BZV15 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 This appeal from the judgment and orders of the Federal Circuit Court of Australia given and made on 16 June 2017 was originally listed for hearing on 22 November 2017 but adjourned pending judgment in three test cases. Judgment in those matters, being Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, was given on 29 November 2017. I provide the following background in light of the number of "certificate" appeals which are pending. 2 There was only one issue in the present appeal being the status and legal effect of a certificate under s 438 of the Migration Act 1958 (Cth). The grounds of the appeal were that the primary judge erred in failing to find that the Administrative Appeals Tribunal denied the appellant procedural fairness by not disclosing the existence of the s 438 certificate to the appellant and erred in failing to find that acting on an invalid certificate constituted a jurisdictional error in light of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1. It may be recalled that in Minister for Immigration & Border Protection v Singh [2016] FCAFC 183; 244 FCR 305 the Full Court upheld the reasoning in MZAFZ and the High Court refused special leave to appeal against the decision of the Full Court on 12 May 2017: Minister for Immigration and Border Protection v Singh & Anor [2017] HCATrans 107. 3 The parties have promptly and properly filed consent orders, in light of the Full Court judgments given on 29 November 2017, that the present appeal be dismissed, with costs. I note that, as stated by the Full Court in BJN16 at [63], the non-disclosure by the Tribunal of the existence of a certificate given under s 438 may give rise to a denial of procedural fairness, but it does not follow that this will always be the case: it is necessary in each case for all the circumstances, and the consequences for the applicant, of the omission to be examined. 4 The circumstances of the present appeal were that the primary judge found, at [48]-[51], that the certificate was invalid; the documents in the present case were of the most mundane character; the primary judge gave the appellant access to them; there was nothing in the reasons of the Tribunal, or in the documents themselves, from which it could be inferred that the Tribunal had "acted upon" or had "regard to" the documents; and in circumstances where undisclosed documents could not conceivably have had any impact on the outcome of the review there was no practical unfairness. 5 By consent, I order that the appeal be dismissed, with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.