FEDERAL COURT OF AUSTRALIA

Parvin v Minister for Immigration and Border Protection [2019] FCAFC 86

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    I agree with the orders proposed by O’Callaghan J for the reasons given by his Honour.

Associate:

Dated:    29 May 2019

REASONS FOR JUDGMENT

PERRY J:

2    I also agree with the orders proposed by O’Callaghan J for the reasons given by his Honour.

Associate:

Dated:    29 May 2019

REASONS FOR JUDGMENT

O’CALLAGHAN J:

introduction

3    The appellant appeals from a decision of a judge of the Federal Circuit Court of Australia dismissing an application to review a decision of the second respondent (the Tribunal) which affirmed a decision of a delegate of the first respondent (the Minister) to cancel the appellant’s Spouse (Permanent) (Class BC) Subclass 100 visa (the spouse visa). The decision of the primary judge is Parvin v Minister for Immigration (No 2) [2016] FCCA 2120.

4    This appeal was heard on 10 May 2018. The parties later agreed that the court should defer giving judgment until the High Court had decided Minister for Immigration and Border Protection v SZMTA and two other related matters, which it did on 13 February this year. See Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 93 ALJR 252 (SZMTA). The parties subsequently exchanged written submissions in relation to those reasons.

5    The substance of both appeal grounds was that the Tribunal was in breach of its obligations to provide relevant information to the appellant under the Migration Act 1958 (Cth) (the Migration Act).

the facts

6    The appellant is a citizen of Bangladesh. She married her sponsor, Mr Anwar Hussain, in Bangladesh on 20 November 2005. She applied for the spouse visa in March 2006, and arrived with her husband in Australia in November 2007. The appellant was granted the spouse visa in November 2008. The appellant claimed that after her arrival in Australia she and Mr Hussain lived together in a genuine married relationship at the home of her sister and brother in Woodcroft in New South Wales.

7    Shortly after having obtained her spouse visa, the appellant told the Minister’s Department (the Department) that her marriage had broken down, that her husband had moved out, and that he had obtained a divorce in Bangladesh in March 2009.

8    On 8 December 2010, an officer of the Department wrote to the appellant enclosing a “Notice of Intention to Consider Cancellation” of her visa on the basis that she had given false answers to the Department in her visa application, and had thereby not complied with s 101 of the Migration Act. The letter said that the Department had received non-disclosable information, as defined in s 5 of the Migration Act, that she and Mr Hussain had not lived together in a spousal relationship, and that she entered into the relationship for the sole purpose of obtaining permanent residence in Australia. Relevantly, under the heading “Particulars of the possible non-compliance”, the letter said:

You did not comply with s 101(b) of the [Migration] Act because you provided an incorrect answer in support of your spouse application lodged on 23 March 2006. On [that application form] you provided an incorrect answer to Question 74 which asks:

“Did you enter into this relationship with your partner solely to gain permanent residence in Australia?”

You answered: “No”.

…

You did not comply with s 101(b) of the [Migration] Act because you provided an incorrect answer on your ‘Statement of Partner Relationship’ that you provided to the Department on 11 May 2008 in support of your spouse application. You provided an incorrect answer to Question 1 which asks:

1.”State whether you and your partner are currently living at the same address. Provide details on how long you have lived at the same address. List all the people who live there with you and their relationship to you. If you are living separately, state reasons why and whether this is a permanent arrangement.”

You answered:

“Me and my husband living at this address since I arrived in Australia from 27.11.07. The people who live with me in three bedroom house [are:]

Anwar Hussain (Husband)

[Daughter]

[Brother in law]

[Sister]

[Niece]

[Nephew]

…

The Department has received non disclosable information as defined under s 5(1) of the [Migration] Act, which verifies that you and Mr Anwar Hussain, your husband and sponsor, have not lived together in a genuine spousal relationship as defined under section 5F of the [Migration] Act, and that you entered into a relationship with Mr Hussain for the sole purpose of obtaining permanent residence in Australia.

