SZVVL v Minister for Immigration

[2017] FCCA 545

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 545

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) affirming decision of a delegate of first respondent to cancel Protection visa – whether the Tribunal had jurisdiction to review delegate’s decision given the Protection visa that was cancelled had been granted in response to an application that was not a valid application for a visa – whether Court has jurisdiction in relation to the delegate’s decision to cancel Protection visa – whether Tribunal acted on certificate purportedly issued pursuant to s.438 of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 29, 29(1), 36(2)(aa), 46(1), 46(1A), 46(2),

46(2A), 47, 47(3), 48A, 48B, 65, 65(1), 69, 69(1), 101, 107, 107(1), 107(1)(b),

108, 109, 109(1), 375A, 411(1), 414(1), 414(2), 415(1), 438, 438(1)(b), 476,

476(2)(a), 476(4).

Cases cited:

BIE15 v Minister for Immigration & Anor [2016] FCCA 2978

CKG15 v Minister for Immigration & Anor [2017] FCCA 938
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906

First Applicant: SZVVL

Second Applicant: SZVVM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3476 of 2014

Judgment of: Judge Manousaridis

Hearing date: 11 February 2016

Date of Last Submission: 11 July 2017

Delivered at: Sydney

Delivered on: 28 July 2017

REPRESENTATION

Counsel for the Applicants: Ms A Poljak

Solicitors for the Applicants: Christopher Levingston & Associates

Solicitors for the First Respondent:

Ms L Buchanan of

Australian Government Solicitors

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

2. The applicants’ application for leave to rely on the further amended application filed on 8 June 2017 is dismissed.

3. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3476 of 2014

SZVVL

First Applicant

SZVVM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application for judicial review raises two issues. The first is whether the second respondent (Tribunal) had jurisdiction to consider an application for review of a decision of a delegate made under s.109 of the Migration Act 1958 (Cth) (Act) to cancel the first applicant’s Protection (Class XA) visa (Protection visa). The second issue, which arose after the matter had been listed for judgment, is whether the Tribunal’s decision is affected by the Tribunal’s not having disclosed to the applicants certificates that had been issued purportedly pursuant to s.438 of the Act. I will separately deal with each issue.

The first issue

1. The first issue arises out of the following circumstances. On 1 March 2006 the first applicant (applicant), using a false name, applied for and, on 30 May 2006, was refused a protection visa (first Protection visa application). The Tribunal affirmed the refusal on 22 August 2006. On 17 September 2009, however, the applicant, using his actual name, again applied for a Protection visa (second Protection visa application). A delegate of the first respondent (Minister) refused the application but, on review, the Tribunal found the applicant met the criteria for the granting of a Protection visa. On 22 September 2010 the Minister granted the applicant and his wife, the second applicant, a Protection visa.

2. In September 2011 the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known) (Department) became aware of information that suggested the applicant had failed to provide, and had given incorrect information to, the Minister in connection with the first Protection visa application, contrary to s.101 of the Act. On 21 November 2011 and, again, on 5 June 2012, pursuant to s.107 of the Act, a delegate of the Minister issued to the applicant a Notice of Intention to Consider Cancellation of the applicant’s visa (NOICC) in which the delegate identified the applicant had failed to comply with s.101 of the Act in a number of respects.[1]

   [1] The notice dated 21 November 2011 was sent to the applicant but it was returned as unclaimed (Index to CB, and CB383, [14])

3. The applicant responded to the NOICC through his representative’s letter dated 14 August 2012.[2] The applicant’s representative accepted the applicant had made false statements and omissions and that these “constitute a proper basis for the consideration of the exercise of powers under Section 108 and 109”.[3] The representative submitted, however, that the delegate should exercise his discretion not to cancel the Protection visa. The delegate cancelled the applicant’s Protection visa on 16 May 2014.

