SZUAS v Minister for Immigration

The applicant, SZUAS, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) that affirmed a decision to refuse a protection visa. The applicant contended that the Tribunal failed to consider psychological evidence when assessing his credibility and acted unreasonably or irrationally in concluding there was only a remote risk of significant harm if he were returned to his country of nationality. A further ground for review alleged a denial of procedural fairness or a real possibility of success due to the Tribunal's failure to disclose a 438 Certificate.

The central legal issue before the court was whether the Tribunal's non-disclosure of a 438 Certificate, and the documents it covered, including correspondence concerning a request for ministerial intervention under section 417 of the *Migration Act 1958* (Cth), resulted in a denial of procedural fairness or deprived the applicant of a real opportunity to advance his case. The applicant argued that this non-disclosure prevented him from making submissions regarding a claim based on his mental health and denial of mental health services, which was contained within the undisclosed documents. The Minister, conversely, submitted that the documents covered by the 438 Certificate were irrelevant to the issues before the Tribunal and that the Tribunal had not considered them.

The court noted that the Minister accepted the Tribunal had not disclosed the 438 Certificate or its contents to the applicant. The court reserved judgment on whether the non-disclosure constituted a denial of procedural fairness or a deprivation of a real opportunity to succeed, pending the outcome of High Court appeals in related matters. The applicant's argument was that the undisclosed document indicated the author believed there was a claim based on mental health and denial of services, and failure to disclose this prevented him from making submissions on that point. The Minister contended that the documents had no bearing on the Tribunal's considerations.