FEDERAL COURT OF AUSTRALIA

DME16 v Minister for Immigration and Border Protection [2019] FCA 2135

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding is identified by the pseudonym DME16. She is a citizen of Zimbabwe.

2    In January 2014, she applied for a protection visa. A delegate of the Minister refused that application in October 2014. An application for review was then made to the Refugee Review Tribunal, this being prior to the amalgamation of the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal undertaking the review affirmed the delegate’s decision in October 2016: [2016] AATA 4646. Before the Tribunal there was a notification that had been provided to it pursuant to s 438(1)(b) of the Migration Act 1958 (Cth) (the “Migration Act”) in September 2015.

3    On 1 August 2017, a Judge of the Federal Circuit Court published three separate reasons for decision. One decision concerned the provision of a redacted version of the documents the subject of the notification, a copy of which had been provided only to the legal representatives of the now-Appellant. An un-redacted version of those documents had been provided to the Court. The redacted version was tendered and marked as an exhibit: DME16 v Minister for Immigration & Border Protection [2017] FCCA 1791. The second decision, in respect to an exhibit, was published on the same day: DME16 v Minister for Immigration & Border Protection (No 2) [2017] FCCA 2055. The third decision, also delivered on the same day, dismissed DME16’s amended application for review: DME16 v Minister for Immigration & Border Protection (No 3) [2017] FCCA 2056.

4    On 18 August 2017, DME16 filed a Notice of Appeal in this Court. But the hearing of the appeal was held in abeyance pending three decisions of the High Court: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, (2019) 163 ALD 38 (“SZMTA”). Those decisions were handed down in February 2019.

5    On 11 May 2018, written submissions were filed by pro bono Counsel on behalf of the Appellant. Pursuant to leave granted, an Amended Notice of Appeal was also filed in May 2018. Written submissions were filed on behalf of the Minister on 8 August 2019.

6    The appeal ultimately proceeded to hearing on 15 August 2019. The Appellant appeared represented by pro bono Counsel. The Respondent Minister also appeared represented by both Senior and Junior Counsel. The Second Respondent filed a Submitting Notice, save as to costs.

7    At the outset of the hearing of the appeal, Senior Counsel for the Minister sought leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely upon an affidavit which annexed a redacted version of the information the subject of the s 438 notification. Leave was not opposed. No application was made to restrict access to the redacted version of the information. As this information had not previously been disclosed to the Appellant, a short adjournment was granted to allow pro bono Counsel for the Appellant to obtain instructions with respect to that information. Following the adjournment, the appeal proceeded. No further application was made by pro bono Counsel for the Appellant to seek to adduce any further evidence from the Appellant.

8    The appeal is to be dismissed.

The Amended Notice of Appeal & the issues arising

9    The Grounds of Appeal in the Amended Notice of Appeal were set forth (without alteration) as follows:

1.    The Federal Circuit Court (the Court) erred in finding there was no failure to afford the applicant procedural fairness in circumstances where the appellant had not been informed of the existence of the certificate under s438 of the Act.

2.    The Court erred in not following decisions of the Federal Court that the failure to disclose the existence of a certificate issued under s 438 of the Act constitutes a breach of procedural fairness.

3.    The Court erred in finding there was not practical injustice.

4.    The Court should have found that the breach of fair procedure in not disclosing the existence of the s438 certificate of itself occasions practical injustice because it denied them the opportunity which in fairness she ought to have been given.

5.    The Court should have found that the loss of opportunity for the appellant to seek disclosure under s 438(3)(b) of the Act of a greater amount of information caused practical injustice.

6.    The Court erred in concluding that the s 438 certificate was valid on its face as it related to matters of public interest (s438(1)(a)) when in fact the certificate asserted that it was issued in respect of confidential information pursuant to s 438(1)(b).

7.    The Court should have found that the s 438 certificate was arguably invalid.

8.    The Court erred in finding that the breach of procedural fairness in not disclosing the existence of the certificate could not have possibly have affected the outcome of the case.

9.    The Court should have found that disclosure of the certificate could have affected the outcome of the case as the applicant could have requested the Tribunal to reveal, pursuant to s348(3)(b), all the information in the documents or, alternatively all of the information in the document that did not reveal the confidential source of information.

