
Beach J considered that there were good reasons for adopting that narrower possibility:
62. First, the purpose of the phrase in s 422B(2) “in relation to the matters they deal with” is to be contextualised by reference to the natural justice hearing rule. That then requires looking at s 438 to see how it affects any procedural fairness question. But when one does so, it is the narrower perspective that is addressed in s 438. What s 422B(2) then does is to say that, in essence, the applicant cannot get the documents covered by a s 438(1)(a) certificate any other way from the Tribunal than through a favourable exercise of discretion under s 438(3)(b). In other words, there is no otherwise entitlement, notwithstanding that the Tribunal is permitted to take them into account without the applicant having access to them.
63. Second, Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [39] and [40] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ (see also MZZMG v Minister for Immigration and Border Protection (2015) 234 FCR 180 at [44]) would not suggest any expansive meaning of the phrase “in relation to the matters they deal with” although Saeed was dealing with an analogue to s 422B(1) rather than to s 422B(2).
64. Third, if the narrower approach was not taken, it would be a surprising result, to say the least. The consequences set out in [60] could then be avoided. No statutory purpose or object supports giving s 422B(2) such a broad reach or effect. Relatedly, one might suggest that the principle of legality and Gleeson CJ’s observations in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [30] would support the narrower possibility.
Although the decision in MZAFZ does not directly concern s.357A of the Act, the considerations which led to the result in MZAFZ and this case are sufficiently analogous for his Honour’s reasoning, with respect, to be highly persuasive.
Conclusion
The application for review must succeed. In my view, there has been a breach of procedural fairness in the way in which the tribunal has dealt with the s.375A certificate and perhaps the information covered by it. There is no evidence to suggest that the tribunal provided to the applicant a copy of the s.375A certificate as it was, in my view, obliged to do.
The application succeeds on a point of which, with respect, the applicant was oblivious and which has only been brought to the Court’s attention by the first respondent. Be that as it may, a denial of procedural fairness has been made out. Jurisdictional error is established.
Accordingly, it is appropriate to allow the application and make orders for the issue of constitutional writs quashing the decision of the tribunal and remitting the matter to the tribunal for further consideration and determination according to law.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 September, 2016.
Date: 23 September 2016
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