FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2020] FCA 783

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The issues that arise for consideration in this appeal relate to a certificate given by a delegate of the Minister for Immigration and Border Protection pursuant to s 375A of the Migration Act 1958 (Cth). The effect of that certificate was that the Administrative Appeals Tribunal, which was considering an application by the appellant, Mr Hardeep Singh, for a review of a decision by a delegate of the Minister not to grant him a visa, was obliged to ensure that the documents referred to in the certificate were not disclosed to any person other than a member of the Tribunal as constituted for the purposes of Mr Singh’s review application.

2    The Tribunal, when conducting the review, advised Mr Singh about the existence of a certificate which prevented it from disclosing certain documents or information to him. The Tribunal told Mr Singh, however, that it was not intending to rely on those documents or the information in them. Some of the information in the documents covered by the certificate was potentially adverse to Mr Singh, though the Tribunal did not tell Mr Singh that. The Tribunal affirmed the decision to refuse Mr Singh’s visa application on two independent grounds. The information in the documents covered by the certificate under s 375A of the Act was potentially relevant to one of those grounds, but not to the other.

3    Mr Singh challenged the Tribunal’s decision in judicial review proceedings in the Federal Circuit Court of Australia. He contended, among other things, that the s 375A certificate was invalid and that the Tribunal denied him procedural fairness in failing to adequately disclose the certificate to him. The primary judge rejected those and other arguments advanced by Mr Singh and dismissed his application.

4    This is Mr Singh’s appeal from the Circuit Court. The questions raised by the appeal are: first, was the s 375A certificate valid; second, did the Tribunal deny Mr Singh procedural fairness having regard to the way it dealt with the certificate and the documents referred to in it; and third, if the answer to either of those questions is yes, could either of those matters have made any difference to the Tribunal’s decision such as to give rise to jurisdictional error. Mr Singh contended that a fourth question also must be considered. That question is whether, if Mr Singh’s arguments concerning the validity of the certificate or the manner in which the Tribunal dealt with it have merit, but the appeal must be dismissed because there was no jurisdictional error, the Court should nevertheless grant some form of declaratory relief.

RELEVANT BACKGROUND

5    Mr Singh’s attempt to obtain a permanent visa to reside in Australia has a very lengthy history. He first arrived in Australia on 11 June 2009 as the holder of a Student, subclass 572, visa. That visa ceased on 17 August 2011. In June 2011, he applied for a Skilled Graduate, subclass 485, visa. That visa application was unsuccessful. Mr Singh applied to the (then) Migration Review Tribunal (MRT) for a review of that decision. That application too was unsuccessful; the MRT affirmed the decision under review. Mr Singh then applied for judicial review of the MRT’s decision in the (then) Federal Magistrates Court of Australia. Mr Singh subsequently withdrew that application, but costs were awarded against him. That costs order gave rise to a debt that Mr Singh owed to the Commonwealth. The relevance of that debt will become apparent in due course.

6    That was not the end of Mr Singh’s attempts to obtain a visa. On 25 November 2013, he applied for a Partner (Temporary) (Class UK) visa (partner visa) on the basis of his relationship with an Australian citizen, Ms Annelise Weatherall. Mr Singh and Ms Weatherall were married on 21 October 2013.

7    At the time of Mr Singh’s application, an applicant for a partner visa was required to satisfy a number of criteria. It is only necessary to refer to three criteria for present purposes.

8    First, the applicant was required to be the spouse or de facto spouse of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 820.211(2)(a)(i) and cl 820.221 of Sch 2 to the Migration Regulations 1994 (Cth). Section 5CB of the Act defined “de facto relationship” and s 5F of the Act defined “spouse”. As just noted, Mr Singh and Ms Weatherall were married. They were therefore not in a de facto relationship as defined in s 5CB. As for whether Mr Singh was Ms Weatherall’s spouse, one of the requirements of the definition of “spouse” in s 5F was that the relevant two persons were in a relationship which was “genuine and continuing” both at the time of the application and the time of the decision in relation to the visa.

9    Second, a visa applicant who is not the holder of a substantive visa at the time of the application must meet criteria 3001, 3003 and 3004 in Sch 3 to the Regulations unless the Minister is satisfied that there are “compelling reasons” for not applying those criteria: cl 820.211(2)(d)(ii) of Sch 2 to the Regulations. In order to satisfy criterion 3001, the visa application must have been lodged within 28 days of the relevant day. The relevant day for the purposes of Mr Singh’s application was 17 August 2011, the last day that he held a substantive visa.

10    Third, the applicant must satisfy public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009 and, if the applicant is over 18 years of age at the time of the application, public interest criterion 4019: cl 820.223(1) of Sch 2 to the Regulations. The public interest criteria are contained in Sch 4 to the Regulations. Relevantly, public interest criterion 4004 is that the “applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment”.

11    On 28 April 2015, a delegate of the Minister rejected Mr Singh’s application for a partner visa. The delegate found that Mr Singh did not meet criterion 3001 and was not satisfied that there were compelling reasons for not applying that criterion 3001. Mr Singh applied to the MRT for a review of that decision. That review application was partially successful: the MRT found that there were compelling reasons not to apply the Sch 3 criteria. The MRT remitted Mr Singh’s application for reconsideration by the Minister with a direction that the Sch 3 criteria, including criterion 3001, should not be applied.