   [2] CB199

   [3] CB203

4. The applicants applied to the Tribunal for review of the delegate’s decision. By letter dated 26 September 2014[4] the Tribunal invited the applicants to comment on information the Tribunal said would be, subject to any comments the applicants might make, the reason or a part of the reason for affirming the decision under review. The letter identified information which included the following:

   a)a person by the name of JS made the first Protection visa application;

   b)the applicant made the second Protection visa application;

   c)in the second Protection visa application (Form 866C) the applicant did not answer the question whether he was known by any other name; and he stated he had not applied for refugee status or protection, he departed China in March 2009 and had arrived in Australia in April 2009, and, in response to the question whether “any person named in Question 1 had been in Immigration Detention”, the applicant answered “no”.

   [4] CB333

5. The Tribunal stated this information was relevant for reasons that included the following:

   a)there was evidence, which the Tribunal identified, that it was highly likely that the person depicted in a facial image the Roads and Traffic Authority took of the applicant is the same person as the person depicted in a facial image of JS held by the Department;

   b)the Tribunal may find that, when making the second Protection visa application, the applicants failed to respond to questions, and provided answers that were not correct, as required by s.101 of the Migration Act 1958 (Cth) (Act);

   c)the likely effect of the correct information is that the applicant would not be granted a Protection visa because the applicant would have been prevented by s.48A and s.48B of the Act from making a valid application for a Protection visa.

6. The applicant’s representative responded by letter dated 21 October 2014.[5] The representative said the applicant conceded, among other things, that he had provided the incorrect information identified in the Tribunal’s letter 26 September 2014. The representative submitted, however, as follows:

   The Tribunal asserts that by reason of the operation of Section 48A and 48B that the subsequent application made by the applicant was invalid. That being the case the Tribunal would have no jurisdiction in this matter.

   The applicant does not accept this construction by reason of the departure from the Jurisdiction in the period between the making of the first application and the second application at which time the applicant has had resort to his real identity.

   [5] CB345

7. The Tribunal considered, but rejected, the applicant’s submission that the Protection visa was invalid:[6]

   The applicant was granted a Protection (Class XA) visa on 22 September 2010, that visa was the subject of a cancellation by the Department and the applicant has lodged a valid application for review which is an RRT reviewable decision. The Tribunal is satisfied, therefore, that the current application in relation to the application for a review of the cancellation of that visa is valid.

   [6] CB387, [35]

8. The Tribunal was satisfied that the conditions for the issuing of the NOICC were satisfied, and affirmed the delegate’s decision to cancel the applicant’s Protection visa.

Course of proceeding

1. This proceeding was heard together with SZVVI & Ors v Minister for Immigration and Border Protection, in which counsel for the applicant in this case was also counsel. Counsel for the applicant in this case and in SZVVI, and the Minister, made one set of submissions that applied to both proceedings.

2. The application, as initially filed, contained the following single ground of application:

   The Tribunal had no jurisdiction in the matter.

   Particulars

   On 17 September 2009 the Applicant lodged an application for a Protection (Class XA) visa which was invalid by reason of the operation of Sections 48A and 48B of the Migration Act 1958. The subsequent refusal of that application, the appeal to the Refugee Review Tribunal and the decision of the Tribunal to the effect that the first instance refusal be set aside and the grant of a Protection (Class XA) visa on 22 September 2010 were all invalid exercises of power. The decision of the Department of Immigration and Border protection to cancel the visa was infected by the same error.

3. At the hearing before me, I asked counsel for the applicant what utility the applicant attached to challenging the Tribunal’s decision. Counsel said it would enable the applicant to make a further application for protection on the basis of s.36(2)(aa) of the Act. In the course of her submissions, counsel indicated the applicant was seeking a declaration that the Tribunal’s decision to affirm the delegate’s decision as well as the delegate’s decision to grant the applicant a Protection visa, were invalid, but the invalidity of the visa would operate from the day on which the declaration was made.

4. Ms Buchanan, who appeared for the Minister, submitted the applicant appeared to be raising a different case to the one that appeared in the application. Counsel for the applicant sought, and I granted, leave on terms that the applicant file and serve an amended application.