9    Shortly thereafter, the appellant provided to the department three statutory declarations: her own, her ex-husband’s, and one from her ex-husband’s brother, each of them attesting to the genuineness of her relationship with Mr Hussain and to the circumstances which led to the breakdown of the marriage.

10    The appellant’s statutory declaration said, among other things, the following:

1.    My relationship with my ex-husband Anwar Hussain … was genuine and continuing from the date of our marriage in Dhaka on 20 November 2005 until after my permanent spouse Visa was granted on 12 November 2008.

2.    Following the grant of my [visa] … on 25 September 2007 whilst I was in Bangladesh I arrived in Australia on 27 November 2007 together with my daughter … who was 9 years old at time.

3.    …

4.    From the date of my arrival in Australia on 27 November 2007 until the present I, together with my daughter have lived at [an address].

5.    [The address] is a house owned by Anwar Hussain’s brother, Abul Kashem.

6.    Abul Kashem lived at [the address] from the time I arrived in Australia and continues to live at the house at the present time.

7.    Myself and Anwar Hussain shared one of the bedrooms at [the address] from the date of my arrival in Australia on 27 November 2007 until after 12 November 2008 when as our martial (sic) relationship broke down.

8.    …

9.    …

10.    Anwar Hussain also has an 18-year old son … from a de facto relationship with Dalia Taguiam, a Filipina-Australian.

11.    Unfortunately neither Anwar Hussain’s ex-de facto partner, Dalia Taguiam nor [his] 3 children accepted my marriage to their father.

12.    Since I arrived in Australia, Dalia Taguiam has harassed and abused me. For example on one occasion [she] came to our residence and physically attacked me by pushing me against the wall and shouting profanities all in the presence of my young daughter.

13.    …

14.    ….

15.    ….

16.    After our relationship broke down Anwar Hussain obtained a Divorce of our marriage in Bangladesh and I understand that he then married Dalia Taguiam in early 2010.

17.    I did not enter into my relationship with Anwar Hussain solely to gain permanent residence in Australia. Our relationship was genuine and continuing from the (sic) when we were married in Dhaka until after my permanent residence spouse Visa was granted on 12 November 2008.

11    Along similar lines, Mr Hussain declared, among other things, that:

(a)    he had two grown up daughters from his first marriage;

(b)    he separated from his first wife in 1987, and then met Dalia Taguiam with whom he entered into a de facto relationship and had one son by her;

(c)    the relationship with Ms Taguiam ended in 2004, and Mr Hussain moved out of the de facto marital home and in with his brother;

(d)    Mr Hussain married the appellant in Dhaka on 20 November 2005;

(e)    the appellant arrived in Australia with her then 9 year old daughter, sponsored by Mr Hussain, on 27 November 2007;

(f)    the three of them lived with his brother and his family from then until after 12 November 2008 when the marriage began to break down;

(g)    none of Mr Hussain’s three children accepted his marriage to the appellant;

(h)    Mr Hussain left the appellant and they subsequently obtained a divorce; and

(i)    Mr Hussain married Ms Taguiam on 20 February 2010.

12    It might, on one view of it, be passing strange to imagine that most of the matters which the appellant now complains not to have been told about by the Tribunal were largely consistent with what the appellant and Mr Hussain had themselves told the department in those statutory declarations, but as I will explain below, that is precisely the case.

13    On 28 March 2012 the Intelligence Section of the Department requested information from Centrelink. The response included information that the relationship between the appellant and Mr Hussain ended on 29 June 2008, which was five months before the grant of her permanent visa.

14    The appellant was notified by letter dated 30 May 2012 that her visa was cancelled pursuant to s 109 of the Migration Act on that day. The record of the cancellation decision included the following:

On 19 October 2009, 3 February 2010, 4 January 2011, 8 February 2011, 11 February 2011 and 9 March 2011 the Department received non-disclosable information verifying that the visa holder and Mr Hussain, her sponsor, had not lived together in a genuine spousal relationship and that the visa holder entered into a relationship with Mr Hussain for the sole purpose of obtaining permanent residence in Australia.