12    On 1 December 2015, a different delegate of the Minister refused to grant Mr Singh a partner visa. The problem for Mr Singh this time was that the delegate did not accept that Mr Singh was in a genuine relationship with Ms Weatherall. He therefore did not meet the definition of “spouse” under s 5F of the Act. Nor were Mr Singh and Ms Weatherall in a de facto relationship as defined in s 5CB of the Act. The delegate accordingly found that Mr Singh did not satisfy the criterion in cl 820.211(2)(a)(i) for the grant of a partner visa.

13    On 17 December 2015, Mr Singh applied to the Tribunal for a review of the delegate’s decision to refuse to grant him a partner visa.

IN THE TRIBUNAL

14    The Tribunal held a hearing of Mr Singh’s application on 4 January 2017. Both Mr Singh and Ms Weatherall gave evidence at the hearing and Mr Singh was given the opportunity to present arguments in support of his application. It would appear that there were two live issues at the hearing.

15    The first issue was whether Mr Singh was Ms Weatherall’s spouse or de facto spouse. It will be recalled that the delegate had found that they were not. Mr Singh’s migration agent provided detailed submissions and supporting material to the Tribunal prior to the hearing. Those submissions were exclusively directed at this issue.

16    The second issue was whether Mr Singh met public interest criterion 4004. It will be recalled that Mr Singh had a debt to the Commonwealth arising from his withdrawn application to the Circuit Court challenging a decision of the MRT. Mr Singh had apparently not repaid that debt, or made any arrangements to repay it, by the time of his application for a partner visa. The Tribunal had, prior to the hearing, requested Mr Singh to provide evidence that he had no outstanding debt to the Commonwealth or that he had made arrangements to repay the debt. The submissions that Mr Singh’s migration agent sent to the Tribunal prior to the hearing did not address that issue despite the Tribunal’s explicit request.

17    Before addressing how the Tribunal resolved those two issues, it is necessary to refer to the facts and circumstances relating to a certificate which was signed by a delegate of the Minister, purportedly pursuant s 375A of the Act, and how the Tribunal dealt with that certificate at the hearing.

The s 375A certificate

18    Section 375A of the Act provided as follows:

375A Certain information only to be disclosed to Tribunal    

(1)     This section applies to a document or information if the Minister:

(a)    has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or 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 375(a) or (b)); and

(b)    has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

(2)    If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

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

(b)    the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

19    The relevant certificate which was signed by the delegate was dated 15 March 2015, though it was common ground between the parties that this was a typographical error and the date should have been 15 March 2016. There was, confusingly, another certificate dated 25 May 2015, though it was common ground that that certificate was irrelevant and had in fact been provided to the MRT. The certificate relevant to this matter was addressed to the District Registrar of the Tribunal and was headed “CERTIFICATE REGARDING DISCLOSURE OF CERTAIN INFORMATION TO ADMINISTRATIVE APPEALS TRIBUNAL UNDER s375A OF MIGRATION ACT 1958”. It stated as follows:

I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Administrative Appeals Tribunal of any matter or information contained in folio/s 124-141 of file number CLF2013/291847 would be contrary to the public interest because:

(a)    folios 124-141 contain information contrary to public interest, as they are printouts of social media for both applicant and sponsor, which have not been provided by either party as part of this application, however are recorded in our records. As such, this information should not be disclosed to any other party other than Tribunal members.

As s375A applies to the documents/information identified above, the AAT must do all that is necessary to ensure that the document or information is not disclosed to any person other than to a member of the AAT, pursuant so s375A(2)(b) of the Migration Act 1958.

20    The delegate who signed the certificate also signed as a delegate of the Secretary of the Department of Immigration and Border Protection.

The documents covered by the certificate

21    The “folios” referred to in the certificate were tendered by the Minister and admitted into evidence in the proceedings in the Circuit Court. The affidavit which annexed the relevant documents stated that the “Minister makes no claim for privilege over the documents and does not seek any orders for confidentiality over the documents” and that the deponent was “not aware of any reason which would prevent the Court from viewing the documents in order to determine their admissibility”. The affidavit and the documents were also served on the appellant.

22    It is not surprising that the Minister did not hesitate to serve the documents on the appellant and did not attempt to seek any “orders for confidentiality”. That is because the documents were copies of documents that had not only been created by Mr Singh and Ms Weatherall, but were by their very nature public documents and plainly not intended to be confidential. A notation on the documents indicated that they were printouts of “posts” on the Facebook pages or accounts of both Mr Singh and Ms Weatherall. The posts were made soon after Mr Singh and Ms Weatherall were married.

23    It is, in those circumstances, somewhat difficult to see how or why the Minister’s delegate certified that it would be contrary to the public interest to disclose the documents to “any other party other than Tribunal members”. The only other “party” to whom the Tribunal would, or would otherwise be expected to, disclose the documents to would be Mr Singh, or perhaps Ms Weatherall, who was Mr Singh’s “sponsor” and was to give evidence for Mr Singh in support of his review application. Plainly Mr Singh and Ms Weatherall would have been aware of their own Facebook posts. It could equally obviously be inferred that, since they were married and claimed to have an ongoing genuine relationship, they were aware of each other’s posts. In any event, Facebook posts are, by their very nature, public and not confidential.