10.    The Court erred in not finding that the failure of the Tribunal to disclose to the applicant either of the following allegations in the documents covered by the s438 certificate could have affected the outcome of the case:

(a)    That she was seeking refuge in Australia for economic reasons; and

(b)    That she was an economic refugee.

11.    The Court erred in finding that the Tribunal did not breach s424A of the Act when it failed to provide an invitation to the applicant to comment on the following information:

(a)    That she was seeking refuge in Australia for economic reasons; and

(b)    That she was an economic refugee.

12.    The Court erred in failing to find that the Tribunal breached s424A of the Act by failing to provide clear particulars to the appellant in accordance with s.424A(2) including of the following information:

(a)    That she was seeking refuge in Australia for economic reasons; and

(b)    That she was an economic refugee.

13.    That the Court erred in failing to find that the Tribunal breached s.424AA of the Act when it failed to provide clear particulars to the appellant, including of the information referred to in 12. Thereby denying her procedural fairness.

The Amended Notice of Appeal abandoned Grounds 6, 7 and 11 and inserted two further Grounds of Appeal. Even as amended, there was some uncertainty as to the precise issue sought to be raised by one or other of the Grounds of Appeal and some seemed to overlap one with the other.

10    The submissions filed by pro bono Counsel for the Appellant in May 2018 more usefully sought to identify the four issues in need of resolution as being:

    whether the non-disclosure of a “certificate” which had been given pursuant to s 438 of the Migration Act was a denial of procedural fairness, the Amended Notice of Appeal itself referring to a “certificate” as opposed to the “notification” in fact given – but nothing turns on that;

and, if so:

    whether the primary Judge ought to have granted relief;

and:

    whether the Tribunal committed jurisdictional error by not providing clear particulars of the information the subject of the notice in writing as required by s 424A(2) of the Migration Act;

and, if it did not:

    whether the Tribunal denied the Appellant procedural fairness by failing to give clear particulars of the information the subject of that notice pursuant to s 424AA(1)(a).

Such uncertainty as arose by reason of the manner in which the Amended Notice of Appeal had been drafted was removed by the written submissions that had been filed. Such uncertainty arose as to the “information” which it was argued had not been disclosed. It was common ground that the Tribunal did not disclose to the now-Appellant the fact that a notification had been given pursuant to s 438 of the Migration Act.

11    Guided by reference to these four issues, it is concluded that the appeal should be dismissed with costs.

12    Each of the issues raised should be separately addressed.

Section 438 & the need for disclosure

13    Section 438 of the Migration Act provides, in summary form, for a certificate to be issued by the Minister that the disclosure of any matter “would be contrary to the public interest” (s 438(1)(a)) or for notification that information had been given to the Minister or an officer of the Department “in confidence” (s 438(1)(b)).

14    In its entirety, s 438 provides as follows:

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.

15    It was this provision which occupied the attention of the High Court in SZMTA [2019] HCA 3, (2019) 163 ALD 38. Bell, Gageler and Keane JJ there explained the role played by s 438 as follows (at 46 and 47):

Procedural fairness

[27]    The Minister concedes that the consequences for a review under Pt 7 of the Secretary notifying the Tribunal that s 438 applies in relation to a document or information are sufficient for the common law to imply an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review unless such an obligation is specifically excluded by the statutory scheme. The concession is rightly made.

…

[29]    The reason why the Minister’s concession is correct is that procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.

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

(citation omitted)

Their Honours went on as follows to state that it was “essential” to establish that non-compliance with the requirement to disclose the fact of notification was “material” (at 50):

Materiality

[45]    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

[46]    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

It was the necessity to also establish “materiality” as “essential to the existence of jurisdictional error” which divided the Court. In dissent, Justices Nettle and Gordon concluded as follows that jurisdictional error was made out simply by reason of the failure to notify (at 60 and 65 to 66):

[91]    Further, while the concept of “materiality” has been a focus in certain decisions in England, the approach there must be understood against a backdrop where the distinction between jurisdictional and non-jurisdictional error has been reduced to a “vanishing point”. It would be wholly inappropriate to import such a concept into this country, where the distinction between jurisdictional and non-jurisdictional error is the essence of judicial review.

