FEDERAL COURT OF AUSTRALIA

ACG15 v Minister for Immigration and Border Protection [2020] FCA 128

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to rely on ground 3 in the second amended notice of appeal dated 19 October 2017.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 28 June 2017, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 March 2016. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellant a protection visa.

2    The notice of appeal was filed on 12 July 2017 but did not state grounds of appeal because the ex tempore reasons of the primary judge had not been published at that date. An amended notice of appeal was filed on 25 July 2017, stating two grounds of appeal. It is not necessary to refer to those grounds because they are no longer pressed.

3    On 10 August 2017, orders were made timetabling the appeal to a hearing and the appeal was listed for hearing on 24 November 2017.

4    On 19 October 2017, the appellant provided the Minister with a second amended notice of appeal which added a proposed third ground of appeal as follows:

The learned primary judge erred by not finding that the Tribunal acted upon a certificate invalidly issued under s438 of the Migration Act 1958 or alternatively denied the applicant procedural fairness.

5    On 30 October 2017, the appellant filed written submissions in advance of the hearing seeking leave to file the second amended notice of appeal and addressing the three grounds of appeal.

6    On 2 November 2017, the Court made orders adjourning the hearing of the appeal pending the outcome of appeals to the High Court in cases named CQZ15 and BEG15. The appeals to the High Court concerned the question whether the giving of a notice under s 438 of the Act to the Tribunal triggered an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. The High Court delivered judgment on those appeals, and a further case named SZMTA, on 13 February 2019: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA).

7    The appeal was relisted for hearing on 28 August 2019. In submissions filed on 10 August 2019, the appellant stated that he did not press appeal grounds 1 and 2, and only pressed proposed ground 3, the subject of the second amended notice of appeal.

8    For the reasons that follow, I grant the appellant leave to rely on ground 3 in the second amended notice of appeal but I dismiss the appeal.

The question of leave

9    An appeal to the Federal Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is by way of rehearing. Nevertheless, it is necessary to show error (whether of fact or law) in the primary decision: Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 at [26].

10    Proposed appeal ground 3 was not raised as a ground of review by the appellant before the Federal Circuit Court. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial, and new issues not raised for the first time on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, this Court has recognised that special circumstances frequently arise in immigration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

11    The applicable principles were recently discussed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [35] – [38].

12    In my view, proposed appeal ground 3 has merit, there is an adequate explanation for the failure to take the point below and there is no real prejudice to the Minister in permitting it to be agitated.

13    The record shows that the existence of the s 438 notice was only revealed through the filing of an affidavit from a lawyer representing the Minister in the Federal Circuit Court on 22 June 2017, a few days before the hearing on 28 June 2017. The affidavit exhibited the s 438 notice and the documents referred to in the notice. The s 438 notice was brought to the attention of the primary judge. His Honour referred to the submissions made and reached the following conclusions (at [33] – [34]):

33. I note that the first respondent, consistent with its duty as a model litigant, raised to the Court’s attention the existence of a certificate under s.438 and put before the Court the material the subject of that certificate which, on its face, was conceded to be invalid. The first respondent submitted that there was no identification of the material the subject of the certificate in the reasoning of the Tribunal. The first respondent submitted that, on the material before the Court, the nondisclosure of the certificate and the information the subject of the certificate did not give rise to any practical injustice and therefore there was no jurisdictional error.

34. Mr Kumar of counsel did not seek to pursue any issue of alleged jurisdictional error based on the certificate. For the reasons identified in the first respondent’s submissions, that was an appropriate and correct course for Mr Kumar to adopt. No jurisdictional error arises in the present case from the nondisclosure of the certificate or the information the subject of the certificate.

14    It is apparent from the primary judge’s reasons that Counsel for the appellant before the Federal Circuit Court (who differed from Counsel on this appeal) did not raise the s 438 notice as a ground of review before the primary judge. However, the weight to be given to that consideration is lessened by the late revelation of the s 438 notice, shortly before the hearing. The question whether the s 438 notice gave rise to jurisdictional error was the subject of submissions by the Minister and the primary judge reached a conclusion based on those submissions. In the circumstances, the Minister did not contend that there is prejudice to the Minister from the appellant now agitating the issue. For the reasons explained below, I consider that the ground of appeal has merit (although I ultimately conclude that the appeal does not succeed). For those reasons, I give the appellant leave to rely on ground 3 in the second amended notice of appeal.