24    As is apparent from the certificate itself, the public interest that was said to support non-disclosure was that the documents had not been “provided by either party as part of this application”. The question whether that consideration could possibly have provided a proper basis for the certificate is considered later in these reasons.

25    It is also readily apparent that the documents covered by the certificate were potentially adverse to Mr Singh’s claim that he was in a genuine and continuing relationship with Ms Weatherall and was therefore her spouse for the purposes of the relevant criterion for a partner visa. That is because, among other things, a number of Ms Weatherall’s posts referred to her being in a relationship with a person named Graham and one of her posts referred to a “fake relationship”. None of Ms Weatherall’s posts referred to, or contained a photograph of, Mr Singh, let alone a photograph of the two of them together.

26    It is equally clear that the Secretary considered that the documents covered by the certificate were relevant to Mr Singh’s review application in the Tribunal. Were it otherwise, the Secretary would not have provided the documents to the Tribunal, presumably pursuant to subs 352(4) of the Act.

The Tribunal’s disclosure of the existence of the certificate

27    The Tribunal did not give Mr Singh a copy of the certificate, either at or before the hearing. Nor did the Tribunal give Mr Singh copies of the documents. Indeed, if the certificate was valid, the Tribunal was prevented from doing so by s 375A of the Act. The Tribunal did, however, advise Mr Singh of the existence of the certificate in the course of the hearing. It may be inferred that it did so because the hearing took place only a matter of weeks after the Full Court judgment in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183. The judgment in Singh made it clear that the non-disclosure of a certificate issued under s 375A gave rise to a denial of procedural fairness. It should be noted, for more abundant caution, that Singh involved a different Mr Singh.

28    The Tribunal’s disclosure of the certificate was, however, limited and somewhat unsatisfactory in a number of respects. The disclosure occurred some way into the hearing during the course of the Tribunal’s questioning of Mr Singh about the nature of his relationship with Ms Weatherall. The nature and tone of the questioning plainly indicates that the Tribunal had some doubts or misgivings concerning the genuineness of the relationship. The following exchange occurred in that context:

Q101    There is some – you have some papers from the department filed, which basically I think went to ask for your social media records.

A    Because we are not – no longer using the Facebook or something social media, because there is pretty old. It’s …

Q102    Well, they are pretty old, I think. Actually, I don’t know how old they are, but they pretty old. But they are your social media records for those. Basically, your photos, I think, from your social media records, and they are subject to a – what we call a certificate which prevents the Tribunal from disclosing that information, so I actually just want to let you know that’s pretty much your social media records. I’m not quite sure how much weight has been …

A    I already explained last time as we are not using the Facebook, social media.

Q103    I’m not intending to rely on it, but I need to inform you that they are on the file, and they are subject to a certificate which says that I cannot disclose that information to you, even though that’s pretty much your social media account. But I just need to let you know that they – they are on the department’s file.

A    Yeah. But you can have a look on my social media, as we are no longer using or something like that. For a long time, we haven’t used or something.

29    The following points may be made concerning this disclosure.

30    First, it may be inferred from this exchange that the Tribunal had looked at, and was at least generally aware of, the nature and content of the documents the subject of the certificate.

31    Second, if the certificate was valid, on one view the Tribunal contravened subs 375A(2)(b) of the Act because the Tribunal disclosed some, albeit fairly limited, information contained in the documents which were the subject of the certificate.

32    Third, it would appear that the Tribunal was somewhat puzzled by the certificate. After noting that the effect of the certificate was that the information covered by it could not be disclosed, the Tribunal said “even though that’s pretty much your social media account”.

33    Fourth, the Tribunal’s disclosure of the nature of the documents covered by the certificate was incomplete and potentially misleading. In particular, the Tribunal did not reveal to Mr Singh that the “pretty old … social media records” were dated around the time of his marriage to Ms Weatherall and were, in the absence of any explanation, potentially adverse to his case. That is significant because, had that aspect of the information been revealed, it would have given Mr Singh good reason to request or demand that the documents be shown to him, or to have challenged the notice, so he could deal with that issue. That is despite the fact the Tribunal indicated that it was “not intending to rely on it”.

34    Fifth, the Tribunal did not give Mr Singh any information about the legal or factual basis upon which the certificate had been issued. It did not, for example, tell Mr Singh that the certificate had been issued pursuant to s 375A of the Act, or that it had been issued supposedly on the basis that disclosure of the documents was contrary to the public interest, or that the basis upon which it was said that the disclosure was contrary to the public interest was that the documents had not been supplied to the Minister’s department by him or Ms Weatherall. The non-disclosure of the basis of the certificate was potentially important because, in the absence of some explanation about the legal and factual basis upon which the certificate was given, it would not have been apparent to Mr Singh that he had any reason or basis upon which to challenge the legality of the certificate or otherwise require the Tribunal to disclose the documents or information to him.

The Tribunal’s decision

35    The Tribunal affirmed the delegate’s decision to refuse to grant Mr Singh a partner visa. It did so for two entirely independent grounds.

36    First, the Tribunal found that Mr Singh had an outstanding debt to the Commonwealth and that it was not satisfied that the applicant had made acceptable arrangements to repay that debt. It followed that the Tribunal was not satisfied that the applicant had met public interest criterion 4004. It is unnecessary to say anything further concerning the Tribunal’s finding concerning criterion 4004. It was not challenged in the Circuit Court proceedings or on appeal. It is relevant to note, however, that the documents covered by the s 375A certificate were irrelevant to, and could have no bearing on, the question whether Mr Singh met criterion 4004.