…

[117]    Procedural fairness requires disclosure of the fact of notification by the Secretary. Non-disclosure of the fact of notification constitutes a breach of the Tribunal's implied obligation of procedural fairness. It is an unauthorised act in breach of a statutory procedure which conditions the performance of the duty of the Tribunal to conduct a review in the manner outlined above. A breach of that obligation of procedural fairness constitutes jurisdictional error. An incorrect and therefore invalid notification by the Secretary that s 438 applies in relation to a document or information also gives rise to jurisdictional error in the conduct of a review.

See also: Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [52] per Jagot, Robertson and Farrell JJ.

16    It is thus the position that:

    procedural fairness would normally require the disclosure of the fact that reliance had been placed upon s 438 in respect to a document or matter contained in a document and that a certificate or notification had been made pursuant to s 438;

but that:

    jurisdictional error is only exposed by non-disclosure if the non-disclosure was “material” in the sense that disclosure “could realistically have resulted in a different decision”.

The information that was not disclosed – s 438(1)(b)?

17    Part of the redacted information that was covered by the September 2015 notification that had been given in reliance of s 438(1)(b) in the present proceeding included the following:

Specific information: [DME16] provided fake documents, false (made-up) stories, incidents, info, events and dates to try and convince DIAC that she is a genuine Assylum seeker … She has never been tortured or had hers or her family’s life threatened ever. She has never been a member of the MDC even though she lied about it and bought an MDC support letter and obtained a fake MDC ID card. She did not lose any friends, family or anyone else as she lied about. She is here for economic refuge not political refuge … You should consider her an economic refugee as she was never persecuted, tortured or fearful for hers of her family’s life.

(Appellant’s name omitted; spelling and grammar errors in original)

Of present concern is the information provided to the Department that the now-Appellant was an “economic refuge[e] not [a] political refuge[e]”.

18    Pro bono Counsel contended that the “information the subject of the s.438 certificate was more extensive than that disclosed by the Tribunal at the hearing”. Senior Counsel on behalf of the Minister did not, with respect, directly confront this submission but preferred to contend (inter alia) that the Tribunal had put “the substance” of the information it had received to the Appellant. That submission advanced on behalf of the Minister is rejected.

19    From the transcript of the Tribunal hearing, it is apparent the exchange of relevance between the now-Appellant and the Tribunal was the following (without alteration):

M:    The last thing that I have to put to you is that … I note that you provided a letter saying that you’re reliable and efficient in a nursing home, that doesn’t really assist in terms of what I have to consider. Okay?

I-interpreting

M:    You understand? I’m not assessing the kind of employee that you are, that’s not what’s before me.

C/I:     Yes

M:    It would seem to me that you would be … you’ve been had employment here, and experience, so it seems you would be able to obtain employment in Zimbabwe.

C/I:    Going back to Zimbabwe, there’s no employment at all. And I’m still facing persecuting so I’m afraid to go back.

M:    Well, but there is employment, there is work, there is people who are working in Zimbabwe.

C/I:    But the point is they will persecute me and might even kill me so I don’t even know how to … how I can make way.

M:    There’s one thing I have to put to you in a more formal manner.

I interpreting

M:    Just because the legislation says I have to put it to you in a certain way. The law says that. Um, just hold on a second. So if information will be or be part of the reason confirming the decision under review … Okay, so, but I have not made up my mind. Okay? So I’m going to tell you what the particulars of the information are, and I’m going to tell you why it’s relevant, the consequence of the Tribunal for relying on the information, and I will ask if you have any response to the information at the time and if so why. Do you understand so far?

C:    Mhm.

M:    Okay, alright. So if you let me go through it all, and then you can comment or respond if you want to. I suppose if you don’t understand something, um, you can stop me. Okay?