Background

15    The appellant is a citizen of Sri Lanka of Tamil ethnicity who arrived on Christmas Island by boat on 20 June 2012.

16    An entry interview was conducted on 23 August 2012. This is one of the documents referred to in the s 438 notice, and is considered further below. The document records the appellant’s explanation of why he left Sri Lanka. It is not expressed chronologically or with great coherence, possibly reflecting difficulties in translation at the time. Nevertheless, it is apparent that the principal reason the appellant gave for leaving Sri Lanka was that, from 2011, the government and unidentified persons, described as an armed group, began threatening the appellant and seeking to take his land.

17    On 7 November 2012, the appellant applied for a protection visa. Accompanying the protection visa was a statutory declaration dated 4 November 2012. In the statutory declaration, the appellant reiterated his claim as to why he had left Sri Lanka, which centred on land he said he owned in Batticaloa (claiming the land had been given to the appellant in a dowry from his wife’s family). It is unnecessary to set out the background, but the appellant maintained his claim that, from 2011, a LTTE breakaway movement referred to as the “Karuna Group / Tamil Makkal Viduthai Pulikal” (TMVP) began harassing and beating him in an effort to force him to transfer his land to them. The appellant claimed that, due to threats made against his life, he travelled from Sri Lanka to Australia.

18    A delegate of the Minister interviewed the appellant on 19 August 2013, and refused the visa application on 10 September 2013.

19    On 2 October 2013, the appellant applied to the Refugee Review Tribunal (as it then was) for review of the delegate’s decision. On 4 February 2015, the Refugee Review Tribunal affirmed the delegate’s decision. The appellant sought judicial review of that decision by the Federal Circuit Court and, on 4 September 2015, the Federal Circuit Court quashed the decision and ordered the Tribunal to reconsider the matter according to law.

20    On 1 March 2016, a further hearing of the Tribunal was held and on 4 March 2016 the Tribunal affirmed the delegate’s decision.

21    On 7 April 2016, the appellant sought judicial review of the Tribunal’s decision under s 476A of the Act. On 28 June 2017, the Federal Circuit Court dismissed the application for review.

Tribunal reasons

22    During the Tribunal hearing, the appellant clarified that the land in Batticaloa, which was central to his claims, was owned by his wife rather than himself (Tribunal reasons at [12]).

23    The Tribunal accepted the majority of the appellant’s claims as to his personal history. It summarised its findings about those claims as follows (at [38]):

•     Based on the evidence (principally) on the Department file (including a purported photocopy of the face-page of the applicant’s expired Sri Lankan passport), the Tribunal accepts the applicant is a national of Sri Lanka as claimed. I therefore accept that Sri Lanka is the applicant’s country of reference for the purposes of assessing refugee protection claims; and his receiving country for the purposes of assessing complementary protection claims.

•     Based on the evidence presently before me, I am not satisfied the applicant has statutory effective protection in any safe third country (pursuant to subsections 36(3)-(5A) of the Act).

•     The Tribunal accepts the applicant travelled to Saudi Arabia in July 1988 for work; and that upon his return to Sri Lanka around November 1989, he and his wife relocated to Batticaloa.

•     The Tribunal accepts that in 1990, the Sri Lankan authorities confiscated one parcel of land in Batticaloa owned by the applicant’s wife; and that his wife did not receive compensation.

•     The Tribunal accepts the applicant and his family travelled to and resided in Colombo between 1991-92 and November 1999 (and that they did not suffer any harm in that time).

•     The Tribunal accepts that around November 1999, the applicant and his wife and infant daughters returned to Batticaloa.

•     The Tribunal accepts that in early 2000, the applicant, his wife and mother-in-law were detained by the LTTE in the mother’s home in Batticaloa, that only the applicant was subsequently detained and mistreated by the SLA, and that on his release he was told not to mention his mistreatment. However, after his release, I am not satisfied the applicant was suspected of involvement with the bomb blast or the LTTE.

•     The Tribunal accepts that between 2002 and 2005, the applicant travelled to Botswana legally for employment.

