FEDERAL COURT OF AUSTRALIA

BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The appellant is a national of Bangladesh. He arrived in Australia as a so-called “unauthorised maritime arrival”. He subsequently lodged an application for a Temporary Protection (subclass 785) visa under the Migration Act 1958 (Cth). A delegate of the Minister for Immigration and Border Protection refused to grant the appellant that visa. The matter was referred for review to the Immigration Assessment Authority, pursuant to the so-called “fast track review” process in Part 7AA of the Act. That review was unsuccessful from the appellant’s perspective. The Authority affirmed the decision to refuse his visa.

2    The appellant then challenged the Authority’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Act. That application was dismissed by the primary judge on 26 May 2017. The appellant now appeals from the decision of the primary judge.

background

3    In his visa application, the appellant claimed to fear harm in Bangladesh from persons associated with the Awami League on the basis of his membership of an opposing political party, Jamaat-e-Islami. He claimed to have been involved in the 2008 Parliamentary elections and to have been threatened, kidnapped and attacked by members of the Awami League in 2009. He left Bangladesh illegally by boat in October 2009.

4    On 13 May 2016, the Minister’s delegate refused to grant the appellant a temporary protection visa. In short terms, the delegate did not accept that the appellant was a member of Jamaat-e-Islami or that he had been harmed on that basis. The delegate rejected the appellant’s claims that he had been threatened or attacked by the Awami League. The delegate accepted that the appellant departed Bangladesh illegally but was not satisfied that he would face a real chance of persecution, or a real risk of significant harm, on that basis if he were to return to Bangladesh.

5    The appellant’s visa application was then referred for review to the Authority on 16 May 2016. The Authority affirmed the decision under review.

the AUTHORITY’S review

6    The matter was referred to the Authority in accordance with s 473CA of the Act, as the delegate was satisfied that the appellant was not an “excluded fast track review applicant” as defined in s 5 of the Act. Part 7AA of the Act accordingly applied to the matter.

7    Division 3 of Part 7AA deals with the manner in which reviews are to be conducted by the Authority. Within that Division, s 473DA provides as follows:

473DA Exhaustive statement of the natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

8    Section 473DB compels the Authority to undertake its review on the papers. That section provides as follows:

473DB Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

9    It may be noted that the ordinary position is that the Authority is not to accept or request any “new information”. There are, however, provisions that permit “new information” to be received or considered by the Authority in limited circumstances.

10    Section 473DC provides as follows:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

11    Section 473DD, however, places a limitation on the use of any “new information” (as defined in s 473DC(1)(a) and (b)) unless the following conditions are satisfied:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

12    Section 473DE provides as follows:

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

13    Due to the operation of s 473DB(1) of the Act, the appellant did not appear before the Authority to present evidence or advance arguments. The Authority did, however, exercise its discretion to obtain “new information”, being information concerning the candidates who stood in the 2008 national election in the appellant’s local constituency and the local election outcome. The Authority noted that it required that information to properly assess the appellant’s evidence and his claim to have been a member of Jamaat-e-Islami. The Authority stated that it was satisfied that there were exceptional circumstances to justify considering this new information, though it did not state what those exceptional circumstances were.

14    As events transpired, the fact that the Tribunal did not explain what exceptional circumstances existed to justify the consideration of the new information is of little moment. That is because the new information turned out to be of little significance. If anything, it supported the appellant’s claims.

15    After identifying the appellant’s claims to fear harm in Bangladesh, the Authority set out the content of an interview conducted in 2015 by the Minister’s delegate with the appellant in connection with his visa application. The Authority noted that the appellant was questioned in relation to his and his father’s involvement with Jamaat-e-Islami and his knowledge of the party. In particular, questions were asked of the appellant in relation to the candidates in the 2008 election in his local constituency and the name of Jamaat-e-Islami’s founder. No doubt, those questions were asked so as to test whether the appellant was genuinely involved with Jamaat-e-Islami at that time as he had claimed.

16    The Authority considered some articles that the appellant had apparently supplied in support of his claims to have suffered harm at the hands of the Awami League members. It noted that those articles did not provide any helpful information. The Authority instead referred to so-called “country information” prepared by the Department of Foreign Affairs and Trade, which tended to suggest that supporters or members of political parties in Bangladesh were not generally at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations.

17    It would appear that during the 2015 interview, the delegate raised with the appellant that his claims appeared to have evolved over time. In that context, the appellant acknowledged that he had provided incorrect information when he was first interviewed upon his arrival in Australia. That information was that he had travelled to Australia because he was poor and would like to work. He told the interviewer in the 2015 interview that he provided that incorrect information because he did not understand the system in Australia and thought that if he shared information concerning his political activities, he would be sent back to Bangladesh.

