FEDERAL COURT OF AUSTRALIA

MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on the amended notice of appeal filed on 15 October 2019.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

4.    On or before 4 pm on 18 December 2019, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

5.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    This is an appeal from orders made by the Federal Circuit Court on 17 May 2016, dismissing the appellant’s application for judicial review of a decision of the (then) Refugee Review Tribunal and ordering the appellant to pay the first respondent’s costs in the amount of $6,825: see MZAPC v Minister for Immigration & Anor [2016] FCCA 1414.

2    For the reasons set out below, the appeal will be dismissed.

Relevant background

3    The appellant is a citizen of India and arrived in Australia on 22 January 2006. At the time of his arrival the appellant held a student (Class TU subclass 572 Vocational Education and Training Sector) visa which ceased on 15 March 2008. The appellant applied for a student (Class DD subclass 880 Skilled – Independent Overseas Student) visa on 30 August 2007. The appellant’s student visa application was refused on 18 April 2012. The appellant sought review of this decision at the Migration Review Tribunal on 16 May 2012. The Migration Review Tribunal found that it had no jurisdiction to review the decision as the application was lodged out of time. The appellant sought judicial review of this decision and on 13 September 2013 the Federal Circuit Court dismissed his application.

4    The appellant then lodged an application for a protection visa on 31 October 2013. He was notified on 13 December 2013 that his application was invalid as he did not provide personal identifiers within the required 14 days. On 21 January 2014, the appellant lodged a second protection visa application, which was refused in a decision made by a delegate of the Minister on 4 June 2014. On 27 June 2014, the appellant applied to the Refugee Review Tribunal for a review of this decision and appeared before the Tribunal on 15 October 2014.

5    On 4 November 2014, the Tribunal affirmed the decision of the delegate of the Minister not to grant the appellant a protection visa.

6    The appellant’s claims in support of his second protection visa application, as put to the delegate and to the Tribunal, were summarised at [8] of the Minister’s submissions filed on the appeal. The appellant did not contest this summary:

In summary, he claimed that:

8.1    although he was born in India, he became stateless after his family disowned him;

8.2    his family had disowned him because of the society he was in, and because he had changed his religion by cutting his hair and acquired an Australian lifestyle;

8.3    there was a dispute concerning land between his father and uncle - his uncle threatened to kill him if the land went under his name;

8.4    in 2004, while on a trip to Punjab, he was kidnapped and his father was asked to sign papers putting the land under the kidnappers’ names - but, after the family got involved, his father paid the kidnappers a settlement amount and the appellant was released;

 8.5    if he were to return to India, his uncle would kill him for the land.

7    The Tribunal rejected all of the appellant’s protection claims. There was only one aspect, central to the resolution of the appeal, where it might be said the Tribunal did not believe the appellant’s narrative of past events. On other aspects, it found that the appellant’s fears of persecution should he return to India were not well-founded, because of matters such as lapse of time, or the absence of country information indicating any particular risk of harm.

8    The appellant applied for judicial review of the Tribunal’s decision on 10 December 2014. On 17 May 2016, the Federal Circuit Court dismissed the application. The appellant appealed to this Court by a notice of appeal dated 7 June 2016.

9    On 9 November 2016, the Court referred the appellant for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). The Court expresses its gratitude to counsel who accepted that referral.

10    The appeal was held in abeyance pending the outcome of the appeals to the High Court of the decisions in SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055; 255 FCR 215, Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; 253 FCR 1 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; 253 FCR 36. Those appeals concerned the legal consequences of a failure by a Tribunal to disclose a notification given to the Tribunal under s 438 of the Migration Act 1958 (Cth).

11    On 22 December 2017, leave was granted to the Minister pursuant to r 36.57 of the Federal Court Rules to file as further evidence on the appeal the documents subject to the s 438 notification issued in relation to the appellant’s application for a protection visa. The Minister filed the affidavit of Jarrod Rubin Blusztein dated 25 January 2018 pursuant to that order. That affidavit disclosed the existence of a notification given under s 438 of the Migration Act, and exhibited the documents referred to in that notification.

12    The decision regarding the appeals of SZMTA, CQZ15 and BEG15 was handed down by the High Court on 13 February 2019: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. In these reasons, I shall refer to that decision as SZMTA.

