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.