C:    Mhm

M:    Alright. So, the Department has received correspondence from two people. I don’t know who those two people are. But I have information about the relationship of those people with you, the connection or however you want to call it, how they know you. But, because the information was given in confidence, I can’t tell you how or the connection of the relationship. Okay, so I can’t tell you about the connection or the relationship, but I can tell you the particulars of what they’ve said. Alright, do you understand so far?

C:    Yea, I know.

M:    So essentially, what they’ve said is that you’ve told people in Australia that you’ve made false protection claims and that you’ve obtained false documents to support your claims and that no one has sought to harm you or your family in Zimbabwe and that you’ve not have any problems there. And no one will seek to harm you and your family in the future because you’re not of interest and you’re not involved politically. Now, this information is relevant because it shows you’ve told people you’ve made up claims that you’ve presented to the Department and the Tribunal and that you’ve produced false documents to the Department and Tribunal. And if the Tribunal finds that you’ve made up your claims and you’ve provided false documents, and that you have no political involvement in Zimbabwe, and that you’re not facing harm in Zimbabwe, and the Tribunal would find that you’re not facing harm or significant risk of harm, and it would affirm the decision under review so it would agree with the delegate’s decision not to grant a Protection visa. Would you like to comment on the information?

I interpreted all of the above sentence by sentence

C/I:    (Crying) I don’t know whoever passed on that information because that’s not true. That person passed on that irrelevant information to…

C:    My documents are true

I:    And my documents are true.

M:    Do you want to say anything else?

I:    No.

M:    Just for the recording, the applicant is shaking her head. Okay.

M:    I will take into account what you said, okay? Is there anything you would like to say before we conclude the hearing?

C:    No.

20    Missing from that exchange was any reference to the information that had been received by the Department “in confidence” (s 438(1)(b)) as to the now-Appellant being an “economic refugee”. Although the “substance” of the balance of the information provided to the Department may have been disclosed to the now-Appellant, the allegation from the undisclosed source that she was an “economic refugee” was neither disclosed expressly nor in “substance”.

21    It may further be noted in passing that the disclosure of information or a document or part of a document otherwise covered by s 438 is more than a mere “formality”. Compliance with a statutory obligation expressed in terms such as that employed in s 438 of the Migration Act, and an obligation going to the very fundamental requirement to afford procedural fairness cannot – with respect – be properly characterised as a “formality”. The language of the Tribunal Member, including the reference to the necessity to put information to the now-Appellant “in a formal manner” and the reference to “particulars of what they’ve said” may well not have been characterised by the Tribunal as a “formality”, but the language employed by the Tribunal (with respect) was inapt.

22    It may again be noted that it is not a mere “formality” for a certificate or notification to have been issued in the first place. Earlier reservations as to the circumstances in which such certificates are issued (e.g. BXD15 v Minister for Immigration and Border Protection [2017] FCA 1209 at [41] to [43] per Flick J) are again repeated. Those reservations are only compounded in the present case where the course pursued on behalf of the Respondent Minister before the Circuit Court was to limit access to the redacted material to Counsel for the Applicant but to not oppose access to the redacted material being granted to the Appellant herself when the matter was on appeal. Although it is unquestionably better for the Appellant to ultimately gain access (even to the redacted information) rather than to not gain any access at all, the withholding of information from a party to a proceeding without good reason certainly does nothing to promote “open justice”.

An absence of any denial of procedural fairness

23    Notwithstanding the non-disclosure to the now-Appellant of information the subject of the s 438 notification, it is nevertheless concluded that there has been no denial of procedural fairness. So much follows from the fact that the Tribunal did not place any reliance upon the material provided to it.

24    Specifically, the Tribunal concluded in its reasons, in relevant part, as follows:

[80]    In September 2015 the Department of Immigration provided the Tribunal with a copy of two anonymous accusations that the applicant had provided false protection visa claims and was relying upon false documents. The accusations were subject to a certificate issued under paragraph 438(1)(b) of the Migration Act 1958 on the basis that the information had been given to the Department in confidence but may identify the sources if disclosed. The notification stated that the Tribunal’s use and disclosure of the information is subject to section 438(3) and (4) of the Act. The Tribunal agrees that the certificate relates to information that had been given to the Department in confidence but may identify the sources if disclosed. The Tribunal considered the information and notes that it appears that the Certificate is valid. As set out below, the Tribunal discussed the relevant information from these allegations with the applicant at hearing, and it makes a direction under section 440 of the Act that this information not be further published or disclosed.