On 29 March 2012, the Department received confidential information verifying that the relationship the visa holder entered into with Mr Hussain for the purpose of obtaining permanent residence ended on 29 June 2008, that is approximately 5 months before the grant of the [spouse visa].

15    A lawyer acting on the appellant’s behalf filed an application for review of the cancellation decision on 1 June 2012, together with supporting documents.

16    On 6 June 2012 the Tribunal received a certificate pursuant to s 375A of the Migration Act, signed by a delegate of the Minister.

17    The certificate was in these terms:

I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folios 1-56, 81-83, 89-93, 120-129, 186 & 228-246 of file number CLF2010/166108 and folios 73-77, of file number OSF2006/011180 would be contrary to the public interest because:

(a) folios 1-56, 81-83, 89-93, 120-129, 186 & 228-246 and folios 73-77 contain information provided in confidence and where the provider of the information has not consented to the disclosure of the information to the review applicant.

As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review pursuant to s 375A(2)(b) of the Migration Act 1958.

18    On 6 March 2014 the Tribunal sent a letter to the appellant (the s 359A letter). It read relevantly:

I am writing in relation to the applications for review made by you in respect of decisions to cancel [the spouse visa].

In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

Please note, however, that the Tribunal has not made up its mind about the information.

The particulars of the information are:

•    The Department received information from a number of different sources between October 2009 and April 2011 that you and your sponsor had not lived together in a spousal relationship at any time and that you married your sponsor for the sole purpose of obtaining permanent residence in Australia.

The information is relevant because you have suggested in written statements and in your evidence before the Tribunal that the sole source of the confidential information was the sponsor’s current wife and former de facto spouse, Ms Dalia Hussain. You claim that the information provided was false and motivated by jealousy on her part and that you and your sponsor were in a genuine spouse relationship until you separated some 3 months after the grant of permanent residence in November 2008.

However, the confidential information received between October 2009 and April 2011 was provided by a significant number of different sources and was supported by other documents. If the Tribunal accepts this information as correct it may conclude that you have breached s 101(b) of [the Migration Act] and that there are grounds for cancellation of your permanent residence visa.

You are invited to give comments on or respond to the above information in writing.

(Emphasis in italics added).

19    The appellant replied to the s 359A letter. Her response commenced:

Dear Member:

I am writing in response to the letter from MRT dated 06 March 2014. In the letter, the below question was raised.

•    The department received information from [a] number of different sources between October 2009 and April 2011 that you and your sponsor had not lived together in a spousal relationship at any time and that you married your sponsor for the sole purpose of obtaining permanent residence in Australia.

This information is relevant because you have suggested in your written statement and in your evidence before the Tribunal that the sole source of the confidential information was the [sponsor’s] current wife and former de facto spouse, Ms Dalia Hussain. You claim that the information provided was the (sic) false and motivated by jealousy on her part and that you and your sponsor were in a genuine spouse relationship until you separated some 3 months after the grant of permanent residence in November 2008.

However, the confidential information received between October 2009 and April 2011 was provided by a significant number of different sources and was supported by other documents.

(Emphasis in original).

20    The appellant’s letter then went on to respond to the Tribunal’s letter of 6 March 2014, saying, among other things, that her relationship with her ex-husband did not work out due to his ex-partner making their lives difficult; that she lived with her husband; that she had been assaulted and threatened numerous times by Ms Taguiam; and that at the time they were married, Mr Hussain was living at the house they were to live in together and waiting for her to come to Australia.

