FEDERAL COURT OF AUSTRALIA

Hasnat v Minister for Immigration and Border Protection [2020] FCA 784

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    In 2010, Mr Mohammed Abul Hasnat, a citizen of Bangladesh, applied for a Skilled (Residence) (class VB) subclass 886 (Skilled – Sponsored) visa (skilled visa) on the basis of his skills and training as a cook. That application was refused by a delegate of the Minister for Immigration and Border Protection, essentially on the basis of a finding that Mr Hasnat had provided a bogus work reference to support the assessment of his skills and experience. Mr Hasnat applied to the Administrative Appeals Tribunal for review of that decision. That review application was unsuccessful. The Tribunal affirmed the delegate’s decision to refuse to grant Mr Hasnat the skilled visa, essentially on the same basis as the delegate’s decision. Mr Hasnat challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth). That application was dismissed by the primary judge. This is Mr Hasnat’s appeal from the decision of the primary judge.

2    The central issue in the appeal is whether Mr Hasnat was denied procedural fairness in the Tribunal. Mr Hasnat’s claim that he was denied procedural fairness revolved around a certificate that had been given by a delegate of the Minister, purportedly pursuant to subs 375A(1) of the Act, which stated that the disclosure of certain documents on the files would be contrary to the public interest. That certificate, which was notified to the Tribunal pursuant to subs 375A(2), obliged the Tribunal to ensure that the documents covered by it were not disclosed to any person other than a member of the Tribunal as constituted for the purposes of Mr Hasnat’s review application. Mr Hasnat contended that, while the Tribunal told him about the certificate, it did not give him either a physical copy of the certificate or adequate or accurate particulars of it. He was, in his submission, accordingly deprived of a meaningful opportunity to challenge the validity of the certificate, or to contend that the documents covered by it should have been disclosed to him, or to comment on, respond to or make submissions in relation to the documents. He also claimed that the Tribunal’s disclosure of some of the information contained in the documents breached the Tribunal’s “procedural fairness obligations” under s 359AA of the Act.

3    Before addressing Mr Hasnat’s contentions concerning the certificate and the manner in which the Tribunal dealt with it, it is necessary to provide some background concerning Mr Hasnat’s visa application, the context in which the issue concerning the certificate arose in the Tribunal and the manner in which the Tribunal dealt with the certificate. It is also necessary, of course, to address the primary judge’s findings concerning the certificate. The primary judge concluded, in fairly brief terms, that there was no denial of procedural fairness arising from the certificate, though it should be noted that his Honour was not favoured by any detailed submissions in relation to the issue. That is because it was not a ground of review that had been specifically raised by Mr Hasnat.

MR HASNAT’S VISA APPLICATION

4    To be eligible for the skilled visa, Mr Hasnat was required to satisfy certain criteria specified in the Migration Regulations 1994 (Cth). It is unnecessary to consider all the criteria because the decisions of both the delegate and the Tribunal turned on only one: public interest criterion 4020(1): see cl 886.225 of Sch 2 to the Regulations. Public interest criterion 4020, which was to be found in Sch 4 to the Regulations, relevantly provided as follows:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

(2)    The Minister is satisfied that during the period:

   (a)    starting 3 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(2AA)    However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

(2A)    The applicant satisfies the Minister as to the applicant’s identity.

(2B)    The Minister is satisfied that during the period:

  (a)    starting 10 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse to grant the visa;

neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

(2BA)    However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

(3)    To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

   (a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

5    The term “bogus document” was defined in s 5 of the Act (and previously in s 97 of the Act), as follows:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

  (a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

6    In his visa application form, Mr Hasnat nominated his occupation as “cook” and indicated that he had undergone a skills assessment by “Trades Recognition Australia” (TRA), the relevant assessing authority for his nominated occupation, on 4 December 2009. It would appear that a reference from Moti Mahal Indian Restaurant in Ramsgate was provided to TRA for the purposes of assessing Mr Hasnat’s skills as a “cook”. That reference, which was signed by Mr ASM Salim Ahmed as “Manager/Authorized Person” of the restaurant, indicated that Mr Hasnat had worked on a voluntary basis as a cook at the restaurant from 1 October 2008 to 10 October 2009 and had completed more than 900 hours of work.

7    As will be seen, the decisions of both the delegate and the Tribunal to refuse Mr Hasnat’s visa application turned on a finding that the work reference from Mr Ahmed that Mr Hasnat provided to TRA was a bogus document.

before THE DELEGATE

8    On 20 August 2015, an officer of the Department of Immigration and Border Protection wrote to Mr Hasnat about his visa application. The purpose of the letter was to invite Mr Hasnat to comment on information or evidence in the possession of the Department which suggested that he had provided a bogus document in relation to his visa application. It was explained that if Mr Hasnat was found to have provided a bogus document he may fail to satisfy public interest criterion 4020(1) and his application accordingly may be refused. The Department’s letter provided the following particulars of the relevant information:

As part of your visa application lodged on 30 June 2010, you made claims to have been employed with Moti Mahal Indian Restaurant from 1 October 2008 to 10 October 2009.

On 23 March 2011 and 24 March 2011 investigations were conducted by departmental officers.

On 23 March 2011 departmental officers visited Moti Mahal Indian Restaurant and spoke with the owner ASM Salim Ahmed. The owner ASM Salim Ahmed stated that from December 2008 all employment matters were his responsibility. However he was unable to verify your identity or confirm your employment with the restaurant even though his name was signed to the employment reference you provided to Trades Recognition Australia (TRA).

On 24 March 2011 the previous owner of the restaurant, Rashid Mondal, attended an interview with departmental officers.

Mr Rashid Mondal stated that he sold the restaurant in February 2010, but that he had full involvement as the restaurant manager up until that time. This is inconsistent with the information provided by the owner ASM Salim Ahmed.

Mr Rashid Mondal stated that no records were kept for volunteers and he was unable to verify your identity or confirm your employment with the restaurant.

9    Mr Hasnat did not respond to the invitation to comment on this information.

10    The fact that Mr Hasnat was put on notice of this information at such an early stage is of some importance. That is because, as will be seen, the documents that were the subject of the s 375A certificate were documents that were prepared by the Departmental officers who were responsible for the investigations conducted in March 2011.

11    On 12 January 2016, the Minister’s delegate refused Mr Hasnat’s visa application. The delegate found that the work reference that Mr Hasnat had provided to TRA was a bogus document. The delegate was therefore not satisfied that Mr Hasnat satisfied public interest criterion 4020(1). He therefore did not satisfy the criteria for the grant of the visa in cl 886.225 of Sch 2 to the Regulations. The delegate’s reasons for finding that Mr Hasnat had provided a bogus document were essentially based on the information which was set out in the Department’s letter of 20 August 2015. The delegate noted that Mr Hasnat had not responded to that letter.