13    The appellant filed an amended notice of appeal on 15 October 2019. There is a single ground of appeal:

The Federal Circuit Court erred by not finding that the decision of the second respondent (the Tribunal) dated 4 November 2014 (the decision) affirming the first respondent’s decision not to grant the appellant a Protection (Class XA) visa was affected by jurisdictional error, in that the Tribunal failed to comply with the rules of procedural fairness.

14    The alleged denial of procedural fairness relates to the Tribunal’s failure to disclose to the appellant the existence of a notification made under s 438(1)(b) of the Migration Act. The ground was not argued before the Federal Circuit Court but the Minister consented to the appellant being granted leave to rely on this ground. This being a new ground, there is no necessity to consider the Federal Circuit Court’s reasons in detail.

The s 438 notification information

15    The Minister described the contents of the information to which the s 438 notification applied at [35] of his submissions:

The information subject to the s 438 notification was contained in the following documents:

35.1    an “Immigration Status Service Report” dated 31 March 2012, which stated, among other things, that an officer of Victoria Police had advised the Department that the appellant “has over 28 pages of offences and is currently on a suspended sentence until Sept 2012”;

35.2    a screenshot of a “Client Detail” page for the appellant, which set out information such as the appellant’s name, date of birth and address;

35.3    a facsimile cover sheet for a 10 page facsimile message from Victoria Police to the Department (including the cover sheet) dated 31 March 2012; and

35.4    the other nine pages of the facsimile message – a Victoria Police court outcomes report in relation to the appellant, which showed that the appellant had been convicted of a number of driving-related offences on 30 September 2011.

16    I accept that is an accurate description of the material, subject to noting that there was one particular conviction recorded in the Victoria Police material upon which the appellant placed reliance in his argument on the appeal.

The appellant’s argument

17    The appellant’s argument focused on the fact, not disputed by the Minister, that the outcome of the review depended at least in part on the Tribunal making findings at [22] and [23] of its reasons, which led it to reject what might be seen as the central claim made by the appellant in support of his protection visa application.

18    Paragraphs [22] and [23] of the Tribunal’s reasons were as follows:

Despite some concerns about the applicant’s credibility, I am willing to accept that there was a dispute between his father and his uncle over land in Punjab. I accept that when the applicant visited Amritsar in 2003 or 2004, he was taken to a house by his cousin (though not actually threatened as he stated at the hearing), drugged and held there until his father arrived and paid the amount of $AUD3500 for his release. I accept that the applicant stopped going to the Punjab after this until he came to Australia in 2006.

I do not accept that the applicant has been subject to continuing threats in relation to the land dispute because he is the eldest son of his father. The applicant was able to reside in Delhi, India for 2-3 years after the Amritsar incident without facing any further harm from his uncles and his relatives. The Amritsar incident was 12-13 years ago and resolved when the father made payment to his uncle. Furthermore, on the applicant’s oral evidence at hearing, in recent times his father has been pressured but not actually harmed or threatened by the relatives despite his father refusing to sign over the land through an affidavit. I do not accept that if the relatives wanted to harm the applicant over the land that they would not be threatening or harming his father in circumstances where the dispute originates in relation to the father and the father has the ability to sign a document giving them the land. I do not accept as credible or plausible that simply because his father was in Delhi and not Amritsar that this would completely deter the relatives from undertaking threatening or violent action against his father to obtain legal ownership of the land. The applicant stated at the hearing that his mother’s brother was a policeman, which I accept. However, I do not accept as credible or plausible that the relatives would not threaten or harm his father (but would threaten or harm the applicant) because his mother’s brother was a policeman. In all the circumstances, I do not accept that the relatives have a continuing adverse interest in the applicant.

19    The appellant submitted that one particular aspect of the s 438 notification information was capable of contributing to those findings, which the appellant contended should properly be characterised as adverse credibility findings. He submitted the Court should infer that this aspect of the s 438 notification information did in fact contribute to the Tribunal’s findings.

20    That aspect was the entry in the Victoria Police record that the appellant had been convicted, in September 2011, of the offence of “State false name”, as well as the offence of “Drive whilst disqualified”. The Victoria Police record revealed this was not the appellant’s only conviction for driving whilst disqualified. However, the appellant submitted, and the Minister agreed, that the “State false name” offence was the appellant’s only conviction for an offence which could be described as an offence involving dishonesty, and which could have contributed to a decision-maker forming an adverse view of the appellant’s honesty.