21    The letter also said that Mr Hussain owned together with Ms Taguiam a house, but that he had not sold that house:

…for the sake of the children so the children would have a place to live. Hence, his names (sic) stayed on utility bills. This is because the house is his own property, not a rental property. [Mr Hossain] did visit his children while [he] and I were living [together]. Hence he didn’t change his name on any utility bills. [Ms Taguiam] had taken the advantage of the utility bills to show that [Mr Hossain] was living [with her], whilst in reality, [Mr Hossain] was living [with me]. Please note that [Mr Hossain’s] driving licence, bank account, his work pay slip all state his address as [living with me]. [Ms Taguiam] only wanted to mislead the Department and convince the department to believe her and her friends.

The Tribunal’s decision

22    On 2 October 2014, the Tribunal notified the appellant that it had decided to affirm the decision to cancel her visa.

23    The Tribunal found that on 23 March 2006 the appellant had given incorrect information to the Department.

24    It reasoned as follows:

The Tribunal finds that on 23 March 2006 [the appellant] lodged an application in which she stated that she had not entered into a relationship with Mr Hussain solely to gain permanent residence in Australia.

The Tribunal finds that on 11 May 2008 [the appellant] provided a Statement on Partner Relationship in which she stated in answer to question 1 as to whether she and her partner were currently living at the same address “Me and my husband living at this address since I arrived in Australia from 27 November 2007[“].

…

[The appellant] has denied that she provided an incorrect answer in the application form and Statement of Relationship. She stated that she was in a genuine relationship with Mr Hussain from the time of their marriage on 20 November 2005 until after she was granted permanent residence on 12 November 2008. She has given oral evidence and written statements to this effect and this has been supported by the evidence of … her brother in law…, [statutory declarations from friends of her ex-husband] and [her] landlord… She has also provided a bank statement and a small number of photographs to support her evidence.

On the other hand the Tribunal has considered evidence which consists of a number of statements made by a number of different persons which state, and which are also supported by a variety of documents, that Mr Hussain was living in [a] de facto spouse relationship with Ms Dalia Taguiam, his 2 daughters and his son … throughout the period in which he and [the appellant] claimed that they were living together in a spouse relationship …

The Tribunal has weighed all the evidence before it and has come to the conclusion that [the appellant] married Mr Hussain and claimed that they were in a genuine spouse relationship solely to gain permanent residence for herself and her daughter.

When it was first put to [the appellant] that she and Mr Hussain had not been in a spouse relationship and she had given incorrect information in her application and Statement of Relationship she stated that the source of the allegation was Ms Dalia Taguiam and that her motivation was jealousy. However, the information has come from a number of different sources and is supported by other documents. When this was put to Ms Parvin pursuant to s359A of the Act she claimed that Ms Taguiam and a group of friends from the same ethnic background had conspired to provide information suggesting that she and Mr Hussain were not in [a] genuine relationship during the relevant time. However, the Tribunal does not accept this explanation.

The information provided to the Department from various confidential sources (in their own words) was that Mr Hussain and Ms Dalia Taguiam were in a de facto relationship for 20 years before they married on 20 February 2010. They have one son who is now over 20 years of age. In particular between 2007 and 2010 it was observed that the couple lived together in the [address] and have never lived separately and apart. They attended social functions together as a couple.

Further the information indicated that [the appellant] lived … with her sister and brother in law from her arrival in Australia in 2007 and that Mr Hussain and Ms Taguiam were regular visitors to [the appellant’s] address.

…

…[T]he Tribunal has weighed the evidence and prefers the evidence which suggests that Mr Hussain was not living in a spouse relationship with [the appellant] from 2007 to 2009. That evidence is written in the hands of the declarants; it sets out specific observations and comes from a variety of different sources.

…

Taking all of the above into account, the Tribunal finds that the information [the appellant] gave in the application form as set out above is an incorrect answer to a question for the purpose of s 101(b) of the [Migration] Act.

The Tribunal also finds that the information given by [the appellant] in the “Statement on Partner Relationship”, as set out above, is taken to be an answer on the application form for the purpose of s101(b) in accordance with s.99 of the [Migration] Act.

