FEDERAL COURT OF AUSTRALIA

BXM16 v Minister for Immigration and Border Protection [2019] FCA 1845

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $7,241.00.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

2    The principal ground on which the appellant alleged that the decision of the Tribunal was affected by jurisdictional error was that the Tribunal had regard to a certificate that had been issued under s 438 of the Migration Act that was invalid, and which the Tribunal did not disclose to the appellant, thereby giving rise to a want of procedural fairness. For reasons to which I shall refer, the primary judge was not satisfied that there was any denial of procedural fairness. In the alternative, the primary judge would have refused relief on discretionary grounds.

3    The appellant relies upon substantially the same grounds before this Court in submitting that the primary judge was in error in failing to find that there was a denial of procedural fairness and therefore jurisdictional error.

Background

4    The appellant is a citizen of Malaysia of Tamil ethnicity who arrived in Australia in August 2013 as a tourist holding an Electronic Travel Authority.

5    On 24 October 2013, the Department received an application by the appellant for a protection visa. In substance, the appellant’s claim for protection was that she had fallen in love with a Malaysian man, to whom I shall refer as “Mr F”. The appellant described the man in her visa application as her “boyfriend”. The appellant claimed that she and Mr F were of a different race and religion: she was a Hindi Tamil, and he was Malay and Islamic. The appellant claimed that Mr F’s father was very rich and influential, and that upon finding out about her relationship with his son, he organised a man from a Malay gang known as “Gang 31” to harm and kill the appellant. The appellant claimed that she left Malaysia because she was not safe there as a consequence of the gang, and that she feared being killed by gangsters if she returned. In her application, the appellant foreshadowed that she would provide a photograph, a letter from neighbours, and an “email copy from my boyfriend”.

6    The appellant was interviewed by a delegate of the Minister on 29 May 2014. In the interview, the appellant claimed that she and Mr F were still in a relationship, however she stated that they had not spoken in the period since her arrival in Australia, which at that time was ten months. The Department also received a number of documents in support of the appellant’s application. Those documents included –

(1)    an email, apparently from the appellant, dated 5 June 2014;

(2)    copies of photographs;

(3)    a handwritten letter under the appellant’s name dated 1 June 2014, which stated that she had provided photographs of her boyfriend;

(4)    a letter dated 22 May 2014 that purported to be from the appellant’s father; and

(5)    a letter that was also dated 22 May 2014 that purported to be signed by 16 residents of an apartment building in Malaysia that alleged that the appellant had been threatened by her boyfriend’s father, and which stated (inter alia) –

The incident happened on 1st August 2013. On that day, the gangsters and [the father] attacked [the appellant] and her family members. The residents try to help [the appellant] from the gangsters. And also [the appellant] tried to suicide and we all save her from she killed herself. With the help of the residents she have been sent to Australia.

We are the witnesses for what happened to her is true and we will support her always. The department can contact the apartment’s secretary [redacted] at anytime I need further enquires regarding [the appellant] at the number [redacted]. Thank you.

7    On 30 June 2014, 1 July 2014, and 17 July 2014 the Department received “dob-in” information in relation to the appellant. The substance of that information was set out in the delegate’s reasons for refusing the application for a protection visa –

On the 30 June 2014 (f: 87 & 88), the 1 July 2014 (f: 89 & 90-94), and the 17 July 2014 (f: 98), the department received dob-in information, both verbally and in writing stating:

•    Photographs as provided by the applicant to the department had been altered and were not sent in the original form which they were taken;

•    Photographs of applicant and her male friend were taken at the informant’s house;

•    The male appearing in the photograph is the informant’s husband’s friend and car mechanic;

•    The applicant’s two brother’s and mother have travelled to Australia in the past and lodged applications for Protection visas;

•    Despite currently working as a cleaner, the applicant is in receipt of Red Cross payments

8    To the extent that the information was in writing, it was contained in three emails sent from a single Gmail address which named the sender as “Ravi Sambasivam”. In two of the three emails, the writer identified himself or herself as “Shri”. There was no express identification of the writer in the third email, but as I have mentioned, it also was sent from the Gmail address of Ravi Sambasivam.