18    The Authority, however, considered that the fact that the appellant did not claim any involvement with a political party when he was interviewed upon his arrival in Australia undermined the credibility of his claim to fear harm on the basis of his membership of Jamaat-e-Islami. The Authority also considered that some of the appellant’s claims were vague and implausible. It identified various inconsistencies in the appellant’s evidence and noted that the appellant was unable to offer anything more than basic information about Jamaat-e-Islami and its current situation.

19    The Authority ultimately found that the appellant was not a member or supporter of Jamaat-e-Islami and rejected all his claims to fear harm or persecution on that basis. The Authority was accordingly not satisfied that the appellant faced a real chance of harm because of his illegal departure from Bangladesh or because he had sought asylum in Australia. In relation to the complementary protection criterion in s 36(2)(aa) of the Act, the Authority relied on its anterior findings of fact to find that the appellant did not face a real risk of significant harm upon his return to Bangladesh. The Authority accordingly affirmed the decision not to grant the appellant a temporary protection visa.

the circuit court proceedings and judgment

20    Regrettably, like many other asylum seekers in his position, the appellant was not legally represented in the proceedings in the Circuit Court. Not surprisingly, then, the grounds of review set out in his application were far from ideal in terms of their clarity and comprehensibility. It is unnecessary to set the grounds out in full. They are extracted in full in the Judgment of the primary judge at paragraph 16. The grounds erroneously, though perhaps understandably, referred to the decision-maker as the Administrative Appeals Tribunal, not the Authority.

21    More fundamentally, it would probably be fair to characterise the grounds as amounting to little more than broad and general assertions that both the delegate and the Authority erred by not accepting his claims. The primary judge noted in the Judgment that he had explained to the appellant that he did not have power to revisit the merits of his visa application and could not make fresh findings of fact. His Honour found, in that context, that the appellant’s grounds reflected, in substance, little more than a disagreement with the adverse findings of the Authority and an invitation to the court to engage in impermissible merits review.

22    His Honour found that the adverse credibility findings made by the Authority were open to it, particularly in circumstances where such findings had also been made by the delegate. In relation to the appellant’s contention that the Authority’s credibility findings were not supported by evidence, the primary judge noted that there was no basis for such a contention, and stated that the credit findings were a matter of fact for the Authority. His Honour found that there was no substance in the assertion that the adverse credit findings were unreasonable. The primary judge also found that the Authority had afforded the appellant an opportunity to provide any new information and put on submissions, and had therefore complied with its procedural fairness obligations.

23    There was, the primary judge concluded, nothing to support the assertion that the Authority failed to bring an impartial mind to its determination of the review. The primary judge noted that the Authority’s reasons “reflect[ed] the orthodox approach to the conduct of the review” (Judgment at [27]), and considered that the Authority had considered the appellant’s claims and evidence in its reasons. It is unclear exactly what the primary judge meant by an “orthodox approach” to a Part 7AA review. The Part 7AA review procedure is fairly new and is somewhat unorthodox, given that it is conducted “on the papers”: an applicant is not interviewed, there is no hearing and an applicant is given very little scope to ask the Authority to consider any new information. As will be seen, it has been described as “a remarkable scheme”: a description that appears not to have been intended to be complimentary.

24    The primary judge concluded in the following terms (Judgment at [28]):

Nothing in the applicant’s submissions established jurisdictional error by the Authority in the conduct of the review. Insofar as the originating application makes reference to the decision of the delegate of 13 May 2016, this Court has no jurisdiction to review the delegate’s decision. Nothing in the applicant’s application or submissions identifies any jurisdictional error.

25    The primary judge dismissed the appellant’s application with costs.

appeal grounds and submissions

26    The appellant’s notice of appeal contains two grounds, both of which, on their face, are different in certain respects from those raised in the court below. The appellant’s grounds are as follows (as drafted):

1.    The Administrative Appeals Tribunal’s decision affected by jurisdictional error.

Particulars

The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence.

2.    The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant’s evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).

Particulars

The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant’s inability to remember or recall various issues and the dates at the time of the hearing.

27    The appellant filed written submissions on 27 October 2017 which, in essence, re-stated his grounds of appeal and contained an assertion that he has a well-founded fear of being persecuted. The submissions did, however, correctly refer to the primary decision-maker as the Authority as opposed to the Tribunal.