21    The appellant submitted that [23] of the Tribunal’s reasons disclosed two considerations which led the Tribunal to reject the appellant’s contention that his fear of persecution in India due to the familial land dispute was well-founded. In respect of the second consideration, concerning the appellant’s claim about potential threats and harm faced by his father, the appellant emphasised that the Tribunal found the explanations for that claim were not “credible or plausible”. The rest of the Tribunal’s reasons contained nothing relevant to these findings. The Minister accepted that was the case. In those circumstances, the appellant relied on a statement by the Full Court in MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [77] (with my emphasis added):

The adverse credit findings made against the appellant mother by the Tribunal were supported by a range of considerations expressed in the Tribunal’s reasons. If that had not been so, there may have been a basis for thinking that, despite the requirements of the statutory setting, the Tribunal did have regard to the impugned information.

22    The appellant submitted that if the Tribunal is assumed to make its findings on the basis of evidence or material capable of supporting those findings, then the only evidence or material which could have led the Tribunal to make these adverse credibility findings, if there was in truth nothing in [23] to justify the making of such findings, was the appellant’s conviction for stating a false name. The appellant submitted the inference the Court should draw is that it was the Tribunal’s reliance on that aspect of the Victoria Police record which led it to make the findings in [23] of its reasons.

23    The appellant’s submissions outlined the difference between the concepts of credibility and plausibility, contending that the former concerns honesty, and the latter concerns how reasonable or probable, in an objective sense, a factual assertion might be. The appellant referred to caselaw from the Federal Court of Canada, where the Court has emphasised the distinction between those two concepts in the context of determining the existence of legal error in administrative decision-making. The appellant referred in particular to the case of Santos v Canada (Minister of Citizenship and Immigration) 2004 FC 937, in which the Canadian Federal Court stated at [15]:

… plausibility findings involve a distinct reasoning process from findings of credibility and can be influenced by cultural assumptions or misunderstandings. Therefore, implausibility determinations must be based on clear evidence, as well as a clear rationalization process supporting the Board’s inferences, and should refer to relevant evidence which could potentially refute such conclusions.

24    I note that in the Canadian Federal Court, including by reference to Santos, the approach administrative decision-makers on asylum claims should take to the use of “implausibility” findings is put as a reasonably cautious one.

25    In Zaiter v Canada (Minister of Citizenship and Immigration) 2019 FC 908, the Court relevantly stated at [8]:

Adverse credibility determinations can be drawn from the implausibility of a claimant’s account but the law is clear that such inferences are inherently dangerous and caution is required before they are drawn. The need for caution is obvious. Implausibility determinations based on common sense or common experience can be entirely erroneous when that “common sense” or “common experience” is grounded in social or cultural norms that may have no application to the case at hand (Leung v Minister of Employment and Immigration (1994), 81 FTR 303 at 307 (TD); Bains v Minister of Employment and Immigration (1993), 63 FTR 312 at 314 (TD); Santos v Canada (Citizenship and Immigration), 2004 FC 937 at para 15).

26    In Huang v Canada (Minister of Citizenship and Immigration) 2019 FC 1366, the Court stated at [29]:

The RPD referred to no evidence that the family members would encounter problems from the PSB. It appears to have speculated that because the PSB was interested in Ms. Huang, it would cause problems for her family. Such findings of implausibility are only to be made in the clearest of cases based on clear evidence, a clear rationalization process supporting the inference, and with reference to any relevant evidence which could potentially refute the conclusion: Santos v Canada (Minister of Citizenship & Immigration), 2004 FC 937 at para 15.

27    Some doubts have recently been expressed about this approach: see Kallab v Canada (Minister of Citizenship and Immigration) 2019 FC 706 at [76]. However, it seems the debate about the correct approach to “implausibility” findings in asylum claims is more developed in Canada than it is here in Australia.