The Tribunal finds that [the appellant] filled in or completed her application form and Statement on Partner Relationship in such a way that incorrect answers were given or provided. The Tribunal finds that [the appellant] breached s101 of the [Migration] Act.

For the reasons given above, the Tribunal finds that there was non-compliance with s.101 by [the appellant] in the way described in the s.107 notice.

25    It was common ground that the matters referred to in the italicised passages from the Tribunal’s reasons were not referred to in the s 359A letter.

The judgment below

26    The appellant served a subpoena on the first respondent, requiring production of the records of the information the subject of the s 375A certificate. The Minister objected to production and the court below upheld the objection on the ground that the information sought by the subpoena was protected by public interest immunity.

27    In the court below, the appellant challenged the validity of the certificate issued by the delegate under s 375A of the Migration Act.

28    The primary judge dismissed that challenge and the appellant no longer pursues the point. This appeal was thus conducted on the basis that the certificate is valid.

29    The primary judge held that the information that Mr Hussain and Ms Taguiam had been observed living together and attending social functions as a couple, and that they were regular visitors to the appellant’s home, was subsumed within the particulars of information given to the appellant, and so did not engage s 359A of the Migration Act. He also held that clear particulars do not require the giving of evidence, and that “[o]n no view was the reference to confidential information being in the hands of particular declarants’ (sic) information that could enliven any obligation under s 359A”. He also rejected the submission that the particular information was not “non-discoverable information within the meaning of s 5 of the [Migration] Act”. The primary judge’s reasons were as follows:

25.    In relation to ground 2, it was submitted that the s.359A letter failed to provide clear particulars referrable to the content of three matters relevantly as follows:

(i)    That it had been observed that the applicant’s former husband and Dalia Taguiam were living together and attended social functions as a couple whilst the applicant and her former husband were allegedly in a genuine marital relationship.

(ii)    Mr Hussain and Ms Taguiam were regular visitors to the applicant’s home.

(iii)    The allegedly confidential documents were written “in the hands of the declarants”, and set out specific observations.

26.    Section 359A identifies that it is for the Tribunal to give to the applicant, in a way the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason or part of the reasons for affirming the decision that is under review. Clear particulars do not require the giving of evidence. The matter referred to by the applicant in the three particulars referred to above was, in substance, evidence in respect of the particular that the visa applicant and the sponsor had not lived together in a spousal relationship at any time. On no view was the reference to confidential information being in the hands of particular declarants’ (sic) information that could enliven any obligation under s.359A of the Migration Act 1958.

27.    Whilst I accept that the evidence relating to particulars (i) and (ii) are matters that can be said to negate the applicant’s claim, both (i) and (ii) are matters subsumed within and clearly identified by the particulars provided to the applicant that the applicant and the sponsor had not lived together in a spousal relationship. I reject the submission that the matters identified in particular[s] (i) and (ii) engaged any obligation under s.359A beyond the content of the s.359A letter sent on 6 March 2014.

28.    I find that the Tribunal did, in the circumstances, provide clear particulars of the information that the Tribunal considered would be a reason or part of the reasons for affirming the decision that is under review, and that the applicants had an explanation that made it clear as to why the information was relevant to the review and were given an opportunity to comment and respond, consistent with s.359A.

29.    I reject the submission that the information identified by Ms Moore was not “non-discoverable information” within s.5 of the [Migration] Act. Further, the founding of an action for breach of confidence does not require the cause of action to be established. Objectively, there were sufficiently arguable grounds to found an action where the informants had been assured of continuing confidentiality. I reject the submission that the information in Exhibit 2 of the further provided affidavit was not “non-discoverable information”. The particulars given in the s.359A letter were sufficient.

30.    The allegation of a contravention of s.359A of the Migration Act 1958 is not made out. No jurisdictional error is made out by ground 2.

(Italics in original).