28    One obvious and fundamental difficulty with the appellant’s grounds of appeal is that they do not refer to or relevantly engage at all with the Judgment and reasons of the primary judge. In SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771, Flick J dismissed the appellant’s appeal. His Honour noted (at [6] and [7]):

The purported “Grounds”, it may be noted, only direct attention to perceived deficiencies in the decision of the Tribunal. No ground is directed to any appellable error alleged to have been made by the Federal Magistrates Court.

The appeal should be dismissed on that basis alone. Such a fundamental deficiency in a notice of appeal is not a mere matter of form; no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263. In Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210, Finn, Marshall and Goldberg JJ likewise emphasised the appellate role of this Court. Their Honours were there addressing an appeal which did at least allege error on the part of the Federal Magistrate, but they did go on to make the following observations as to attempts to review in this Court the reasons of the Tribunal:

[10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed [to] her Honour’s decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant’s submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge’s reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons.

29    The appellant’s grounds, therefore, did not engage at all with the appellate jurisdiction. This appeal is perhaps liable to be dismissed on that basis alone though, to be fair, the primary judge’s reasons were so sparse that there was little to engage with.

30    It is in any event unnecessary to consider whether the appeal should be dismissed on that narrow basis. That is because none of the appellant’s arguments concerning the errors or deficiencies in the Authority’s decision have any merit. The first ground of appeal essentially asserts that the Authority erred in the exercise of its review jurisdiction in four ways: first, the Authority failed to consider an integer of the appellant’s claims; second, the Authority failed to consider whether the appellant had a well-founded fear of persecution and did not ask any questions in relation to the Convention relating to the Status of Refugees, 1951 as to whether the appellant had a fear of persecution in Bangladesh; third, the Authority had no jurisdiction to make its decision because it did not arrive at a reasonable state of satisfaction; and fourth, the Authority denied the appellant procedural fairness by reaching conclusions that he was not a credible witness and his claims were implausible.

31    As to the first of those asserted errors, the appellant did not identify with any specificity, or indeed at all, which of his claims or evidence he said that the Authority failed to consider. A fair reading of the Authority’s reasons, together with the material that was before the Authority, provides no support for the contention that the Authority failed to consider any of the appellant’s claims. In its reasons, the Authority set out the appellant’s claims in full as they were advanced in his visa application and as they evolved over the course of his 2015 interview. It is clear from the Authority’s reasons that it considered, and made findings in relation to, each of those claims. Ultimately, the Authority rejected each of the appellant’s claims to fear harm in Bangladesh and gave detailed reasons for rejecting those claims. Those reasons included that the Authority considered that there were inconsistencies and other inadequacies in the appellant’s evidence. It also considered that the appellant’s claims were not supported by, or were inconsistent with, independent information concerning the political, social and legal situation in Bangladesh.

32    As for the appellant’s contention that the Authority denied him procedural fairness, as already noted, the process of “fast-track review” by the Authority is a different process to that undertaken by the Tribunal pursuant to Parts 5 or 7 of the Act. Section 473DA is couched in broader terms than ss 357A(1) and 422B(1) and operates to exclude the common law natural justice hearing rules from reviews conducted by the Authority: see Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136, Griffiths J at [18]. That is perhaps not surprising given that there is no hearing as such before the Authority. While some may consider that the provisions of Part 7AA and the procedures to be adopted by the Authority are anything but fair to an applicant, those are the procedures that Parliament has provided for applicants who are unlucky enough to be “fast track review applicants”.

33    There is, in any event, no foundation for the appellant’s claim that he was denied procedural fairness. His claim that he was denied procedural fairness appears to stem from the Authority’s conclusions that he was not a credible witness, and that his some of claims were implausible. While there is no doubt that adverse credibility findings are not entirely immune from judicial review, it is nonetheless correct to say, as the primary judge did, that credibility findings are generally a matter of fact for the decision-maker. If the findings are open on the evidence and material, and are otherwise supported by logical and probative reasons, they are not readily open to be disturbed on a judicial review application. That includes where the Authority is the decision-maker: see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 and ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109.

34    The Authority’s adverse credibility findings were clearly open to it on the evidence before it. Its reasons for rejecting the appellant’s claims were logical and probative. The appellant did not, in terms, identify how he said he was denied procedural fairness. He did not suggest that the Authority failed to comply with any of the provisions of Part 7AA. By making findings that were open to it on the evidence, the Authority did not breach any of the procedural fairness obligations, as exhaustively stated in Division 3 of Part 7AA of the Act, nor did any other aspect of the Authority’s conduct of the review deny the appellant procedural fairness.

35    As for the appellant’s claim that he was not “asked relevant questions”, as already noted, the effect of s 473DB(1)(b) is that the Authority conducts its review on the papers. It does not conduct a hearing or interview a review applicant. There is, accordingly, no general scope for “asking questions”. As already indicated, the Authority has the power to get “new information”, but it is not duty bound to invite an appellant to appear before it to give evidence.