12    On 28 January 2016, Mr Hasnat lodged an application for review of the delegate’s decision with the Tribunal.

IN THE TRIBUNAL

13    On 17 January 2017, the Tribunal wrote to Mr Hasnat, via his authorised recipient, and invited him to a hearing. The Tribunal also requested Mr Hasnat to provide it with any additional documents or information upon which he wished to rely in support of his application. In response, Mr Hasnat provided several academic transcripts and certificates, as well as some medical evidence and written references. The material Mr Hasnat provided to the Tribunal included a statutory declaration made by Mr Ahmed on 18 November 2011, together with a copy of the work reference signed by Mr Ahmed which Mr Hasnat had provided to TRA. Mr Ahmed’s statutory declaration repeated the statement that Mr Hasnat had worked at Moti Mahal Indian Restaurant from 1 October 2008 to 10 October 2009 and had completed more than 900 hours of work under Mr Ahmed’s supervision.

14    The material Mr Hasnat provided to the Tribunal did not otherwise address the information which the Department had notified him of in its letter dated 20 August 2015. Nor did it squarely address the delegate’s findings based on that information.

15    On 17 February 2017, Mr Hasnat appeared before the Tribunal, with the assistance of a registered migration agent, to give evidence and present arguments.

16    Before considering the Tribunal’s findings and decision, it is necessary to consider the terms of the s 375A certificate which had been notified to the Tribunal, the content of the documents that were the subject of that certificate and the way that the Tribunal dealt with the certificate at the hearing.

The s 375A certificate

17    Section 375A of the Act provides as follows:

(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.

18    The certificate given by a delegate of the Minister in this case was dated 24 March 2016 and was addressed to the District Registrar of the Tribunal. It was headed “CERTIFICATE REGARDING DISCLOSURE OF CERTAIN INFORMATION TO ADMINISTRATIVE APPEALS TRIBUNAL UNDER s375A OF MIGRATION ACT 1958” and 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 12A – 19B of file number BCC2010/263501 would be contrary to the public interest because:

(a)    folio 12A -19B contains information pertaining to Third parties not included in this application. This information could be detrimental to the wellbeing of those parties if divulged.

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 to s375A(2)(b) of the Migration Act 1958.

19    The certificate was not signed but bears the name of the officer who was apparently responsible for its creation. That officer was said to be both a delegate of the Minister and also a delegate of the Secretary of the Department.

The documents covered by the certificate

20    The “folio/s” referred to in the certificate were not disclosed to Mr Hasnat by the Tribunal. They were, however, tendered by the Minister and admitted into evidence in the proceedings in the Circuit Court. The affidavit filed by the Minister in the Circuit Court proceedings which exhibited the relevant documents stated that the exhibited documents, which were the documents referred to in the relevant certificate, were “in the nature of administrative documents of [the Department], and Departmental records”. The deponent of the affidavit also stated that, having regard to s 336E of the Act, the documents had been redacted “to protect third party identifying information” comprising “names, reference numbers, photographs and address details”. Mr Hasnat did not dispute or otherwise raise any issue concerning the redactions either in the Circuit Court or in this appeal. The deponent otherwise 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”.

21    It is readily apparent that the “folio/s” covered by the certificate in fact consisted of three documents. The first document was a copy of a report prepared by officers of the Department in respect of a “site visit” on 23 March 2011 to the restaurant previously known as “Moti Mahal”, at which Mr Hasnat had claimed to work. This report also included a summary of an interview conducted by the officers on 24 March 2011. The second document was a report prepared by the same officers in respect of a “site visit” to a restaurant in Darlinghurst on 24 March 2011. The third document comprised a series of “photo boards” which were shown to the persons who were interviewed by the officers during the site visits.

22    As has already been noted, the versions of those documents which were annexed to the affidavit which was read in the Circuit Court were redacted so as to conceal “identifying information” including names and photographs. The only name or photograph which appeared not to have been redacted in the documents was Mr Hasnat’s name and photograph. His name appeared twice in the report of the 23 March 2011 site visit and his photograph appeared twice in the series of photo boards.

23    It is necessary, having regard to the way that the argument proceeded during the appeal, to refer to various parts of the documents.

24    The report of the site visit that was made on 23 March 2011 summarised the officers’ interview with the person identified as the new owner of the restaurant. While the name of that person was redacted, it is readily apparent from other material, including the information which was notified to Mr Hasnat in the letter dated 20 August 2015, that the new owner was Mr Ahmed. The redacted summary of the conversation with Mr Ahmed included the following:

When shown the photo board, the new owner stated he could recognise the following as having worked in the restaurant but was unable to provide names which were [redacted] and [redacted] (some confusion here he identified him as [redacted]

When shown the photo board he was able to correctly provide the following names [redacted] and [redacted]

[redacted] was reluctant to circle “no” to those he did not recognise because they may have worked prior to his taking over the restaurant.

[redacted], the current owner, was able to verify the following references, as he had provided them for [redacted] and [redacted]

25    The report also contained a summary of an interview conducted by the Departmental officers with the person said to be the previous owner of the restaurant. Again, while the name of that person was redacted, it is readily apparent from other material that it was Mr Rashid Mondal. The redacted summary of the conversation with Mr Mondal included the following:

[redacted] recognised [redacted] and [redacted] but was unable to name when presented with the photo board. He was able to correctly name [redacted], [redacted] and [redacted] (Darlinghurst).

He stated that all the above had worked 900 hours in his restaurant.

He verified the following references:

[redacted]

He was not prepared to verify the following reference:

[redacted] as he did not recognise the name and he had not signed the reference.

26    The report then summarised the “outcome” of the investigations referred to in the report. The reporting officer first listed the names of two individuals who were considered, based on the interviews with Mr Ahmed and Mr Mondal, to have had a genuine involvement with the restaurant. The names of both those individuals were redacted. It may be inferred that Mr Hasnat was not one of those individuals.

27    The reporting officer next listed 14 names of individuals in respect of whom there was some evidence which suggested that they were likely to have had some involvement with the restaurant, but whose hours of work were unable to be verified. Those names were redacted, though it may again be inferred that Mr Hasnat was not amongst them.

28    Finally, and most significantly for present purposes, the officer then referred to the names of 15 individuals in respect of whom the officer said that he or she was “unable to verify”. The officer stated that he or she had “serious concerns” that those 15 individuals “are not recognised by either owner” and that he or she was “therefore not satisfied that they have worked as claimed for Moti Mahal”. Mr Hasnat’s name was included among those 15 individuals. The balance of the names were redacted.

29    The report included the following summary conclusion relevant to Mr Hasnat:

In summary, there is no information to verify the following applicants as having worked for Moti Mahal at either Ramsgate or Darlinghurst which consist of [redacted] HASNAT MOHAMMED ABUL, [redacted]

30    The second report, which concerned the site report to the restaurant in Darlinghurst, appears to have no relevance to Mr Hasnat’s case. He is not referred to in the document.