28    The appellant’s argument was well put at [17] of his written submissions:

The Tribunal rejected the kidnapping claim on the basis that aspects of the appellant’s evidence were neither ‘credible’ nor ‘plausible’. That is, it held both that the facts underlying the kidnapping claim were inherently unlikely to be true and that the appellant was not a person whose claims were to be believed. The only evidence before the Tribunal that provided a clear, rational basis for concluding that the applicant was not a credible historian was the police material, which showed that he had been convicted of a number of criminal offences, including one involving dishonesty. The Court should not infer that the Tribunal made findings with respect to applicant’s credibility gratuitously and without an evidentiary basis. Rather, the Court should infer that the Tribunal considered the applicant’s credibility to be an issue that was material to its decision and that it made its findings with respect to that issue on the basis of a studied analysis of probative material. That is, the Court should infer that the Tribunal took the police material into account in making its decision and that its failure to disclose to the appellant the existence of the s 438 advice was therefore ‘material’ in the sense discussed in SZMTA. It follows that the decision is affected by jurisdictional error.

29    The appellant contended that where at [23] of its reasons the Tribunal referred to both “credible” and “plausible”, this part of the Tribunal’s reasons should be read as the Tribunal making a credibility finding against the appellant, concluding he was not honest. However, the appellant submitted that there was no probative basis in [23] for such a finding, because none of the express bases in that paragraph were capable of supporting what was, in effect, a dishonesty finding. There were not, for example, any inconsistencies in the appellant’s accounts identified, or any other reasoning that might ground a finding of dishonesty. For that reason, the appellant submitted the only available inference is that it was the Victoria Police record, and the conviction for stating a false name, which must have influenced the Tribunal’s fact-finding.

The Minister’s response

30    The Minister accepted that the Tribunal’s failure to disclose to the appellant the existence of the s 438 notification amounted to a breach of the Tribunal’s obligation of procedural fairness: see SZMTA at [38]. However the Minister contended, consistently with the approach taken by the majority in SZMTA, that the appellant was required to establish that the denial of an opportunity to make submissions about the s 438 notification was material to the outcome of the Tribunal’s review. The Minister contended that the appellant could not discharge that burden in the present appeal. The Minister submitted the appellant was not denied the “realistic possibility” of a different outcome. That is because, the Minister contended, the documents which were the subject of the s 438 notification were, first, irrelevant to the Tribunal’s review and second, even if the Court inferred the documents were of more than “marginal significance” to the review, there is no basis for the Court to infer the Tribunal took them into account.

31    The Minister contended that when account is taken of the nature of the appellant’s convictions as set out in the Victoria Police record, mostly for driving while disqualified, or for failing a breath test, those convictions were not rationally capable of affecting the Tribunal’s assessment of the appellant’s credibility. The Minister accepted the only conviction of potential relevance to the appellant’s credibility was for the offence of stating a false name. However, the Minister submitted that that offence was so far removed from the protection visa application process, that without some indication in the evidence or in the Tribunal’s reasons that it had regard to this conviction in forming its views about the appellant, the Court should not draw the inference for which the appellant contended. Especially since by the time of the Tribunal’s decision (in 2014), that conviction was three years old, and the conviction was recorded two years prior to the appellant’s first protection visa application.

32    The Minister contended that even if the Court inferred the information subject to the s 438 notification was of some degree of relevance to the Tribunal’s assessment of the appellant’s credibility, the situation in this case would be the same as that in MZAOL. Relying on what was said by the Full Court in MZAOL at [75]-[78], the Minister contended at [47] of his written submissions that:

… it must be presumed that the Tribunal would not, without good reason, have regard to information subject to a s 438 notification which it has determined should not be disclosed to an applicant – even where that information is relevant.

(Footnote omitted.)

33    The Minister contended the analysis of the majority in SZMTA at [48] and [72], and especially at [72], suggests that if the Court finds the s 438 notification material was irrelevant or only marginally relevant to the Tribunal’s review, it can stop at that point, because of the presumption that the Tribunal’s failure to take it into account would not have realistically made a difference to the outcome of the review.

Resolution

Applicable principles

34    Although the decision in SZMTA clarified much about the way a supervising court should approach circumstances where there is a s 438 notification and accompanying documents or information that have not been disclosed to a visa applicant, the working out of the consequences of the approach set out in SZMTA presents some challenges.