5. Pursuant to the leave I granted, the applicant filed an amended application, together with written submissions. The amended application does not amend the ground contained in the original application; but it did amend the relief the applicant seeks, which is as follows:

   An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the decisions of the delegate of the first respondent, dated 16 May 2014, to cancel the first applicant’s Subclass 866 (Protection) visa under section 109(1) of the Migration Act 1958 (Cth) (“the Act”) (“delegate’s decision”) and the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), the second respondent, dated 24 November 2014 (“the decision”), as the delegate and Tribunal had no jurisdiction to determine the matter by reason that the first applicant’s visa application made on 17 September 2009 for a Protection (Class XA) visa (“visa application”) was invalid by operation of sections 48A and 48B of the Migration Act 1958 (Cth) (“the Act”).

Parties’ submissions

1. The applicant makes three submissions. First, he submits the Tribunal did not have jurisdiction to entertain the application for review because the Protection visa the delegate had cancelled had been granted on the basis of an invalid application.[7] Second, the Tribunal made a jurisdictional error because it purported to entertain an application for review of the delegate’s decision to cancel the applicant’s Protection visa, even though the Tribunal failed to have genuine regard to s.48A of the Act.[8] Third, there would be utility in quashing the Tribunal’s decision or declaring that the Tribunal’s decision and the delegate’s decision to grant the Protection visa was invalid because the “effect of such a declaration or order would render the decisions of both the delegate and the Tribunal invalid and they would have no legal effect from then onwards”.[9]

   [7] First Applicant’s Outline of Submissions, [15]

   [8] First Applicant’s Outline of Submissions, [18]

   [9] First Applicant’s Supplementary Submissions, [6]

2. The Minister, on the other hand, makes the following submissions. First, the Court does not have jurisdiction to declare invalid the delegate’s decision to grant the applicant a Protection visa because that decision is a “primary decision” within the meaning of s.476 of the Act.[10] Second, despite the second Protection visa application being an invalid application, the applicant was granted a visa, and was thus the “holder of a visa” for the purposes of s.107 of the Act; and there is nothing in the Act which prevented the Tribunal from treating the applicant as being the holder of a visa, even where the visa was granted in response to an invalid application.[11] Third, the Tribunal had jurisdiction over the delegate’s decision, even though the delegate himself may have made a jurisdictional error.[12] Fourth, even if the Tribunal made a jurisdictional error, relief should be withheld on discretionary grounds because the applicant acquiesced in the invalidity of the decision.[13]

   [10] First Respondent’s Supplementary Submissions, [5]

   [11] First Respondent’s Submissions, [13]

   [12] First Respondent’s Submissions, [14]

   [13] First Respondent’s Submissions, [16]

Did the Tribunal have jurisdiction?

1. Whether or not the Tribunal had jurisdiction to review the delegate’s decision depends, at least in the first instance, on the proper construction of the statutory provisions which confer jurisdiction on the Tribunal and which regulate its exercise. The starting point is s.414(1) of the Act which, at the relevant time,[14] provided that, subject to s.414(2) (which is not relevant here), “if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision”. The expression “RRT-reviewable decision” was defined in s.411(1) of the Act to include, among other things, “a decision to cancel a protection visa, other than a decision that was made because of … (iii) paragraph 36(2C)(a) or (b)”; and, at the time the applicant made the second Protection visa application,[15] section 46(1) of the Act provided that, subject to s.46(1A), s.46(2) and s.46(2A) (which are not relevant in this proceeding), an application for a visa is valid if, and only if, among other things, it is “not prevented by section . . . 48A (protection visa)”. Also relevant is s.415(1) of the Act which provided:

   The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

   [14] 24 November 2014

   [15] 17 September 2009

2. The decision the Tribunal reviewed in the case before me was the exercise by a delegate of the Minister of the power conferred by s.109(1) of the Act to cancel a visa. The Tribunal’s task when reviewing under s.414 of the Act the decision the delegate made under s.109 of the Act, therefore, was to determine whether it was satisfied the preconditions for the exercise of the discretion of the power conferred by s.109 were present and, if so, whether, having regard to, among other things, circumstances declared by the regulations to be circumstances in which a visa must be cancelled, the applicant’s Protection visa should be cancelled. The relevant preconditions in relation to the applicant were as follows:

   a)the Minister considered that the applicant was the “holder of a visa” who has been immigration cleared (whether or not because of that visa) and who did not comply with section 101 of the Act (which requires a non-citizen to complete his or her application form for a visa in such a way that all questions on it are answered and no incorrect answers are given or provided);[16]

   b)the Minister gave the applicant a notice containing the particulars of the possible non-compliance specified in s.107(1)(a) of the Act;[17] and

   c)the Minister considered any response given by the applicant in the way required by s.107(1)(b), and decided there was non-compliance by the applicant in the way described in the notice.[18]