31    As indicated, the series of photo boards were, for the most part, redacted. The top of the document comprising the photo board recorded the following question which was presumably put to the person to whom the photo board was shown: “Did this person complete their 900 hours work experience under your employment?”. Under each of the photos the words “YES / NO” appeared. Under some of the photographs the word “YES” had been circled. Under some of the photographs, neither “YES” nor “NO” had been circled. The word “NO” had not been circled in any case. Mr Hasnat’s name and photograph appeared on two of the boards. On both occasions, neither the word “YES” nor “NO” was circled. It should be noted, in that regard, that the officers had stated in the report that Mr Ahmed had said that he was “reluctant to circle ‘no’ to those he did not recognise because they may have worked prior to his taking over the restaurant”.

The Tribunal hearing

32    Mr Hasnat’s grounds of review in the Circuit Court did not raise any issue concerning the certificate or the manner in which the Tribunal dealt with it at the hearing. Indeed, the grounds of review did not raise any issue concerning the Tribunal’s conduct of the review, other than the rather opaque ground that the Tribunal “did not exercise its power to quashed [sic] the decision taken by DIBP even though it has right to do so”. There was accordingly no evidence adduced in the Circuit Court concerning the conduct of the Tribunal hearing. The transcript of the hearing was not tendered in the Circuit Court. Nor did Mr Hasnat seek to tender it as fresh evidence on the appeal.

33    The only indication of how the Tribunal dealt with the s 375A certificate is contained in the following passage of the Tribunal’s Statement of Decision and Reasons (at [16]):

At the hearing the Tribunal discussed with [Mr Hasnat] the requirements of cl.886.225 and PIC 4020, including its waiver provisions. The Tribunal also explained to [Mr Hasnat] that the Department had issued a s.375A certificate regarding disclosure of certain information to the Tribunal. The Tribunal explained that the information pertained to third parties and that the Department had formed the view its disclosure may cause detriment to those parties. The Tribunal explained that it was of the view it is a valid certificate and invited [Mr Hasnat] to comment on its validity. [Mr Hasnat] did not have any comment to make.

34    It was common ground that this was an accurate summary of what occurred at the hearing concerning the s 375A certificate, though that is not to say that it is, or purports to be, a verbatim recitation of exactly what was said by the Tribunal when it disclosed the existence of the certificate to Mr Hasnat at the hearing. In any event, the question whether this was an adequate and sufficient summary of the nature and effect of the certificate is addressed later in these reasons. It suffices to note at this point that Mr Hasnat, who was represented by a migration agent at the hearing, sought no further particulars about the certificate and made no submission or application concerning it.

35    It is also important to note that, during the hearing, the Tribunal gave Mr Hasnat particulars of information, pursuant to s 359AA of the Act, which it considered would be the reason, or a part of the reason, for affirming the decision that was under review. The Tribunal recorded this in its Reasons as follows (at [28]):

The Tribunal then invited [Mr Hasnat], under s.359AA, to comment on or respond to information it considered would be the reason or part of the reason for affirming the Department’s decision. The Tribunal explained to [Mr Hasnat] that he may seek additional time to comment on or respond to the information and that the Tribunal would consider whether it was reasonable to give him more time. The Tribunal then gave [Mr Hasnat] particulars from the Department’s file recording the investigations undertaken in March 2011 by the Department. It explained that when shown a photo board including a photograph of [Mr Hasnat] neither Mr Ahmed nor Mr Mondal verified that [Mr Hasnat] had worked at the restaurant. The Tribunal also gave particulars that neither verified that they had given him a work reference. The Tribunal explained that this information is relevant to the review because, if relied on, it may cast doubt on his claims to have worked at Moti Mahal in the period October 2008 to October 2009. It explained that, if relied on, it may find that he did not work at the restaurant as claimed in the work reference used to obtain the TRA skills assessment. The Tribunal explained that it may then not be satisfied that there is no evidence that he has provided a bogus document and\or false or misleading information in a material particular in relation to his visa application and he would not satisfy PIC 4020(1). The Tribunal explained that if the requirement in PIC 4020(1) is not waived the decision under review would be affirmed. [Mr Hasnat] did not seek further time. He stated that he had worked for them. He referred to the statutory declaration attested in 2011 by Mr Ahmed. He claims that when he realised he had a problem he approached Mr Ahmed for the statutory declaration and he gave it to him.

36    There was again no dispute that this was an accurate account of what had occurred at the hearing.

37    It may be noted that the information disclosed to Mr Hasnat during the hearing concerned the investigations which had been conducted by officers of the Department in March 2011. As has already been discussed, those investigations were the subject matter of the documents that were covered by the s 375A certificate. The question whether the information disclosed by the Tribunal at the hearing was a fair, accurate and adequate summary of the information concerning the March 2011 investigations and the content of the relevant documents is considered later in these reasons. It suffices to note at this point that neither Mr Hasnat nor his migration agent sought any further time to respond or comment on the information, or offered any comment or response other than that Mr Hasnat asserted that he “had worked for them”.

The Tribunal’s decision and reasons

38    As has already been noted, the Tribunal affirmed the delegate’s decision to refuse to grant a skilled visa to Mr Hasnat. The critical finding made by the Tribunal that led it to affirm the decision under review was that the work reference that Mr Hasnat had given TRA was a bogus document and that Mr Hasnat therefore did not satisfy public interest criterion 4020.

39    The Tribunal gave two main reasons for finding that the work reference that Mr Hasnat provided was a bogus document.

40    The first reason hinged on the information or evidence concerning the Department’s March 2011 investigations and Mr Hasnat’s failure to provide any explanation for why Mr Ahmed and Mr Mondal would not have recognised him when interviewed by the Departmental officers at that time. The Tribunal reasoned as follows in that regard (Reasons at [35]):

Based on information in the delegate’s decision record, the Tribunal finds that during investigations undertaken in March 2011 by the Department Mr Ahmed and Mr Mondal were shown a photo board including a photograph of [Mr Hasnat] and neither Mr Ahmed nor Mr Mondal verified that [Mr Hasnat] had worked at the Moti Mahal restaurant as claimed in his work reference used to obtain his TRA skills assessment. The Tribunal also finds that during those investigations Mr Ahmed did not verify that he had given [Mr Hasnat] a work reference for work experience that [Mr Hasnat] claims to have undertaken in the period October 2008 to October 2009. The Tribunal is of the view that this casts doubt on his claims to have worked at Moti Mahal in the period October 2008 to October 2009. The Tribunal takes into account [Mr Hasnat’s] assertions that he did undertake the work. It has also had regard to the Statutory Declaration said to be attested by Mr Ahmed in November 2011. However the Tribunal is of the view [Mr Hasnat] has not provided an adequate explanation for why Mr Ahmed would not have recognised him during the investigations in March 2011 if it was the case that [Mr Hasnat] worked with him at his restaurant on a regular basis for a year from October 2008 to October 2009 as claimed.

