FEDERAL COURT OF AUSTRALIA

BYE17 v Minister for Immigration and Border Protection [2019] FCA 441

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal to be assessed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

INTRODUCTION

1    This is an appeal from an order made by the Federal Circuit Court of Australia on 22 June 2018. On that day, the Federal Circuit Court made an order that the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) be dismissed (BYE17 v Minister for Immigration & Anor [2018] FCCA 1625). The appellant appeals against that order on three grounds.

Factual Background and the Delegate’s Decision

2    The factual background to the matter is both detailed and complex. The appellant arrived in Australia on 24 July 2012 as an unauthorised maritime arrival. He claims to be a citizen of Iran born on 31 July 1996. He applied for a Protection (Class XA) (subclass 866) visa on 4 April 2013.

3    On the appellant’s arrival in Australia, he claimed to be an unaccompanied minor and that his date of birth was 26 June 1996. At his arrival interview, he changed that date to 31 July 1996. Two officers of the Department of Immigration and Border Protection conducted an age determination process on 4 August 2012 and they found that the appellant was under the age of 18 years.

4    On 26 July 2013, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant the visa on the basis that he did not meet the requirements in s 36 of the Migration Act 1958 (Cth) (the Act). A review of the age determination process previously referred to was carried out on 31 July 2013 and the appellant was found to have been born on 31 December 1994 and to be over the age of 18 years.

5    The appellant applied to the Refugee Review Tribunal (as it then was) for a review of the decision of the delegate made on 26 July 2013. On 21 October 2013, the Tribunal found that the appellant satisfied s 36(2)(a) of the Act and remitted the matter back to the Department with a direction to that effect. On 5 March 2014, a delegate of the Minister refused to grant the visa on the basis that the appellant did not meet the requirements of cl 866.222 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The appellant applied to the Tribunal for a review of that decision. On 23 July 2014, the Tribunal found that the appellant satisfied the requirements of cl 866.221(2) of Sch 2 to the Regulations and remitted the matter back to the Department for reconsideration with a direction to that effect.

6    The appellant had originally claimed that he was unable to provide identity documents to the Department because his father had burnt them. The Department made a request of the appellant to produce documentary evidence of his identity, nationality or citizenship for inspection by an officer of the Department under s 91WA(1) of the Act. In response to the request, the appellant provided Iranian identity documents to the Department which he claimed he had obtained from his uncle who had, in turn, obtained them from his mother. The documents were a national identity card, a birth certificate, a school certificate and a statement from a witness attesting to the appellant’s claimed identity.

7    On 6 August 2015, a delegate of the Minister wrote to the appellant inviting him to comment on findings of the Document Examination Unit (DEU) in relation to the national identity card and birth certificate (Shenasnameh). The letter to the appellant included the following passage:

The Shenasnameh and Iran identity card that you provided as evidence of your identity, nationality or citizenship has been assessed to be bogus documents. A bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

a)    purports to have been, but was not, issued in respect of a person; or

b)    is counterfeit or has been altered by a person who does not have authority to do so; or

c)    was obtained because of a false or misleading statement, whether or not made knowingly.

A Departmental Document Examination Officer has determined that the Shenasnameh you have provided was fraudulently altered, with entries for birth date, birth location and issue date removed and then replacement entries added. The examining officer has also found that the Iran identity card you have provided is entirely counterfeit.

If it is assessed that you have produced a bogus document as evidence of your identity, nationality or citizenship, then your visa application may be refused under section 91WA(1) of the Act.

You may provide comment on the above information.

8    The appellant’s representative provided a written response to the delegate on 9 September 2015 in which he argued that the appellant had taken reasonable steps to obtain the documents and he believed that the documents he had provided were genuine.

9    On 8 January 2016, the Department wrote to the appellant in the following terms :

The school certificates provided by you list your date of birth as 1996. As per your Age Determination outcome the department is not satisfied that this is your true date of birth. A Departmental officer has assessed that your school certificates are counterfeit.

If it is assessed that you have produced a bogus document as evidence of your identity, nationality or citizenship, then your visa application may be refused under section 91WA(1) of the Act.

You may provide comment on the above information.

10    On 27 January 2016, the appellant’s representative provided a written response to the delegate, and on 8 February 2016, the appellant provided additional identity documents to an officer of the Department.

11    It is convenient at this point to set out s 91WA and the definition of “bogus document” in s 5 of the Act:

91WA Providing bogus documents or destroying identity documents

(1)    The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

   (b)    the Minister is satisfied that the applicant:

(i)    has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii)    has caused such documentary evidence to be destroyed or disposed of.

(2)    Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

   (b)    either:

(i)    provides documentary evidence of his or her identity, nationality or citizenship; or

   (ii)    has taken reasonable steps to provide such evidence.