9    The information was also the subject of a case note of the delegate dated 17 July 2014, which identified the informer as “Shirlene”, and for whom a mobile telephone number was recorded.

10    On 22 July 2014, the appellant’s application for a protection visa was refused by a delegate of the Minister. The delegate did not accept that the appellant remained in a relationship with Mr F, and found that any threat of harm, which was real or perceived, was eliminated upon the appellant’s departure from Malaysia. The delegate did not accept that because of the appellant’s past connection with Mr F that she would suffer significant harm if she returned to Malaysia. In relation to the photographs that the appellant had supplied to the Department, the delegate placed little weight upon them, stating that the delegate could not confirm the identity of the man shown in the pictures. The delegate also stated while the dob-in information had been considered, no weight was placed upon it.

11    On 28 July 2014, the appellant filed an application to the former Refugee Review Tribunal seeking review of the delegate’s decision. From 1 July 2015, the proceeding before the Refugee Review Tribunal was taken to be a proceeding in the Migration and Refugee Division of the Tribunal: Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AB.

12    On 12 November 2014, and while the appellant’s application to the Refugee Review Tribunal was extant, the Department received information about the appellant via its website. I shall refer to this information as the “November 2014 information”. The material features of the November 2014 information, as appearing in the Department’s records were –

(1)    in relation to anonymity, the record stated, “Remain anonymous = No”;

(2)    the name of the referrer was recorded as, “Tammy”;

(3)    the email address recorded was not the Gmail address from which the information referred to at [7] and [8] was sent, but a different email address;

(4)    the mobile telephone number of the referrer was recorded, and was the same number as that recorded for “Shirlene” in the case note of the delegate dated 17 July 2014, referred to at [8] above;

(5)    in relation to whether information had previously been provided, the record stated, “Provided information on individual previously = No”;

(6)    the connection with the appellant was described as, “friend”.

13    The information that was recorded was as follows –

Specific information = she is applied for protection visa and preparing all the fraud document..before i did gave this information to the immigration department her case officer (ms Hayley tuck). [The appellant] had been provided a photo tat she edited as taken at kuala lumpur but actually the photo had been taken in australia .she lie that the person in the picture is her boyfren bt actually he is the car mechanic who is working in australia.and also she is doin some other document as a support document but created by herself.if the department want to have the photograph i can provide the picture.the original picture and the edited picture is with me.and also [the applicant] is receiving asas payment from red cross but she is working as cleaner at nationwide health&agedcareservices which is located at [street address].

Information source = actually im the who capture the picture and she use my pc to edit the pic.and after I get known about this i did report about this to the case officer who did interview [the appellant] at melbourne office.

[Spelling and grammar as per original]

14    On 1 December 2014, an officer of the Department referred the information to the Refugee Review Tribunal. On the same day, a delegate of the Minister wrote to the Refugee Review Tribunal and claimed that the information was subject to s 438 of the Migration Act, and expressed the view that the information should not be disclosed to the appellant on the ground that it was given to an officer of the Department in confidence.

15    In addition to other documents and information that was before the delegate, the Tribunal had before it copies of some applications for intervention orders that were provided to the Tribunal by the appellant. Within the documents in the court book described under the heading “Tribunal File” are copies of four applications –

(1)    an application by the appellant initiated on 29 July 2014 against Shrim Sambasivam as respondent, who is described in the application as the appellant’s cousin (AB-133);

(2)    a second application by the appellant initiated on 29 July 2014 against Ravis Sambasivam as respondent, who is described as the appellant’s cousin’s husband (AB-134);

(3)    an application by Ravis Sambasivam against the appellant as respondent, dated 29 July 2014 (AB-135); and

(4)    an application by Shrim Sambasivam against the appellant as respondent, which does not bear a filing date, as the copy may be incomplete (AB-137).

16    All four applications for intervention orders nominated a hearing date of 18 August 2014. In its statement of decision and reasons, the Tribunal referred expressly only to the first, second, and third of the four applications listed above.