•     The Tribunal accepts the applicant was employed as a project coordinator/supervisor from 2006-2008 (for the Methodist Church). I also accept that his work required him to engage with the LTTE while working in areas of Sri Lanka, then under their control.

•     The Tribunal accepts that in 2010, when working at the Vaharai Housing Project - some 60kms from Batticaloa - the applicant was subject to some harm from the TMVP. I also accept that “after numerous attempts of violence against [him], the TMVP accepted [he] would not be able to provide them with the Methodist Church dwellings”. He was then prohibited from entering the area (from late 2010) at the risk of harm to himself and his family. Because of this he left his work in the Vaharai Housing Project before it was finished.

•     The Tribunal accepts the applicant was employed by the Methodist Church. However, I do not accept the applicant was beaten on every project he worked upon. I do accept that he was questioned when he passed through checkpoints, particularly prior to the end of the war, and in the immediate aftermath of the war. I also accept that part of his work involved the payment of bribes to local officials/representatives of political or other groups in power in the areas he worked.

•     The Tribunal accepts that after the end of the war, the Sri Lankan authorities decided they did not need part of the applicant’s wife’s land and returned part of that land to the applicant’s wife. I also accept he then built a home on that land.

•     The Tribunal accepts the applicant felt safe in his home in Batticaloa at this time.

24    Ultimately, the Tribunal did not accept the appellant’s central claim that the TMVP had harassed and harmed him for a lengthy period in an effort to acquire the land in Batticaloa, and was not satisfied that there was a real chance the appellant would suffer serious harm in Batticaloa for that reason (at [52] – [58]).

25    The Tribunal also rejected the appellant’s other claims, specifically: that the appellant faced harm as a result of being a supporter of the Tamil National Alliance (at [47]), a Tamil from the north and east of Sri Lanka (at [69]), an illegal departee from Sri Lanka (at [77]), a failed asylum seeker (at [92]), a wealthy person (at [98]) or a Christian (at [100]).

26    The Tribunal also found that, if it were wrong and the appellant did face a real chance of harm in Batticaloa, including because of his wife’s land in Batticaloa, the appellant could safely and reasonably relocate within Sri Lanka to avoid the risk of harm (at [101] – [106] and [112] – [116]).

27    For all of those reasons, the Tribunal found that the appellant did not satisfy the refugee criteria in s 36(2)(a) (at [108]) or the complementary protection criteria in s 36(2)(aa) of the Act (at [111]).

Section 438 notice

28    The s 438 notice was given by a delegate of the Minister to the Tribunal on 15 September 2015. By the notice, the delegate certified that s 438(1)(a) of the Act applied to the information in folios 100 – 109, 116 – 125, 128, 153 and 173 – 176 and that the disclosure of that information would be contrary to the public interest because it related to an internal working document and business affairs.

29    The 5 documents referred to in the notice were internal working documents of the Department of Immigration relating to the appellant. The appellant placed reliance on only two of the documents

(a)    folio 100 – 109, which is a document of 20 pages titled “Irregular Maritime Arrival Entry Interview” dated 23 August 2012 and which appears to be the record of the appellant’s entry interview (Entry Interview); and

(b)    folio 116 – 125, which is a document of 19 pages titled “Client Interview Referral Form” and which appears to be a departmental recommendation concerning the conduct of a further interview with the appellant and which bears a handwritten approval date of 5 July 2013 (Client Interview Referral Form).

30    As noted above, the Minister conceded before the Federal Circuit Court that the s 438 notice was invalid because the contention that the disclosure of the information in the documents would be contrary to the public interest could not be supported.

31    With respect to the Entry Interview, the appellant placed reliance on a statement appearing in the document that the interview was suspended due to the appellant’s intoxication. The appellant submitted that that statement adversely affected the appellant’s credibility. The appellant also relied on the section of the document that recorded the appellant’s reasons for leaving Sri Lanka. The appellant submitted that the document evidenced the fact that the appellant’s claims had been consistent from the time he arrived in Australia, reflecting positively on his credibility.

32    With respect to the Client Interview Referral Form, the appellant relied on the following statements recorded in the document:

(a)    On page 1 of the document, the following statements appeared:

Client not referred for interview

•    Overall, the client has presented a consistent claimed identity. Some concerns do exist, however should he be able to provide original, genuine documents that can be verified, identity points test result would be anticipated to be strong.