(3)    For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

5    Interpretation

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

  (a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

12    On 3 January 2017, a delegate of the Minister decided that the application for what was by that time and by operation of law, an application for a Temporary Protection (subclass 785) visa, should be refused under s 91WA(1) of the Act because the appellant provided a bogus document as evidence of his identity, nationality or citizenship without a reasonable explanation for doing so. The delegate said that in support of the appellant’s claimed identity, he had provided originals and copies of the following Iranian identity documents, including English translations:

(1)    National identity card;

(2)    Birth certificate;

(3)    School certificate; and

(4)    Statement from witnesses attesting to the appellant’s claimed identity.

The delegate said that the appellant’s national identity card and birth certificate were assessed by the DEU and it had found that the national identity card was “entirely counterfeit” and that the birth certificate was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added. The delegate said that following the forensic examination by the Department, she found that the national identity card and birth certificate were bogus documents within the definition of “bogus documents” in s 5(1)(b) of the Act. The delegate said the following:

The applicant’s national identity card and birth certificate were assessed by the Document Examination Unit (DEU) where it was found that the birth certificate was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added. The national identity card was found to be entirely counterfeit. Following forensic examination by the Department, I find that the birth certificate and national identity card are bogus documents in accordance with s5(1)(b).

13    The delegate said that the original school certificate had also been assessed by the DEU and returned with an “inconclusive” result. The delegate said the following:

This document [school certificate] was also assessed by the DEU and returned with an ‘inconclusive’ result. It was noted in the report that the quality of the security features limits the ability to determine whether this is a legitimately manufactured and issued document, and it does not present as a professionally produced document.

14    The delegate found, taking into account the previous findings from the age determination assessments, that the school certificate was a bogus document. The delegate referred to the submissions received from the appellant’s representative on 9 September 2015 and 27 January 2016 respectively. The delegate said that considering the results of the Departmental documentary forensic examination, as well as the age determination process, she was not satisfied that the appellant’s date of birth was “1996”. The delegate said that it followed that she found that the school certificate, which purported to state the appellant’s date of birth to be “1996”, was a bogus document within the definition of s 5(1) of the Act. The delegate said that she was of the view that the appellant’s date of birth was likely to be 29 January 1989. She placed little weight on the statement from witnesses corroborating the appellant’s claimed identity.

15    The delegate said that she did not accept that the appellant had subsequently provided satisfactory documentary evidence of his identity, nationality or citizenship, or had taken reasonable steps to provide such evidence. She said that she did not find that the appellant had complied with ss 91WA(2)(b)(i) or 91WA(2)(b)(ii). The delegate found that the grant of a Protection visa to the appellant was prevented by the terms of s 91WA(1) of the Act.

16    The delegate noted that the appellant’s claims for protection were assessed by the Tribunal on 21 November 2013 and the appellant was found to engage protection obligations on account of his membership of the particular social group being “homosexual men in Iran”. In light of those findings, the appellant’s claims of Christian conversion were not assessed. The delegate said that as she had found that the appellant had not complied with s 91WA(2) of the Act, she must refuse to grant a Protection visa to the appellant under s 91WA(1) of the Act.

The Hearing Before the Tribunal

17    On 11 January 2017, the appellant made an application to the Tribunal for a review of the delegate’s decision.

18    The Tribunal noted that it had before it the Department’s fileops relating to the appellant’s Protection visa application and the Tribunal’s file relating to the review application. The Tribunal said that it had also “had consideration” of the delegate’s decision record provided to it by the appellant.

19    The appellant appeared before the Tribunal on 9 March 2017 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Persian and English languages. The appellant was represented on the review and at the hearing by his registered migration agent.

20    The Tribunal said in its written reasons that at the conclusion of the hearing which it conducted, it noted that there were two s 438(1)(a) certificates (the Certificates) and one s 438(1)(b) notification (the Notification) on the Department’s file. The Tribunal gave a copy of the Certificates and the Notification to the appellant’s representative.

21    The Tribunal noted that the Certificates related to substantially the same documents and information. The one difference was a folio which is an ICSE record screen shot of information which the Tribunal said that it did not consider relevant to the review.

22    The Tribunal indicated its preliminary view that one of the Certificates was invalid and the other certificate was valid. The Tribunal said that it noted that the relevant information covered by the Certificates was the age determination process, which is also referred to in the delegate’s decision record.

23    The Tribunal also noted that its preliminary view was that the Notification was valid and that the relevant information was the forensic document examination which is also referred to in the delegate’s decision record.

24    The Tribunal granted the appellant’s request for a period of five days within which to make any further written submissions. The appellant made further written submissions which were received on 14 March 2017 and the Tribunal said that it had taken those submissions into account. It noted that in relation to the Certificates and the Notification the appellant submitted that any evidence or information that may be relied on to affirm the Department’s decision should be presented to the appellant for comment if that had not been done to that point.