This appeal

The grounds

30    The appellant applied for leave to rely on an amended notice of appeal. The Minister did not oppose the grant of such leave, provided that the word “purportedly” was excised from ground 3.

31    I would therefore give leave for the appellant to rely on the following two grounds of appeal:

 1.    [deleted]

2.    The Court Below erred in finding that the Tribunal had complied with section 359A of the Migration Act.

Particulars

(a)    Error in finding that the following information did not have to be disclosed to the appellant pursuant to 359A;

(i)    That it had been observed that the appellant’s former husband and Dalia Taguiam (the husband’s current wife) were living together and attended social functions as a couple whilst the appellant and her former husband were allegedly in a genuine marital relationship.

(ii)    That the appellant’s former husband and Ms Taguiam were regular visitors to the appellant’s home.

(iii)    The allegedly confidential documents were written in the hands of the declarants, and set out specific observations.

(b)    Error in finding that the matters referred to in particulars (a)(i) and (ii) above were subsumed within and clearly identified by the particulars provided to the [appellant].

(c)    [deleted]

(d)    Error in finding that the reference to confidential information being in the hand writing of particular declarants was not information that could not enliven any obligation under s.359A of the Migration Act 1958.

3.    The Court Below erred in failing to find that the Tribunal had acted in breach of the requirements of natural justice in that it failed to disclose the existence of a certificate purportedly issued under s.375A of the Migration Act.

32    In summary, ground 2 is that the Tribunal erred because it did not disclose the specified confidential information. Ground 3 is that it erred because it did not disclose the existence of the s 375A certificate.

33    During the course of his oral submissions, counsel for Ms Taguiam submitted that the “confidential information” that was not disclosed was the information contained in the italicised portion of the extract of the Tribunal’s reasons set out at paragraph [24] above, namely that:

(a)    Mr Hussain and Ms Taguiam were in a de facto relationship for 20 years before they married on 20 February 2010;

(b)    it was observed that the couple lived together, they have never lived separately and they attended social functions together as a couple;

(c)    the appellant lived at the address with her sister and brother in law from her arrival in Australia in 2007 and that Mr Hussain and Ms Taguiam were regular visitors to the address; and

(d)    the evidence was written in the hands of the declarants, sets out specific observations, and comes from a variety of different sources.

34    As counsel for the Minister put it in his written outline of submission: “On his own evidence, prior to his marriage to the appellant, Mr Hussein lived in a de facto relationship with Ms [Taguiam]. He then married the appellant, who also happened to be the sister of his brother’s wife. He subsequently divorced the appellant three months after she was granted her permanent visa, only then to marry his former de facto partner Ms [Taguiam]”. (Appeal book references omitted).

35    In any event, as alluded to earlier, many of the matters which the appellant now complains not to have been told about by the Tribunal were largely consistent with what the appellant and Mr Hussain had themselves told the department in their statutory declarations. That is, one would have thought, an unpromising start to a case founded on the proposition that the appellant has been denied an opportunity to give evidence or make arguments to the Tribunal, and thereby deprived of the possibility of a successful argument.

36    For example, the fact that “Mr Hussain and Ms Taguiam were in a de facto relationship for 20 years before they married on 20 February 2010” is relevantly indistinguishable from what the appellant and Mr Hussain said in their statutory declarations – viz, that Mr Hussain and Ms Taguiam had commenced a de facto relationship in 1987, which ended in 2004.

37    Secondly, the appellant said that Mr Hussain married Ms Taguiam in early 2010 – which makes the complaint that the Tribunal did not disclose that fact to her somewhat hollow.

38    Thirdly, the appellant declared that she lived at the same address from the date of her arrival in Australia on 27 November 2007 until after 12 November 2008. That is hardly inconsistent with the information relied on by the Tribunal that the appellant lived at that address with her sister and brother in law from her arrival in Australia in 2007.

consideration

39    It is convenient first to set out the relevant provisions of the Migration Act.

40    Section 375A of the Migration Act provides:

375A Certain information only to be disclosed to Tribunal

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

(a)    has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate(other than a reason set out in paragraph 375(a) or (b)); and

(b)    has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

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

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

(b)    the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

41    Section 359A of the Migration Act provides that the Tribunal must provide an applicant for review with particulars of information which might form part of a decision by it to affirm the decision under review. It provides:

359A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) 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.