•    Client has presented relatively consistent claimed identity and story since arrival date.

The appellant submitted that those statements are further evidence that the appellant has made consistent claims since arriving in Australia, reflecting positively on his credibility.

(b)    On page 3 of the document, under the heading “Comments on client behaviour”, the following statements appeared:

•    At case management interviews, client has advised he is in good health, sleeping and appetite are good. Some trauma from being beaten by SLA and TMVP. Case management notes suggest referral for counselling. TS care plan reports that on arrival in Canberra, client had requested trauma counselling service provider.

The appellant submitted that the above statement is evidence of the appellant making a consistent claim about being beaten by the SLA and the TMVP.

(c)    On page 8 of the document, under the heading “Documents and Information”, the following documents and comments are listed:

-    Letter from Pon. Sevarasa (MP). Others who arrived on the same boat have similar letters.

-    Doctor’s note regarding leg fracture in 2000. Yet letter dated in 2012. Concern regarding authenticity.

The appellant submits that the above statements imply that the documents are not genuine, which reflects adversely on the appellant’s credibility.

(d)    On page 12 of the document, the following note appeared:

•    FLAG: IN PV INTERVIEW, CLIENT STATES THIS IS WHEN HE AND WIFE MOVED TO 190 NEW KALMUNAI ROAD, KALLADY, BATTICALOA SRI LANKA. DUE TO POLICE TAKING LAND, RETURNED TO COLOMBO. NOT MENTIONED IN ENTRY IV.

The appellant submitted that the above statement reflects adversely on the appellant’s credibility (the fact that the appellant had not mentioned in his entry interview that he moved to Colombo).

(e)    On page 19, the following statements appeared:

•    Concern for wife and daughters noted in case management interview (ADD 2012/910313). Client tries to call daily, but they sleep at friend’s houses die (sic) to fear from authorities.

The appellant submitted that the above information was relevant to the appellant’s claims and again confirmed the consistency of claims over time.

Appellant’s submissions

33    Relying on SZMTA, the appellant submitted that the Tribunal had breached its procedural fairness obligations to the appellant by failing to disclose the fact of receiving the s 438 notice. The breach denied the appellant the opportunity to make submissions about the notice, including as to the validity of the notice. Also relying on SZMTA, the appellant further submitted that the giving of an invalid notice under s 438 was a breach of the statutory procedures which condition the performance of the Tribunal’s duty to conduct a review.

34    Consistently with the decision of the majority in SZMTA, the appellant accepted that the breach of procedural fairness and the breach of statutory procedures do not constitute jurisdictional error unless the breach was material: depriving the appellant of the possibility of a successful outcome.

35    On the question of materiality, and with reference to the recent decision of Besanko J in BYE17 v Minister for Immigration and Border Protection [2019] FCA 441 (at [96] – [97]), the appellant submitted that it was necessary to determine whether the Tribunal considered the documents referred to in the s 438 notice or disregarded them, and what consequences flowed from doing so.

36    The appellant’s primary submission was that the Tribunal disregarded the Entry Interview and the Client Interview Referral Form. The appellant argued that, although the Tribunal recorded (at [8] of its reasons) the statement that “The applicant attended an irregular maritime arrival entry interview on 23 August 2012”, the statement was not followed by a footnote reference to the departmental folio number for that document, unlike other factual statements in the Tribunal’s reasons. The appellant argued that it should be inferred that the absence of a footnote was deliberate, indicating that the Tribunal disregarded the document. Further, the Tribunal’s reasons did not refer to any of the other documents the subject of the s 438 notice.

37    The appellant argued that he had suffered practical injustice by reason of the Tribunal disregarding the Entry Interview and the Client Interview Referral Form because information favourable to the appellant had not been considered by the Tribunal. As noted above, the appellant relied principally on the following aspects of those documents:

(a)    in respect of the Entry Interview, the fact that the appellant had made consistent claims of harm from the time of his arrival in Australia, reflecting positively on his credibility; and

(b)    in respect of the Client Interview Referral Form, the fact that a departmental officer recorded that the appellant had presented consistent claims since his arrival; that the appellant claimed to be suffering from trauma from being beaten by the SLA and the TMVP; and that the appellant’s wife and children had to sleep at friends’ houses due to fear from the authorities.