17    In the application by Ravis Sambasivam, the following claims were made –

I have known the respondent for about 11 months, my family and I previously shared accommodation with her. Whilst living together the respondent always used the PC belonging to me and my wife. After she moved out I became aware that she had accessed the computer and edited a picture of our motor mechanic and herself and used this for immigration/visa purposes. I have since contacted the Department of Immigration about this. On July 28th 2014 the respondent constantly rang my mobile phone and landline making threats and screaming at me about losing her visa.

18    And in the application by Shrim Sambasivam, the following claims were made –

I have known thwe [sic] respondent for about 11 months. My family and I previously shared accommodation with her. Whilst living together the respondent always used the PC belonging to me and my husband. After she moved out I became aware that she had accessed the computer and edited a picture of our motor mechanic and herself and used this for immigration/visa purposes. I have since contacted the Department of Immigration about this. On July 28th 2014 the respondent constantly rang my mobile phone and landline making threats and screaming at me about losing her visa.

19    In the appellant’s application against Shrim Sambasivam, a mobile telephone number for the respondent to the application was nominated. That number is the same number as that recorded for –

(1)    “Shirlene” in the case note of the delegate that is referred to at [8] above; and

(2)    “Tammy”, recorded in the Department’s record of the information referred to at [12] above.

20    On 16 December 2015, the Tribunal conducted a hearing at which the appellant gave evidence and presented arguments with the assistance of a Tamil interpreter. Amongst other things, the Tribunal asked the appellant if she had any contact with her boyfriend since August 2013, and the appellant stated that she had not. Further, the appellant denied sending the letter of 1 June 2014 referred to at [6] above, denied that she digitally altered photographs, denied that she knew how to use a computer, denied that the image in the photographs was of Mr F, claimed that she did not know the person who was in the photographs, and claimed that she did not know who had sent them to the Department.

The Tribunal’s decision

21    On 24 June 2016, the Tribunal affirmed the decision under review. In relation to the applications for intervention orders, the Tribunal stated at [28]-[30] of its reasons that it had looked at those documents, and had indicated to the appellant that they raised some concerns. In relation to the documents that the Department had received, the Tribunal stated at [92] –

The Tribunal had difficulty in accepting the applicant’s explanation in relation to the documents provided to the Department under cover of a letter bearing her name. Taking into consideration the evidence provided by the applicant at the hearing, including her evidence that her relationship with her cousin and her husband had broken down and as well as the contents of the applications for the intervention orders, the Tribunal considers it is plausible that in light of the applicant’s limited English and her apparent inability to use a computer as well as the timing of the provision of this information to the Department, her cousin and/or her husband were assisting her with her application for a protection visa and forwarded these documents to the Department on her behalf. However, the applicant’s evidence is that the documents provided to the Department were not genuine. The Tribunal considers that the documents were provided by the applicant with the assistance of her cousin and/or her husband and does not accept the applicant’s evidence that she did not know who or why these had been provided to the Department. The Tribunal bases this conclusion on the sequence of events, that is the interview with the Department, the applicant’s request to her mother to provide additional documents to support her application, the provision of the additional documents to the Department after the interview which included a letter with the applicant’s signature, the subsequent breakdown of the relationship with the applicant’s cousin and her husband and the contents of the applications for the intervention orders provided to the Tribunal.

22    The Tribunal stated at [93] that the appellant had not been able to provide any evidence that her relationship with Mr F was genuine or continuing. At [97] the Tribunal concluded –

In light of the findings above, in that the Tribunal does not accept the applicant’s reason for leaving Malaysia was because of threats received because of her religion as a consequence of a claimed relationship with a Muslim man, the Tribunal does not accept there is a real risk that the applicant will suffer any form of significant harm at the hands of [Mr F’s] father or anyone else if she returns to Malaysia. As a result, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk she will suffer significant harm.

The application to the Federal Circuit Court

23    On 21 July 2016, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. At the hearing, the appellant relied upon an amended application which claimed that there was jurisdictional error in the Tribunal’s decision on the following grounds –

The decision of the Tribunal was affected by jurisdictional error in that the Tribunal:

a.    had regard to a purported section 438 certificate that was invalid;

b.    failed to disclose the existence of the purported section 438 certificate to the Applicant.