[81]    The Tribunal put to the applicant at hearing pursuant to s. 424AA of the Act that according to the allegations she had told people in Australia that she had made false protection visa claims, she had obtained false documents to support her claims, that no one has sought to harm her or her family in Zimbabwe; she had experienced no problems there, and no one will seek to harm her or her family because she and her family are not of interest, and they are not involved politically. In response, the applicant said that she doesn’t know whoever passed that information to the Department because it is not true. He documents are true and she does not want to say anything else.

[82]    Given that the allegations are from anonymous sources and the motives behind the allegations are unclear, the Tribunal does not consider these allegations to be credible or relevant to the decision in this matter.

Credibility summary

[83]    Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of events, as well as claimed fears, upon which she has based her protection claims.

25    To employ the language of Bell, Gageler and Keane JJ in SZMTA, the non-disclosure was not “material” in the sense that even had the information been disclosed it could not “realistically have resulted in a different decision”. This conclusion, however, has been reached with some misgivings. Confined to the material that was before the Tribunal, it may well have been correct to contend – as submitted on behalf of the Respondent Minister – that the now-Appellant could be in no better position had the information been disclosed to the now-Appellant than the position in fact pursued by the Tribunal of not taking into account the information the subject of the s 438 notification. But that is to ignore the prospect that disclosure of the information may have led the now-Appellant to adduce further evidence or to make further submissions directed to the “anonymous” allegation. Such further evidence or further submissions may, in turn, have led the Tribunal to reassess the credibility findings made with respect to the claims as were made by the now-Appellant and were resolved by the Tribunal. But such reservations have not prevailed by reason of:

    the lack of any reasonable prospect of the adverse credibility findings made by the Tribunal being revisited by reason of any further evidence in respect to an allegation that the Appellant was an “economic refugee” – the claims the subject of the existing findings made by the Tribunal being well-founded and discrete from any separate question as to the now-Appellant being an “economic refugee”; and

    the absence of any indication being provided as to the nature of such further evidence as could have been adduced once the redacted information was disclosed.

26    It is thus concluded that the first and second of the issues as identified by pro bono counsel in the May 2018 submissions should thus be answered such that the non-disclosure of information to the Appellant was not “material” and hence gave rise to no entitlement to relief.

The absence of clear particulars – ss 424A and 424AA

27    The third of the issues posed for resolution by pro bono Counsel raises a question as to whether the Tribunal complied with s 424A of the Migration Act. It is this issue which is the subject of Ground 12 in the Amended Notice of Appeal.

28    Section 424A provides (in part) as follows:

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

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

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

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

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

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

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

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

Compliance with s 424A(1) is thus not required if an invitation has been extended pursuant to s 424AA.

29    Section 424AA(1), in turn, provides as follows:

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the 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; and

(b)    if the Tribunal does so––the Tribunal must:

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

(ii)     orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information––adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

30    Non-compliance with s 424A constitutes jurisdictional error and it is not relevant to inquire further as to whether the procedures that were followed by the Tribunal were otherwise procedurally fair. Non-compliance renders a decision invalid: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, (2005) 228 CLR 294 at 354-355 (“SAAP”). Hayne J there concluded:

[206]    The language of s 424A is, of course, imperative: “the Tribunal must” take the several steps it prescribes. That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that “the Tribunal may” take various steps. The evident purpose of the provisions of s 424A (and several other provisions in Div 4 of Pt 7) is to give applicants for review procedural fairness.

(emphasis in original)

His Honour went on to further conclude:

[208]    Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.

[209]    In light of that conclusion, it is not necessary to consider the separate question whether the procedures which were followed by the Tribunal in this particular case were procedurally fair.

Justice Kirby had similarly concluded as follows:

[173]    Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A (must) and the provisions of Pt 7, Div 4, I agree with Hayne J that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. The will of the Parliament must be obeyed. The resulting decision of the Tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court.