25    The Tribunal said that as it noted later in its reasons, the relevant information covered by the Certificates and the Notification were referred to in the delegate’s decision record, a copy of which had been provided to the Tribunal by the appellant, and had been discussed with the appellant during the hearing which the Tribunal conducted.

26    The Tribunal then turned to consider the substance of the issues before it. The Tribunal first considered whether the appellant had provided bogus documents. The Tribunal referred to the delegate’s findings and to the evidence given by the appellant. The appellant gave evidence that his birth certificate was valid. He told the Tribunal that at the time he came to Australia, he had thought that his father had destroyed all his documents by fire. Later, his uncle told him that his mother had saved some of his documents and these are the documents his uncle later provided to him. In his submissions dated 14 March 2017, the appellant maintained that to the best of his knowledge, the documents were not bogus. His representative submitted that as it had not been disclosed on what basis the documents had been found to be altered and counterfeit, the appellant was not in a position to comment on the veracity of the findings.

27    The appellant submitted that even if the Tribunal found that the documents were bogus, he had provided a reasonable explanation for providing them for the purposes of ss 91W and 91WA of the Act. He submitted that he had taken reasonable steps to provide evidence of his nationality, identity and citizenship and, in particular, he had provided a statement with respect to his identity and a school certificate. He pointed out that the DEU had not conclusively found that the school certificate was bogus. The appellant’s representative submitted that the appellant had provided consistent testimony with respect to his background, nationality and education, and that it would be unfair to find that his school certificate was a bogus document.

28    The appellant’s representative submitted that in determining whether the appellant had taken reasonable steps to provide evidence of his identity, nationality and citizenship, it was “imperative” to take into consideration his current situation as a person who was in immigration detention and who has been found to be a refugee by the Tribunal. The finding that he is a refugee means that he is not able to deal with authorities in his country to obtain further evidence of his identity as it is likely to place him at risk of harm.

29    The Tribunal said that it accepted that the DEU had expertise in document examination and that it had placed significant weight on the findings of the DEU as reported in the delegate’s decision record (at [42]). The Tribunal said that whilst the information provided in the delegate’s decision record did not include the nature of the forensic examination undertaken by the DEU, the delegate’s decision record does report that the DEU found the birth certificate provided by the appellant was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added (at [43]).

30    The Tribunal found, by reference to all the available evidence, including the DEU’s findings, that the birth certificate provided by the appellant to the Department as evidence of his identity was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added. The Tribunal found that this document had been altered by a person who did not have authority to do so (at [44]). For the same reasons, the Tribunal also found that the national identity card provided by the appellant to the Department as evidence of his identity was entirely counterfeit (at [45]).

31    The Tribunal said that given the DEU’s inconclusive finding in relation to the school certificate and no findings in relation to the witness statement, it made no findings in relation to those documents being bogus documents (at [46]).

32    The Tribunal found that the birth certificate and national identity card provided by the appellant were bogus documents as defined in s 5 of the Act and that the appellant had provided bogus documents as evidence of his identity, nationality or citizenship. It followed that the grant of the visa was prevented by s 91WA(1) unless, as set out in s 91WA(2), the appellant had a reasonable explanation for providing the bogus documents and had either provided documentary evidence of his identity, nationality or citizenship, or had taken reasonable steps to provide such evidence (at [47]).

33    The Tribunal then turned to consider whether the appellant had a reasonable explanation for providing the bogus documents and had either provided documentary evidence of his identity, nationality or citizenship, or had taken reasonable steps to provide such evidence. In relation to this matter, the Tribunal noted that the appellant did not agree that he had provided bogus documents. The Tribunal noted the written submission in relation to the appellant also providing a school certificate and witness statement as evidence of his identity, it noted these documents were provided with the birth certificate and national identity card, and supported the information that was found to be fraudulent and counterfeit in these bogus documents.

34    The Tribunal was not satisfied that the appellant had provided a reasonable explanation for providing the bogus documents and it was not satisfied that he had provided documentary evidence of his identity, nationality or citizenship, or taken reasonable steps to provide such evidence.

35    The Tribunal was not satisfied that s 91WA(2) of the Act applied to the appellant.

36    The Tribunal held that the grant of the visa was prevented by s 91WA and it affirmed the decision not to grant the appellant a Protection visa.

37    It is convenient at this point to note some important aspects of the Tribunal’s decision and related circumstances.

38    First, there is a dispute about whether the Tribunal was correct to say that the two Certificates related to substantially the same documents and information. The appellant and his representative were told at the hearing that the Certificates related to substantially the same documents and information. The appellant contends that there were documents covered by the invalid certificate which were not covered by the valid certificate.