   [16] Act, s.107(1)(a)

   [17] Act, s.107(1)

   [18] Act, s.108

3. The expression “visa holder” is defined in s.5 of the Act to mean “the holder of a visa and, in relation to a visa, means the holder of the visa”; and s.5 of the Act provides that “visa” has the meaning given by s.29 of the Act. Subsection (1) of section 29 of the Act provides as follows:

   Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

   (a)travel to and enter Australia;

   (b)remain in Australia.

4. The Minister’s power to grant a visa is to be found in s.65(1) of the Act, which relevantly provided that “[a]fter considering a valid application for a visa”, the Minister, if satisfied, among other things, that “the other criteria for it prescribed by this Act or the regulations have been satisfied” is to grant the visa. As I have already noted, s.46(1) of the Act provided that an application for a visa is valid if, and only if, among other things, the application is “not prevented by section . . . 48A (protection visa)”. Whether or not the Minister is to grant or not grant a visa depends on the Minster’s being satisfied of a number of matters. The Minister can lawfully reach such satisfaction only by considering a “valid application for a visa”. That is reinforced by s.47(3) of the Act which provides that the Minister “is not to consider an application that is not a valid application”.

5. If one were to consider only these statutory provisions, there would be strong grounds for construing “visa holder” and “holder of a visa”, where those expressions appear in s.107 and s.108 of the Act, to mean the person to whom the Minister had granted a visa in response to “a valid application for a visa”. On that construction, given that the second Protection visa application was not a valid application for a visa, s.101, s.107, and s.108 of the Act would not have been engaged because there would have been no “visa holder”; and there would have been no “visa holder” because there would have been no valid visa. That, in turn, would have meant that the Tribunal would not itself have been able to review the delegate’s decision to cancel the Protection visa.

6. Subsection 69(1) of the Act, however, must be considered. It provides:

   Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

7. The Full Federal Court considered s.69(1) of the Act in Yilmaz v Minister for Immigration and Multicultural Affairs.[19] In that case the applicant failed to make a valid application for a Protection visa, yet the Tribunal, on an application for review made by the applicant, considered the merits of the applicant’s claims for protection and affirmed the delegate’s decision not to grant the applicant a Protection visa. The applicant submitted the Tribunal’s decision was a nullity because the application for a visa was not a “valid application for a visa”. A majority of the Full Court (Gyles J, with Spender J agreeing) held that s.69(1) of the Act prevented from being treated as invalid a decision to grant a visa that was made in response to an invalid application for a visa. Gyles J said:[20]

   Section 69(1) relates to non-compliance by the Minister with, inter alia, subdivision AA not rendering the decision invalid.  When that subdivision is analysed, the only section which imposes a mandatory obligation upon the Minister is s 47, which is set out above. All of the other provisions are permissive, and non-compliance could not lead to invalidity.  It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. 

   [19] [2000] FCA 906

   [20] [2000] FCA 906 at [81]

1. After observing that it was reasonable that s.69 of the Act should relieve against invalidity based on a breach of s.47 of the Act, Gyles J set out s.65(1) of the Act, including the words “[a]fter considering a valid application for a visa”, and considered whether it was significant that s.65 did not form part of subdivision AA or AB of Division 3 of Part 2 of the Act. His Honour said:[21]

   It seems to me that the words “after considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements (apart from the existence of the application) which must be met before a visa can be granted.

   [21] [2000] FCA 906 at [83]

2. Yilmaz, therefore, is authority for the principle that the Minister’s deciding to grant a visa in response to an application for a visa that is not a “valid application for a visa”, contrary to s.47(3) of the Act, does not render the decision to grant the visa invalid. It follows, therefore, that until the decision granting a visa in these circumstances is set aside or reviewed, a person who holds the visa is a “holder of a visa” for the purposes of s.107 and s.108 of the Act.