(footnote omitted)

In commenting upon the decision in SAAP, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 235 ALR 609 at 614 observed in part as follows:

[13]    A majority of this Court in SAAP determined two points about the operation of s 424A: first, that its effect was mandatory, in that a breach of the section constituted jurisdictional error; and second, that its temporal effect was not limited to the pre hearing stage. …

(footnotes omitted)

31    As amended, it will be noted that the amendment effected to the Notice of Appeal was to abandon the former Ground 11 and to insert the new Ground 12, there being no difference between the two Grounds with respect to the identification of the “information” relied on and with the difference being the insertion of the phrase “by failing to provide clear particulars to the appellant in accordance with s. 424A(2)…” in Ground 12. For the purposes of s 424A, the Amended Notice of Appeal identifies the “information” as “including” the allegation being made that the Appellant “was seeking refuge in Australia for economic reasons” and that she “was an economic refugee”.

32    It is respectfully concluded that “clear particulars” of this “information” was not provided to the now-Appellant by the Tribunal, either in writing pursuant to s 424A(1)(a) and s 424A(2) or orally pursuant to s 424AA(1)(a). The rejection of the submission advanced on behalf of the Respondent Minister, that the exchange between the Tribunal member and the now-Appellant disclosed the “substance” of the anonymous allegations against her, carries with it the further conclusion that “particulars” of that allegation were not provided, let alone “clear particulars”.

33    The third of the issues as identified by pro bono Counsel for the Appellant is thus answered in favour of the Appellant. If reference is had to the Grounds of Appeal, Ground 12 has been made out.

34    The difficulty then confronted by Counsel for the Respondent Minister were the conclusions of Hayne and Kirby JJ in SAAP. A contravention of s 438 only leads to relief if the contravention was “material”; any consideration of whether a contravention of s 424A gave rise to procedural unfairness was said in SAAP to be “not to the point”: [2005] HCA 24 at [208], (2005) 228 CLR 294 at 355.

35    Any submission that a contravention of s 424A necessarily led to the grant of relief, however, was potentially answered if it were the case that:

    the “imperative” requirement imposed by s 424A was subject to and was to be construed and limited by reference to s 438 – such that, as Senior Counsel for the Respondent Minister contended, s 438 was the “dominant” provision; and/or

    the Court nevertheless retained a discretion to refuse relief even in circumstances where the administrative decision sought to be reviewed was a nullity by reason of jurisdictional error arising from a contravention of a term imposing an “imperative” requirement – such as s 424A.

Senior Counsel for the Respondent did not shrink from advancing a further submission, albeit a submission which could only be formally put to this Court, namely that:

    the conclusions of Hayne J and Kirby J in SAAP were wrong and should not be followed.

Albeit not by reference to the touchstone of whether one statutory provision is “dominant” to another, it is concluded that:

    section 424A is to be read as subject to s 438;

but further concluded that:

    on the facts of the present case, s 438 did not prevent the Tribunal from giving to the Appellant pursuant to s 424A(1) “clear particulars” of the allegation that had been anonymously made that she was an “economic refugee”; and

    that the Tribunal had thereby contravened s 424A(1) such that its decision was a nullity;

but that:

    relief should be refused in the exercise of the Court’s discretion.

Section 424A subject to s 438 – a contravention is made out

36    As to the first of these steps, s 424A(1) cannot require the Tribunal – subject only to the discretion conferred by s 438 – to do that which is prohibited. The requirement imposed upon the Tribunal by s 424A(1)(a) to give “clear particulars” of information to an applicant is thus to be read as not requiring the Tribunal to give “clear particulars” of information which s 438(1)(a) requires – in the absence of any exercise of discretion – “not be disclosed”. Nor can s 424A(1)(a) require the disclosure of information without the Tribunal directing its attention to the discretion conferred by s 438(3).