41    The second main reason given by the Tribunal for its finding that the work reference that Mr Hasnat provided to TRA was a bogus document was that the Tribunal was not, in any event, satisfied by the evidence that was before it that Mr Hasnat had in fact worked at Moti Mahal as he had claimed. The Tribunal identified a number of significant inconsistencies in the evidence which it considered were not adequately explained by Mr Hasnat: see Reasons at [36]-[39]. It is unnecessary for the purposes of this appeal to deal with those inconsistencies and anomalies. It suffices to note that they caused the Tribunal to conclude that “Mr Ahmed did not indicate during the Department’s investigations that he recognised [Mr Hasnat] because [Mr Hasnat] did not work in the restaurant as he has claimed”: Reasons at [39].

42    It should finally be noted that the Tribunal also considered whether it should exercise its discretion to waive the requirements of public interest criterion 4020. The Tribunal ultimately was not satisfied that it should and gave reasons for why that was so. The Tribunal’s decision not to waive the criterion was not challenged in either the Circuit Court or on appeal.

IN the circuit court

43    Mr Hasnat applied to the Circuit Court for judicial review of the Tribunal’s decision. He was not legally represented at the time. His application advanced the following grounds (as drafted):

(1)    DIBP did not investigate properly about my work experience to know whether they are real or bogus

(2)    DIBP declared my past work experience invalid which was not based on proper investigation.

(3)    AAT did not exercise its power to quashed the decision taken by DIBP even though it has right to do so.

44    It would appear that Mr Hasnat did not advance any submissions, written or oral, in support of those grounds. Perhaps not surprisingly, they were rejected, in fairly summary terms, by the primary judge. The primary judge’s reasons for rejecting Mr Hasnat’s review grounds were not challenged in this appeal.

45    Despite the fact that Mr Hasnat’s grounds of review or submissions did not refer to the s 375A certificate, the primary judge nevertheless raised the question of the certificate with the Minister’s counsel at the hearing and invited submissions in relation to it. The Minister’s submissions, as summarised by the primary judge, were that “the Tribunal had identified that the certificate was one that the Tribunal considered valid and that the Tribunal raised with [Mr Hasnat] the substance of the information potentially adverse to [him] and, on the face of the Tribunal’s reasons, complied with the requirements of s 359AA in respect to that information”: Hasnat v Minister for Immigration & Anor [2017] FCCA 3048 (Judgment) at [24]. The Minister submitted, in those circumstances, that there had been no jurisdictional error and no denial of procedural fairness by reason of the non-provision of the documents the subject of the s 375A certificate. The primary judge noted that Mr Hasnat was invited to, but made no submissions concerning the certificate: Judgment at [26].

46    The primary judge ultimately accepted the Minister’s submissions with respect to the s 375A certificate, finding as follows (Judgment at [27]):

… No jurisdictional error or denial of procedural fairness occurred because of the s 375A certificate and the substance of the documents was sufficiently disclosed to [Mr Hasnat] in the course of the review. [Mr Hasnat] had a proper opportunity to respond to the substance of the documents. On the face of the material before the Court the Tribunal complied with s 359AA.

47    The primary judge dismissed Mr Hasnat’s application with costs.

THE appeal

48    Mr Hasnat was able to secure legal representation in respect of the appeal. At the hearing of the appeal, he sought and was granted leave to rely on an amended notice of appeal. The grant of leave was not opposed by the Minister. The amended notice of appeal contained the following single ground of appeal:

1.    The primary judge erred in finding that the Administrative Appeals Tribunal (“the Tribunal”) did not deny procedural fairness to the appellant and that it did not thereby commit jurisdictional error.

Particulars

1.    The Tribunal denied the appellant procedural fairness by failing to provide the appellant with a copy of the section 375A certificate issued by the Department of Immigration and Border Protection.

2.    The Tribunal’s failure to provide the appellant with a copy of the section 375A certificate deprived the appellant of a meaningful opportunity to challenge the validity of the certificate, to contend that the documents covered by the certificate should have been disclosed to the appellant and to comment on, respond to, or to make submissions in relation to the documents.

49    As can be seen, both of the particulars to this ground of appeal hinge on the proposition that procedural fairness required the Tribunal to not just disclose the certificate to Mr Hasnat, but to also give him a copy of the certificate. In his submissions, however, Mr Hasnat appeared to shy away from the claim that the Tribunal was obliged to give him a copy of the certificate. Instead, he advanced two propositions.

50    The first proposition was that, while the Tribunal did disclose the existence of the certificate, it did not accurately disclose the terms of the certificate. Mr Hasnat drew attention, in that regard, to the fact that while the Tribunal explained that disclosure of the documents “may cause detriment to” the third parties identified in the documents, the certificate in fact said that disclosure of the information concerning the third parties “could be detrimental to the wellbeing of those [third] parties”.

51    The second proposition was that the Tribunal failed to give Mr Hasnat “accurate particulars” of the documents and information covered by the s 375A certificate. This was said to have given rise to a breach of the “procedural fairness obligations” in s 359AA of the Act. This contention appeared to travel well beyond the terms of the appeal ground as particularised in the amended notice of appeal. Putting that consideration to one side, Mr Hasnat specified a number of respects in which the Tribunal’s disclosure during the hearing of information concerning the March 2011 investigations did not constitute adequate particulars of the information in the relevant documents relating to those investigations. Those alleged deficiencies will be considered later in the context of the consideration of the merits of Mr Hasnat’s appeal grounds.

52    It should be noted in this context that Mr Hasnat accepted that he was required to demonstrate that any breach by the Tribunal of its procedural fairness obligations gave rise to a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. He also accepted that the relevant breach must have resulted in a denial of an opportunity to make submissions and that denial was material to the Tribunal’s decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [38].

53    Having regard to the way that Mr Hasnat eventually put his case on appeal, the following questions arise for consideration and determination: first, whether the Tribunal was required to give Mr Hasnat a copy of the certificate; second, whether the Tribunal’s disclosure of the certificate was inaccurate in any material respect; third, whether the Tribunal breached s 359AA of the Act; and fourth, whether any breach by the Tribunal of its procedural fairness obligations gave rise to any practical injustice and was material to the Tribunal’s decision.

Was the Tribunal required to give Mr Hasnat a copy of the certificate?

54    As has already been noted, Mr Hasnat appeared to shy away from the contention in his ground of appeal that the Tribunal was required to provide him with a copy of the certificate. In any event, the short answer in the circumstances of this case is that, so long as the Tribunal gave Mr Hasnat a fair and accurate summary of the certificate, the requirements of procedural fairness did not oblige the Tribunal to give him a copy of the certificate.

