DBF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Application to this Court 10 On 18 January 2017 the appellant filed a Notice of Appeal in this Court. 11 The appellant applied for leave to appeal on the mistaken basis that his Notice of Appeal was lodged out of time. In fact, his Notice of Appeal was not lodged out of time for the reasons identified in the Minister's written submissions, namely time does not run pursuant to rule 1.61(5) of the Federal Court Rules 2011 (Cth), during the period starting on 24 December and ending on 14 January in the next year. Accordingly, the appeal was commenced within 21 days under rule 36.03 of the Rules and no extension of time is required. 12 A further preliminary matter is an application to amend the Notice of Appeal. On 17 April 2019, the appellant filed a proposed Amended Notice of Appeal. The proposed amendments were made after the appellant obtained legal assistance. The Minister did not oppose leave being granted and leave was granted. 13 The issues raised in this appeal are of narrow compass as I shall explain. They centre upon the grant of a certificate under s 438 of the Act. That section provides: (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 14 Before turning to the issues under appeal, it is relevant to note that the Minister conceded the certificate in question was invalid. It is also relevant to note that the Minister also made that concession in the proceedings before the Circuit Court. However, despite the Minister's concession, the primary judge found the certificate to be valid. For the reasons given below, I do not agree with the primary judge's conclusion that the certificate was valid.

Validity of s 438 certificate and the documents covered by it 15 The certificate had been issued by a delegate of the Minister in relation to two documents on the Department of Immigration and Border Protection's file. The first document is entitled 'Disclosure Decision Checklist' and the second document was a record of a compliance client interview conducted on 29 February 2016 for the purpose of assessing whether, pursuant to s 189(1) of the Act, an officer of the Department reasonably suspected the appellant was an unlawful non-citizen (compliance interview notes). No significance was attached to the Checklist in the submissions of either party to this appeal. 16 The compliance interview document records in short summary form some statements made by the appellant in the course of the compliance interview. In response to a question concerning why he had delayed applying for the protection visa, the document records the answers given by the appellant as follows: "Didn't bother + didn't have money, in jail." … Wanted to go back to uni + only applied for P.V. now. Talked to lawyer David Bitel." And that he was: "…not unlawful and thought he had a bridging visa" This is the only note in the compliance interview notes relied upon in submissions on behalf of the appellant. 17 The express reason for granting the s 438 certificate was: The disclosure of this information would be contrary to the public interest because… [the two documents referred to above] contain information relating to an internal working document and business affairs. 18 In MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [37], Beach J held that where the only reason given before the certificate was that the documents in question are "internal working documents" that is not sufficient to establish public interest immunity under statute or at law. I respectfully agree. Accordingly, in my view, the purported certificate was invalid and the Minister was correct to have conceded the point below and on appeal. 19 The legal effect of an invalid certificate granted under s 438 was not in dispute. Both the appellant and respondent, referring to the recent decision by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252, accepted that the question of whether the invalidity resulted in jurisdictional error depended upon whether the Tribunal's decision could have been different if the documents or certificate were disclosed to the appellant. The appellant's written submissions at [15] stated: In SZMTA at [44], the majority held that the issuing of an invalid s.438 certificate in relation to documents or information was an "unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review". However, the majority went on to explain at [45]-[48] that the issuing of an invalid s.438 certificate, or the failure to disclose the existence of a s.438 certificate to an applicant would only amount to a jurisdictional error if the Tribunal's compliance could have realistically resulted in it coming to a different decision. 20 The respondent's written submissions at [18] summarised the point as follows: As the Certificate was invalid, this 'amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review': Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252, [44]. However, as the High Court opined in SZMTA, a breach will not amount to jurisdictional error unless it is material. That is, the Court would need to be satisfied that there was a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. 21 In my view, this appeal turns upon the question of whether the content of the appellant's answers given in the course of the compliance interview set out above were material, specifically whether they could have realistically resulted in the Tribunal coming to a different conclusion. The question of materiality is relevant to both grounds of appeal.

