SZSZT v Minister for Immigration - [2018] FCCA 1663

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZT v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1663

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – certificate purportedly issued under s.438 of the Migration Act 1958 (Cth) – certificate invalid – whether the Tribunal erred in respect of the certificate considered – no jurisdictional error.

Legislation:

Evidence Act 1995 (Cth)

Migration Act 1958 (Cth), ss.36, 375A, 422B, 424AA, 424A, 425, 438, 440

Cases cited:

BEG15 v Minister for Immigration [2017] FCAFC 198

Burton v Minister for Immigration (2005) 149 FCR 20; [2005] FCA 1455

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration v Singh (2016) 244 FCR 305; [2016] FCAFC 183

Minister for Immigration v SZMTA & Anor [2018] HCATrans 34

Minister for Immigration v WZARH (2015) 256 CLR 326

Minister for Immigration v Yusuf (2001) 206 CLR 323

MZAFZ v Minister for Immigration [2016] FCA 1081

Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1

Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82

SZMTA v Minister for Immigration [2017] FCA 1055

Applicant:

SZSZT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 605 of 2016

Judgment of:

Judge Driver

Hearing dates:

29 March, 21 June, 25 June 2018

Delivered at:

Sydney

Delivered on:

17 August 2018

REPRESENTATION

Counsel for the Applicant:

Ms E Grotte

Solicitors for the Applicant:

Michaela Byers, solicitor

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended by leave in court on 29 March 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 605 of 2016

SZSZT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 February 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.

The applicant’s claims

The applicant is an ethnic Tamil who was born in 1966 in a named location in Udappu, Puttalam, Sri Lanka. He is a citizen of Sri Lanka. He is married with three children. His wife and children still reside in Udappu.
The applicant applied for a protection (Class XA) visa on 9 September 2012, attaching a statutory declaration.[1] Both the application and the statutory declaration set out his original claims to a protection visa.
[1] Court Book (CB) 28-30
On 18 October 2012 the delegate refused a protection visa on the basis that the relevant criteria under either s.36(2)(a) or s.36(2)(aa) of the Migration Act1958 (Cth) (Migration Act) were not satisfied.[2]
[2] the delegate’s reasons are set out at CB 91-103
The applicant had applied to a previously constituted Tribunal for a review of the decision to refuse to grant a protection visa.
On 17 May 2013 the previously constituted Tribunal affirmed the decision of the Minister to refuse a protection visa.[3]
[3] CB 104-126
The applicant applied for judicial review of that decision to this Court on the basis of jurisdictional error.
On 31 July 2015 this Court determined that the applicant was successful in his application for judicial review and issued a writ in the nature of certiorari quashing the decision made on 17 May 2013, and a writ in the nature of mandamus compelling the Tribunal (as constituted in these proceedings) to reconsider the application according to law.[4]
[4] CB 127-128
On 13 August 2015 another delegate of the Minister issued a certificate and notification to the Tribunal[5] regarding the disclosure of certain information under s.438(1)(a) of the Migration Act in the following terms:
[5] CB 129
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 85, 119-129, 143-146 of file number CLF 2012/200437.
The disclosure of this information would be contrary to the public interest because:
(a)folios 85, 119-129, 143-146 contain information relating to an internal working document and business affairs.
The Administrative Appeals Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958.
There was no such certification in the proceedings before the previously constituted Tribunal.
The existence of the certificate and the material it covered was not drawn to the attention of the applicant at any relevant stage.
On 25 August 2015 the Tribunal wrote to the applicant and his legal representatives stating that the application for review of the decision to refuse to grant a protection visa had been remitted for reconsideration. The Tribunal noted in its decision[6] that the “Federal Court considered that the [Tribunal] failed to give adequate consideration to the problems that the applicant may face upon his return to his home area.”
[6] at CB 171, [5]
A hearing was conducted on 8 and 16 February 2016, and on 18 February 2016 the Tribunal issued its decision record, which included its statement of reasons affirming the decision not to grant the applicant a protection visa.
The Tribunal did not find the applicant to be credible[7] and found his evidence to be vague and unpersuasive.[8] It also found the applicant did not satisfactorily explain why he decided to leave Sri Lanka after 11 years of similar treatment.[9] The Tribunal considered that the applicant’s evidence was confused and inconsistent,[10] but that this was not due to an inability to give evidence because of his mental state or health.[11]
[7] CB 177, [31]
[8] CB 177, [29]
[9] CB 177, [29]
[10] CB 177, [30]
[11] CB 178, [32]