38    The appellant’s alternative submission was that, if the documents had in fact been taken into account by the Tribunal, the Tribunal had had regard to information which was prejudicial to the appellant’s claims but without affording the appellant an opportunity to respond to that information. As noted above, the appellant relied principally on:

(a)    in respect of the Entry Interview, the statement that the interview was suspended due to the appellant’s intoxication; and

(b)    in respect of the Client Interview Referral Form, the fact that a departmental officer recorded that there were doubts about the authenticity of two letters of support submitted by the appellant to the Department and also flagged the fact that the appellant had not said in his entry interview that he had moved to Colombo.

39    During the hearing, the Minister advanced a submission that, if the Court concluded that the Tribunal had taken the documents referred to in the s 438 notice into account, jurisdictional error could only arise if the information in the documents was information of the kind to which s 424A(1)(a) applied, being information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. As the submission arose primarily during the hearing, I gave each of the parties an opportunity to file a further written submission addressing the issue.

40    The appellant argued that, in SZMTA, the High Court rejected an argument that s 422B was an exhaustive statement of procedural fairness obligations in circumstances where the Tribunal has received a s 438 notice. The appellant relied on the conclusion of the majority (at [38]) that “Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness”. The appellant also submitted that the High Court considered, and rejected, an argument that jurisdictional error would only arise if an invalid notice caused the Tribunal to disregard significant evidence that it was obligated to consider or fail to comply with the obligations imposed by ss 424AA and 424A (at [43]-[44]).

Minister’s submissions

41    In relation to the Entry Interview, the Minister submitted that the preferable inference is that the document was taken into account by the Tribunal, because the Tribunal referred to it at [8] of its reasons. The Minister argued that it followed that neither the failure to inform the appellant of the s 438 notice, nor the invalidity of the notice, caused the appellant practical injustice (in the sense of being deprived of the possibility of a successful outcome). That is because the Tribunal had regard to the claims made in the appellant’s entry interview, and the failure of the Tribunal to put to the appellant the statement about the appellant being intoxicated does not establish jurisdictional error because that statement is not information within s 424A of the Act. As the statement was not referred to by the Tribunal, there is no basis to find a breach of s 424A. Further, the Minister submitted that the appellant being intoxicated at his entry interview could not have any bearing on a rational Tribunal and the contrary should not be inferred in the absence of the Tribunal referring to the matter. The Minister submitted in the alternative that, if it be inferred that the Tribunal did not take the Entry Interview into account, the appellant cannot establish that there is a realistic possibility that the Tribunal's decision could have been different (i.e. favourable to the appellant) if the Tribunal had had regard to the document.

42    In relation to the Client Interview Referral Form, the Minister submitted that the document was not referred to by the Tribunal in its reasons and it can be inferred that it was not taken into account by it. The Minister argued that there is nothing in it that raises a realistic possibility that the Tribunal’s decision might have been different if it had been taken into account. The information in it that the appellant claims is favourable (namely the statement that his wife and daughters slept at friends’ houses due to fear from the authorities, that his story was relatively consistent over time, and his claims of suffering trauma from being beaten by the SLA and TMVP) does not add anything of significance to his far more detailed claims put to the Tribunal in writing and at the hearing on 1 March 2016.

43    In relation to s 424A, the Minister submitted that the effect of s 422B(1) is that s 424A is an exhaustive statement of the Tribunal’s obligation to disclose information to an applicant, relying on SZMKG v Minister for Immigration and Citizenship (2009) 177 FCR 555 at [49]-[50] per Bennett and Foster JJ and Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173 at [40] per Buchanan J, Yates J agreeing at [87]. The Minister submitted that it followed that the non-disclosure of a document referred to in an invalid certificate will only amount to a jurisdictional error if the document would otherwise fall within s 424A, and the failure to provide the information to the applicant could have resulted in a different outcome. The Minister argued that nothing said by the majority in SZMTA is to the contrary.

Consideration

44    Section 438 provides as follows:

(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.