37    Second, the Tribunal found that it was not satisfied that Mr Singh and Ms Weatherall had or were in a genuine and continuing relationship and therefore was not satisfied that they were in a spousal relationship. It followed that Mr Singh did not meet the criterion in cl 820.211(2)(a) and cl 820.221 of Sch 2 to the Regulations. It is again unnecessary to detail the Tribunal’s factual findings and reasoning relevant to its conclusion that Mr Singh was not Ms Weatherall’s spouse. While this aspect of the Tribunal’s decision was challenged in the Circuit Court proceedings, Mr Singh did not pursue any ground of appeal relating to the primary judge’s rejection of that challenge. The only thing that need be noted is that the Tribunal’s Statement of Decision and Reasons does not refer at all to the Facebook posts covered by the certificate. There is no express or overt indication that the content of the Facebook posts formed part of the Tribunal’s reasons for finding that Mr Singh and Ms Weatherall were not in a genuine and continuing relationship.

IN THE CIRCUIT COURT

38    Mr Singh’s amended application in the Circuit Court raised three grounds of review. It is necessary to refer only to one of those grounds as the primary judge’s findings in relation to the other two grounds were not challenged on appeal.

39    The ground of review that is relevant is ground 3 in the amended application, which was that the Tribunal “constructively failed to exercise its jurisdiction and or failed to accord the Applicant [Mr Singh] procedural fairness”. Significantly, the particulars to ground 3 were clearly limited to a challenge of the Tribunal’s finding that Mr Singh was not Ms Weatherall’s spouse and therefore did not satisfy cl 820.211(2)(a) and cl 820.221. It was not contended that there was any constructive failure to exercise jurisdiction or denial of procedural fairness relating to or arising from the Tribunal’s finding that Mr Singh failed to satisfy public interest criterion 4004.

40    The particulars of the alleged constructive failure to exercise jurisdiction and denial of procedural fairness were expressed in the following terms:

(i)    In finding that the Applicant did not satisfy subclause 820.211(2)(a) and clause 820.221 of the regulations, the Tribunal constructively failed to exercise its jurisdiction and or failed to accord the Applicant procedural fairness because:

(a)    the Tribunal acted on an invalid certificate dated 11 February 2015 purportedly issued pursuant to s375A of the Act, thereby following a process contrary to law; and or

(b)    the Tribunal only disclosed the existence of a certificate to the Applicant at the hearing, and failed to give the Applicant a reasonable opportunity to make submissions on the validity of the certificate if he so chose; and or failed to give the Applicant at least a reasonable opportunity to seek disclosure of any matter contained in the document, or the information.

41    It can be seen, therefore, that Mr Singh’s challenge to the lawfulness of the Tribunal’s decision hinged on two contentions: first, that the s 375A certificate was invalid; and second, that he was denied procedural fairness because the Tribunal’s disclosure of the existence of the certificate, such as it was, did not give him any opportunity to challenge the validity of the certificate or seek the disclosure of some or all of the documents or information covered by the certificate.

42    The primary judge rejected both contentions: Singh v Minister for Immigration [2017] FCCA 1331 (Judgment).

43    As for the contention that the certificate was invalid, the primary judge noted that the terms of s 375A of the Act did not indicate that a certificate could only be issued if it was established that disclosure would be contrary to the public interest for a reason 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”: cf subs 376(1)(a)(i) of the Act; Judgment at [50]. That consideration appeared to lead his Honour to conclude that the validity of the certificate was to be determined “on its face”. His Honour reasoned as follows in that regard (Judgment at [51]):

On the face of the material before the Court, the certificate complied with each of the requirements of s 375A of the Act. The fact that the Facebook page material may not make out an ultimate claim for public interest immunity does not determine whether or not the certificate was invalid. The validity of the certificate turns on its face. On the face of the certificate, it complies with the requirements of s 375A of the Act and was a valid certificate.

44    As for the contention that the limited disclosure of the certificate gave rise to a denial of procedural fairness, the primary judge simply concluded that the existence of the certificate was “sufficiently disclosed” at the hearing: Judgment at [52]. His Honour did not, however, explain why the disclosure was sufficient. His Honour did not engage at all with the contention that the disclosure, such as it was, was insufficient to enable Mr Singh to challenge the validity of the certificate, or to seek disclosure of some or all of the documents or information covered by the certificate.

45    The primary judge also found that, even if there was “any inadequate disclosure”, there was no “practical injustice” because “the Tribunal did not have regard to the material the subject of the certificate in its adverse determination of the applicant’s application”: Judgment at [54].

46    It should finally be noted that the primary judge accepted that, even if he had found any of Mr Singh’s grounds of review had been made out, he was bound by the decision of the majority of the Full Court in Minister for Immigration and Border Protection v Hossain (2017) 252 FCR 31; [2017] FCAFC 82 (Minister v Hossain), which compelled him to find that there was no jurisdictional error given that the Tribunal’s finding concerning public interest criterion 4004 provided an independent reason for refusing Mr Singh’s review application. His Honour indicated that if he was not bound by the majority decision in Minister v Hossain, he would not have refused relief on discretionary grounds.