The current proceedings

These proceedings began with a show cause application lodged on 14 March 2016. The application has been amended several times since then. On 29 March 2018, at the commencement of the trial of the matter, I gave leave for the applicant to rely upon a second further amended application handed up in court on that day, and adjourned the hearing, subject to a costs penalty.
The grounds in that application are:
1.The Tribunal erred in failing to consider all integers of the applicant's claims. The applicant claimed that he was suspected of being involved in the bomb blast because of his injuries and his proximity to the blast. The error occurs at paragraphs 27, 33 and 34 (pages 175-178 of the Court Book (CB)) of the Tribunal decision where the Tribunal accepts that the applicant was injured in a bomb blast and that during his hospitalisation over a period of two weeks he was questioned by the authorities, the Sri Lankan Army, but does not accept that the questioning continued after routine questioning concluded.
Particulars
(a)On 8 April 1998 the applicant lost part of his little finger on his right hand and cuts to his head and scarring on his left arm in a bomb blast in an LTTE controlled area (page 28 of the CB);
(b)At paragraph 16 of the decision the Tribunal refers to the applicant’s claim that the authorities considered that he was the perpetrator of the blast (page 173 of the CB).
(c)The Tribunal considered that the incident occurred some 11 years ago and the applicant was an unfortunate victim;
(d)The Tribunal considered that the applicant was only subject to routine questioning.
(e)The Tribunal failed to consider the evidence that the applicant gave to the previously constituted Tribunal recorded at paragraph 25 of the decision dated 17 May 2013 that the authorities suspected that he was responsible for the bomb blast (page 109 of the CB)
(f)The Tribunal failed to consider whether there was a real chance/risk that the Sri Lankan authorities could consider the applicant's injuries indicated that he was handling the bomb and suspect that he is an LTTE member or is associated with the LTTE or is a supporter of the LTTE.
(g)This error is in the nature of the error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
2.The Tribunal erred/committed jurisdictional error by failing to afford the applicant procedural fairness in respect of the information the subject of a certificate issued by the second respondent pursuant to s 438(1)(a) of the Migration Act 1958 on 13 August 2015 (page 129 of the CB).
Particulars
(a)The Tribunal failed to disclose the existence of the certificate to the applicant.
(b)The Tribunal failed to give the applicant an opportunity to make submissions on the validity of the certificate.
(c)The Tribunal failed to disclose to what extent the Tribunal was going to take into account information covered by the certificate and whether the information was favourable, unfavourable or neutral.
(d)The Tribunal failed to give the applicant an opportunity to seek a favourable exercise of the discretion under s 438(3)(b) of the Migration Act 1958.
3.The Tribunal erred/committed jurisdictional error by acting on a certificate invalidly issued under s 438(1)(a) of the Migration Act 1958 because it followed a procedure contrary to law.
In addition to the court book filed on 24 May 2016 I have before me the following evidence:
a)the affidavit of Isabel Sophia Muscatello made on 29 April 2016, to which is annexed a transcript of the hearing conducted by the Tribunal on 16 February 2016;
b)the affidavit of Gabrielle Doyle made on 17 August 2017 to which is annexed an index to the court book for the previous judicial review proceedings, and also exhibited to which are the documents purportedly covered by the certificate issued under s.438 of the Migration Act and found at page 129 of the court book in the present proceedings;
c)a further affidavit by Ms Doyle made on 31 August 2017 annexing pages 2-18 of the court book for the previous judicial review proceedings, being the record of the applicant’s irregular maritime arrival entry interview (entry interview) conducted on 17 July 2012; and
d)the affidavit of Michaela Byers made on 7 September 2017, of which only [2] was read.
The parties also filed extensive pre-hearing submissions and made oral submissions through their counsel at the trial on 21 and 25 June 2018. I have been assisted by those submissions.
Somewhat confusingly, the applicant’s submissions refer to four grounds. Ground 2 as described by the applicant was abandoned prior to the trial. Ground 1 as extracted above was not pressed at the trial. The applicant continues to press what he describes as Grounds 3 and 4, which are the grounds numbered 2 and 3.

Consideration

Grounds 2 and 3 – did the Tribunal err by failing to afford procedural fairness in respect of the information the subject of the purported certificate or did the Tribunal fall into error by acting on a certificate invalidly issued?

The applicant’s submissions

Jurisdictional error and the decisions in MZAFZ v Minister for Immigration [2016] FCA 1081

The Tribunal’s decision is challenged on the basis that it discloses jurisdictional error in the nature of that identified in MZAFZ v Minister for Immigration,[12] being “a deficiency in the legality of the procedure adopted by the Tribunal concerning a s.438(1)(a) certificate”. At [65] of MZAFZ, the Court found:
It follows that if the s 438(1)(a) certificate is valid, there has been a denial of procedural fairness and accordingly, a jurisdictional error is established. Alternatively, if the s 438(1)(a) certificate is invalid, in addition to the denial of procedural fairness, there is also a jurisdictional error established as a consequence of the Tribunal not following a procedure according to law as I have previously discussed.
[12] [2016] FCA 1081
MZAFZ concerned an application for judicial review of a decision of the Tribunal. The application was based on two grounds, one of which was rejected by Beach J. The other ground, which was successful, asserted a denial of procedural fairness due to an erroneous application of s.438 of the Migration Act. The applicant in MZAFZ contended two matters: first, that the s.438(1)(a) certificate was invalid because the reason given for the certificate was that the folios affected contained “internal working documents”, and this was not a reason that could form a basis for a claim by the Commonwealth in a judicial proceeding that information could not be disclosed. It was contended that the information could therefore not be withheld and because it was not put to the applicant, the applicant was denied procedural fairness. Secondly, if the certificate was valid, the applicant ought to have been given notice of the issue of the certificate and of the fact that the Tribunal had decided not to exercise the discretion to disclose the material to the applicant available to it under s.438(3)(b) of the Migration Act.
Section 438 provides:
(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.
Beach J considered the question of the validity of the certificate issued in that case. His Honour concluded that s.438 speaks to public interest immunity (Crown privilege) and that the reason given, that the information “contains internal working documents”, is not either a necessary or sufficient basis for public interest immunity at common law or under the Evidence Act 1995 (Cth).[13]
[13] MZAFZ at [37]. The certificate in his Honour’s view manifested “imprecision and overreach”
His Honour proceeded to consider the consequences of the invalidity and concluded at [44] that “for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error… that category of jurisdictional error may not be impacted by s.422B(2)”.
His Honour was of the view that it was entirely unclear “how the Tribunal in that matter considered the potential operation of s.438(3) or whether it considered s.438(3) at all”, because although it had the certificate and the subject documents before it, it did not exercise any power of disclosure under s.438(3)(b).[14] His Honour concluded that there was as a result an absence of procedural fairness.[15] His Honour stated at [50] that the Tribunal ought to have:
a)disclosed the existence of the certificate to the applicant;
b)given the applicant an opportunity to make submissions on the validity of the certificate;
c)disclosed whether the information covered by the certificate was favourable, unfavourable or neutral to the applicant, and the extent to which the Tribunal was going to take into account that information; and
d)given the applicant at least an opportunity to seek a favourable exercise of s.438(3)(b).
[14] MZAFZ at [46]
[15] MZAFZ at [49]
His Honour then considered the question of how s.422B(2) of the Migration Act applied to s.438 of the Migration Act. At [65], his Honour stated that s.422(B)(2) has “the narrower operation” and would not exclude the requirements set out in [26] above.
His Honour concluded that even if the certificate was valid, there had been a denial of procedural fairness because the applicant had not been made aware of the certificate or its contents and had not been afforded the opportunity to make submissions either on the validity of the certificate or as to a favourable exercise of the power under s.438(3)(b) of the Migration Act. This amounted to a jurisdictional error.