Particulars

Invalidity of certificate

i.    The purported section 438 certificate was issued pursuant to section 438(1)(b), that is, on the ground that the information it related to was given to the Department in confidence. The information was not given to the Department in confidence and therefore the certificate was invalid.

Failure to disclose existence of certificate

ii.    The Tribunal denied the Applicant procedural fairness by failing to:

a.    Give the Applicant an opportunity to make submissions on the validity of the certificate;

b.    disclose to the Applicant the extent to which it would take the information subject of the certificate into account;

c.    give the Applicant an opportunity to seek a favourable exercise of discretion under section 438(3)(b) of the Migration Act.

24    On 10 September 2018, the primary judge dismissed the proceeding. His Honour held that the delegate’s decision particularised the relevant information about which the appellant complained, which the appellant addressed by providing the Tribunal with copies of the applications for intervention orders. His Honour held that the information that was provided in November 2014, to which I have referred at [12] and [13] above, was in substantially the same terms as the earlier information that was before the delegate. His Honour stated at [37] that having regard to the identical telephone number and the terms of the complaint, it appeared clear that the November 2014 information was communicated by the same person and in the same terms as the earlier communications, and that it did not appear to contain any material differences.

25    The primary judge concluded at [40]-[44] that –

40.    This is not a case where the Tribunal had evidence that had not been particularised to the applicant in the sense discussed in AXC17 v Minister for Immigration & Anor [2018] FCCA 1843. The evidence was particularised firstly in the delegate’s decision, and the only thing that arrived thereafter was simply a repetition, by the same person, of that same information, which in substance was again referred to in the particulars in the intervention order applications.

41.    The significant issue became whether or not the applicant had in fact sent the relevant photographs to the Tribunal, which she denied, as is recounted in [91] of the Tribunal’s decision. The Tribunal did not accept that the applicant’s evidence was correct in this regard, a proposition borne out by the evidence before the Tribunal, which demonstrated that the applicant had corresponded by email with the Tribunal (see Court Book p.48) using a particular Gmail address.

42.    At Court Book p.51, the image files were forwarded from that Gmail address to the Department. That email included (as appears at Court Book p.52) a letter apparently in the applicant’s handwriting, and signed by her, supporting her protection visa application, and dated 1 June 2014. Various other letters were contained therein. The same email address then appears in the applicant’s application for review of the delegate’s decision (see Court Book p.125), providing a strong evidentiary foundation for the Tribunal to conclude that the applicant had in fact sent the documents on her own behalf.

43.    I am therefore persuaded that the validity or otherwise of the certificate issued in this case makes no difference. The Tribunal was not required to provide more particulars to the applicant than she had already received through the delegate’s decision in order to ensure that she received a procedurally fair hearing. There is nothing to indicate that she assumed that this was not an issue before the Tribunal; indeed, the provision of the intervention order applications shows that she was well aware this was a live issue for the Tribunal to determine.

44.    In this case I am satisfied that there was, in practical terms, ‘no denial of procedural fairness; or that, if there was, relief should nonetheless be withheld as a matter of discretion’: see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, at [88].

The appellant’s grounds of appeal to this Court

26    Before this Court, the appellant submitted that the Federal Circuit Court erred in rejecting her claim that the Tribunal’s decision was affected by jurisdictional error in the way that she had claimed.

27    Section 438 of the Migration Act provides –

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.

28    The appellant submitted that the notification given by the delegate to the Refugee Review Tribunal under s 438 of the Migration Act in relation to the November 2014 information was invalid, because the Department’s records indicated that anonymity had not been requested. Accordingly, the information was not given to the Department in confidence, and s 438 was not engaged.

29    The appellant submitted that the Federal Circuit Court was in error in finding at [44], which is set out under [25] above, that there was no denial of procedural fairness. The appellant relied on Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 (SZMTA) to submit that non-disclosure of the notification of the November 2014 information was a breach of the Tribunal’s obligation to afford procedural fairness to the appellant, and that the primary judge’s conclusion that there was no denial of procedural fairness was in error.