3. Given the reasoning in Yilmaz, the applicant before me cannot succeed on his primary submission that the Tribunal did not have jurisdiction to review the delegate’s decision to cancel the applicant’s Protection visa. A delegate of the Minister granted the Protection visa to the applicant in response to the second Protection visa application that, because of s.48A of the Act, was not “a valid application for a visa”. The delegate, therefore, granted the visa in breach of s.47(3) of the Act. Because of s.69(1) of the Act, however, the delegate’s decision to grant the applicant the Protection visa does not mean the decision was not a valid decision. At most, the delegate’s decision to grant the Protection visa was a wrong decision that may be, or may have been, liable to be set aside or reviewed. The applicant, therefore, was a “visa holder” for the purposes of s.107 and s.108 of the Act, and the Tribunal had jurisdiction to conduct a review of the delegate’s decision to cancel the applicant’s Protection visa on the basis that the applicant was a “visa holder”.

Other matters

1. The applicant seeks a declaration that the delegate’s decision to cancel the Protection visa was invalid. Under s.476(2)(a) of the Act, this Court does not have jurisdiction in relation to a decision that is “a primary decision”. At the time the Tribunal made its decision, that expression was defined in s.476(4) to mean:

   a privative clause decision or purported privative clause decision:

   (a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

   (b)that would have been so reviewable if an application for such review had been made within a specified period.

2. The delegate’s decision to cancel the applicant’s Protection visa is a “primary decision” within the meaning of s.476(4) of the Act. The Court, therefore, has no jurisdiction in relation to that decision.

Second Issue

1. The second issue arose out of the following circumstances. On 22 March 2017, after the parties were informed that I proposed to deliver judgment on the first issue, the solicitor for the Minister sent an email to my chambers in which it was said that, because of the Full Federal Court’s decision in Minister for Immigration and Border Protection v Singh,[22] the parties had agreed to request the Court make orders to allow the parties to make submissions about the relevance of Singh. By consent, on 22 March 2017 I made orders granting the parties leave to reopen the case and to file submissions.

   [22] [2016] FCAFC 183

2. Pursuant to those orders, the applicant filed submissions together with an affidavit made on 6 April 2017 by Ms Anang, the solicitor for the applicant. I will take that affidavit to have been formally read. In her affidavit Ms Anang deposes that, by an email she received on 21 March 2017, the Minister’s lawyer informed Ms Anang there were a number of certificates that had been issued under s.438(1)(b) of the Act. Ms Anang was provided with a copy of five certificates that had purportedly been issued pursuant to s.438(1)(b) of the Act.

3. On 7 June 2017 I granted the applicant leave to file a proposed document to be titled “Further Amended Application”, and made directions for the filing of further evidence and submissions. I also directed that the parties communicate to my chambers whether they wished to have a further hearing in relation to the application for leave to file the further amended application and, if leave is granted, the additional ground in the further amended application, or whether they would instead be content for me to consider those questions without further hearing.

4. Pursuant to the directions, the applicant filed a “Further Amended Application” together with submissions, and the Minister filed an affidavit of Mr Vijaykumar made on 4 July 2017 which exhibited the documents covered by the five certificates together with submissions. I will take the affidavit of Mr Vijaykumar also to have been formally read, and the documents exhibited to that affidavit to be exhibits in the proceeding. On 18 July 2017 my chambers received an email from Ms Buchanan, the solicitor for the Minister, in which Ms Buchanan said that the parties do not wish to have a further hearing.

5. In the remainder of these reasons, therefore, I will consider the applicant’s application for leave to file a further amended application and, if leave is granted, consider the additional ground stated in the further amended application. As is the case with the first issue, the additional ground sought to be raised in the further amended application is the same as the additional ground contained in the further amended application filed in SZVVI; and the submissions the parties have made in this case are almost identical to the submissions the parties made in SZVVI.