THE APPEAL

47    The further amended notice of appeal relied on by Mr Singh contained two grounds.

48    The first ground concerned the primary judge’s findings about the validity of the certificate and the alleged denial of procedural fairness. Mr Singh contended that the primary judge erred in finding both that the certificate was valid and that any inadequate disclosure did not give rise to any practical injustice.

49    The second ground sought to address the fact that Mr Singh’s review grounds in the Circuit Court did not challenge the Tribunal’s independent reason for refusing his review application. Mr Singh contended that the primary judge erred in finding that, despite the existence of that independent ground, there was nonetheless a discretion to remit the matter to the Tribunal. He also contended that the primary judge erred in not remitting the matter to the Tribunal.

50    As for the second ground, at the hearing of the appeal, Mr Singh, through his counsel, conceded that the primary judge was bound by the decision of the majority in Minister v Hossain. It was formally submitted that Minister v Hossain was wrongly decided. It was noted, in that regard, that an application for special leave to appeal to the High Court had been filed. It was suggested that the determination of the appeal should await the outcome of any appeal to the High Court. In the alternative, it was submitted that, if the Court determined that the first ground was made out, a declaration to that effect should be made.

51    Subsequent to the hearing of the appeal, the High Court granted special leave to appeal the Full Court’s judgment in Minister v Hossain. The Court was then requested by both parties to defer determining this appeal until the High Court appeal was determined. The High Court subsequently dismissed the appeal: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34. The parties were directed to and subsequently filed supplementary submissions in relation to the implications of the decision in Hossain v Minister.

52    In his supplementary submissions, the Minister contended that the decision in Hossain v Minister effectively compelled the Court to dismiss the appeal. In his supplementary submissions, Mr Singh conceded that the decision in Hossain v Minister meant that his second ground of appeal must fail. He also appeared to concede that his first ground of appeal, concerning the validity of the certificate and the denial of procedural fairness, must also fail as neither of those asserted errors, even if made out, were “jurisdictional”. He nevertheless contended that, if the Court was satisfied that either of those errors were made, it should make a declaration to that effect.

53    As events transpired, the appeal essentially raises four questions for consideration and determination. The first is whether the primary judge erred in finding that the certificate was valid. The second is whether the primary judge erred in finding that Mr Singh was not denied procedural fairness as a result of any inadequate disclosure of the certificate. The third issue, which only arises if it is found that the certificate was invalid, or that the Tribunal denied Mr Singh procedural fairness, is whether either or both of those errors was a jurisdictional error. The fourth issue, which only arises if either of the first two issues is answered in the affirmative and the third issue is answered in the negative, is whether the Court should make a declaration concerning the error or errors made by the Tribunal, even though they were not jurisdictional errors.

The validity of the certificate

54    The Minister submitted that the primary judge was correct in finding that the “validity of the certificate turns on its face”. No authority for that proposition was cited by either the primary judge or the Minister on appeal. Nor was any, or any cogent, argument advanced in support of it by the Minister. The Minister’s contention appeared to be simply based on the premise that a certificate purportedly issued under s 375A must be taken to be valid if it states that disclosure of the documents or information covered by it would be against the public interest. The suggestion appeared to be that there was no occasion or basis for going behind such a statement. If the Minister or his delegate says disclosure would be contrary to the public interest, that must simply be accepted to be the case.

55    The proposition that the validity of a certificate under s 375A of the Act “turns on its face” ignores the principle that the power to issue such a certificate, like any other statutory power or discretion, must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [23]-[29], [63]-[65], [88]-[92]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [19]. It must follow that the Minister or his delegate cannot issue a certificate under s 375A of the Act unless there is at least some probative, rational or logical basis for finding that disclosure would in fact be contrary to the public interest. A certificate issued on grounds that are demonstrably arbitrary, irrational or illogical could be said to be invalid on the grounds of legal unreasonable even if, on its face, it stated that disclosure was contrary to the public interest.

56    The certificate in question in this case stated that it was contrary to the public interest to disclose copies of the Facebook posts of Mr Singh and Ms Weatherall to anyone but Tribunal members because they had not been provided by Mr Singh or Ms Weatherall “as part of” Mr Singh’s visa application. That is not a rational or logical basis upon which to conclude that disclosure would be contrary to the public interest. The only people to whom the Tribunal was likely to disclose, or had any reason to disclose, the Facebook posts were the authors of those posts. They knew the contents of the posts. The Facebook posts were also obviously public in nature. There was no suggestion, nor could there be, that Mr Singh or Ms Weatherall intended them to be confidential.

57    There may be cases where it might reasonably be considered to be contrary to the public interest to disclose information or a document to a visa applicant on the basis that the information or document was provided to the Minister by a third party. That would clearly be the case, for example, where the information was provided by an informant on a confidential basis and disclosure would reveal the identity of the informant. It does not follow, however, that the disclosure will be contrary to the public interest in every case where information or documents are provided by a third party. There was, in any event, no evidence or available inference that the documents in question in Mr Singh’s case were provided by a third party. The certificate does not state that to be the case and it might equally have been the case that the documents were obtained from the internet by the delegate or some other officer in the Minister’s department. Indeed, the notations on the documents would suggest that that was most likely to be the case.