37    Notwithstanding the differences between s 375A and s 438 of the Migration Act (Parvin v Minister for Immigration and Border Protection [2019] FCAFC 86 at [44] per O’Callaghan J (Perram and Perry JJ agreeing)), there remains a tension between s 438 and s 424A – as there is between ss 375A and 359A of the Migration Act: cf. Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 at [55], (2016) 244 FCR 305 at 317-318 per Kenny, Perram and Mortimer JJ (“Singh”). That tension may be resolved, on the facts of an individual case, by “carefully” drafting the “clear particulars” in a manner which preserves the privilege to retain as confidential the information that is subject of the s 438 certificate. But there “may be instances where matters of public interest immunity may limit the scope of the hearing rule when it comes to procedural fairness”: CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112 at [41] per Colvin J. Where there is a direct conflict, s 438 “prevails”: cf. Singh [2016] FCAFC 183 at [56], (2016) 244 FCR 305 at 318; Tam v Minister for Immigration and Border Protection [2019] FCA 780 at [77] per White J.

38    On the facts of the present case, however, the Tribunal exercised the discretion conferred by s 438(3) to “disclose … matter contained in the document… or … information … to the applicant”. Any tension between ss 424A(1) and 438(1) is thus resolved. The Tribunal’s reasons thus relevantly record as follows:

[80]    In September 2015 the Department of Immigration provided the Tribunal with a copy of two anonymous accusations that the applicant had provided false protection visa claims and was relying upon false documents. The accusations were subject to a certificate issued under paragraph 438(1)(b) of the Migration Act 1958 on the basis that the information had been given to the Department in confidence but may identify the sources if disclosed. The notification stated that the Tribunal’s use and disclosure of the information is subject to section 438(3) and (4) of the Act. The Tribunal agrees that the certificate relates to information that had been given to the Department in confidence but may identify the sources if disclosed. The Tribunal considered the information and notes that it appears that the Certificate is valid. As set out below, the Tribunal discussed the relevant information from these allegations with the applicant at hearing, and it makes a direction under section 440 of the Act that this information not be further published or disclosed.

[81]    The Tribunal put to the applicant at hearing pursuant to s. 424AA of the Act that according to the allegations she had told people in Australia that she had made false protection visa claims, she had obtained false documents to support her claims, that no one has sought to harm her or her family in Zimbabwe; she had experienced no problems there, and no one will seek to harm her or her family because she and her family are not of interest, and they are not involved politically. In response, the applicant said that she doesn’t know whoever passed that information to the Department because it is not true. He documents are true and she does not want to say anything else.

[82]    Given that the allegations are from anonymous sources and the motives behind the allegations are unclear, the Tribunal does not consider these allegations to be credible or relevant to the decision in this matter.

Notwithstanding the discretionary decision made by the Tribunal to disclose the some of the allegations made anonymously to the Department, what was not disclosed was that part of the allegations that the now-Appellant was an “economic refugee”.

39    The Tribunal thus approached its decision-making task upon the basis that information otherwise the subject of s 438 was to be disclosed pursuant to s 438(3)(b) but failed to disclose part of that information. Once the decision had been made to disclose information, and subject to a direction being made under s 440, s 438 did not prevent the Tribunal from complying with s 424A(1) and giving to the now-Appellant “clear particulars” of the allegation as to her being an “economic refugee”. There has been a failure to comply with s 424A(1)(a). There has also been a failure to comply with s 424A(2).

40    Nor did the exchange between the Tribunal member and the now-Appellant satisfy the requirements of s 424AA(1)(a).

41    But any contravention of s 424A or s 424AA does not give rise to any denial of procedural fairness because the failure to provide “clear particulars” as to the Appellant being an “economic refugee” was not “material” to the decision reached. The fourth issue identified by pro bono Counsel in the May 2018 submissions is thus answered in the negative.

The discretionary refusal of relief?

42    In the alternative, the conclusions of Hayne and Kirby JJ in SAAP, it is respectfully considered, do not preclude the discretionary refusal of relief even in circumstances where a contravention of s 424A has been made out.

43    In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 235 ALR 609 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in obiter comments observed:

Discretion

…

[28]    This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that:

Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

(footnotes omitted)

44    Even though it may not be “to the point” to consider whether a contravention of s 424A has resulted in a denial of procedural fairness (SAAP [2005] HCA 24 at [208]; (2005) 228 CLR at 355), it is concluded that relief may be refused where a conclusion is reached that compliance with s 424A would have led to no different outcome. Relief may be refused with respect to a contravention of s 424A in the exercise of the Court’s discretion where, for example, a claimant has not been “disadvantaged”: cf. Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 at [52] per Gray ACJ, North and Gyles JJ.