30    In relation to the primary judge’s alternative conclusion at [44] that relief should nonetheless be withheld as a matter of discretion, the appellant submitted that the Federal Circuit Court itself committed a jurisdictional error. The appellant submitted that having found that there was no denial of procedural fairness, there was no foundation for the conclusion that the Court’s discretion should be exercised in such a way as to refuse relief. The appellant submitted that before the Federal Circuit Court considered exercising its discretion to refuse relief, the Court had to consider whether and in what way the denial of procedural fairness was material. The appellant submitted that having failed to consider the question of materiality, the Federal Circuit Court should not have considered the question whether it should exercise its discretion to refuse relief.

31    The appellant submitted that the proceeding should be remitted to the Federal Circuit Court for redetermination. Alternatively, the appellant submitted that this Court could consider the question of materiality itself and, if the appellant is successful, the Court should “remit” the matter to a differently constituted Tribunal to be determined according to law.

32    The appellant submitted that the denial of procedural fairness was material to the Tribunal’s decision, because there was a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the appellant a full opportunity to make submissions. The appellant pointed to the fact that the Tribunal expressed significant doubts about the credibility of the appellant’s claims. In that context, the fact that there were different informers about the allegations relating to the photographs could add weight to those allegations, and diminish the credibility of the appellant. The appellant submitted that three names had been attributed to the informers, Tammy, Shirlene, and Shri, and it was not obvious that they were the same person. The appellant submitted that even though the persons had the same telephone number, the Tribunal did not find that they were the same individuals. For these reasons, the appellant submitted that the Tribunal’s credibility findings could have been affected by the information covered by the certificate, and that therefore jurisdictional error by the Tribunal had been established. For like reasons, the appellant submitted that if the denial of procedural fairness was material, this Court should not refuse relief to the appellant on discretionary grounds.

Consideration

33    The appeal to this Court is brought under s 24(1)(d) of the Federal Court of Australia Act 1977 (Cth) and is in the nature of an appeal by way of rehearing: Western Australia v Ward (2002) 213 CLR 1 at [68]-[71]. In an appeal by way of rehearing the powers of the Court are exercisable where the appellant demonstrates some legal, factual, or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. If a court on appeal concludes that the primary judge has erred then it may make its own findings of fact and formulate its own reasoning based on those findings: Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 331 ALR 550 at [43].

34    The appellant has not sought any relief from the Court in its original jurisdiction under s 39B of the Judiciary Act 1903 (Cth). Nonetheless, the appellant submitted that the Federal Circuit Court made errors that were to be characterised as jurisdictional. The principles relating to jurisdictional error have a different application to decisions of inferior courts than they do to administrative decisions. That is because the jurisdiction of an inferior court is ordinarily broader than that of administrative decision-makers. In Craig v South Australia [1995] HCA 58; 184 CLR 163 the Court stated at 179 -180 –

… [T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

35    I do not consider that the errors by the Federal Circuit Court alleged by the appellant involve jurisdictional error. Rather, if established, they are errors within the jurisdiction conferred upon the Federal Circuit Court in relation to migration decisions by s 476 of the Migration Act, which is expressed in general terms to be the same original jurisdiction as that conferred upon the High Court by s 75(v) of the Constitution. The errors which the appellant alleges involve errors in the identification of breaches of obligations of procedural fairness, and may be corrected by this Court upon appeal under s 24 of the Federal Court of Australia Act.

36    The arguments raised on appeal present two principal issues –

(1)    did the primary judge err in holding that there was no denial of procedural fairness; and

(2)    if there was a denial of procedural fairness, was that material to the Tribunal’s decision.

37    In SZMTA, which was decided after the decision of the primary judge in this case, Bell, Gageler and Keane JJ held that the fact of a notification under s 438 of the Migration Act triggers an obligation on the part of the Tribunal to disclose the fact of notification to an applicant for review in discharge of the Tribunal’s implied obligation to accord procedural fairness: SZMTA at [2], [27], [29], and [38]. In addition, where the purported notification under s 438 is invalid, its provision will amount, without more, to an unauthorised act in breach of a limitation within the statutory procedures that condition the overarching duty of the Tribunal to conduct a review: SZMTA at [44]. However, neither a failure to disclose the notification, nor the invalidity of the notification will amount to jurisdictional error unless they give rise to “practical injustice”, that is, the breach must be material to the Tribunal’s decision: SZMTA at [38], [44], [45]. A breach will be material only if compliance could realistically have resulted in a different decision: SZMTA at [45]. Where materiality is in issue, its existence is an ordinary question of fact on which the applicant for judicial review bears the onus of proof.