39    Secondly, there are two distinct elements to s 91WA. First, there is the provision of a bogus document as evidence of identity, nationality or citizenship and the prohibition on the grant of a Protection visa. Secondly, there are the circumstances identified in s 91WA(2) where the prohibition does not apply. The Tribunal dealt with both elements as it was required to do. However, on this appeal only the first element remains the subject of challenge. An unsuccessful challenge in the Federal Circuit Court in relation to the second element is not pressed on the appeal.

40    Thirdly, both the delegate and the Tribunal found that the birth certificate and the national identity card were bogus documents. Unlike the delegate, the Tribunal did not find that the school certificate was a bogus document. Relatedly, in submissions on this appeal, the first respondent made the point that one bogus document was sufficient to engage the prohibition in s 91WA(1).

41    Finally, and importantly, an issue arises as to the proper interpretation of the Tribunal’s reasons. The issue is what information and evidence the Tribunal relied on to reach the conclusion that the birth certificate and the national identity card were bogus documents. The first respondent submits that the Tribunal relied on the findings in the delegate’s decision record. To assess this contention, it will be necessary to consider the Tribunal’s reasons, particularly those paragraphs summarised in [29]–[32] above.

The Certificates and the Notification

42    Section 418 of the Act provides that upon an application for review being made to the Tribunal, the Secretary must give specified documents to the Tribunal, including documents considered by the Secretary to be relevant to the review of the decision.

43    Section 437 provides that certain documents, which are the subject of a certificate, are not to be provided to the Tribunal by the Secretary.

44    Section 438 is in the following terms:

438    Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

45    As I have said, in this case, there were two Certificates under s 438(1)(a) and one Notification under s 438(1)(b).

The Certificate dated 15 October 2013

46    The certificate dated 15 October 2013 (the 2013 Certificate) was given under s 438(1)(a) of the Act and it is expressed to cover the information in an email dated 14 October 2013 on the basis that the disclosure of the information in the email would be contrary to the public interest because the email contains specific information relating to the Department’s age determination process.

47    The email dated 14 October 2013 is part of a chain of emails, the substance of which is as follows. The Tribunal asked the Department to explain why the appellant, “who is an unaccompanied minor, is still held in detention, and why at MIDC”. The Department’s response was as follows:

Dear RRT Member,

I can inform that since my Protection visa assessment of client [x], a second age determination was conducted with [Mr x], which assessed him to be an adult. The principle (sic) purpose of age determination is for placement and provision of services. Hence, there may be a need to undertake formal identity assessment if there was any remaining doubt in this case.

I have attached the age determination review outcome for you knowledge.

48    It was not suggested by the appellant that the 2013 Certificate was invalid. At the first hearing of the appeal, it was suggested that the Tribunal was bound to have regard to the information in some way (s 424), but that argument was not developed and its purport was never made clear.

49    The scope of the 2013 Certificate beyond the chain of emails is not entirely clear. It is possible that it includes the documents identified in [51](1) and (2) below in relation to the other certificate as the email from the Department refers to the attached age determination review outcome. The Tribunal seems to have proceeded on that basis.

The Certificate dated 6 May 2014

50    The certificate dated 6 May 2014 (the 2014 Certificate) was given under s 438(1)(a) of the Act and relates to information in “folios 130–141 and 151 of file number CLF2013/80799”. It is claimed that disclosure of this information would be contrary to the public interest because the documents contain internal working documents.

51    It is not entirely easy to determine where one document ends and another begins. Doing the best I can, the documents appear to be as follows:

(1)    Folios 132–138 is entitled “Age Determination Review Process”;

(2)    Folio 131 is also entitled “Age Determination Review Process” and on the back of that document and continuing on folio 130, are documents entitled “Age Determination Review Request”;

(3)    Folios 139 and 141 are the chain of emails identified in relation to the 2013 Certificate; and

(4)    Folio 151 appears to be the screen shot document referred to by the Tribunal (see [21] above).

52    It is not entirely clear it was ever formally conceded by the first respondent, but the 2014 Certificate was invalid (MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] per Beach J).

The Notification dated 3 January 2017

53    The Notification dated 3 January 2017 was given under s 438(1)(b) of the Act and applied to information in “folios 189–198 (Document Examination Unit report Identity Assessment) of file number CLF2013/80799”. This information was said to have been given to an officer of the Department in confidence. The certifying party expressed the view that the information should not be disclosed to the appellant or his representative because to do so could compromise the Department’s forensic examination procedures.

54    I was referred to folios 189–198 and those folios comprise an Identity Assessment in relation to the appellant said to have been completed on 4 February 2015 (folios 189–195) and a Document Examination Report dated 27 November 2014 by a forensic document examiner (folios 196–198). The Document Examination Report is a report in relation to the school certificate.