55    The Tribunal’s procedural fairness obligations plainly required it to disclose the existence of the certificate to Mr Hasnat: Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 at [52]; see also SZMTA at [27]-[38]. That does not mean that the Tribunal was required to give Mr Hasnat a copy of the certificate.

56    Mr Hasnat relied on the decision of Siopis J in Singh v Minister for Immigration and Border Protection [2017] FCA 1443 at [101], however that case is no authority for the proposition that there will be a denial of procedural fairness if the Tribunal does not give an applicant a copy of a s 375A certificate. The Tribunal in that case had disclosed the existence of a s 375A notice, but did not disclose anything further about it. Siopis J found (at [101]), in that context, that there was “to that extent” a denial of procedural fairness, but went on to find that there was in fact no denial of procedural fairness because there was no practical injustice (at [103]-[104]). It is doubtful that, in making the obiter observation (at [101]) concerning the denial of procedural fairness, his Honour intended to convey that there was an immutable or concrete obligation on the part of the Tribunal to give an applicant a copy of any s 375A certificate. It is more likely the case that his Honour was simply conveying the fact that the Tribunal’s limited disclosure, in all the circumstances, was inadequate.

57    In this matter, the Tribunal did not just disclose the existence of a certificate under s 375A of the Act. It also disclosed the general nature and effect of the certificate. The Tribunal explained that the certificate concerned the disclosure of certain information, that the relevant information “pertained to third parties”, that “the Department had formed the view its disclosure may cause detriment to those parties” and that the Tribunal was of the view that the certificate was valid. The Tribunal then invited Mr Hasnat to comment on the validity of the certificate. Mr Hasnat did make any comment.

58    The relevant question in the circumstances is not whether the Tribunal was required to give Mr Hasnat a copy of the notice. The question, rather, is whether the Tribunal’s disclosure of the certificate was adequate and sufficient to discharge its procedural fairness obligations that arose from or related to the certificate. 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: see Singh at [43]-[49]. The relevant question, then, is whether the Tribunal’s disclosure of the general nature and effect of the certificate was sufficient to give Mr Hasnat an opportunity to make submissions concerning its validity, or whether it denied him an opportunity to make submissions concerning the validity of the notice.

59    The answer to that question, on balance, is that it cannot be concluded that the Tribunal’s disclosure was insufficient or inadequate such that Mr Hasnat was deprived of the opportunity to make submissions concerning the validity of the certificate.

60    Mr Hasnat bore the onus of establishing that the Tribunal’s disclosure of the s 375A certificate was relevantly deficient or defective. A significant difficulty for him in that regard is that there is no evidence as to exactly what the Tribunal said to him in relation to the certificate. Mr Hasnat did not tender the transcript or adduce any evidence concerning the Tribunal’s disclosure and exactly what it said about the certificate. While the Minister accepted that the Tribunal’s summary at paragraph 16 of the Reasons was an accurate summary, that is not to say that it is, or purports to be, a verbatim account of exactly what was said.

61    Putting that difficulty to one side, it is apparent from the Reasons that the Tribunal told Mr Hasnat, in substance, that the certificate was issued pursuant to s 375A of the Act, that it related to the disclosure of documents, that the reason for the non-disclosure was that the information “pertained to third parties”, that the Department had formed the view that disclosure of the information may cause detriment to “those parties” and that the Tribunal had formed the view that the certificate was valid. The Tribunal then expressly invited Mr Hasnat to “comment on its validity”. He did not make any comment.

62    Mr Hasnat did not explain, in his submissions, why the Tribunal’s disclosure was insufficient or inadequate to enable him to make submissions about the validity of the certificate (save for the contention that the disclosure was not accurate in one specific respect). That contention will be considered next. Beyond that, Mr Hasnat did not indicate what additional or different information about the certificate the Tribunal was obliged to provide him so as to give him a proper and realistic opportunity to make submissions.

63    It may perhaps be accepted that it would have been preferable for the Tribunal to have disclosed some other information relevant to the certificate. It would, for example, have been desirable for the Tribunal to give Mr Hasnat a brief explanation that s 375A of the Act allowed the Minister to certify that it would be contrary to the public interest to disclose certain documents or information and that the effect of the certification was that the Tribunal was obliged to ensure that the documents or information was not so disclosed. It would also perhaps have been preferable for the Tribunal to give Mr Hasnat such information as it was able to give him, without itself contravening subs 375A(2)(b) of the Act, about the general nature of the documents which were said to contain the information which related to the third parties.

64    It does not follow, however, that the disclosure that was made was deficient to the point of denying Mr Hasnat procedural fairness. The rules of procedural fairness are not a counsel of perfection. Such deficiencies as there may have been in relation to the disclosure did not give rise to any practical injustice and did not deny or deprive Mr Hasnat of the opportunity to make meaningful submissions concerning the validity of the notice. He was told enough about the general nature and effect of the certificate to enable him to make meaningful submissions if he wanted to do so.

65    It should perhaps be added that there was an air of unreality in Mr Hasnat’s submissions concerning his ability to make submissions concerning the validity of the notice. He was represented by a registered migration agent at the hearing. Neither Mr Hasnat nor his agent asked the Tribunal any questions or sought any elaboration about the certificate or its practical and legal effect. Neither Mr Hasnat nor his agent asked the Tribunal to elaborate on what s 375A of the Act said, or what the effect of the certificate was, or why it had been issued, or what the information or documents concerned, or the basis upon which the Tribunal had formed the view that it was valid. They said nothing. Mr Hasnat also did not adduce any evidence to the effect that he was confused by or did not understand the Tribunal’s disclosure, or that if other things had been disclosed to him he would have made submissions, or what those submissions would have been. That is not to say that it was necessary for Mr Hasnat to adduce evidence about those or any other matters. The fact that he did not do so, however, is of some relevance.

66    At the hearing of the appeal, when pressed, it was submitted on Mr Hasnat’s behalf that, if there had been proper disclosure of the certificate, he may have been able to submit and persuade the Tribunal that the certificate was not valid because there was no proper basis for the assertion in the certificate that disclosure of the information would have been detrimental to the third parties. The difficulty with this submission is that, one thing that can be said about the Tribunal’s disclosure is that it was made clear that the basis of the certificate was that disclosure of the documents may cause detriment to the third parties. It follows that Mr Hasnat was given sufficient information by the Tribunal to enable him to make the very submission that it was suggested he might have made about the validity of the certificate. The difference between being told that the Department had formed the view that disclosure of the information or documents “may cause detriment to those [third] parties” and being told, in terms of the certificate, that the basis of the certification was that the “information could be detrimental to the wellbeing of those [third] parties if divulged” is by no means readily apparent.