The proposed further amended application

1. The proposed further amended application seeks to raise the following additional ground:

   In the alternative, the Tribunal’s failure to disclose the existence of or provide copies of the s438(1)(b) certificates to the applicants prior to its decision of 24 November 2014 constitutes a breach of procedural fairness.

   Particulars

   2.1A number of certificates regarding the non-disclosure of certain information under s 438 of the Migration Act 1958 formed part of the Department file before the Tribunal in relation to this matter. Those certificates were issued pursuant to s 438(1)(b) of the Migration Act 1958.

   2.2In accordance with the judgment in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183 (M12/2017), the applicants contend that the Tribunal was obliged to disclose the existence of the certificates to the applicants in this matter and their failure to do so constitutes a breach of procedural fairness.

Parties’ submissions

1. In written submissions filed on behalf of the applicant, it is submitted that at least four of the five certificates are invalid, and that the circumstances of this case are not materially distinguishable from Singh and MZAFZ v Minister for Immigration and Border Protection.[23] It is further submitted that the material covered by the five certificates was “relevant to and formed part of the Tribunal’s reasoning process”.[24] The applicant relies[25] on Beach J’s observation in MZAFZ: “If not, the s 438(1)(a) certificate would not have been necessary and the documents would not have been before the Tribunal”.[26] The applicant further submits that the documents covered by the certificates were relevant because they related to the “applicants identities and Australian migration history which formed a significant basis for the Tribunal’s decision to affirm” the delegate’s decision to cancel the applicant’s visa.[27]

   [23] [2016] FCA 1081

   [24] Applicant’s Further Supplementary Submissions, [7]

   [25] Applicant’s Further Supplementary Submissions, [7]

   [26] [2016] FCA 1081 at [55]

   [27] Applicant’s Further Supplementary Submissions, [16]

2. The Minister, on the other hand, submits that leave should not be granted to the applicant to amend because the proposed ground is inconsistent with the existing ground on which the applicant relies, namely, that the Tribunal did not have jurisdiction to review the delegate’s decision.[28] The Minister further submits that the circumstances of this case are distinguishable from Singh and MZAFZ because there is no basis for inferring from its reasons for decision or otherwise that the Tribunal acted on the certificates, and it is not apparent that the documents covered by the certificates “were relevant to, or of any more than passing contextual relevance to the review, . . . or formed part of the Tribunal’s reasoning process save to the extent that the certificates covered material that was in fact already disclosed to the first applicant in the visa application and review processes and was otherwise conceded, and was therefore not in issue on the review”.[29] Although the Minister did not concede the certificates were invalid, he did not submit the certificates were not invalid. I will assume, without deciding, that the five certificates are invalid because they do not disclose a proper ground for claiming public interest privilege.

   [28] First Respondent’s Further Submissions, [3]

   [29] First Respondent’s Supplementary Submissions, [8]

Is there an arguable case the Tribunal made a jurisdictional error?

1. The applicant appears to contend that Singh is authority for the proposition that the Tribunal necessarily comes under an obligation to disclose the existence of a certificate that has been issued under s.375A of the Act, and that this principle should apply to certificates issued under s.438 of the Act. For reasons I have given elsewhere, that is not what the Full Federal Court in Singh held or should be taken to have held.[30] For reasons I have also given elsewhere, however, even if the Full Federal Court in Singh is to be taken as having held the Tribunal must in every case a certificate under s.375A of the Act has been issued disclose that fact to an applicant, the differences between s.438 and 375A of the Act prevent the Full Federal Court’s reasoning in Singh from applying to s.438 of the Act.[31] The principal distinction is that s.375A of the Act requires the Tribunal not to disclose the information that is covered by the certificate whereas s.438 does not so require. If, therefore, a certificate is issued under s.438 of the Act, that will not necessarily mean that the information covered by it will not be disclosed to the applicant. That, in turn, means that “an applicant’s participation in the review” will not necessarily be “circumscribed by the existence of the certificate”.[32] Whether or not an applicant’s participation in the review will be circumscribed because a certificate has been issued under s.438 of the Act will depend on the circumstances of the particular case.