45    It was common ground that: first, the appellant was not informed that the s 438 notice had been given to the Tribunal; second, that the s 438 notice was invalid; and third, that the documents referred to in the notice, and particularly the Entry Interview and Client Interview Referral Form, were not provided to the appellant.

46    In SZMTA, the High Court concluded that the consequences for a review under Part 7 of the Act 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 (at [29] – [31] per Bell, Gageler and Keane JJ and at [115] – [116] per Nettle and Gordon JJ). That is because 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. The majority explained (at [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.

47    However, the majority concluded (at [38]) that, for such a breach of the requirements of procedural fairness to constitute jurisdictional error on the part of the Tribunal, the breach must give rise to a practical injustice; in other words, the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.

48    The Court also concluded that an incorrect notification that s 438 applies in relation to a document or information is a purported exercise of statutory authority that is devoid of legal effect in relation to that document or information; it constitutes, without more, an unauthorised act in breach of a limitation within the statutory procedures which conditions the performance of the duty of the Tribunal to conduct a review (at [44] per Bell, Gageler and Keane JJ and at [76] and [117] per Nettle and Gordon JJ). In the majority’s view, such a breach does not constitute jurisdictional error unless the breach is material (at [44]).

49    On this appeal, the central question is whether the failure of the Tribunal to inform the appellant of the s 438 notice, and the admitted invalidity of the notice, were material to the decision. In SZMTA, the majority discussed the application of the materiality test in these circumstances (at [45] – [50], references omitted):

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.

47. 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.

48. In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

49. Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst “[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals.

50. 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.    

50    It is therefore necessary to consider whether the Tribunal took the documents referred to in the notice into account and the consequences either way.

51    In my view, and for the following cumulative reasons, the appropriate inference to draw is that the Tribunal proceeded on the assumption that the s 438 notice was valid and did not have regard to the documents referred to in the notice.

52    First, as observed by the majority in SZMTA (at [47]), in the absence of the Tribunal giving express consideration to the validity of a s 438 notice, it may ordinarily be assumed that the Tribunal did not question its validity.

53    Second, the Tribunal did not refer to the documents in its decision. That might be relatively unexceptional in the case of most of the documents as they were merely internal departmental documents of an administrative kind. However, it is more exceptional in the case of the Entry Interview. An entry interview is typically regarded as a significant document because it records an applicant’s initial claims for protection shortly after arriving in Australia. If an applicant subsequently alters their claims, the fact of inconsistent claims might be regarded as reflecting negatively on the truthfulness of the claims. The converse is also true. In the present case, and as submitted by the appellant, the Tribunal made reference to the fact that the appellant had attended an entry interview on 23 August 2012 (at [8] of its reasons). However, the reasons for decision do not refer (by footnote or otherwise) to the departmental folio number for that document, in contrast to other factual statements in the Tribunal’s reasons. The omission of a footnote reference appears to be deliberate, signifying that the Tribunal disregarded the document. The Tribunal did not refer to the statements made by the appellant in his entry interview at any part of its reasons.

54    Third, the Tribunal did not provide the documents to the appellant. Again, that might be relatively unexceptional in the case of the administrative documents, but is more exceptional in the case of the Entry Interview.

55    Having reached the conclusion that, acting on an invalid notice, the Tribunal left the notified documents and information out of account in reaching its decision, the question that must be determined is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the documents or information into account. In my view, for the following reasons, there is not a realistic possibility.

56    I believe that it is plausible that, but for the s 438 notice, the Tribunal would have had regard to the Entry Interview. As stated earlier, an entry interview is typically regarded as a significant document because it records an applicant’s initial claims for protection shortly after arriving in Australia. In that respect, I note that the delegate referred to the Entry Interview on a number of occasions in the delegate’s decision.