67    It should perhaps be added that, while the certificate is expressed in somewhat infelicitous terms, there is no sound reason to doubt its validity. The fact that the documents covered by the certificate included information which revealed the identity of other visa applicants or other persons who were said to have worked at the restaurant, and the identity of other people who were interviewed by the Departmental officers in the course of their inquiries, would appear to have provided a reasonable basis for the Minister to certify that disclosure would be contrary to the public interest. Indeed, such information may have been “identifying information” (as defined in s 5A of the Act) and therefore subject to the obligations and constraints in Pt 4A of the Act. It was also likely to have comprised “non-disclosable information” as defined in s 5 of the Act. It was therefore not subject to the disclosure obligations in s 359A of the Act: see subs 359A(4)(c) of the Act.

68    The absence of any reasonable argument that the certificate was invalid strongly suggests that any inadequacy in the disclosure of the certificate cannot be said to have given rise to any practical injustice, or could otherwise have realistically resulted in a different decision. The question whether any inadequacy in the disclosure of the certificate gave rise to any practical injustice or was in any way material must also be considered in the context of the Tribunal’s disclosure at the hearing, pursuant to s 359AA of the Act, of particulars of the information in the documents. That issue is addressed later.

69    In all the circumstances, Mr Hasnat failed to demonstrate that the Tribunal’s disclosure of the s 375A certificate was inadequate or deficient such that he was denied procedural fairness, or such that there was a jurisdictional error.

Was the Tribunal’s disclosure of the certificate inaccurate?

70    The short answer to this question is “no”.

71    As has already been noted, the relevant inaccuracy was said to be that the information “could be detrimental to the wellbeing of those [third] parties if divulged” whereas the Tribunal noted in its Reasons that it told Mr Hasnat that “the Department had formed the view its [the information] disclosure may cause detriment to those [third] parties”.

72    The first problem for Mr Hasnat is that, as has already been explained, there was no evidence as to exactly what the Tribunal said to him about the certificate. While the Reasons contained a summary of the disclosure, that is not to say that the summary is a verbatim account of what was said. That is significant where, as here, the difference between the wording of the certificate and the wording of the disclosure is fine, if not somewhat nebulous.

73    The second problem is that Mr Hasnat failed to demonstrate the materiality of the difference between the wording in the certificate and the wording of the disclosure. He submitted that the practical consequences of the Tribunal’s “misquotation/mischaracterization” of the precise wording of the certificate was that he was deprived of the opportunity to produce evidence and make submissions to the effect that there was no basis in fact for the claim in the certificate that the wellbeing of the third parties would be put at risk by disclosure of the documents. The difficulty, however, is that he was not deprived of the opportunity to adduce evidence or submit that there was no basis for the Department’s view, reflected in the certificate, that disclosure may cause detriment to the third parties. Mr Hasnat did not explain why the submission that he had the opportunity to make, but did not make, was materially different to the submission that he claimed to have been deprived of making.

74    It must also be said again that Mr Hasnat’s submissions in respect of this supposed deficiency had an air of unreality in circumstances where, in the face of the disclosure that was made, he chose not to seek any elaboration about the terms of the certificate or its legal or practical effect, or to make any comment in response to the Tribunal clear invitation to do so.

75    Mr Hasnat failed to demonstrate that the Tribunal’s disclosure of the s 375A certificate was inaccurate in any material respect, or that any such inaccuracy gave rise to a denial of procedural fairness or jurisdictional error.

Did the Tribunal breach s 359AA of the Act?

76    Mr Hasnat’s contentions concerning the Tribunal’s supposed breach of s 359AA of the Act, as well as not falling squarely within his ground of appeal, proceeded on the basis of at least two false premises.

77    The first false premise is that the Tribunal has “procedural fairness obligations” under s 359AA of the Act which may be “breached” in such a way as to give rise to jurisdictional error. Subsection 359AA(1)(a) of the Act provided that the Tribunal “may” orally give an applicant clear particulars of certain information. Subsection 359AA(1)(b) of the Act provides that if the Tribunal does so, the Tribunal “must” do certain things: ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review; orally invite the applicant to comment on or respond to the information; advise the applicant that he or she may seek additional time to comment on or respond to the information; and grant an adjournment if the applicant does seek further time. Perhaps more significantly, if the Tribunal does give an applicant particulars of information pursuant to subs 359AA(1) of the Act, the effect is that the Tribunal is relieved of the mandatory obligation under s 359A to give the applicant particulars of that information in writing in the manner specified in that section: subs 359A(3) of the Act.

78    The result is that, if the Tribunal does not give an applicant particulars of information pursuant to s 359AA of the Act, it may result in a failure on the part of the Tribunal to comply with s 359A of the Act, if no particulars of the information were provided under that section. The failure to give particulars under s 359AA itself, however, cannot give rise to a jurisdictional error. It should be emphasised, in this context, that Mr Hasnat did not contend, in his amended notice of appeal or otherwise, that the Tribunal failed to comply with s 359A of the Act.

79    The second and perhaps more significant false premise was that the Tribunal was somehow obliged, under or by reason of s 359AA of the Act (or even s 359A of the Act), to either give Mr Hasnat the documents that were the subject of the notice, or to give him particulars of every statement or item of information that may have been contained in those documents. That is not the case. Subsection 359AA(1)(a) simply provides that the Tribunal “may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (emphasis added). Subsection 359A(1) provides that the Tribunal must give such information to the applicant in the manner specified in subs 359A(2) and, as already indicated, subs 359A(3) provides that the Tribunal is not obliged to give the Tribunal particulars of the information if that information is given under s 359AA of the Act.

80    The point to emphasise is that the Tribunal is only obliged to give an applicant particulars of information if it is information that would be the reason, or a part of the reason, for affirming the decision under review: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; (2007) 235 ALR 609; [2007] HCA 26 at [17]. To have that character, the information in question must in its terms involve a “rejection, denial or undermining” of the review applicant’s claims relevant to the visa criteria in question: SZBYR at [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 at [22].

81    The obligation to give an applicant such information may not extend to a requirement to disclose the entirety of any document in which the information is contained; how much, if any, of the surrounding context in which the information appears must also be disclosed will depend upon the facts and circumstances of the particular case: SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; [2010] FCA 297 at [23]; referred to with approval in SZTGV v Minister for Immigration and Border Protection (2015) 144 ALD 525; (2015) 318 ALR 450; [2015] FCAFC 3 at [27], [32]. It must also follow that the requirement does not extend to giving the applicant a copy of the document in which the relevant information is contained: SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14 at [9].

82    As will be seen, none of the information in the relevant documents that Mr Hasnat contended that the Tribunal was obliged to provide had the necessary character of being information that would be the reason, or a part of the reason, for affirming the decision under review. Nor was it information which was required to be disclosed because it provided necessary context in respect of the information that was disclosed.

83    Mr Hasnat contended that the Tribunal failed to give him accurate particulars of four items of information which were in the documents covered by the s 375A certificate.