55    There is no suggestion in the Notice of Appeal that the Notification is invalid. Nevertheless, the appellant submitted that the Notification was invalid by reason of the following matters: (1) the Notification related to more than an Identity Assessment in that it included the Document Examination Report in relation to the school certificate; (2) the Document Examination Report in relation to the school certificate itself stated that the Summary of Outcomes was releasable to the client or their representative; and (3) there is no evidence that the document or information which is the subject of the Notification was given in confidence.

56    I reject those submissions. The folio numbers identify the documents which are the subject of the Notification. In any event, the description “Document Examination Unit report Identity Assessment”, although somewhat clumsy, is adequate to cover both the Identity Assessment and the DEU report in relation to the school certificate. The Summary of Outcomes was, in any event, information in the delegate’s decision record. It is for the appellant to establish jurisdictional error and the Notification reveals a prima facie sound claim that the Notification falls within s 438(1)(b). The appellant has not adduced any evidence to the contrary.

57    I hold that the Notification is valid.

The Decision of the Federal Circuit Court

58    The grounds of the appellant’s application for judicial review in the Federal Circuit Court were as follows:

1.    The Second Respondent breached s.424A/424AA of the Migration Act 1958 by not providing particulars of adverse information the subject of the purported s.438 certificates to the applicant for comment or response.

2.    The Second Respondent unreasonably did not exercise its discretion to disclose matters subject to the s.438 certificates.

3.    The Second Respondent erred in applying s91WA of the Migration Act 1958 by failing to consider the explanations proffered by the applicant.

59    An additional ground of judicial review was introduced before the hearing which was as follows:

4.    The decision is affected by jurisdictional error because the Tribunal acted on an invalid s.438 certificate dated 6 May 2014 (CB348).

60    The Federal Circuit Court addressed each of the four grounds in turn.

61    With respect to Ground 1, the Court set out the terms of s 424A of the Act. The Court noted that the appellant gave the Tribunal a copy of the delegate’s decision record and concluded that as such, the appellant was taken, for the purposes of s 424A(3)(b) of the Act, to have given the information to the Tribunal for the “purposes of the review”. It followed, so the Court held, that s 424A did not apply to the information in the decision record in the circumstances of this case. The Court noted that the Tribunal said that all of the information in the Certificates and Notification on which the Tribunal intended to rely was set out in the delegate’s decision record.

62    The appellant submitted that the Tribunal erred in fact by treating the Certificates as containing “substantially the same documents and information”. The appellant argued that one of the Certificates contained “material that is adverse in that it is material from sources other than the Applicant that makes observations and gives reasons and shares opinion as to why he’s not under 18”. The appellant submitted that as the information covered by the Certificates was substantially different, the Tribunal made a jurisdictional error by relying on the valid certificate to withhold disclosure of information in the invalid certificate from the appellant for comment or response.

63    The Minister submitted that the statement relied upon by the appellant to the effect that the Certificates contained “substantially the same documents and information” was a preliminary view of the Tribunal and not a conclusive one. The Minister submitted that when the Tribunal’s decision is read as a whole, it is clear that the Tribunal did not rely upon the age determination process in making its decision, and it was therefore not relevant to the decision.

64    The Court said that the critical issue for it to determine was the information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. In this case, there was no evidence or necessary inference that the Tribunal considered or had any opinion about the age determination review process materials that were the subject of the Certificates.

65    The Tribunal proceeded on the basis of its finding that the appellant had provided to the Department a bogus document. The Tribunal decided that the appellant had provided two bogus documents, either of which enlivened the power in s 91WA of the Act. The Tribunal was aware of that fact. The national identity card was not related to the age determination process. Both the birth certificate and the national identity card were assessed as bogus documents with that assessment, deriving from the DEU, being put to the appellant for his comment. What was put was that the forensic investigation of the two documents, that is an investigation as to their “physical qualities”, revealed the documents to be bogus documents which had been fraudulently altered. This information derived from the delegate’s decision as placed before the Tribunal by the appellant. It did not derive from the age determination process. The Tribunal’s reasoning and decision-making relied upon the findings of the DEU.

66    Apart from the age determination process covered by the Certificates, the birth certificate was also assessed by the DEU and found to be bogus. The DEU findings did not, in respect of the birth certificate, relate simply to the date of birth, but also related to the location of birth and the issuing date of the document. All entries were found to have been erased and replaced. This did not relate to an evaluation of the age of the appellant, but an examination of the physical qualities of the document. The Tribunal said that even if the appellant’s birth date was 1996 and not 1989 as determined by the DEU, the document showed an imprint for the date of birth which referred to 1989. The Tribunal said that whatever the appellant’s date of birth was, the document was bogus because it had been fraudulently altered.