   [30] CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [99]-[105]

   [31] CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [106]

   [32] Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [42]

2. The question then is whether the Tribunal in the case before me made a jurisdictional error of the sort Beach J found the Tribunal made in MZAFZ. As I have noted elsewhere,[33] his Honour found the Tribunal in the circumstances of that case made two jurisdictional errors: the Tribunal proceeded or acted on an invalid certificate and, therefore, did not follow a “process according to law”; and the Tribunal failed to accord the applicant procedural fairness by not disclosing the certificate. Before I consider whether the Tribunal made such errors in the case before me, it will be necessary to refer to the documents covered by the three certificates. That is so because the apparent relevance of those documents to the issues that were before the Tribunal is relevant to determining whether the Tribunal acted on the certificates and whether the Tribunal was required to disclose the certificates to the applicant.

   [33] BIE15 v Minister for Immigration & Anor [2016] FCCA 2978 at [48]

3. The documents are described in the affidavit of Mr Vijaykumar. The delegate had already given some of the documents covered by the certificates to the applicant, and these are exhibit D to Mr Vijaykumar’s affidavit. All other documents other than the certificates have been exhibited to the affidavit of Mr Vijaykumar in five sealed envelopes in the manner suggested by the Full Federal Court in Singh.[34] I have examined the documents contained in the sealed envelopes first, for the purpose of satisfying myself that their contents match the descriptions given to them by the certificates, and, second, to determine their apparent relevance to the issues before the Tribunal.

   [34] [2016] FCAFC 183 at [67]. The documents are described as Exhibits A, B, C, E, and F

4. The first certificate, [35] which is dated 11 June 2014, identifies by folio numbers the documents that it covers.  The documents covered by the certificate are two pro forma internal documents, one being a “P V Application Validity Check”, and the other is a “Decision Check Sheet”.[36] The second certificate,[37] which is also dated 11 June 2014, also describes the documents it covers by folio number. The documents covered by the certificate are a “PV Application validity check” and internal documents that relate to changing the Department’s records to show the applicants are onshore.[38] The third certificate is dated 3 June 2014,[39] and it describes two documents. One is said to begin “20/09/2011 – IDENTITY REFERRAL TO SEOUL” in relation to a person who bears the name of the person who made the first Protection visa application. The other document is said to begin “17/11/2011 – SEOUL REFERRAL RESULT”. The fourth certificate is dated 11 June 2014 and describes the documents it covers by folio number.[40] Some of these documents had been provided to the applicant.[41] These documents consist of two copies of a facial image comparison report. The documents covered by the fourth certificate that were not provided to the applicant principally consist of documents relating to inquiries relating to the identity of the applicant.[42] The fourth certificate also includes documents relating to attempts to serve a NOICC on the applicants.

   [35] Exhibit HV-1 to the affidavit of Mr Vijaykumar.

   [36] The documents are exhibit A to the affidavit of Mr Vijaykumar.

   [37] Exhibit HV-2 to the affidavit of Mr Vijaykumar.

   [38] The documents are exhibit B to the affidavit of Mr Vijaykumar.

   [39] Exhibit HV-3 to the affidavit of Mr Vijaykumar.

   [40] Exhibit HV-4 to the affidavit of Mr Vijaykumar.

   [41] The documents are exhibit D to the affidavit of Mr Vijaykumar.

   [42] The documents are exhibit E to the affidavit of Mr Vijaykumar.

5. The fifth certificate is dated 11 June 2014 and describes the documents it covers by folio number.[43] The documents covered by that certificate are as follows:

   a)There is a detailed email sent on 24 August 2011 sent by the “Onshore Protection Helpdesk”.[44] The email provides detailed advice on issues relating to the possible cancellation of the applicant’s Protection visa. The email: deals with the power of the Tribunal to review a delegate’s decision given that the applicant, having made a previous application for a Protection visa under a different name, may be barred by s.48A from making a further application; (ii) considered whether cancellation of the Protection visa would be appropriate; (iii) identified breaches or possible breaches by the applicant of Subdivision C of Division 3 of Part 2 of the Act; (iv) whether the circumstances in which the applicant made the second Protection visa application fell within the guidelines for seeking Ministerial intervention under s.48B.

   b)Documents relating to a number of matters including changing the applicants’ status to onshore, notes about the allocation of the application, and communications between the Department and the applicant’s representative.[45]

   c)Documents requesting Departmental records be changed to show the visa status of the applicants.[46]

   d)Documents relating to the posting of the NOICC and its not having been claimed.[47]

   e)Documents relating to inquiries about the applicant’s identity.[48]

   f)A document containing details of the transaction history of the cancellation of the applicant’s Protection visa.[49]

   [43] Exhibit HV-5 to the affidavit of Mr Vijaykumar.