58    The Minister did not adduce any evidence to support the proposition that there was a logical or rational reason for concluding that disclosure to Mr Singh and Ms Weatherall of their own Facebook posts would be contrary to the public interest simply because they were not submitted by them in support of Mr Singh’s visa application. Needless to say, there was no evidence from the delegate who signed the certificate. Nor did the Minister put forward any rational or logical basis for finding that disclosure of the documents to Mr Singh would be contrary to the public interest. He simply submitted that it was “open to the delegate to regard disclosure of the parties’ social media records not submitted by them as contrary to the public interest”. If “open to” in that context was intended to mean rational or logical, the submission is rejected. Otherwise it goes nowhere.

59    It follows that the primary judge erred in concluding that the validity of the notice “turn[ed] on its face” and erred in concluding that the certificate was valid. No rational or logical basis for certifying that disclosure of the documents would be contrary to the public interest was shown. The decision to certify that disclosure would be contrary to the public interest was legally unreasonable.

60    It does not necessarily follow, however, that there was a jurisdictional error on the part of the Tribunal. That issue is considered later in these reasons.

Denial of procedural fairness

61    The Minister did not contend, either below or on appeal, that the non-disclosure to a review applicant by the Tribunal of a s 375A certificate would not or could not amount to a denial of procedural fairness. That is perhaps not surprising given the decision of the Full Court in Singh; see also SZMTA at [27]. In this case, however, the existence of the certificate was disclosed to Mr Singh. The question is whether that disclosure was sufficient or adequate to discharge the Tribunal’s procedural fairness obligations.

62    The Minister contended that the Tribunal disclosed the existence of the certificate and sufficiently disclosed the material covered by it. The Minister also relied on the fact that the Tribunal informed Mr Singh that it did not intend to rely on the documents or the information in them. In the Minister’s submission, the primary judge was right to find that there was no practical injustice established in the circumstances.

63    It may be accepted that the Tribunal’s Reasons do not expressly refer to any of the documents covered by the certificate or the information referred to in them. Nor is there anything in the Reasons to suggest that the Tribunal consciously took the documents or the information into account in arriving at the findings it did concerning the nature of the relationship between Mr Singh and Ms Weatherall. It is, however, difficult to accept that the Tribunal could realistically have put those documents or that information entirely out of its mind when making those findings.

64    There could be little doubt that the documents and the information in them were directly relevant to the nature of the relationship between Mr Singh and Ms Weatherall. But for the certificate, there could be little doubt that the Tribunal would have been entitled to, and most likely would, have had regard to the documents and information. There is merit in Mr Singh’s submission that, while the Tribunal’s Reasons do not refer to the documents, there is nonetheless a strong likelihood that the information in the documents did “enter the Tribunal’s consciousness” and, at least in that respect, were part of the reason for affirming the decision under review.

65    There is, in any event, a more compelling reason to find that the manner in which the Tribunal dealt with the certificate gave rise to a denial of procedural fairness. It is clear from the decision in Singh that one of the reasons why procedural fairness requires a Tribunal to disclose the existence of a certificate to a review applicant is to enable the applicant to challenge the validity of the certificate, either before the Tribunal or in separate judicial review proceedings: Singh at [41]-[49].

66    Singh, of course, was a case in which the existence of the certificate was not disclosed at all. Here, the existence of the certificate was disclosed. The difficulty for the Minister, however, is that, contrary to the conclusion reached by the primary judge, the Tribunal’s disclosure to Mr Singh was insufficient and inadequate to enable him to consider whether to challenge the validity of the certificate, or whether he had any grounds to challenge the validity of the certificate. That is because the Tribunal did not, among other things, disclose to Mr Singh that the certificate was issued under s 375A of the Act, or that it had been issued supposedly on the basis that disclosure of the documents was contrary to the public interest, or that the basis upon which it was said that the disclosure was contrary to the public interest was that the documents had not been supplied to the Minister’s department by him or Ms Weatherall. Without that information, it would have been impossible for Mr Singh to consider whether or not he could or should challenge the certificate, let alone make any meaningful submissions to the Tribunal about the validity of the certificate.

67    The Tribunal’s disclosure of the existence of the certificate was also deficient, in terms of its procedural fairness obligations, in another material respect. There could be little doubt that the information in the documents, or the documents themselves, were potentially adverse to Mr Singh’s case. As discussed earlier, they were, on one view at least, capable of casting considerable doubt on the genuineness of Mr Singh’s relationship with Ms Weatherall. The Tribunal could have disclosed the potentially adverse nature of the documents to Mr Singh without necessarily contravening subs 375A(2) of the Act: cf Singh at [55]-[56]; Burton v Minister for Immigration and Multicultural and indigenous Affairs (2005) 149 FCR 20; [2005] FCA 1455 at [40]. Procedural fairness also required that the Tribunal disclose to Mr Singh that some of the information in the documents covered by the certificate were potentially adverse to his case that he was Ms Weatherall’s spouse.

68    It should perhaps be emphasised, in this context, that Mr Singh did not contend in the Circuit Court that the non-disclosure to him of the information in the documents amounted to a breach of s 359A of the Act. Nor was that issue squarely raised in Mr Singh’s further amended notice of appeal, though it was raised obliquely in his submissions. It is accordingly unnecessary and undesirable to make any finding, or express any view, as to whether there was a direct conflict between s 359A and s 375A in the circumstances of this case: cf Singh at [56]. It suffices to say that procedural fairness obliged the Tribunal to disclose the potentially adverse nature of the documents to Mr Singh in a way that did not contravene s 375A of the Act so that he could properly consider whether to submit that the certificate was invalid and that he should be given access to the documents. Disclosure of the potentially adverse nature of the documents would also have enabled Mr Singh to consider making an application that the Tribunal, as constituted, disqualify itself on the basis that a fair-minded lay observer, acting reasonably, might apprehend that, having seen the adverse material, the Tribunal might be subconsciously influenced by it: cf Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136 at [73]-[76].