35    On this appeal, the Court can commence from the position of the Minister’s concession that the failure by the Tribunal to disclose the existence of the Secretary’s notification under s 438(2) to the appellant constituted a denial of procedural fairness. There was no argument on this appeal that the s 438 notification was invalid, and that aspect of SZMTA (see especially [18]-[21] and the majority’s explanation of the meaning of the jurisdictional preconditions in s 438(1)(a) and (b)) was not engaged on this appeal.

36    However, the majority finding in SZMTA (at [45]-[46]) was that, whether the issue is denial of procedural fairness, or breach of an inviolable limitation, in order to establish jurisdictional error the appellant must prove that the breach was “material” to the outcome of the review, in the sense that:

… compliance could realistically have resulted in a different decision.

37    Here, “compliance” must refer to compliance with the “inviolable limitation” in s 438(1)(a) and (b); or compliance with the duty to disclose the fact of the Secretary’s notification to the appellant (and, it would appear, the document(s) or information to which the notification relates): see SZMTA at [47]).

38    On this appeal, precisely how a Court might discern if compliance with the inviolable limitation in s 438(1)(a) and (b) could have realistically resulted in a different decision does not need to be explored: cf SZMTA at [48].

39    Rather, on this appeal it is sufficient to focus on the question of how compliance with the duty to disclose the Secretary’s notification under s 438, and the documents to which that notification applied, could realistically have resulted in a different decision on the Tribunal’s review. That is because such disclosure would have led to the Tribunal giving the appellant “a full opportunity to make submissions” about the documents or information which were the subject of the s 438 notification (here, relevantly, the Victoria Police record): SZMTA at [49].

40    Where, with respect, the majority’s materiality analysis in SZMTA becomes difficult to understand and apply, is in how a Court on judicial review is to deploy what was said by the majority at [47] and [50]:

The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

…

In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.

41    It would appear that the majority found (at [47]) that subject to any factual findings (direct or by inference) that the Tribunal took the s 438 notification information into account, the Tribunal is to be assumed not to have done so. In that case, it would seem, a person in the position of the appellant would not be able to prove that an opportunity to make submissions on objectively adverse information could have realistically resulted in a different outcome, because the Tribunal did not take the information into account in any event. That, with respect, is why it is difficult to understand how this kind of situation is a denial of procedural fairness at all. However, that is what the majority in SZMTA said it is.

42    In some cases, as with the particular circumstances of the appeal in SZMTA itself, the s 438 information might be said to have been helpful to a visa applicant. In that case, as the majority of the High Court explained at [71], one of the s 438 documents was a letter of support, written to an Australian Senator by a member of the Australian Buddhist community. With that kind of information, it is possible to understand how the majority’s approach, as set out at [47] and [50], can operate. That is, the Tribunal is assumed not to have taken the potentially helpful information into account, and the question for the supervising court is whether there could have realistically been a different outcome if it had.

43    The problem is, with respect, that the approach does not work as well when the information is potentially adverse and the supervising court is to apply the “presumption” that a Tribunal did not take the s 438 notification information into account because it did not disclose it gave active consideration to the exercise of the s 438(3) discretion. In that situation, a person in the position of the appellant has a greater challenge to prove, against this apparent “presumption”, that the Tribunal did take the s 438 material into account, against his interests on the review. Otherwise, the “presumption” will operate to the effect that the Tribunal will be taken not to have considered the potentially adverse information in the s 438 notification, and the “materiality” test in SZMTA will not be satisfied, so that the denial of procedural fairness will not be (according to the majority in SZMTA) a jurisdictional error.

44    At [69] of MZAOL, the Full Court noted that the more relevant the information to the issues on the review, the more likely it may be that the Tribunal took the information into account. While that might be thought to suggest the more objectively relevant the information, the more likely the presumption to which the majority in SZMTA referred might be rebutted, that is not how the Full Court went on to describe the situation at [73]-[75]:

Given that the prima facie position is that of non-disclosure of notified information to an applicant, there is good reason why the Tribunal is excluded from having regard to the notified information unless its discretion to have regard to that information is affirmatively and reasonably exercised.