42    It was common ground that s 375A of the Migration Act prohibits disclosure by the Tribunal of particulars of information which is the subject of the s 375A certificate; that the existence of the certificate should ordinarily be disclosed to permit the applicant to make submissions about it; and that a failure to do so may give rise to a denial of procedural fairness. See also Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 at 309, [12], and 317-318 [53]-[59].

43    It was also common ground that “[b]reach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby deprive the applicant of the possibility of a successful outcome”. See SZMTA at 257, [2].

44    SZMTA involved the operation of s 438 which is in Part 7 of the Migration Act (which deals with protection visas). Section 375A is, on the other hand, in Part 5 of the Migration Act, which deals with most classes of visas other than protection visas. The provisions are not the same. As the Full Court noted in Minister for Immigration and Border Protection v Singh at 312, [24], “there are significant textual differences between s 375A and s 438. In particular, s 438(3)(b) permits what s 375A does not, viz, disclosure to an applicant of the material subject to the certificate”.

45    A large part of the written submissions filed by the parties in respect of SZMTA dealt with the question of how, if at all, the reasoning of the High Court in SZMTA affects the Full Court’s obiter observations about s 375A in Minister for Immigration and Border Protection v Singh. See, by way of example, the first respondent’s Outline of Supplementary Submissions dated 22 March 2019 at [2]-[16], and the whole of the appellant’s Reply, dated 29 March 2019.

46    It is not necessary to resolve whether what the Full Court said in Minister for Immigration and Border Protection v Singh about s 375A of the Migration Act should be revisited in the light of SZMTA. The only issue that arises on the appellant’s case is whether the failure to disclose the existence of the certificate and the confidential information, as defined, was material – that is, did those failures operate to deny the appellant an opportunity to give evidence or make arguments to the Tribunal and thereby deprive her of the possibility of a successful outcome.

47    In any event, a number of the observations made by the plurality in SZMTA relate to the obligation of a Tribunal to accord procedural fairness generally, and obviously apply as much to the non-disclosure obligations under s 375A as they do to s 438.

48    First, where materiality is put in issue in an application for judicial review of a decision of a tribunal, it is a question of fact in respect of which the applicant bears the onus of proof. See SZMTA at 257, [4]. And like any ordinary question of fact, “it is to be determined by inferences drawn from evidence adduced on the application”. See SZMTA at 263, [46].

49    Secondly, “… procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded”. See SZMTA at 261, [29], citing Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 339, [43]-[44] and 343-344, [62]-[67].

50    Thirdly, “[b]ecause procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a ‘practical injustice’: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision”. See SZMTA at 262-263, [38], citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14, [37] and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341-342, [56]-[57]. As the plurality went on to say (at 264, [49]):

Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst “[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals (citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 and comparing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 [104], 128 [122]).

51    Fourthly, treating sections such as ss 375A and 438 of the Migration Act as applicable to information or documents, “the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision … 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”. See SZMTA at 264, [47].

52    In this case, it is tolerably clear that because the Tribunal referred to part of the undisclosed information, which it referred to as originating from “confidential sources”, that information must have been regarded by the Tribunal as being relevant to its decision.