36    In this matter, the Authority did exercise its power to obtain “new information”. The appellant has not, however, contended that the Authority breached the requirements of ss 473DD or 473DE in respect of that “new information”. Nor is there a basis for any such finding. Close attention to the Authority’s reasons reveals that the new information that was obtained by the Authority was, in fact, generally favourable to the appellant’s case.

37    Finally, in relation to ground one of the appellant’s notice of appeal, there is no basis for the appellant’s contention that the Authority did not reach a “reasonable state of satisfaction”. That assertion would appear, in any event, to amount to little more than an argument concerning the merits of the Authority’s decision.

38    Ground two of the appellant’s notice of appeal contains three contentions. They are: first, that the Authority made findings without evidence; second, that the Authority rejected the appellant’s evidence; and third, that the Authority failed to believe that the appellant was a credible witness thereby breaching s 425. Those contentions may be dealt with shortly.

39    As for the first, the appellant does not specify which of the Authority’s findings he contends were made without evidence. It is well-established that if a decision-maker makes a finding of fact that is a “critical step” in its ultimate conclusion, and there is no evidence to support that finding, that may constitute a jurisdictional error: see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-357. However, in order to succeed on a “no evidence” argument, the appellant would be required to demonstrate that there was no evidence at all before the Authority upon which its findings were based. Even where the evidence in support of a finding is slight, that will generally be sufficient to rebut an argument that there was no evidence before the Authority to support its findings: VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19].

40    In the present case, the Authority clearly set out the appellant’s claims and evidence and carefully explained its reason for arriving at the findings it did. There is no basis for the contention that there was no evidence to support any of its findings.

41    The remaining contentions advanced by the appellant in relation to ground two are, in a sense, correct. The Authority did reject his evidence and did fail to believe that he was a credible witness. For the reasons already given, however, those findings were open to the Authority. Finally, the appellant’s reference to s 425 of the Act is erroneous, as that provision does not apply to reviews under Part 7AA.

42    Although it was not raised by the appellant as an issue in the present appeal, or in the court below, it should be noted that a delegate of the Minister notified the Authority that the disclosure of certain information was covered by a certificate given pursuant to s 473GB of the Act. The documents the subject of the s 473GB certificate were an “identity assessment”, “identity report” and “identity interview”. The certificate recorded that disclosure of those documents was contrary to the public interest because they were “Departmental working document[s]”. Section 473GB provides as follows:

473GB Immigration Assessment Authority’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, under subsection (5), 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 473GA(1)(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 Immigration Assessment Authority a document or information to which this section applies, the Secretary:

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

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

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

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority 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 referred applicant.

(4)    If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)    The Minister may issue a written certificate for the purposes of subsection (1).

43    The operation of s 473GB was recently considered by the Full Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176. The Full Court summarised the scheme in the following terms (at [97]-[98]):

The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.

44    The Full Court also found (at [100]) that the procedural fairness requirements in respect of a s 473GB notification, and any related information, are exhaustively stated in s 473GB(3). It is, in that respect, to be distinguished from similar provisions in Parts 5 and 7 of the Act that have been the subject of various decisions concerning the denial of procedural fairness arising from the non-disclosure of such a certificate: see, in particular, Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1.

45    The existence of the s 473GB certificate was drawn to the primary judge’s attention. Indeed, it was in the Court Book. It is regrettable that his Honour said nothing about it in his reasons. His Honour decided the matter before the Full Court handed down its judgment in BBS16. The issue warranted some consideration.

46    There is, nevertheless, nothing to suggest that the s 473GB certificate gave rise to any jurisdictional error by the Authority. It is likely that the certificate was invalid because the mere fact that the documents were “Departmental working document[s]” could not give rise to a claim for public interest immunity. In light of BBS16, however, it does not follow that the non-disclosure of the certificate to the appellant constituted a denial of procedural fairness, or gave rise to any other jurisdictional error by the Authority. There is also nothing to suggest that the Authority considered, let alone relied on, on any information in the document covered by the certificate or that the information or material in that document could, or did, have any bearing at all on any of the material issues or findings which ultimately determined the review.

conclusion and disposition

47    In all the circumstances, the appellant has failed to demonstrate any error on the part of the primary judge, or, for that matter, the Authority. The primary judge was correct to dismiss the appellant’s application. It follows that his appeal must be dismissed. The appellant has not advanced any relevant reasons for why as the unsuccessful party he should not be ordered to pay the Minister’s costs. Accordingly, it is appropriate to order him to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    6 April 2018