84    The first item of information related to what was stated on the top of each of the photo boards. The particulars of information that the Tribunal gave to Mr Hasnat included that “when shown a photo board including a photograph of [Mr Hasnat] neither Mr Ahmed nor Mr Mondal verified that [Mr Hasnat] had worked at the restaurant”. Mr Hasnat submitted, however, that the photo boards, which were included in the documents covered by the certificate, did not suggest that the person to whom they were shown was asked whether the person depicted in the photograph had worked at the restaurant. Rather, the photo boards suggested that the person was asked whether the person depicted in the photograph had “complete[d] their 900 hours work experience under your employment”. Mr Hasnat claimed that if accurate particulars had been given about the photo board, he could have submitted that the responses of Mr Ahmed and Mr Mondal to the photo board did not establish that they had not verified that Mr Hasnat had worked at the restaurant; only that he had not worked 900 hours at the restaurant.

85    There are a number of problems with those contentions and submissions. Whatever may have been written at the top of the photo boards, the report of the site visit on 23 March 2011 clearly recorded that Mr Ahmed and Mr Mondal were asked whether they recognised the persons depicted in the photographs. In Mr Hasnat’s case, as the report stated, he was “not recognised by either owner” and there was accordingly “no information to verify” that he worked at the restaurant. It follows that the particulars of the information given by the Tribunal to Mr Hasnat at the hearing were entirely accurate and reflected what was said in the report. Nor did s 359AA or s 359A of the Act oblige the Tribunal to give Mr Hasnat particulars of what was stated at the top of the photo board in the circumstances. It was plainly not information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.

86    The second item of information again concerned what was stated on the photo boards. As explained earlier, each of the photo boards had the words “YES / NO” under each of the photos. The interviewing officer, or perhaps the interviewee, Mr Ahmed and Mr Mondal as the case may be, could circle which ever was the appropriate response. In Mr Hasnat’s case, the photo board revealed that neither Mr Ahmed nor Mr Mondal had circled either “YES” or “NO”. Mr Hasnat submitted that he should have been advised that neither of the owners had circled “NO” because he would then have been able to submit that neither owner had “given evidence” that he had not worked for a period of 900 hours at the restaurant.

87    There is again no merit in that submission. The adverse information which was contained in the site report was that the author or authors of the report had stated that Mr Hasnat was “not recognised by either owner” and that there was accordingly “no information to verify” that Mr Hasnat had worked at the restaurant. That is what the report stated. The Tribunal gave clear particulars of that information to Mr Hasnat. The fact that neither owner had circled “NO” did not mean that the owners had not said that Mr Hasnat had not worked at the restaurant. Indeed, the report noted that Mr Ahmed had said that he was “reluctant to circle ‘no’ to those he did not recognise because they may have worked prior to his taking over the restaurant”. The information that neither owner had circled “NO” on the photo board was not information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. It was therefore not information that was required to be disclosed to Mr Hasnat under s 359AA or s 359A. Nor did that information indicate that any of the particulars of the information that were provided to Mr Hasnat at the hearing were inaccurate or incomplete in any material way.

88    The third item of information was a statement in the site report, alongside the redacted name of one of the workers that the owners had recognised, “(although both [owners] were confused about which was his photo)”. It is abundantly clear that this statement related to someone other than Mr Hasnat. The information was accordingly entirely irrelevant to his circumstances. There is simply no basis for the contention that this information should have been disclosed, or that its non-disclosure meant that the particulars of the information that were disclosed were somehow inaccurate or incomplete.

89    The fourth item of information was a statement in the site report which recorded that one of the owners had said that he had “recruited his volunteers from the Indian community”. Mr Hasnat submitted that if that information had been disclosed to him, he could have submitted that it was corroborative of his claim. It does not follow that the Tribunal was obliged to disclose that information to Mr Hasnat under s 359AA or s 359A of the Act. It was plainly not information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. Nor did the non-disclosure mean that the particulars of the information that were disclosed were somehow inaccurate or incomplete.

90    The information that the Tribunal disclosed to Mr Hasnat at the hearing, as summarised in paragraph 28 of the Reasons, comprised a fair and accurate summary of the information in “the Department’s file recording the investigations undertaken in March 2011” which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The fact that some of the documents contained information which was not disclosed and which Mr Hasnat now contends he could have made submissions about does not mean that the Tribunal failed to comply with either s 359AA or s 359A of the Act. None of the information in the documents now relied on by Mr Hasnat comprises information which the Tribunal in fact considered would be the reason, or a part of the reason, for affirming the decision under review. Nor has Mr Hasnat demonstrated that the information that the Tribunal did disclose to Mr Hasnat, which was the information which the Tribunal did consider would be the reason, or a part of the reason, for affirming the decision under review, was inaccurate or incomplete in any material respect.

91    It should finally be noted, once again, that Mr Hasnat’s submissions were entirely divorced from the reality of what occurred not only at the Tribunal hearing, but also throughout the course of his visa application. At the very commencement of the process, an officer of the Department invited Mr Hasnat to respond to information in the Department’s possession which was adverse to him and which arose from the investigations which had been conducted in March 2011. He did not respond to that invitation. That information formed the main basis of the delegate’s decision to refuse Mr Hasnat’s application. Mr Hasnat nevertheless did not squarely address that information in the material he provided to the Tribunal. Nor did he provide any comment, or seek any further time to make a comment, when the Tribunal disclosed essentially the same information to him at the hearing. The suggestion, in those circumstances, that if minor and essentially immaterial parts of the documents relating to the March 2011 investigations had been disclosed to Mr Hasnat he would have been spurred into action and made submissions about the investigations is, in all the circumstances, fanciful.

Practical injustice, materiality and jurisdictional error

92    It is strictly unnecessary to address this issue because, for the reasons that have been given, there was no denial of procedural fairness arising from the Tribunal’s disclosure of the s 375A certificate. Nor did the Tribunal breach s 359AA (or s 359A) of the Act by failing to adequately or accurately disclose any adverse information in the documents that were covered by the certificate. Many of the considerations relevant to an assessment of whether there was any practical injustice and whether any denial of procedural fairness or breach of s 359AA or s 359A was material to the Tribunal’s decision have also, at least to a certain extent, already been considered and discussed in the context of considering whether there was any breach. Nevertheless, for more abundant caution, the questions of practical injustice, materiality and jurisdictional error should be directly addressed on the assumption that, contrary to the conclusion that has been reached, there was a denial of procedural fairness arising from the deficient or defective disclosure of the s 375A certificate, or some failure to comply with s 359AA or s 359A of the Act.

93    For the reasons that have effectively already been given, even if was concluded that the Tribunal denied Mr Hasnat procedural fairness by not accurately or adequately disclosing the terms of the s 375A certificate, Mr Hasnat nevertheless failed to demonstrate that there was any practical injustice. That is because any inaccuracies or deficiencies in the disclosure of the certificate were not such as to deprive him of the opportunity to make any meaningful submission concerning the accuracy of the certificate.