53    The short point of the appellant’s case on ground 3 (which both parties addressed first, before ground 2) as it was put in counsel’s Outline of Supplementary Submissions dated 1 March 2019 at [13] is that “[d]isclosure to the appellant of the existence of the s. 375A certificate would have permitted her lawyers to have requested the Tribunal to disclose, consistently with Burton at [40], information that was not covered by the certificate”. (Emphasis added). She says that had that happened, the Tribunal could have disclosed the facts that it had been observed that:

(1)    between 2007 and 2010 Mr Hussain and Ms Dalia Taguiam were living together, that they have never lived separately and apart, and that they attended social functions together as a couple; and

(2)    the appellant lived with her sister and brother in law from her arrival in Australia in 2007 and that Mr Hussain and Ms Taguiam were regular visitors to that address.

54    The appellant says such a disclosure would have permitted the appellant an opportunity to adduce evidence to the contrary.

55    The submission is, and must be, limited to a case that particulars of the confidential information should have been given because: (i) the appellant accepts that the certificate was valid; (ii) s 375A prevents the information or documents subject to the certificate from being disclosed to the appellant; and (iii) s 375A requires the Tribunal to conduct its review without disclosing that information or those documents. See Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 at [40] and [42].

56    Thus understood, the appellant’s case is that the Tribunal should have given particulars of the confidential information, without disclosing the information itself. That is, in substance, the same point that arises under ground 2 of the Amended Notice of Appeal – namely, whether the Tribunal failed to comply with the obligation under s 359A of the Migration Act to give clear particulars of adverse information.

57    In any event, as the Minister submitted, the Minister’s delegate in fact had invited the appellant to comment on non-disclosable information, which suggested that the appellant and Mr Hussain had not lived in a “genuine spousal relationship” and that the appellant had entered the relationship for “the sole purpose of obtaining permanent residence in Australia”. The appellant was expressly told in the delegate’s letter of 30 May 2012 that her visa was cancelled because “the Department received non-disclosable information verifying that the visa holder and Mr Hussain, her sponsor, had not lived together in a genuine spousal relationship and that the visa holder entered into a relationship with Mr Hussain for the sole purpose of obtaining permanent residence in Australia” and that it had “received confidential information verifying that the relationship the visa holder entered into with Mr Hussain for the purpose of obtaining permanent residence ended on 29 June 2008, that is approximately 5 months before the grant [of the visa]”. See [14] above.

58    The Tribunal also invited the appellant to comment on information received from “a number of different sources”. See [18] above.

59    As the Minister submitted, the appellant and her solicitor were thus well aware that the Tribunal had before it relevant confidential information. In those circumstances, it was open to the appellant to have requested further detail of the confidential information, to the extent the Tribunal was permitted to disclose it.

60    It follows, in my view, that the non-disclosure of the certificate did not deprive the appellant of any opportunity to give evidence or make arguments to the Tribunal and thereby to deprive her of the possibility of a successful outcome. It follows that no jurisdictional error is made out in respect of ground 3.

61    As for ground 2 – that the Tribunal did not comply with s 359A because it did not disclose the confidential information – it may be accepted that the two items of information referred to in subparagraphs 2(a)(i) and 2(a)(ii) of the amended notice of appeal, at [31] above, viewed in isolation, could be said to negate the appellant’s claim. See SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at 1195, [17]. But, consistently with the conclusion of the primary judge, those two items of information were self-evidently subsumed within the proposition, of which the appellant had been well aware since May 2012 (when she received the letter notifying her of the visa cancellation) and March 2014 (when she received the s 359A letter), that the Department had formed the view that the appellant was not, and, at all material times, had never been, in a genuine spousal relationship with Mr Hussain. In my view, the Tribunal complied with s 359A(1) by notifying the appellant that it had received information, in confidence, to that effect, and inviting her response. Cf Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 458, [34].

62    The only other item of non-disclosed information the subject of ground 2 concerns the confidential documents that were written “in the hands of” the declarants. The appellant’s counsel did not press this point in oral submissions, no doubt for the obvious reason that such a piece of information could not possibly enliven any obligation under s 359A, as the primary judge found.

63    It follows that no jurisdictional error is made out in respect of ground 2.

64    The appeal must therefore be dismissed with costs.

Associate:

Dated:    29 May 2019