The present case

As outlined at [10] above, a certificate under s.438(1)(a) was issued by a delegate of the Minister in respect of certain information held in the Departmental file regarding the applicant. The entire file was provided to the Tribunal prior to it making its decision.
The applicant was not made aware of the certificate, was not provided with an opportunity to make submissions as to the validity of the certificate, was not informed by the Tribunal whether the subject information was favourable, unfavourable or neutral to the applicant, and was not informed by the Tribunal as to the extent the Tribunal was going to take that information into account, and was not afforded the opportunity to make submissions to seek a favourable exercise of the discretion available under s.438(3)(b) of the Migration Act.
The applicant contends the same contentions in this matter as the applicant did in MZAFZ. First, the certificate is invalid because the reason specified in the certificate that the information relates to internal working documents and business affairs is not a sufficient basis or necessary basis for public interest immunity. It can be reasonably inferred that the Tribunal was aware of the certificate and read the material the subject of the certificate and determined that the documents did not contain information that would be a reason for affirming the decision under review and decided that there would be no disclosure. In such circumstances, the Tribunal acted on an invalid certificate and thereby committed a jurisdictional error because the process it adopted was not a process according to law. Secondly, if the certificate is valid then the Tribunal ought to have disclosed the existence of the certificate to the applicant, disclosed how it was take into account the information covered by the certificate and given the applicant the opportunity to make submissions on the validity of the certificate, and on how the discretion under s.438(3)(b) ought to be exercised.
The applicant contends that this Court ought to follow MZAFZ and find that the Tribunal’s decision and statement of reasons has been affected by jurisdictional error, whether the certificate is invalid or valid. Its decision therefore ought to be set aside.
The applicant notes that the affidavit of Ms Doyle attaches exhibits, which are said to be the material or information covered by the certificate issued on 13 August 2015. The intention is to demonstrate that there was no practical injustice despite any failure to act according to law.