45    Such is the conclusion in the present case. A finding by a Tribunal that a claimant may not face “a real risk of significant harm” by reference to the claims relied upon may not “subsume” a separate allegation as to a claimant being an “economic refugee”. Notwithstanding some equivocation, however, it is ultimately concluded that on the facts of the present case the disclosure of the allegation made anonymously to the Department that the now-Appellant was an “economic refugee” would have led to no different outcome. That conclusion is founded upon:

    the manner in which the Tribunal did resolve the claims of which the now-Appellant did have notice and was given an opportunity to respond, the Tribunal concluding (inter alia) that the now-Appellant had “exaggerated and fabricated”, for example, her account of events and that the now-Appellant was “not a witness of truth” (at para [83] of its reasons);

    the fact that the Tribunal did not consider the anonymous allegations to be “credible or relevant” (at para [82] of its reasons);

    the fact that the disclosure to the now-Appellant by the Tribunal during the hearing of such information as was otherwise the subject of the s 438 notification did not then elicit any further evidence or submissions from the now-Appellant; and

    the fact that the disclosure of the information the subject of the s 438 notification, including the allegation as to her being an “economic refugee” at the outset of the present appeal did not occasion any application for leave to adduce further evidence (albeit on the hearing of an appeal).

The opportunity to seek time to respond – s 424AA(1)(b)

46    Ground 13 of the Amended Notice of Appeal asserted a breach of s 424AA.

47    Ground 13 identifies the “information” of which “clear particulars” were said not to be provided for the purposes of s 424AA(1) as “including” the information “referred to in [Ground] 12”. The submission of present relevance, however, is a separate submission that there was a failure to comply with s 424AA(1)(b)(iii) by reason of the Tribunal failing to advise the Appellant “that she could seek time with the result that she was not afforded the necessary opportunity to comment or respond…”.

48    The Respondent Minister sought to resist this argument by reason of either an argument that the Appellant:

    was in fact twice advised by the Tribunal as to the ability to seek additional time and refused; and/or

    had not included this argument in the Amended Notice of Appeal and it was thus outside the scope of the current appeal; and/or

    had sought to rely upon such an argument before the Circuit Court but had made a decision to abandon the argument and should not now be permitted to “resurrect” the argument on appeal.

49    A failure to advise the now-Appellant that she could seek “additional time” was an argument at one time forming part of the argument sought to be advanced before the Circuit Court. But it was an argument abandoned before that Court. The argument had first been raised as an amendment to the Application as filed in that Court. But that Amended Application was further amended and in the Further Amended Application, as it proceeded to hearing before the primary Judge, the argument was abandoned. Before the Circuit Court the now-Appellant was represented by a solicitor and Counsel. In circumstances where an apparent forensic decision was taken to abandon the argument, this Court should not permit the Appellant to resurrect it on appeal: cf. SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436 at [20] to [26], (2009) 112 ALD 490 at 496 to 498 per Flick J; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [38] per Wigney J.

50    Faced with this chronology of events, pro bono Counsel for the Appellant was correct to abandon the argument before this Court.

51    Ground 13, or at least that part of Ground 13 which focussed upon a contravention of s 424AA(1)(b)(iii), was thus abandoned.

The non-disclosure of the s 438 notification

52    The fact of non-disclosure of the s 438 notification assumes no relevance in the present proceeding.

53    The non-disclosure of information the subject of the notification, it has been concluded, gives rise to no relief as the non-disclosure was not “material” and would have led to no different conclusion had the information been disclosed.

54    The non-disclosure of the notification itself therefore leads to no different conclusion.

CONCLUSIONS

55    None of the arguments advanced by the Appellant have prevailed to the extent that they give rise to relief being granted.

56    The appeal is thus to be dismissed.

57    It was agreed that costs should follow the event.

THE ORDERS OF THE COURT ARE:

(1)    The appeal is dismissed.

(2)    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    19 December 2019