67    The Court concluded that the information relied on by the Tribunal was the reason, or part of the reason, for affirming the delegate’s decision was information derived from the delegate’s decision which fell within the terms of s 424A(3)(b) of the Act. In the circumstances, Ground 1 was rejected.

68    With respect to Ground 2, the Court said that it was not obliged to exercise the discretionary power in s 438(3) of the Act. However, the Court noted that it may, in particular circumstances, be unreasonable for the Tribunal not to exercise the discretion. The Court referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

69    The Minister submitted that an assertion of legal unreasonableness could not be used to extend the circumstances in which adverse information might be required to be given to a person beyond those which are set out in s 424A of the Act. The Minister submitted that s 422B of the Act made clear that, in terms of that matter as it is dealt with in s 424A of the Act, it is an exhaustive statement of the natural justice hearing rule.

70    The appellant submitted that was a legally incorrect submission in that s 438(3) of the Act gave the Tribunal a discretion to have regard to matters contained in the documents covered by the Certificates, and if the Tribunal considered it appropriate to do so, to disclose the matter to the appellant. The appellant argued that the documents the subject of the Certificates were relevant, adverse and helpful and it was therefore unreasonable for the Tribunal not to exercise its discretion to disclose that material to the appellant.

71    The Court said the material the subject of the Certificates did not form any part of the reason for the Tribunal’s decision unless it was set out in the delegate’s decision. As such, it was not unreasonable for the Tribunal to use its discretion to decide not to disclose the material, which was the subject of the Certificates and the Notification. The Court said that, in all the circumstances, the Tribunal’s decision record indicates an obvious and intelligible justification for the exercise of its discretion in the manner adopted.

72    With respect to Ground 3, this ground, although repeated in the Notice of Appeal, is not pressed in the appeal. In those circumstances, I do not need to examine the reasons of the Federal Circuit Court with respect to this ground.

73    With respect to Ground 4, the appellant submitted that although the Tribunal indicated that one of the Certificates appeared to be invalid, the Tribunal, in effect, acted on an invalid certificate by treating both Certificates in the same way.

74    The Minister submitted that the Tribunal did not act on information relevant to the Certificates unless that information was already set out in the delegate’s decision record. The Court found that the Tribunal did not act on either certificate. The Court said that Ground 4 could not succeed, “including for the reasons outlined in relation to Ground One”.

The Appeal to this Court

Ground 1

75    Ground 1 is in the following terms:

The Second Respondent breached s.424A/424AA of the Migration Act 1958 by not providing particulars of adverse information the subject of the purported s.438 certificates to the applicant for comment or response.

76    Section 424A is in the following terms:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

  (c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

77    Section 424AA addresses the provision by the Tribunal to an applicant orally of adverse information. It was not the subject of separate submissions and it does not advance the issues beyond those raised by s 424A.

78    In Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507, the High Court said the following about the operation of s 424A (at [24]–[25]):

As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.

As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.

    (Citations omitted.)

79    The appellant provided a copy of the delegate’s decision record to the Tribunal with his application. There was a dispute about whether s 424A(3)(b) was engaged in relation to the delegate’s decision record. The first respondent argued, correctly in my opinion, that the appellant gave the delegate’s decision record for the purpose of his application for review (Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240 (at [63] and [74]); Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (at [26])). The appellant denies this, but accepts that, in any event, the Tribunal provided the information in the delegate’s decision record to him. Even on his case, the appellant had the information in the delegate’s decision record.

80    With respect to the 2013 Certificate and the Notification which were valid and which were disclosed to the appellant, the proper approach, it seems to me, is as follows. The first question which arises is whether the Tribunal had regard to any matter contained in the documents or to the information over and above what is contained in the delegate’s decision record in the exercise of the discretion in s 438(3)(a). If the Tribunal did not, then that is the end of the complaint or challenge. One does not have an issue under s 424A because of the interrelationship between the two sections as explained by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA), or for the reason that if the Tribunal did not have regard to such a matter, then as a factual matter and, in any event, it is unlikely s 424A(1)(a) was engaged. If the Tribunal did have regard to the matter, then it would be necessary to consider the exercise of the discretion under s 438(3)(b), and s 424A would be relevant at this point. Even if this approach is not correct and one goes straight to s 424A(1)(a), a similar first question arises and that is whether the Tribunal had regard to the documents or information.

81    With respect to the 2014 Certificate which is invalid, as I will explain below, the breach will only give rise to jurisdictional error if it was material. An issue (not the only one – see below) is whether the Tribunal had regard to the document or information.

82    After I had reserved my decision, the High Court delivered the Court’s decision in three appeals of which the first named is SZMTA. I invited the parties to make submissions as to whether the decision in SZMTA bore on the issues in this case and one other point which I discuss below (at [87]).