57    Conversely, I consider it implausible that, but for the s 438 notice, the Tribunal would have had regard to the Client Interview Referral Form. I infer from the contents of the document that it was an internal administrative document by which the Department assessed whether the appellant should be referred for further interview as part of the Department’s processes in assessing the appellant’s claims. During the hearing, the appellant accepted that that was an appropriate inference to draw from the document. The appellant relied on three favourable statements in the Client Interview Referral Form: a comment by the relevant departmental officer that the appellant had presented consistent claims since his arrival; a statement that the appellant claimed in a case management interview that he suffered some trauma from being beaten by the SLA and TMVP; and that in a case management interview the appellant had expressed concern for his wife and daughters who slept at friends’ houses due to fear from the authorities. I do not consider that a comment from a departmental officer concerning the consistency of the appellant’s claims would have had any bearing on the Tribunal’s decision. It is for the Tribunal to make that assessment. The other statements relied on by the appellant were no more than a brief record of claims made by the appellant. In circumstances where the appellant outlined his claims in detail in a statutory declaration and many submissions to the Tribunal, the brief statements contained in the departmental document could not realistically be expected to have had any bearing on the Tribunal’s decision.

58    I consider that there is a realistic possibility that the appellant’s claims in the Entry Interview might have had a bearing on the Tribunal’s assessment of the appellant’s claim that, in 2011 and 2012, the TMVP harassed and beat him in an effort to force him to transfer the family property in Batticaloa to them. Although the statement of the appellant’s claims in the Entry Interview are not expressed coherently, it is relatively clear that the central claim is that, in 2011 and 2012, an armed group began threatening the appellant in order to force him to transfer land to them. The Tribunal found that that claim was embellished. The Tribunal’s reasons for that finding, at [52] of its reasons, could not be described as compelling. The primary reason given is that the Tribunal did not accept that the appellant and his family would continue to live at the property if the appellant faced a real risk of harm. However, the Tribunal does not expressly balance that consideration against the obvious fact that the appellant claimed to have departed Sri Lanka because of that threat. The Tribunal also expressed some doubts that the TMVP would harass the appellant when the house and land in question was owned by the appellant’s wife and that there were official records of land ownership in Sri Lanka (at [51]). The underlying assumption appeared to be that, if the TMVP wished to harass anyone to obtain the land, they would harass the appellant’s wife rather than the appellant. That in turn depended on various unstated assumptions about usual decision making within Sri Lankan families and whether a husband is more likely than a wife to be subjected to harassment and harm in an effort to extort family property. Having regard to the Tribunal’s reasons, I consider that there is a realistic possibility that the Tribunal might have reached a different conclusion about the appellant’s claim concerning the Batticaloa property if it had regard to the fact that the appellant had made this claim from the time of his arrival in Australia. The consistency of the claim gave weight to its credibility and might have resulted in a different conclusion.

59    However, even if the Tribunal were to reach a different conclusion with respect to the claim concerning the Batticaloa property, in my view there was no realistic possibility of a different outcome to the appellant’s application for a protection visa. That is because the Tribunal concluded that, even if it were wrong and the appellant faced a real chance of harm in Batticaloa, he could safely and reasonably relocate within Sri Lanka (at [101] – [106]). In that regard, the Tribunal found that the appellant had previously lived without fear of harm in Kilinochchi and Colombo and the appellant said that he was born in Colombo, lived much of his life in Colombo and still had relatives there (at [102]); both of his daughters have relocated from the home in Batticaloa already (at [104]); and it would be reasonable for the appellant to relocate within Sri Lanka having regard to his language ability (he speaks, reads and writes Tamil, Sinhalese and English), his employment (and his capacity to travel for work), the fact that his younger daughter is already studying in Colombo and the fact that he has moved to Colombo on prior occasions (at [105]). For that additional reason, the Tribunal concluded that it was not satisfied the appellant is a person in respect of whom Australia has protection obligations under the refugee criteria in the Act (at [108]). For the same reasons, the Tribunal concluded that it would be reasonable for the appellant to relocate to an area of Sri Lanka where there would not be a real risk that the appellant would suffer significant harm (at [113] – [116]). Accordingly, pursuant to s 36(2B)(a) of the Act, the appellant is not a person in respect of whom Australia has protection obligations under the complementary protection criteria.

60    As there is not a realistic possibility that the Tribunal’s decision could have been different if it had taken the documents referred to in the s 438 notice into account, neither the failure to inform the appellant of the receipt of the s 438 notice, nor the invalidity of the notice, constitutes jurisdictional error.

Conclusion

61    In conclusion, while I grant the appellant leave to rely on ground 3 in the second amended notice of appeal, I dismiss the appeal with costs.

Associate:

Dated:    14 February 2020