The primary submission of the applicant is that he objects to this Court viewing that material or information. Beach J was invited to view the material the subject of the certificate in MZAFZ but declined because in his view this was the task of the Tribunal, not his. I have examined the documents comprised in the confidential exhibit to Ms Doyle’s first affidavit because in my view that was necessary in this case to resolve the question whether the Tribunal fell into jurisdictional error.
The applicant submits that this Court should follow his Honour’s approach and reasoning in MZAFZ (and the reasoning in Minister for Immigration v Singh[16] which concerned the analogous provision of s.375A of the Migration Act and in which the Full Court found that the failure by the Tribunal to disclose the delegate’s certificate was a denial of procedural fairness) because it is the Court’s task is to determine whether the Tribunal fell into jurisdictional error for failing to comply with its obligations regarding procedural fairness to the applicant, in terms of the process it adopted.
[16] (2016) 244 FCR 305; [2016] FCAFC 183
In SZMTA v Minister for Immigration,[17] a matter concerning similar issues, the Minister submitted that the defect in the s.438 certificate that had been issued had no practical consequence and so despite there being a denial of procedural fairness, there was no practical injustice.[18] White J did not accept that submission, because in his view “the presence of the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision”.[19] His Honour reasoned that “[t]here is no indication that the Tribunal member was aware that the identified documents were in the appellant’s possession in any event” and that “[i]t seems more likely that the member would have assumed that they were not”, because that would seem a natural inference from the delegate’s advice that the documents ought not to be disclosed.
[17] [2017] FCA 1055
[18] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at 14 per Gleeson J
[19] SZMTA at [58]
White J stated at [60] in SZMTA that the jurisdictional error is:
not to be determined by reference only to whether the appellant had the opportunity to make a submission about the matters in the identified documents which were adverse to him. Account should also be taken of the prospect that, by reason of the presence of the delegate’s notification the Tribunal did not have regard to information in the identified documents which may have assisted the appellant.
The applicant invites this Court to adopt the reasoning of White J in SZMTA and find that it cannot be known how the issuing of the certificate affected the Tribunal’s decision and that the process adopted was legally deficient, such that there was a jurisdictional error. It is said to be no answer to contend that there was no practical injustice for the reasons stated in SZMTA.
The Tribunal’s decision is further challenged under the final ground on the basis that it discloses jurisdictional error of the kind identified by Beach J in MZAFZ.[20] The applicant here asserts that the procedure adopted by the Tribunal in this matter concerning a s.438(1) certificate was “legally deficient”, because it proceeded or acted on an invalid certificate.
[20] the applicant’s submissions stated that a special leave application by the Minister to the High Court in respect of this decision was refused
As noted at [10] above, on 13 August 2015 a delegate wrote to the Tribunal notifying it that it had been determined that a certificate pursuant to s.438(1)(a) of the Migration Act applied to the information contained in folios 85, 119-129, and 143-146 of file number CLF 2012/200437. It was stated that the disclosure of the information contained in those folios would be “contrary to the public interest because (a) folios 85, 119-129, 143-146 contain information relating to an internal working document and business affairs”. The delegate informed the Tribunal that its “use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958”.
Subsections 438(3) and (4) require the Tribunal to decide whether to exercise its discretion to have regard to any document and to disclose any matter contained in the document to the applicant. If it decides to disclose any matter, it must give a direction under s.440 in relation to that information. It did not give any such direction, so in the applicant’s submission it can be assumed that it did not decide to disclose any matter contained in the document or disclose the information. It can also be reasonably inferred that it would have had regard to any matter contained in the document or the information in the exercise of its powers.
The existence of the certificate was not made known to the applicant or his legal representative until after the Tribunal made its decision on 18 February 2016, and only after the applicant’s legal representative asked the Minister’s legal representative whether this matter was affected by the decision in MZAFZ.[21]
[21] affidavit of Ms Byers at [2]
Neither the existence of the certificate, nor its contents, nor its effect, were disclosed at any time to the applicant by the Tribunal prior to November 2016. It did not, at any time, raise with the applicant the invalidity of the certificate. The Tribunal did not mention the certificate either in the hearing it conducted with the applicant or in its decision. It can be reasonably inferred in the applicant’s submission that, at all times, the Tribunal acted in the performance of its statutory functions in the misconceived belief that the certificate was validly issued.
The certificate is, however, invalid because, in the words of Beach J in MZAFZ, the “certificate did not conform to the statutory prescription” required by s.438(1)(a).[22]
[22] MZAFZ at [3]
The certificate in the present matter was issued pursuant to s.438(1)(a) on the basis that its disclosure was contrary to the public interest because folios 85, 119-129, 143-146 contain information “relating to an internal working document and business affairs”.[23] No further explanation was provided by the delegate who issued the certificate, as to why the disclosure of the particular documents described as “internal working documents” or documents relating to the “business affairs” from the departmental file would offend the public interest. There was no identification of the public interest at risk. There was no real explanation or reason given as to why the disclosure of the particular documents selected would be contrary to the unidentified public interest.
[23] see [10] and [40] above
The Federal Court in Burton v Minister for Immigration[24] considered s.375A of the Migration Act, which is a similar provision, although not identical, to s.438(1)(a) in that it deals with the non-disclosure of documents on the basis that the disclosure would be “contrary to the public interest”. Wilcox J accepted at [47] that for the certificate in that case to satisfy s.375A(1), the public interest must be specified in the certificate itself. His Honour found at [51] that because the delegate gave in effect no reason at all, “it did not constitute a valid exercise of the power conferred on the Minister by s.375A of the [Migration] Act”. His Honour explained at [52] that the terms of the certificate suggested that the delegate in that case “followed a standard form of certificate routinely adopted by Ministerial delegates”. His Honour stated that “[i]t was plainly the intention of the Parliament that s.375A certificates not be issued as a matter of course or routine, but only where a delegate, having considered the circumstances of the particular case, could identify compelling public interest reasons for non-disclosure.” The applicant submits that the same situation occurred in the present case.
[24] (2005) 149 FCR 20; [2005] FCA 1455
Beach J in MZAFZ considered the meaning of the phrase in s.438(1)(a) “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”. As his Honour observed at [35]-[38] and outlined at [24] above, s.438(1)(a) refers to the public interest which is in effect public interest immunity or Crown privilege, and the reason given in that case (and in the present case) that the documents covered by the certificate relate to “an internal working document and business affairs” is neither a necessary nor sufficient basis for a claim of public interest immunity. His Honour concluded that the certificate, which is in the same terms as the present case, “on its face is invalid”.[25] Beach J stated that at best the reasons given by the delegate in that case (and by parity of reasoning, in the present case) “only disclosed a reason that could form part of the basis for a claim, not the basis”.
[25] [37]
Beach J in MZAFZ proceeded at [39]-[44] to consider the effect of that invalidity on the decision of the Tribunal. As reproduced at [25] above, his Honour reasoned that for the Tribunal in that case to have proceeded or acted on an invalid certificate “was not a process according to law and of itself constituted a jurisdictional error”, which is not impacted by s.422B(2) of the Migration Act.
The applicant adopts Beach J’s reasoning and submits that it applies to the present case. The delegate in this matter issued a certificate in similar terms and accordingly, failed to meet the statutory prescription of s.438(1)(a) because it only disclosed a reason that could form part of the basis for a claim of public interest immunity, not the basis. The delegate’s expressed reasons, which must be taken to be the entirety of the reasons, identified the documents over which the certificate was issued to be relating to “an internal working document and business affairs”, and this is neither a necessary nor sufficient basis for public interest immunity.
The applicant submits that the Tribunal must have acted on the invalid certificate in the performance of its statutory functions in determining the applicant’s claims. The certificate was before it as were the relevant documents. As stated at [30] above in the context of procedural fairness, it did not raise the issue of the certificate with the applicant. It did not indicate to the applicant that the certificate was not valid. It did not disclose the relevant material to the applicant as it could have in accordance with s.438(3)(b). As observed by his Honour Beach J in MZAFZ, if the Tribunal was aware that the certificate was invalid, it would have had to have undertaken the following steps:
a)properly read the documents the subject of the invalid certificate;
b)determine that the documents did not contain information that would be reason, or part of a reason, for affirming the decision under review; and
c)then decided that no disclosure was required under s.424AA or s.424A.
There is no evidence that the Tribunal undertook these steps, or that it properly turned its mind to whether to ought to have made disclosure under s.424AA or s.424A.
The applicant maintains that the Tribunal proceeded on an invalid certificate, and in so doing adopted a procedure that was not a process according to law, and of itself constituted a jurisdictional error.