83    Before I turn to consider whether the Tribunal in fact had regard to the document or information, I explain why I hold that the approach I have identified is the correct one. In my respectful opinion, it is the approach mandated by Bell, Gageler and Keane JJ in SZMTA. Their Honours said (at [24], [30] and [47]):

Second, the Tribunal has a discretion under s 438(3)(b), after taking account of such advice as the Secretary may have given to the Tribunal under s 438(2)(b), to disclose to the applicant the information or any matter contained in the document. Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised. No doubt, the discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion.

…

A notification by the Secretary to the Tribunal that a document or information given by the Secretary to the Tribunal is a document or information to which s 438 applies is an event which alters the procedural context within which the Tribunal’s duty of review is to be conducted. If valid, the notification erects a procedural impediment to the otherwise unfettered ability of the Tribunal to take into account the document or information if the Tribunal considers it to be relevant to an issue to be determined in the review, constrains the power of the Tribunal under s 427(1)(c), and truncates the specific obligations of the Tribunal under ss 424AA, 424A and 425. The very fact of notification also changes the context in which the entitlement of the applicant under s 423 – to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review – falls to be exercised.

… Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

84    The Tribunal’s reasons are summarised above (see in particular [29] above). I think that the Tribunal was entitled to proceed on the basis that the DEU had expertise in document examination. That would have been a conclusion the Tribunal drew from its own knowledge and not something that arises out of the documents or information. The Tribunal said that it placed significant weight on the findings of the DEU as reported in the delegate’s decision record (my emphasis). Significantly, the Tribunal said that although (my emphasis) the delegate’s decision record did not provide information about the nature of the forensic examination by the DEU, the delegate’s decision record does report that the DEU found the birth certificate provided by the appellant was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added. In my view, this indicates quite clearly that the Tribunal was relying on, and only relying on, the findings in the delegate’s decision record. The Tribunal was noting something it did not have or did not take into account, that is, details of the nature of the forensic examination undertaken.

85    As I read the documents which are the subject of the 2014 Certificate, they do not include the DEU Report dated 28 January 2014 with respect to the birth certificate and the national identity card. However, what appears to be the Identity Assessment includes images of both the birth certificate and the national identity card under UV light and enhanced and, in the case of the birth certificate, what that process revealed, and the same in the case of the national identity card, and a statement of three features of the card which indicated that it was a counterfeit. As far as I can see, what the delegate stated as findings, and the Tribunal adopted, was a summary of the outcome (or outcomes) of the forensic examination carried out by the DEU. This is what the delegate did in what was referred to as the natural justice letter of 6 August 2015 and a different delegate did in her findings.

86    If the Tribunal had had regard to the documents and information, then the Tribunal would not have said that the nature of the forensic examination was not referred to in the delegate’s findings. It is true that was not referred to in the findings, but I cannot think there would have been any point in saying that if the Tribunal had had regard to the documents and information where there was some reference to at least one aspect of the forensic examination.

87    The appellant submitted that I should infer that the Tribunal did have regard to the documents and information from the circumstance, were it otherwise, the Tribunal would not have carried out its review function properly in doing no more than relying on the findings in the delegate’s decision record. Whatever the force of the proposition about the proper execution of the Tribunal’s review function, I am satisfied that the Tribunal relied solely on the findings in the delegate’s decision record. The broader proposition about the Tribunal’s review function was not developed. There might have been some force in the proposition in the case of the national identity card where the only “finding” was that it was counterfeit. The same cannot be said of the birth certificate. I consider that the Tribunal was entitled to proceed on the basis of reliable information that the DEU, with expertise in document examination, had concluded that the birth certificate had been fraudulently altered, with entries for birth date, birth location and issue date removed and then replacement entries added. I should say that when I called the parties back to give them the opportunity to make submissions concerning SZMTA, I also asked the parties, and in particular the appellant, to confirm their position concerning what I call the broader proposition about the Tribunal’s review function. The appellant confirmed that he was not raising as a separate jurisdictional error a claim that the Tribunal erred in going no further than relying on the delegate’s findings.

88    Ground 1 must be dismissed.

Ground 2

89    Ground 2 is that the Tribunal unreasonably did not exercise its discretion to disclose matters subject to the Certificates.

90    The 2014 Certificate is, as I have said, invalid. The issue in relation to this Certificate and the information it covers, is one of materiality. Was the breach of the Act material in the sense that had the breach not occurred, or put another way, had the Act been complied with, was there a realistic possibility that the Tribunal’s decision could have been different? I deal with this issue in connection with Ground 4.