   [44] Exhibit F to the affidavit of Mr Vijaykumar, folios 1,2

   [45] Exhibit F to the affidavit of Mr Vijaykumar, folios 42, 41

   [46] Exhibit F to the affidavit of Mr Vijaykumar, folio 40

   [47] Exhibit F to the affidavit of Mr Vijaykumar, folios 35, 34, 33

   [48] Exhibit F to the affidavit of Mr Vijaykumar, folios 33-24

   [49] Exhibit F to the affidavit of Mr Vijaykumar, folios 73, 72

6. The Tribunal does not refer to the certificates in its reasons for decision. That, however, does not necessarily mean the Tribunal was unaware of the certificates, or that the Tribunal did not act on the certificates in any way. In my opinion, the more probable inference is that the Tribunal was aware of the certificates, but it decided that the certificates did not prevent it from doing that which it otherwise would have done with the documents. In particular, the Tribunal did not consider that the certificates prevented it from disclosing to the applicant the substance of matters recorded in the documents covered by the certificates that were relevant to the issues the Tribunal considered it was necessary for it to decide. The basis of that inference is that, by its letter dated 26 September 2014,[50] the Tribunal disclosed to the applicant the substance of the information contained in the documents covered by the certificates, namely, that the applicant had made the first Protection visa application using a false name, and, by so doing, may have failed to comply with s.101 of the Act. Assuming the certificates were invalid, therefore, their invalidity did not infect “the process or procedure adopted by the Tribunal in relation to [the] documents”[51] covered by the certificates. Thus, to the extent the Tribunal relied on the certificates, it made no jurisdictional error.

   [50] CB333

   [51] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [40]

7. The next question is whether the Tribunal failed to accord procedural fairness to the applicant by failing to disclose to the applicant the certificates and, therefore, the documents covered by the certificates. That question must be answered in the negative. First, the Tribunal, by its letter dated 26 September 2014,[52] disclosed to the applicant the substance of most of the matters revealed by the documents covered by the certificates, namely, that the applicant had made the first Protection visa application using a false name, and that, by so doing, may have failed to comply with s.101 of the Act. Second, the applicant accepted before the delegate and the Tribunal that he did make the first Protection visa application using a false name. To the extent the documents covered by the certificates did not refer or relate to the applicant’s having made the first Protection visa application under a false name and, for that reason, may have failed to comply with the Act, the documents cannot reasonably be regarded as being relevant to any issue the Tribunal was required to consider. For these reasons, there was no occasion for the Tribunal to disclose to the applicant anything more than it did of the matters contained in the documents covered by the certificates. Thus, the Tribunal made no jurisdictional error by not disclosing, more than it did in its letter dated 26 September 2014, the contents of the documents covered by the certificates and the certificates themselves.

   [52] CB333

1. For these reasons, I am of the opinion that it would be futile to permit the applicant to rely on the proposed ground 2 stated in the further amended application. I propose, therefore, to refuse the applicant leave to rely on the further amended application. Even if I were to permit the applicant to rely on the proposed ground 2, I would conclude that the ground is not made out.

Disposition

1. I propose to order that:

   a)the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent;

   b)the applicants’ application for leave to rely on the further amended application be dismissed; and

   c)the application be dismissed.

Other matters and disposition

1. The Tribunal concluded it had no jurisdiction in relation to the second respondent. Although a party in the proceeding before me, the second applicant has not submitted the Tribunal had jurisdiction in relation to her. In those circumstances, and given the applicant has not made out the ground of application stated in the amended application, I propose to order that the application be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 28 July 2017