The basic principle of the natural justice hearing rule is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests which the decision-maker proposes to take into account: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [56] (Hill, Sundberg and Stone JJ). That principle (with some qualification) is reflected in ss 424AA and 424A of the Act which require the Tribunal to give an applicant “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”. Although (as was further observed in SZMTA at [24] (Bell, Gageler and Keane JJ)), “the discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion”, it remains possible for the Tribunal to exercise the discretion given to it by s 438(3) in a way which would permit the Tribunal to have regard to notified information adverse to the interests of an applicant without disclosing that information to the applicant. The obvious unfairness for an applicant of that eventuality has, in the circumstances contemplated by s 438, given rise to the requirement that an affirmative decision made within the bounds of reasonableness needs to be made by the Tribunal in order to have regard to notified information.

There is therefore a basis for inferring that a Tribunal involved in the regular administration of the Act would, first, appreciate that absent an affirmative exercise of its discretion it cannot have regard to notified information and, second, would not, without good reason, make an affirmative decision to have regard to notified information which it has determined should not be disclosed to the applicant. In that context, it would be wrong to accept a contention like that put by the appellants that it should be inferred from the fact that the impugned information was relevant that the Tribunal had regard to it.

(Emphasis added.)

45    By reference to SZMTA, the Full Court in MZAOL appeared to find that:

(a)    a Tribunal cannot, within its jurisdiction, have regard to any s 438 information without exercising its discretion under s 438(3)(a) (and, it would appear, referring to that fact in its reasons); and

(b)    (by reference to the implied condition of reasonableness on the exercise of a Tribunal’s powers under s 438) that if there is no disclosure to the visa applicant pursuant to s 438(3)(b), there must be “good reason” for the Tribunal to take the s 438 information into account.

46    It was this approach which led the Full Court to state, at [76]:

In this case, it must be presumed that the Tribunal acted on the basis that the certification and notification made under s 438 was valid. The Tribunal did not exercise its discretion under s 438(3)(b) to disclose any of the impugned information to the appellants. So much is apparent from the fact that none of the impugned information was disclosed. In those circumstances, and particularly given the highly prejudicial nature of the information which emanated from the New South Wales police, there is good reason for thinking that a fair minded Tribunal member in the regular administration of the Act and acting on the basis that s 438 had application would not have affirmatively exercised the discretion to have regard to the impugned information without good reason. If good reason for the exercise of the discretion existed, it is not apparent. Additionally, absent any contrary indication in the Tribunal’s reasons or elsewhere in the evidence that the Tribunal gave active consideration to the affirmative exercise of the s 438(3)(a) discretion, there is further justification for inferring that the Tribunal paid no regard to the impugned information in reaching its decision (see SZMTA at [47] Bell, Gageler and Keane JJ)).

(Emphasis added.)

47    It was after this observation that the Full Court made the obiter statement (at [77]) I have reproduced earlier in these reasons at [21] above. No party submitted what was said in MZAOL was plainly wrong, and there is therefore no occasion to consider the correctness of the Full Court’s approach.

48    All this serves to illustrate why the Minister’s approach in this appeal of going immediately to the question of the relevance of the s 438 information is not, with respect, sufficiently consistent with what is required by SZMTA and MZAOL. Rather, the descriptions “convoluted” and “confusing” could well be applied to the way a supervising court must navigate the various possible routes to an outcome on the question of “materiality”, having regard to the principles articulated by the majority in SZMTA.

49    The approaches by the majority in SZMTA and by the Full Court in MZAOL make it difficult for a person in the position of an appellant to prove that a Tribunal took into account information in a s 438 notification that was potentially adverse to the appellant, if there is no indication in the Tribunal’s reasons of any consideration of whether to exercise the discretions in s 438(3). Since the Tribunal decisions currently coming before this Court were made well prior to the decision in SZMTA being handed down, the Tribunal itself has not had the benefit of understanding the importance which will be attached by a supervising court to what is, and what is not, in its reasons, in terms of the supervising court attempting to understand what the Tribunal did, or did not, do with information attached to a s 438 notification.

50    On the present appeal, the information attached to the impugned s 438 notification was contended to be potentially adverse to the appellant. On my understanding of the majority approach in SZMTA in those circumstances, read with MZAOL, where there is an admitted non-disclosure of the existence of a s 438 notification, there must be a two-step process undertaken by the supervising court on judicial review to determine “materiality” so as to arrive at a conclusion of jurisdictional error. What must be proven by a person in the appellant’s position is that:

(a)    the Tribunal in fact took the s 438 information into account, despite there being no evidence of it exercising the discretion in s 438(3)(a) to do so, and despite the “presumption” that the Tribunal paid no regard to the information if there was no exercise of the discretion in s 438(3); and

(b)    the outcome of the review could have realistically been different if the appellant had an opportunity to make submissions to the Tribunal about that information.