91    The 2013 Certificate and the Notification are valid. The Tribunal notified the appellant of the fact of the Certificate and the Notification, but did not provide the documents or information to the appellant. As I have said in connection with Ground 1, the first question for the Tribunal was that which arose under s 438(3)(a) namely, whether it would have regard to any matter in the documents or information covered by the 2013 Certificate and the Notification. That involved the exercise of a discretion by the Tribunal. If the Tribunal decided not to have regard to any matter contained in the documents or information, and assuming as was the case here that the documents or information were adverse, or at least not favourable to the appellant’s case, then issues about the exercise of the discretion in s 438(3)(b) and the engagement of s 424A(1)(a) do not arise. For reasons I have given in relation to Ground 1, I find that the Tribunal did not have regard to the documents or information. In those circumstances, the exercise of the discretion in s 438(3)(b) did not arise.

Ground 4

92    Ground 4 is that the decision is affected by jurisdictional error because the Tribunal acted on an invalid Certificate, being the 2014 Certificate.

93    I have found that the 2014 Certificate is invalid. As I have said, it is unclear whether the 2013 Certificate covered all of the documents and information (other than the screen shot) covered by the 2014 Certificate. For the purposes of the present discussion, I will assume that it did not.

94    The fact that the Tribunal is given an invalid certificate under s 438 of the Act does not of itself mean that the Tribunal decision is affected by jurisdictional error. In the joint reasons in SZMTA, their Honours said the following (at [42]–[44]):

There is a dispute between the parties as to what the applicant for judicial review must prove to establish jurisdictional error. The applicant parties (the appellants in CQZ15 and BEG15 and the first respondent in SZMTA) submit that an invalid notification is sufficient of itself to render the conduct of the review unauthorised. They rely alternatively on the reasoning in MZAFZ v Minister for Immigration and Border Protection to submit that the Tribunal can in each case be assumed to have acted on the invalid notification in a manner that is contrary to law.

The Minister submits that an invalid notification gives rise to jurisdictional error only if the notification causes the Tribunal to fail to comply with some distinct obligation imposed on the Tribunal. Examples might be where the notification causes the Tribunal to fail to take account of some item of evidence of such significance that the Tribunal is obliged to take it into account, or to fail to give the applicant adequate particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, as required by s 424AA or s 424A.

None of these submissions can be accepted. The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.

    (Citations omitted.)

95    A breach is material only if compliance could realistically have resulted in a different decision (SZMTA at [45]). Two questions must be considered in considering the issue of materiality. The first question is whether the Tribunal took the documents or information into account. Unless there is evidence in the Tribunal’s reasons or elsewhere of the Tribunal giving active consideration to the exercise of the discretion under s 483(3), a court is justified in inferring that the Tribunal paid no regard to the documents or information in reaching its decision (SZMTA at [47]). For the reasons I have given in relation to Ground 1, the documents or information which were the subject of the Certificate were not taken into account.

96    The second possibility is, assuming the Tribunal paid no regard to the documents or information, the question arises as to whether there is a realistic possibility that the Tribunal’s decision could have been different if the documents or information had been taken into account.

97    This leads to an argument developed by the appellant in greater detail at the second hearing, rather than the first. It is that there was favourable information in the documents which were the subject of the invalid certificate (i.e., the 2014 Certificate) and the invalidity deprived the appellant of the realistic possibility of a different result.

98    The appellant submitted that this case was more like the decision of the Full Court of this Court in Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 where the Court said the disclosure of the letter from the parish priest gave rise to the realistic possibility of a different result.

99    The steps in the appellant’s argument were as follows:

(1)    the age determination process contained information which was favourable to the appellant in that some of the assessments suggest that he was under the age of 18 years;

(2)    the age determination process was the subject of a certificate which was invalid;

(3)    the Tribunal erred in finding and then stating at the hearing that the age determination process was also the subject of another certificate was valid (i.e., the 2013 Certificate);

(4)    had the Tribunal not erred as indicated in (3), the appellant would have had the information and could have relied on it; and

(5)    in the circumstances, there was a realistic possibility of a different result.

100    At the second hearing, the Minister noted that this was a departure from the appellant’s primary case which was that he had been denied access to material which was adverse to him.

101    I have already referred to an element of uncertainty concerning whether the 2013 Certificate covered the age determination review (at [49]). Assuming it did, there is no jurisdictional error because the Tribunal did not rely on any information in the documents in a manner adverse to him and it was only information that fell into that category that was the subject of the appellant’s post hearing submission.

102    If it did not and that had been recognised by the Tribunal, the appellant would have had access to the age determination process and may have relied on it. Is there a realistic possibility that the result would have been different? I am of the opinion that the answer to that question is no. The issue was whether the documents themselves were bogus and not directly, at least, the age of the appellant. Opinion evidence about the appellant’s physical characteristics and what they suggest about the appellant’s age bears no more than a remote link to the question whether documents have been altered without authority.

103    Although the 2014 Certificate was invalid, the breach was not material and did not result in jurisdictional error.

conclusion

104    The appeal must be dismissed with costs.

Associate:    

Dated:    2 April 2019