Minister’s submissions

The first remaining ground of review relies upon the fact that there was a certificate and notification issued by a delegate to the Tribunal on 13 August 2015 under s.438(1)(a) of the Migration Act.[26]
[26] CB 129; cf MZAFZ; Singh
However, there was no doubt in this case that the applicant had in his possession the only substantive document which was the subject of the certificate, being his entry interview, having obtained it in the first judicial review proceedings.[27]
[27] See affidavit of Ms Doyle affirmed on 17 August 2017
There is also no doubt that the Tribunal had regard to that document and considered it to be relevant, as the Tribunal referred to it at [7] of its reasons.[28]
[28] CB 172, first bullet point, cf [21] at CB 174
In this context, the applicant has primarily relied upon the decision of White J in SZMTA to establish that the Tribunal erred, despite the applicant having in his possession the sole substantive document the subject of the certificate.[29] The Minister has two responses to this submission:
a)first, SZMTA does not apply to the facts in this case because it is apparent on the face of the Tribunal’s decision here that it considered the substantive document which was the subject of the certificate to be relevant; and
b)secondly, even if this were not the case, the Minister formally submits SZMTA was wrongly decided.
[29] [36]-[38] above
The Minister submits, in relation to the first point, that an inference that the Tribunal may have ignored relevant material which assisted the applicant cannot be made in this case because the Tribunal’s reasons make clear that it did consider the substantive material to be relevant.[30] That entirely distinguishes this case from SZMTA and while SZMTA must be considered as binding authority in this Court, it does not bind this Court to make factual inferences which cannot arise on the different facts in this case.
[30] See CB 172, first bullet point, cf [21] at CB 174
In relation to the second point, on 16 February 2018, the High Court granted the Minister special leave to appeal from the decision of White J without calling on the Minister at that hearing.[31]
[31] Minister for Immigration v SZMTA & Anor [2018] HCATrans 34
The Minister submits that, in SZMTA, White J first expressed scepticism about whether any (or all) of the documents the subject of the notification were actually provided in confidence and thus whether they were within s.438(1)(b).[32] Despite this, his Honour expressly declined to reach a conclusion as to whether the notification was “invalid” for that reason.[33] Instead, his Honour characterized the notification as “misleading” (although to what effect was unclear).[34]
[32] at [52]-[53]
[33] SZMTA at [54]
[34] SZMTA at [54]
Next, White J observed that (unlike this case) there was no indication one way or the other that the Tribunal had any regard to the documents, but it was common ground that the documents were not disclosed to SZMTA under s.438(3)(b) of the Migration Act.[35]
[35] SZMTA at [55]
Then, citing MZAFZ, White J stated that the Court was entitled to infer that the Tribunal did act in some unspecified way on the “invalid notification” and this constituted jurisdictional error.[36] This statement is said to be difficult to reconcile with the earlier abstention from finding that the notification was invalid. Since his Honour went on to deal with the case on a different basis, the Minister submits it should be inferred that this statement was not part of his reasoning.
[36] SZMTA at [56]
His Honour next discussed the Minister’s argument with respect to procedural fairness.[37] That argument was in substance that SZMTA already had all of the documents which were the subject of the notification, so no actual prejudice resulted from the Tribunal not releasing them to him or not hearing from him as to whether the documents should be released to him under s.438(3)(b) of the Migration Act.
[37] SZMTA at [57]
White J rejected that argument because “the presence of the invalid certificate may have affected in other ways” the Tribunal’s process.[38] His Honour suggested the possibility that the Tribunal may have “chosen not to have regard to the identified documents” (presumably under s.438(3)(a) of the Migration Act) and may therefore have not had regard to material in them that could have assisted SZMTA.[39]
[38] SZMTA at [58] to [60]
[39] SZMTA at [59] to [60]
Given his Honour’s clear statement that it was not necessary to determine whether the notification was invalid, [40] the Minister submitted before the High Court that the better view was that his reasoning was not dependent on the invalidity of the notification. Rather, the reasoning must be that the Tribunal may have exercised (or purported to exercise) the discretion in s.438(3)(a), in a manner potentially adverse to SZMTA’s interests, without affording him a hearing, and thereby denied him procedural fairness.
[40] SZMTA at [54]
The Minister submitted before the High Court, and as noted above, does so formally before this Court, that White J erred as follows.
First, whether or not the documents the subject of the notification were given “in confidence” and whether or not the notification was therefore “invalid”, it was not open to White J to speculate, without a basis in the evidence, about the manner in which the Tribunal may have dealt with the documents the subject of the notification.
Secondly, the onus is on an applicant to demonstrate that error occurred. It is essential to any claim of denial of procedural fairness that the claimant demonstrate that the impugned procedure deprived him or her of a fair opportunity to be heard.[41] At an elementary level that involves demonstrating that there actually was a purported exercise of some statutory power (whose exercise is conditioned by obligations of procedural fairness) that was in some way adverse to the applicant. It is said not to have been open to his Honour to find a denial of procedural fairness without being persuaded that such an exercise of power actually occurred.
[41] cf Minister for Immigration v WZARH (2015) 256 CLR 326 at [60]; Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 at [104]
Thirdly, it should not readily be assumed that the Tribunal deliberately ignored relevant material that could have supported the review applicant. Even if s.438(3)(a) permits that step to be taken, circumstances in which such a step had an evident and intelligible justification would be rare. No such circumstances are apparent here. It should not be inferred that the Tribunal took such an unusual and prima facie unjustifiable step in the absence of any evidence that it did so.
The same criticisms would apply if (contrary to [59] and [63] above) his Honour’s reasons were construed as holding that the notification was “invalid”. A purported exercise of s.438(3)(a), in circumstances where the power was not enlivened, might well go to the Tribunal’s jurisdiction. However, his Honour did not record any finding (and is said not to have had any proper basis to find) that any such purported exercise took place.
The Minister further contends that the applicant cannot fall back on the proposition that the Tribunal had acted in “some unspecified way” on the Certificate by citing the decision of Beach J in MZAFZ.
First, in MZAFZ Beach J made findings about the Tribunal’s conduct based on the evidence in that case, which did not include any evidence about the documents which were the subject of the notification.[42] That is not this case. In this case, the exact nature of the documents is known and can be analysed in the context of the Tribunal’s decision.
[42] at [40]–[49]
Secondly, this aspect of Beach J’s reasoning was not approved and applied by the Full Federal Court in Singh. Rather, in Singh the Full Federal Court accepted that Beach J had correctly concluded that common law notions of procedural fairness “might” require disclosure of the notification. [43] The Full Federal Court then further explained where a notification was valid, it required the Tribunal to conduct the “review without disclosing the documents or information the subject of the [notification] to an applicant” and this was sufficient to enliven the obligation of procedural fairness requiring disclosure of the notification because that notification, prima facie, diminished an applicant’s entitlement to participate fully in the review process.[44] That is, it is the existence of the undisclosed certificate which prima facie gives rise to the procedural unfairness. It is then for the Minister to adduce evidence to establish that no unfairness in fact resulted.
[43] at [40]; noting again that in Singh the equivalent of the notification under s.438(2) was a certificate under s.375A of the Migration Act
[44] at [42], [52]