51    I consider I am bound to apply that approach. For the reasons that follow, I do not consider the appellant has discharged that burden of proof.

The s 438 notification information and the Tribunal’s decision in this case

52    There is no reference in the Tribunal’s reasons, nor in any other evidence before the Court, that the Tribunal even turned its mind to the exercise of the powers under s 438(3). The absence of any such indication is significant, as I have explained. The “presumption” applies.

53    Further, there being no disclosure of the s 438 information to the appellant, and no reference to the information in the Tribunal’s reasons, it is also difficult for the appellant to prove that the Tribunal positively determined to take the s 438 information into account and not disclose it to the appellant; as it would have needed, on the authority of MZAOL, to have “good reason” to do so.

54    On this appeal, counsel for the appellant adopted an appropriately restrained approach to the potential relevance of the s 438 information, in his quest to persuade the Court that notwithstanding the absence of any reference to the s 438(3) discretion, the Tribunal had considered the s 438 notification information, and in particular the Victoria Police record. In his comprehensive and able submissions, counsel for the appellant clearly recognised the uphill battle facing him.

55    The “State false name” offence was buried in the Victoria Police record along with all of the appellant’s other driving and alcohol-related offences. Whilst I accept it is an offence involving dishonesty, the context in which he committed the offence (when he was identified as driving while disqualified) might as much suggest panic and consciousness of guilt on the part of the appellant, as any deliberate plan to deceive. The objective characterisation of that offence is not inevitably one affecting the appellant’s honesty.

56    More problematically, there is simply nothing in the impugned parts of the Tribunal’s reasons, nor anywhere else in those reasons for that matter, which suggests that this was a review where the Tribunal had formed a clear opinion the appellant had lied. This was a review where the Tribunal largely accepted the appellant’s narrative, and his claimed circumstances, but rejected the visa application because it was not satisfied the appellant’s fears were well-founded. When the Tribunal used “credible or plausible” in [23] of its reasons, it did not appear to me to display much consciousness about the substantive difference between the two phrases, nor to see any difference as especially material to its fact-finding. Those passages appear to me to be the Tribunal explaining that whether the appellant’s narrative made objective sense, or whether he might be embellishing or making up aspects of it, either way, it did not lead in the Tribunal’s opinion to an objective basis for his fear. Unlike many Tribunal decisions this Court sees on judicial review, this was not a clear and emphatic finding that the visa applicant was a liar. Further, the way the law has developed in Canada about the caution to be exercised by administrative decision-makers in making findings of implausibility is not a development which is yet visible in Australian law.

57    This is not a review where the nature of the s 438 information, and any possible connection to the issues before the Tribunal, or any connection to the Tribunal’s disclosed reasoning process, suggest that a supervising court should find the “presumption” inapplicable. I do not consider this is a review where the Court should find that the Tribunal did have regard to the Victoria Police record and to the “State false name” conviction in particular, even though it did not say as much. The Tribunal’s reasons do not disclose any real assessment of the appellant’s honesty at all, let alone an assessment of a kind that might suggest its reasoning was affected by the presence of the “State false name” conviction in the s 438 notification information. The appellant has not proven that the “State false name” conviction in particular, actuated or affected the Tribunal’s opinion of the appellant as a narrator or a claimant.

58    Therefore, even if the appellant had been given an opportunity to make submissions about the s 438 notification, and the information attached to it (including the “State false name” conviction in the Victoria Police record), as the Minister concedes he should have been, I am not persuaded there was the realistic possibility of a different outcome on the review. That is because, as I have found, the Tribunal’s reasoning was not in fact affected by the potentially adverse information in the first place. Submissions by the appellant could not, in those circumstances, have secured any different outcome to the review for him. On the approach required by SZMTA, I am bound to conclude the conceded denial of procedural fairness did not involve a jurisdictional error.

Conclusion

59    There was no error in the orders made by the Federal Circuit Court. The appeal must be dismissed. There is no basis for anything but the usual order as to costs.

Associate:

Dated:    4 December 2019