38    In the present case, the primary judge held at [25] that, prima facie, it appeared that the failure to disclose the November 2014 information, which was the subject of the purported notification under s 438 of the Act, was a jurisdictional error. However, the primary judge stated that this was subject to what his Honour described as the exception discussed by the Full Court in BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; 253 FCR 36. In BEG15, which was decided before the High Court’s decision in SZMTA, the court at first instance found that material that was the subject of a purported but invalid notification under s 438 of the Act was not prejudicial to the appellant’s interests, and that the Tribunal did not act upon it. The Full Court concluded at [33] that the Tribunal’s failure to provide the material to the appellant did not give rise to any practical injustice to him.

39    The primary judge’s conclusion at [44] that there was, in practical terms, no denial of procedural fairness is to be understood against the way in which the primary judge framed the issues at [25]. In my view, the primary judge’s reference at [25] to a “prima facie” jurisdictional error is to be understood as an acceptance that the failure to disclose the November 2014 information was in breach of the Tribunal’s obligation to accord procedural fairness. The primary judge then focussed on the question of the materiality of Tribunal’s failure to disclose the information. His Honour’s reference at [44] of the reasons to there being no denial of procedural fairness “in practical terms” is to be understood as a conclusion that was arrived at by considering the materiality of both the invalidity of the notification, to which his Honour referred at [43], and the Tribunal’s failure to disclose the November 2014 information. If the primary judge had the benefit of the majority’s reasons in SZMTA, he might have expressed his conclusions in different terms, but in my view the substance of his Honour’s path of reasoning, and its focus on the question of materiality is tolerably clear.

40    Even if I am wrong in my interpretation of the primary judge’s reasons, any failure by the primary judge to identify a breach by the Tribunal of its obligation to accord procedural fairness to the appellant is not material to the outcome of this appeal, because this Court may decide that issue for itself. In this Court, the Minister accepted that the notification to the Tribunal under s 438 was invalid, and that in not disclosing the notification and the November 2014 information the Tribunal was in breach of its obligation to the appellant to accord procedural fairness. Those concessions direct attention to the question of materiality, because it is only if the compliance by the Tribunal with its obligations could realistically have resulted in a different decision, that jurisdictional error by the Tribunal will be established.

41    I am not persuaded that any of the breaches was material to the Tribunal’s decision. In my view, the information which was the subject of the November 2014 notification, and which I have set out at [13] above, is substantially the same information as that to which the delegate referred in her reasons for decision (see [7] above), and which was contained in the applications for intervention orders by the appellant’s cousin and her husband to which I referred at [17] and [18] above. The appellant therefore had notice of the substance of the information through the delegate’s reasons. Further, the narrative component of the November 2014 information (see [13] above) states explicitly that the information had been given to the Department before. While it is true that the name of the informer is recorded as “Tammy” rather than “Shri” or “Shirlene”, I am not persuaded that there was any error in the primary judge’s conclusion at [37] that it is clear that the November 2014 information was provided by the same person as the earlier information. I am therefore not persuaded that disclosure of the purported s 438 notification and the November 2014 information could realistically have resulted in a different decision by the Tribunal. Because the breaches have not been shown to be material, there was no error in the primary judge’s decision to dismiss the application for judicial review.

42    In the circumstances, it is unnecessary to consider whether the primary judge was correct to propose, in the alternative, that relief might be withheld in the exercise of the Court’s discretion.

Conclusions

43    The appeal will be dismissed with costs.

44    The Court acknowledges the considerable assistance that it received from Dr Philip Bender, who appeared for the appellant upon a pro bono referral from the Court. It was apparent that Dr Bender had put considerable time and thought into formulating his written and oral submissions so as to advance the best arguments that could be put on the appellant’s behalf.

Associate:

Dated:    13 November 2019