The Minister submits that the key difficulties with Ground 3 are:
a)first, it appears to be premised on the incorrect assertion that the Minister was refused special leave to appeal from the decision of Beach J in MZAFZ.[45] That is plainly wrong;
b)secondly, unlike at the hearing on 29 March 2018 when the applicant at that time seemed to acknowledge the binding authority of BEG15 v Minister for Immigration,[46] the applicant in his submissions at trial on 21 June 2018 and 25 June 2018 sought to distinguish that case; and
c)thirdly, there is no identification of any procedure followed by the Tribunal which was contrary to law beyond the mere fact of the Department issuing an invalid certificate and the entirely speculative assertion, without any further analysis beyond simply relying on a misreading of MZAFZ, that the Tribunal acted upon it some unspecified way.[47]
[45] Footnote 18 above
[46] [2017] FCAFC 198
[47] [50]-[51] above
The Minister submits that in BEG15 the Full Federal Court expressly rejected a similar argument now advanced by the applicant. For ease of comparison, the appellant’s argument in BEG15 as recorded by the Full Federal Court was as follows:[48]
[48] [20] to [21]
… The appellant was critical of the primary judge for not taking into account [3] of the Tribunal’s reasons which indicate that the Tribunal had had regard to the certificate and related documents. That is because, otherwise, the Tribunal could not have been aware of the outcome of the judicial review challenge to the first Tribunal decision. The appellant also submitted that the absence of any express reference to the certificate in the Tribunal’s reasons was because an erroneous view had been taken that the appellant should not know of the certificate or its contents. The appellant submitted that the primary judge erred and did not properly apply MZAFZ (or Singh) because he speculated on the impact that the certificate may have had on the outcome of the Tribunal’s decision. This was the incorrect test. The appellant submitted that the correct test was to focus on the fact that the Tribunal had acted on an invalid certificate, which involved a procedure contrary to law, and infected the process or procedure of the Tribunal. In circumstances where the s 438 certificate was invalid, it was a jurisdictional error for the Tribunal to act upon it. Moreover, this gave rise to procedural unfairness because the appellant was denied an opportunity to challenge the validity of the certificate. Applying MZAFZ, acting on an invalid certificate involves jurisdictional error on the part of the Tribunal.
Moreover, the appellant submitted that, applying MZAFZ and now also Singh, procedural fairness required the Tribunal to:
(a) disclose the existence of the certificate to the appellant;
(b)give the appellant an opportunity to make submissions on the validity of the certificate;
(c)disclose the extent to which the Tribunal would take the information into account; and
(d)give the appellant an opportunity to seek a favourable exercise of the discretion of s 438(3)(b).
The Full Federal Court rejected this argument at [30], stating:
In Minister for Immigration & Border Protection v BJN16 [2017] FCAFC 197, a decision published today, the Full Court, as presently constituted, reviewed MZAFZ and Singh and other related authorities. Having done so we rejected submissions that these authorities supported rigid and unqualified propositions of the kind advanced by BEG15 on this appeal. In particular we found nothing to support the view that it was always a jurisdictional error for the Tribunal to act upon an invalid s 438 certificate and that, in doing so, the Tribunal would invariably deny procedural fairness to an applicant. We concluded (at [62]) that:
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
We also said (at [69]) that:
We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Secretary has issued a certificate and that the documents identified in the certificate had been provided to it.
We accepted that documents covered by s 438 certificates might be relevant in determining whether or not an applicant had received procedural fairness before the Tribunal and as to the exercise of the Court’s discretion to grant relief. This was so whether or not the certificate was invalid.
Applying those principles to facts in BEG15, the Full Federal Court then further held at [31] to [33]:
In this proceeding it was common ground that the s 438 certificate was invalid and had not been disclosed to BEG15 by the Tribunal. Nor had the documents covered by the certificate been provided.
The primary judge examined the documents and made the findings of fact which we have summarised above at [16] and [17]. These findings led him to the conclusion that the documents did not contain any material which was prejudicial to BEG15’s interests, that the Tribunal had not acted on the material and that, in the circumstances, he would have, in any event, exercised his discretion to refuse relief.
These findings and conclusions were, in our view, open to the primary judge in the circumstances of this case. Neither the invalidity of the certificate nor the failure by the Tribunal to provide BEG15 with a copy of it or the documents referred to in it gave rise to any practical injustice to him for the reasons given by the primary judge.
(Minister’s emphasis retained)
BEG15 is said to be binding and apposite as:
a)the only document which was the subject of the certificate to which the Tribunal referred was the entry interview, a copy of which was already in the possession of the applicant by reason of the earlier Court proceedings. No unfairness of any kind can arise from the Tribunal’s reference to that document and no breach of any section of the Migration Act, such as s.424A or s.425, is said to arise from its non-disclosure. Further, nothing in the Tribunal’s reasons indicates that it any way acted upon the correctness of the certificate in relation to this document. On the contrary, this document was openly referred in the decision and there was no indication of any consideration of s.438(3)(b), s.438(4) or s.440 of the Migration Act (as might be expected if the Tribunal had considered the certificate was valid); and
b)none of the other documents are referred to by the Tribunal in its decision and none are in any way objectively material or relevant: see [21] of the Tribunal’s reasons[49] and contrast with MZAFZ in which the Tribunal had stated, in effect, that it had regard to the whole of the Minister’s Department’s file (which is the basis upon which Beach J drew the inference of the Tribunal relying on the invalid certificate at [40], [47], [48]). Accordingly, contrary to [50]-[51] above, there is no basis to infer, as Beach J could on the evidence before him, that the Tribunal acted on the certificate or followed any procedure contrary to law.
[49] at CB 174
As the applicant must accept that BEG15 is binding, the Minister’s submissions have not addressed why, in any event, the Full Federal Court decision in BEG15 is also manifestly correct.
Nevertheless the Minister submits first, that the initial premise of this application requires the applicant to prove that the Tribunal had erroneously treated the certificate as valid. As set out above, unlike MZAFZ, nothing in the Tribunal’s reasons indicates that it did so.
Secondly, even if that could be shown, not every error of law goes to jurisdiction. The applicant would also need to establish that, by reason of treating the certificate as valid, the Tribunal had breached some essential procedural requirement or failed to apply the statutory criteria.
The effect of the certificate, if valid, was to give to the Tribunal a discretion under s.438(3) as to whether to have regard to, and disclose, the material to which it related. Jurisdictional error might arise if, in purported reliance on that power, the Tribunal had refrained from disclosing material that it was obliged to disclose.[50] It would not arise if the Tribunal thought that it had a discretion under s.438(3) but, nevertheless, disclosed the documents or information, thus complying with its statutory obligations in Part 7 of the Migration Act.[51] Any error of law would not be material to the conduct or outcome of the review.[52] Any notion of a “breach” of s.438 could not assist an applicant in circumstances where that section confers a discretion on the Tribunal, and nothing was done in purported reliance on that discretion that, arguably, contravened any applicable requirement.
[50] eg ss.424A(1) and 425(1) of the Migration Act
[51] for example, under ss.424A(1) or 425(1)
[52] cf, for example, Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ

Resolution

The authorities binding this Court are referred to in the parties’ submissions above and I do not need to repeat in detail the features of those authorities. It is apparent that the analysis of certificates in issue in the various cases has developed over time, by reference to the particular facts and circumstances bearing upon that analysis. On the basis of the authorities currently binding this Court, it cannot be said that there is a blanket rule that the issuing of an invalid non-disclosure certificate will necessarily lead to a finding of jurisdictional error. On the other hand, it also cannot be said that the disclosure of a material document to an applicant which is covered by a non-disclosure certificate will necessarily immunise a Tribunal decision where the disclosure was made outside the review process before the Tribunal and it is not apparent that the Tribunal is aware of that disclosure.
In the present case there is no doubt that the certificate in issue is invalid. Further, the result of my examination of the documents purportedly covered by the certificate is that it is plain that the only document relevant to the present Tribunal’s review is the applicant’s entry interview.
It is also clear that the Tribunal in this case made no mention of the purported certificate and hence made no finding of its own whether the certificate was valid or invalid. It may, nevertheless, be inferred that the Tribunal was aware of the certificate, given that it was on the file transferred to the Tribunal.
In my view, the silence of the Tribunal in relation to the certificate and the relevance to the review of the record of the entry interview purportedly covered by the certificate, puts this Tribunal decision at risk. SZMTA and BEG15 are both binding upon me, to the extent that they cannot be distinguished. There are some distinguishing features of this case that support my reasoning as to the necessary outcome.
First, the Tribunal’s decision turned on adverse credibility findings, in particular that made at [27] of the Tribunal’s decision,[53] where it stated:
The Tribunal has considered the applicant's claims in relation to the incidents which occurred in Sri Lanka. The Tribunal accepts that the applicant was the victim of a bomb blast which occurred near his fishing shack in Mullaitivu which resulted in him losing part of his finger, having some cuts to his head and his wife sustaining injuries to her leg. The Tribunal also accepts as credible that whilst he was in hospital in 1998 he was questioned about the bomb explosion by the SLA and/or the police. As discussed at the hearing, the Tribunal accepts that there was considerable suspicion of all Tamils during the lengthy and brutal civil war and that as a Tamil who was at that time residing in an LTTE occupied area that the applicant would have been questioned about the blast and asked for any information he could provide. However, even allowing for the fact that significant numbers of Tamils were under suspicion and subject to often cruel and arbitrary treatment from the authorities for many years due to the ongoing civil war between the LTTE and Sri Lankan authorities, the Tribunal does not accept it is credible that after routine questioning that the applicant continued to be suspected of involvement in the bomb blast and this then resulted in him being beaten, charged, released on bail and required to report to the authorities for some 11 years, which then resulted in him deciding that his only alternative was to flee Sri Lanka for Australia.
(citation omitted)
[53] CB 176
Secondly, a comprehensive and fair reading of the Tribunal’s reasons establishes to my satisfaction that, while the Tribunal was concerned about inconsistencies in the applicant’s account, that concern arose from a comparison of what the applicant had put to it, and what the applicant had put to the first Tribunal. The only reference the Tribunal makes to the entry interview is at the first bullet point in [7]. [54]
[54] CB 172
Neither does the transcript of the Tribunal hearing point to any particular significance in that record of interview. The Tribunal at several points at the hearing expresses concern about inconsistencies in the account, in particular in relation to the number of times the applicant said he was questioned in relation to the bomb blast. The questioning events had grown from one to three by the time of the present Tribunal hearing.
The potentially relevant part of the record of the entry interview is the following:
What specifically happened to you that led you to leave your country?
I was in … we had a small hut on the beach and in the morning I used to go for fishing. I did not have a big boat or anything I had a small catamaran that was the only on we that I had. I was about to go fishing on that all of a sudden there was a big noise and to see some bomb had come and fell near the hut and the splinters cut my hand and I lost my small finger on my right hand and there on my forehead is a scar from a piece of bomb had struck me. Where did the bomb come from? I do not know where from it came. What was happening? In a far away place they were fighting the army and Tigers. When was this? On the 8 April 1998. My wife also sustained an injury on the leg.
Why did you leave your country now when this happened in 1998? For this injuries I was admitted to the … hospital and I was there in the hospital for one week getting medical attention. So the army came to the hospital and asked me as to how I received these injuries and I told them that a bomb fell near the home and we received these injuries and they were asking us who bombed that place. We all told them that we were staying there for fishing purposes and we do not know who actually bombed that area. Then they said we will call for inquiries later. After the army inquired as to how I received these injuries and that, we left from … for Uduppu. So after 28 February 1998 there was no calls from the army or anybody (as they said they would call me for inquiries when I was in the hospital). On the 28 Feb 1999 I received a letter from the army. So I went to the army camp and they did not ask me anything on that day and then they said that they would call me again for inquiry later. And after that they did not call me. I had a letter with me at home.
My question was – Why did you leave your country now when this happened in 1998? Because I fear that sometime they may call me again and I have 3 young children attending school and if they do something to me then my family will be without any help. Nothing has happened in 14 years so why would you be worried? Since we are Tamils we have the fear sometimes these authorities might come and take me. What was the reason you came to Australia? I fear some time they might come and take me into custody and put me in the cell I have that fear. I have lost my finger and with that harassment they will put me into prison who is there to look after my children.
Is there anything else you need to tell me? Nothing else.
Client: Should I get a copy of the letter from the army? I told client that he can have it sent to the email address given to him when he arrived here the DIAC email address.
(errors in original)
That account is closer to what the applicant told the first Tribunal than what he told the current Tribunal. To that extent, the applicant’s account in the record of the entry interview was potentially relevant to the Tribunal’s analysis of the applicant’s credibility, although the Tribunal did not refer to it in relation to that analysis either at the hearing or in its decision.
The applicant might, hypothetically, have referred to his entry interview answers in order to point to general consistency with what he told the first Tribunal. He did not do so, although the record of that interview was available to him following the first judicial review proceedings. He was not deprived of access to the document and no practical unfairness arose in relation to the availability of the document.
The Tribunal might have made reference to what the applicant said in his entry interview in order to support its finding of inconsistency. It did not do so. Neither is it apparent from the transcript of the Tribunal hearing that the document was in its mind at that time. In those circumstances, it is, in my view, not open to me to conclude that any obligation of disclosure arose under s.424A of the Migration Act.
In the circumstances of this case I am not persuaded that any exercise of the Tribunal’s discretion under s.438(3)(b) was called for. Apart from anything else, that process did not apply because the certificate was invalid. It is regrettable that the Tribunal said nothing about the invalid certificate, and that it said nothing about any potential significance for the review of the entry interview. It was, however, not a jurisdictional error for the Tribunal to fail to disclose the existence of the certificate or invite submissions on its validity when the certificate was plainly invalid. The failure by the Tribunal to disclose the extent, if any, which it would take the information in the entry interview record into account is potentially problematic, but in relation to the hypothetical application of s.424A rather than s.438(3)(b). The Tribunal did not, in my view, act on the invalid certificate in any way that can be discerned from the available material. Neither did the Tribunal act on the only material document purportedly covered by the certificate, other than to note its existence. The Tribunal did not deploy that document in a manner adverse to the applicant’s interests. The document was available to the applicant should he have wished to deploy it in support of his claims.
I find that, on the facts of this case, the Tribunal did not fall into jurisdictional error because of its failure to identify for the applicant the existence of the purported certificate or the significance, if any, of the record of the entry interview.

Conclusion

The applicant has failed to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 17 August 2018