Grounds of Appeal 22 The grounds of appeal as set out in the Amended Notice of Appeal are as follows: 1. The primary judge erred in holding, at [36]-[38] of his judgment, that there was no basis to conclude that the certificate issued pursuant to s.438(1)(a) of the Migration Act 1958 dated 3 June 2016 (the s.438 certificate, at AB 183) was an invalid certificate. Particulars a. The s.438 certificate was invalid because the statement in the certificate that "The disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs." is not a reason that could form the basis for a claim of public interest immunity under common law or statute. b. There was material subject to the s.438 certificate which was relevant to the review. The relevant material comprised of handwritten notes recording the Appellant's oral responses to questions put to him at a compliance client interview held on 29 February 2016 (the compliance interview notes, at AB 190). c. The Appellant's responses, as recorded in the compliance interview notes, were relevant to the question of why there was a delay in the Appellant lodging his application for a Protection visa, which Second Respondent (the Tribunal) considered (at [60] and [99] of its decision) to be an issue that was dispositive to the review. d. The Tribunal made no evaluation of the validity of the s.438 certificate and did not consider the material subject to the s.438 certificate. e. Notwithstanding the fact that the documents subject to the s.438 certificate were not mentioned in the Tribunal's decision, the issuing of the s.438 certificate amounted to jurisdictional error as there was a realistic possibility that the Tribunal's decision could have been different if it had taken the content of the compliance interview notes into account. 2. Further and in the alternative, the Tribunal failed to conduct a review as required by s.414(1) of the Migration Act 1958 by failing to consider relevant evidence. Particulars a. The Tribunal, at [60] and [99] of its decision, considered that the Appellant's 15-year delay in lodging an application for a Protection visa was inconsistent with his fleeing Bangladesh for the reasons claimed and that the delay was "significantly adverse to [his] claims". b. There was material subject to an invalid certificate purported to have been issued under s.438(1)(a) of the Act which comprised of handwritten notes recording the Appellant's oral responses to questions put to him at a compliance client interview held on 29 February 2016 (the compliance interview notes, at AB 190). c. The Appellant's responses, as recorded in the compliance interview notes, were relevant to the question of why there was a delay in the Appellant lodging his application for a Protection visa. d. The Tribunal made no evaluation of the validity of the s.438 certificate and did not consider the material subject to the s.438 certificate. e. In making the findings set out above at (a), the Tribunal did not make any findings showing that it had considered the explanations for the delay in lodging his Protection visa application given by the Applicant at his compliance interview, as recorded in the compliance interview notes. f. As a consequence of the matters set out in (a)-(e) above, the Tribunal failed to discharge its statutory task to conduct a review of the decision of the First Respondent's delegate to refuse the Appellant's application for a Protection visa dated 26 May 2016.

Ground 1 23 I have addressed the question of validity referred to in paragraph 1 and sub-paragraph (a) above. I turn to the particulars given in sub-paragraphs (b) to (f) above. 24 The appellants submissions in support of Ground 1 may be summarised as follows. 25 Firstly, the Tribunal considered the appellant's 15 year delay in applying for a protection visa was a factor that counted against his credibility as a witness and the credibility of his claims to fear harm. Accordingly, the explanation given by the appellant in the course of the compliance interview, namely that he did not have money, and that he was in prison, as well as his mention of speaking to a lawyer, would have, at least partially, explained the reasons for the 15 year delay. 26 Second, on the assumption that the Tribunal had considered the appellant's explanations in the compliance interview notes, and considered his explanations undermined his claim to fear harm, and assuming those considerations formed a reason, or part of a reason, for affirming the decision under review, the Tribunal was required to put the information to the appellant under s 424A or s 424AA of the Act. 27 Thirdly, to the extent that the compliance interview notes could be viewed as corroborative of the appellant's explanation for the delay in applying for the protection visa, on the assumption that the Tribunal did not consider what was said by the appellant during the compliance interview, its failure to do so would amount to jurisdictional error by failing to consider a matter relevant to the appellant's credibility. This contention overlaps with ground 2, to which I shall refer below. 28 The Minister's submissions in response to the above three contentions, in summary, were as follows. 