69    The inadequate and insufficient disclosure by the Tribunal of the legal and factual basis upon which the certificate was issued, and the failure to disclose that the documents covered by the certificate were adverse to Mr Singh’s case, gave rise to practical injustice in the particular circumstances of this case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. The practical injustice was that Mr Singh was denied the opportunity to consider whether he could or should challenge the certificate, or seek access to the documents, or apply for the Tribunal, as constituted, to disqualify itself on the basis of apprehended bias. The limited disclosure of the existence of a certificate to Mr Singh was essentially meaningless. There was nothing he could have done with the information that was provided to him.

70    The primary judge accordingly erred in finding that there was no denial of procedural fairness. It does not follow, however, that the denial of procedural fairness gave rise to a jurisdictional error. It is that issue which must now be addressed.

Jurisdictional error

71    The fact that the primary judge erred in finding that the certificate was valid and erred in finding that the Tribunal did not deny Mr Singh procedural fairness does not mean that the appeal should be allowed. That is because the relief that Mr Singh sought in the Circuit Court was only able to be granted if Mr Singh demonstrated jurisdictional error on the part of the Tribunal.

72    The problem for Mr Singh is that, as was made clear earlier in these reasons, the Tribunal affirmed the decision to refuse his application for a partner visa on a ground that was entirely independent of the finding that he was not Ms Weatherall’s spouse. That independent ground was Mr Singh’s failure to satisfy public interest criterion 4004. Mr Singh’s grounds of review relating to the invalid certificate and the denial of procedural fairness did not challenge that aspect of the Tribunal’s decision and related only to the Tribunal’s finding that he did not satisfy the criteria in cl 820.211 and cl 820.221 of Sch 2 to the Regulations.

73    In SZMTA, the majority said (at [45]), in a context not materially distinguishable from the present context:

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.

74    The “undisclosed notification” in issue in SZMTA was an undisclosed notification to the Tribunal by the Secretary of a certificate issued by the Minister under subs 438(1) of the Act which had similar, though not identical, implications for the conduct of the review by the Tribunal. The “invalid notification” was a notification by the Minister of a certificate under subs 438(1) of the Act which was found to be invalid. The important point, however, is that the breaches arising from either the undisclosed notifications or invalid notifications in SZMTA were considered to be jurisdictional errors only if they were material breaches, and the breaches were considered to be material breaches only if “compliance could realistically have resulted in a different decision”.

75    Similarly, in Hossain v Minister, the plurality held (at [31]) that jurisdictional error consists of a material breach of an express or implied condition of the valid exercise of a decision-making power and that, ordinarily, “breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision”. Significantly, the relevant facts and circumstances in Hossain v Minister were not materially distinguishable from the facts and circumstances of this case. Mr Hossain had applied for a partner visa. His application had been refused by a delegate of the Minister and that refusal was affirmed by the Tribunal on review on two bases: first, failure to meet the criterion in cl 820.211(2)(d)(ii) of Sch 2 to the Regulations; and second, failure to satisfy public interest criterion 4004. The Minister conceded that the Tribunal made an error of law in construing and applying the criterion in cl 820.211(2)(d)(ii). The High Court held, however, that that error “did not rise to the level of jurisdictional error” because it could not have made any difference to the decision (Hossain v Minister at [37]). That was because (at [35]) “the Tribunal could not reasonably have been satisfied that the public interest criterion was met” and “in those circumstances had no option but to affirm the decision of the delegate”.

76    Exactly the same can be said in Mr Singh’s case. There was, and is, essentially no dispute that Mr Singh did not satisfy public interest criterion 4004 at the time of the Tribunal’s decision. The Tribunal’s findings in that regard were not challenged. The certificate, valid or otherwise, and the documents covered by it, had nothing to do with Mr Singh’s indebtedness to the Commonwealth and could have had no bearing on the Tribunal’s finding that Mr Singh failed to meet public interest criterion 4004. The same can be said concerning the denial of procedural fairness arising from the Tribunal’s failure to adequately disclose the certificate. There could have been no different result even if the Tribunal had fully and adequately disclosed the legal and factual basis of the certificate and the fact that the documents covered by it may have been adverse to Mr Singh’s case concerning the criteria in cl 820.211 and cl 820.221 of Sch 2 to the Regulations.

77    It follows that, while the primary judge may have erred in finding that the certificate was valid and that there had been no denial of procedural fairness, his Honour was ultimately correct to find that the Tribunal did not make any jurisdictional error. As was noted earlier, in his supplementary submissions, Mr Singh ultimately conceded that the effect of the decision in Hossain v Minister was that the errors made by the Tribunal which were the subject of the appeal were “not jurisdictional”.

78    The primary judge therefore did not err in dismissing Mr Singh’s application. Mr Singh’s appeal must accordingly be dismissed.

79    The remaining issue is whether, as Mr Singh contended, the Court should make some form of declaration in relation to the non-jurisdictional errors which were made by the Tribunal.

Declaratory relief

80    Mr Singh contended that, even if the primary judge ultimately did not err in concluding that no jurisdictional error was made by the Tribunal, the Court should nonetheless declare that the Tribunal erred in two respects: first, in failing to find that the certificate purportedly issued under s 375A of the Act was invalid; and second, in “relying upon the information the subject matter of the certificates, purportedly issued under s 375A of the Migration Act without disclosing that content in the manner required by s 359A of the Migration Act”.

81    In Mr Singh’s submission, the making of these declarations was supported by three decisions: Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157; Sandhu v Minister for Immigration and Border Protection (2015) 236 FCR 63; [2015] FCA 987; and Josan v Minister for Immigration and Border Protection [2017] FCA 1418. It was also submitted that the declaratory relief would have utility in any request that Mr Singh were to make for Ministerial intervention pursuant to s 351 of the Act.

82    There are at least two difficulties with Mr Singh’s contention that the Court should grant declaratory relief.

83    The first and more fundamental difficulty is that, given the finding that there was no jurisdictional error on the part of the Tribunal, the Court has no jurisdiction to make a declaration in relation to the decision. That is because, in the absence of any finding of jurisdictional error, the decision is a privative clause decision: subs 474(2) of the Act; see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. It is therefore “not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account”: subs 474(1)(c) of the Act. It should be noted, in this context, that declarations were able to be made in Dhillon, Sandhu and Josan because there had been findings of jurisdictional error. The reason that no other relief was granted in those cases was that it was found that remittal to the Tribunal would have no utility because the Tribunal would, in any event, be compelled to refuse the grant of the visas in question because the visa applicants failed to meet other independent visa criteria.

84    The second difficulty is that this case is, in any event, distinguishable from Dhillon, Sandhu and Josan. The jurisdictional errors which were found to have been made in each of those cases related to findings that had been made by the Tribunal that the visa applicants had submitted bogus documents, or documents which contained false or misleading information, and therefore failed to satisfy public interest criterion 4020. It was found that there was utility in making declarations in relation to those findings because if those findings stood, the visa applicants would effectively be precluded from being granted any other visa for a period of three years: see Dhillon at [15]; Josan at [18], [30].

85    Mr Singh’s appeal does not challenge any finding relating to public interest criterion 4020 or any similar public interest criterion. Nor has he demonstrated any utility in the making of any declaration. The only utility in the declarations suggested by Mr Singh was that they may assist him in any request for Ministerial intervention under s 351 of the Act. It is somewhat doubtful that the declarations sought by Mr Singh, if made, would assist Mr Singh in any material way in relation to Ministerial intervention. It would, in any event, be open to Mr Singh to provide the Minister with a copy of this judgment if it was thought that the findings that have been made would assist Mr Singh’s case for Ministerial intervention.

86    It should also perhaps be noted that the declaration sought by Mr Singh which concerned the Tribunal’s failure to adequately disclose the content of the s 375A certificate departed from the way he had put his case both in the Circuit Court and on appeal. It also does not reflect the findings that have been made in relation to the appeal. The declaration tends to suggest that the Tribunal breached s 359A by failing to disclose adverse information in the documents covered by the certificate. As was noted earlier in these reasons, Mr Singh’s grounds of review in the Circuit Court did not allege a breach of s 359A of the Act. Nor did the primary judge make any finding relating to s 359A of the Act. Mr Singh’s further amended notice of appeal accordingly did not include a ground of appeal which squarely raised any issue concerning a breach of s 359A of the Act. While Mr Singh sought to argue, on appeal, that the information in the documents entered the “Tribunal’s consciousness”, and therefore should have been disclosed pursuant to s 359A or s 360 of the Act, ultimately the findings that have been made concerning denial of procedural fairness do not involve any finding that the Tribunal breached either s 359A or s 360 of the Act. It follows that the declaration sought by Mr Singh which raised the issue of s 359A would not, in any event, have been appropriate.

87    The declaratory relief sought by Mr Singh must accordingly be refused.

DISPOSITION AND ORDERS

88    While the primary judge erred in rejecting Mr Singh’s contentions that the s 375A certificate was invalid and that the Tribunal denied him procedural fairness by not adequately disclosing the certificate to him, the primary judge was ultimately correct to find that the Tribunal did not make any jurisdictional error in deciding Mr Singh’s review application adversely to him. Any error arising from the s 375A certificate or its inadequate disclosure could not have resulted in the making of a different decision by the Tribunal because there was, in any event, an entirely independent reason why Mr Singh could not be granted a partner visa; he did not meet public interest criterion 4004. That independent ground for refusing Mr Singh’s visa application was not challenged.

89    It follows that Mr Singh’s appeal must be dismissed.

90    Mr Singh’s application for declaratory relief must also be dismissed in the absence of any finding of jurisdictional error by the Tribunal. The declaratory relief sought by Mr Singh in any event was not shown to have any utility.

91    While Mr Singh had some measure of success in persuading the Court that both the Tribunal and the primary judge erred in relation to the way they dealt with the s 375A certificate, he has nonetheless been wholly unsuccessful in his appeal. He did not submit that costs should not follow the event. In all the circumstances, it is appropriate that he pay the Minister’s costs of the appeal.

Associate:

Dated:    9 June 2020