94    The only submission that Mr Hasnat suggested that he could have made if the s 375A certificate had been given to him, or its contents had been put to him in verbatim terms, was that the certificate was invalid because there was no basis for the assertion, in the certificate, that the information in the certificate about third parties “could be detrimental to the wellbeing of those [third] parties if divulged”. As explained earlier, a fundamental problem for Mr Hasnat in terms of demonstrating any practical injustice arising from the Tribunal’s disclosure of the certificate is that the terms of the Tribunal’s disclosure of the certificate could not sensibly be said to have deprived him of the opportunity to make that submission. The Tribunal told Mr Hasnat, in the context of explaining the nature and effect of the certificate, that the Department had formed the view that the disclosure of the information concerning the third parties “may cause detriment to those parties”. Thus, it would have been open to Mr Hasnat to submit that the certificate was invalid because there was no basis for the view or assertion that disclosure may cause detriment to the third parties. Needless to say, Mr Hasnat made no such submission. The significant point, however, is that submission that Mr Hasnat could have made on the basis of what indisputably was disclosed to him is essentially indistinguishable from the submission that Mr Hasnat now contends that he would or might have made if the verbatim terms of the certificate had been disclosed to him.

95    There are further reasons to reject any suggestion that the inaccurate disclosure of the certificate alleged by Mr Hasnat gave rise to any practical injustice, or was in any way material to the Tribunal’s decision, in the sense that “compliance could realistically have resulted in a different decision”: cf. SZMTA at [45]. “Compliance”, in this context, would mean disclosing the certificate in the way that Mr Hasnat contended it should have been disclosed.

96    First, even if Mr Hasnat had made the submission he now says he could or would have made, there is no sound or reasonable basis to find that the Tribunal would or even could have accepted that submission and found that the certificate was accordingly invalid. While the certificate is undoubtedly infelicitously worded, it revealed, on its face, the basis upon which the Minister’s delegate had certified that disclosure of the relevant information otherwise than to the Tribunal would be contrary to the public interest. The basis was, to paraphrase the terms of the certificate, that the relevant information related to persons other than Mr Hasnat and disclosure of it may have been detrimental to the interests of those persons. That would appear, on its face, to be a reasonable and logical basis upon which to certify that disclosure would be contrary to the public interest.

97    Mr Hasnat asserted that he would have submitted, in effect, that there was no basis for the Minister’s delegate to have formed the view that disclosure would have been detrimental to the interests of the other persons referred to in the documents. It is entirely unclear, however, how he would have developed that argument, or made good that proposition, beyond mere assertion. More significantly, the Tribunal, who had access to the documents, would have known, or been able to ascertain, that the other persons referred to in the documents were mostly other visa applicants who had, like Mr Hasnat, claimed to have worked at the Moti Mahal restaurant. It is not too difficult to see why, and how, it could have been reasonably concluded that the disclosure of information “pertaining” to those persons could be seen as being potentially detrimental to their interests.

98    It might also be added that, as discussed earlier, the disclosure of the names and photographs of those other persons may in any event have been prevented or prohibited as that information most likely constituted “identifying information” (see 5A and s 336E of the Act). It may also have comprised “non-disclosable information” which was therefore not subject to the disclosure obligations in s 359A of the Act: see s 5 and subs 359A(4)(c) of the Act.

99    In all the circumstances, Mr Hasnat has not demonstrated that the submission he says he would have made had the precise text of the certificate been disclosed to him could realistically have resulted in a different decision by the Tribunal in relation to the validity of the certificate. Nor could it realistically have resulted in the Tribunal disclosing the documents covered by the certificate to Mr Hasnat. It follows that “compliance”, in terms of precise disclosure of the terms of the certificate, also could not realistically have resulted in a different decision by the Tribunal in relation to Mr Hasnat’s review application. The denial of procedural fairness alleged by Mr Hasnat, even if made out, was accordingly not material and did not amount to, or constitute, a jurisdictional error.

100    It should finally be noted, in this context, that Mr Hasnat’s case also proceeded on the premise or assumption that had he been able to successfully challenge the s 375A certificate and, as a result, been able to obtain access to the documents covered by it, he could have made submissions in relation to the documents that could realistically have resulted in a different decision by the Tribunal. It is, however, by no means readily apparent that anything he could have said about the contents of the documents could realistically have resulted in a different decision by the Tribunal. Indeed, as the following consideration of the materiality of the alleged breach of s 359AA of the Act demonstrates, the submissions that Mr Hasnat says he would have made in relation to the documents could not realistically have resulted in a different decision.

101    As has already been discussed in detail, Mr Hasnat submitted, in the context of his contention that the Tribunal breached s 359AA of the Act, that if the contents of the documents had been fully disclosed to him, he would have made four submissions about four items of information in the documents. It is unnecessary to repeat those submissions here. It suffices to say that none of them could, if made, have realistically resulted in a different decision by the Tribunal. That is because those submissions, considered in the context of the contents of the documents as a whole, are entirely unmeritorious. The effect of the submissions was to extract small extracts from the documents and consider them in isolation. When the documents are read as a whole, there could be little doubt that they support the finding ultimately made by the Tribunal to the effect that, when Mr Ahmed and Mr Mondal were shown the photo boards containing Mr Hasnat’s photograph, neither of them said that they recognised that person as someone who had worked at the restaurant while they ran it.

102    It follows that, even if, contrary to the conclusion that has been reached, the Tribunal breached s 359AA or s 359A of the Act in the way contended by Mr Hasnat, that breach was not material. Compliance could not realistically have resulted in a different decision.

CONCLUSION AND DISPOSITION

103    Mr Hasnat’s judicial review application in the Circuit Court did not include any ground which alleged that he was denied procedural fairness by the Tribunal having regard to the way it dealt with the s 375A certificate, or any ground which alleged that the Tribunal breached s 359AA. Nor did Mr Hasnat make any submissions concerning either of those issues. The primary judge did, however, address those issues and found that there was no jurisdictional error by the Tribunal arising from either of them. The primary judge was right to so conclude.

104    Mr Hasnat failed to demonstrate that he was denied procedural fairness because the Tribunal inaccurately or inadequately disclosed the existence of the s 375A certificate or its legal and practical effect. He also failed to demonstrate that the Tribunal breached s 359AA or, for that matter, s 359A of the Act. Finally, he failed to demonstrate that, if there had been a denial of procedural fairness, or a breach of s 359AA as alleged by him, that denial or breach was material, in the sense that compliance could have resulted in a different decision by the Tribunal.

105    Mr Hasnat’s appeal must accordingly be dismissed with costs.

Associate:

Dated:    9 June 2020