29 As to the first contention, it was submitted that the question is not whether the compliance interview notes were, in the Court's view, relevant but rather whether there was a realistic possibility that the Tribunal's decision could have been different if it had taken the document, or information within it, into account. The Minister further submits that it is evident from the Tribunal's reasons for decision that it evaluated the appellant's explanations for delay in circumstances where the Tribunal had before it the delegate's decision record which in turn revealed that the appellant had been questioned about the delay in applying for the protection visa. The appellant had told the delegate that he was unaware his student visa application was refused in October 2008 or that he was unlawfully present in Australia, that he had disengaged with the Department in around 2006-2007, that he did not receive the refusal notification letter regarding his student visa application, that he went to see a migration agent in 2014 and that he was under the impression he was the bearer of a valid Bridging visa A. 30 Having regard to this background, although the Minister accepts that the Tribunal was required to have regard to relevant information, it was submitted that the appellant's explanations of the delay given to the Tribunal, recorded in the Tribunal's decision, were in substance the same as the explanations he gave to the delegate and substantively the same as the explanations he gave during the compliance interview as recorded in the compliance interview notes. Accordingly, it was submitted by the Minister that there was no relevant discrepancy, or substantive omission, from the explanation given by the appellant in the course of the compliance interview or when interviewed by the delegate for the purpose of his application for a protection visa and when he later explained his reasons for delay before the Tribunal. 31 The Minister submits therefore that there is no basis upon which the Court could infer that a different outcome on the review might have eventuated had the Tribunal expressly averted to the compliance interview notes. 32 I agree with the Minister's submission that there is no realistic basis upon which to infer that the Tribunal's decision might have been different, that is favourable to the appellant, had it expressly averted to the compliance interview notes. I would add a further objective fact which, in my view, strongly confirms this conclusion. The compliance interview occurred on 29 February 2016 which, according to the compliance interview notes, commenced at 9:34am and concluded at 10:07am on that day. That was over seven years from when the appellant became an unlawful non-citizen. On any view, there was a very significant delay in applying for a protection visa. The question of delay would conceivably have been very different had the appellant attended a compliance interview soon after he became an unlawful non-citizen, or at some time soon after his arrival in Australia in March 2001, and notes of what the appellant had said were not taken into account. But here the first occasion on which the appellant had explained his delay in applying for a protection was many years after he first entered Australia. By the time of the compliance interview the delay was already a duration that made the time between that interview and his later interview with the delegate, and subsequently his evidence before the Tribunal, relatively insignificant. In these circumstances, unless there was a matter of substantive difference in his explanation during the compliance interview that was not repeated relatively shortly thereafter at the interview with the delegate, or in his evidence at the Tribunal, in my view there is no realistic prospect that the Tribunal's decision could have been favourable to him if the Tribunal had taken the compliance interview notes into account. 33 The second contention was advanced on the assumption that the Tribunal had considered the appellant's explanation in the compliance interview notes in arriving at its decision. The Minister submitted that there is no basis upon which it may be inferred that the Tribunal considered the content of the document in reaching its decision. The document is not referred to in the Tribunal's Decision Record. The appellant did not identify any evidence indicating that the Tribunal had considered the information contained in the document. In the absence of evidence that the Tribunal took the document into account, I am not satisfied that it did so for the purpose of arriving at its decision. 34 In any event, even if that conclusion was wrong, for the reasons explained above the information disclosed in the compliance interview notes was in substance the same as information which had been disclosed to the delegate and to the Tribunal. Accordingly, in my view, even if the Tribunal had regard to the content of the compliance interview notes the information revealed was not material. Therefore, if there was non-compliance with s 424A or s 424AA, it did not constitute a jurisdictional error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 11 at [29]-[31]. 35 The further contention that failure to have regard to the compliance interview notes constituted a failure to take relevant evidence into account, insofar as what was said by the appellant during the interview might be characterised as a corroboration of his later evidence, is not sustainable. As the Minister submitted, strictly, an earlier statement by the appellant cannot constitute corroboration of evidence later given by him. The earlier statement is properly characterised as a prior consistent statement. However, the distinction does not matter because, for the reasons given above, the statements made by the appellant at the compliance interview, considered in the context of the information he later gave to the delegate and the statements he made to the Tribunal is not material.

Ground 2 36 Under the second ground the appellant contends that the Tribunal erred in failing to have regard to relevant material. This is, in substance, the same contention as the first and third contentions raised under ground 1. For the reasons given above in respect of these contentions, I reject the second ground. 37 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou.