The applicant has not established that the Tribunal's decision is vitiated by material jurisdictional error.
As the applicant is unrepresented, I am required to consider whether any arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me: see MZAIB v Minister for Immigration & Border Protection[2015] FCA 1392 at [112] and [113]; DQQ17 at [9]-[10] and BSQ17 at [27]. I am satisfied that no arguable substantive jurisdictional error arises from my review of the Tribunal decision in this matter.
The application is dismissed.
[2]
The first respondent seeks costs fixed in the sum of $7,500. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.
[3]
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.
Parties
Applicant/Plaintiff:
Lotay
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FedCFamC2G 1510
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (13)
To obtain the relief sought the applicant must prove that the Tribunal's decision is vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth[2003] HCA 2; (2003) 211 CLR 476 at [76].
In LPDTvMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] HCA 12; (2024) 98 ALJR 610 at [2] - [3] (LPDT) the High Court explained that:
Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, in most cases, the error must be material, in the sense that it could have realistically deprived the first applicant of the opportunity of a successful outcome: LPDT at [32]. Further, in reviewing the Tribunal's decision, the Court does not review the merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic).
Below I set out my consideration of the 10 grounds of judicial review in this matter. For the reasons given below, none of the grounds identify the Tribunal committed jurisdictional error. I also consider the matters raised by the first respondent as a result of the Tribunal's failure to disclose the existence of a s 376 Certificate to the applicant. For the reasons given on that issue, I do not find the Tribunal committed a material jurisdictional error.
Ground 1 contains an unparticularised assertion the Tribunal decision "involves jurisdictional error".
In DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) at [8] - [11], the Federal Court held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation, where the applicant is unrepresented, without giving the applicant an opportunity to explain what he or she meant by the ground.
At the hearing the applicant chose not to say anything about ground 1.
Ultimately, it is for the applicant to identify the case which is to be put forward to this Court to make out a claim of jurisdictional error by the Tribunal: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCAFC 117 at [44]- [45] and Minister for Immigration and Citizenship v SZGUR(2011) 241 CLR 59 at [67] (SZGUR).
The applicant has failed to do so in ground 1.
Ground 1 is dismissed.
Grounds 4 to 10 appear to take issue with factual findings and the weight given by the Tribunal to the applicant's evidence. I agree with the first respondent these matters are part of the fact-finding function of the Tribunal and go to the merits of the Tribunal decision not its legality: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 at [11] and Djokovic. This Court is not permitted to review the merits of the Tribunal decision in applications for judicial review under s 476 of the Act.
I will address each ground for completeness.
As to ground 7, the applicant seems to be arguing that the Tribunal was under an obligation to assist or investigate or impress upon the applicant to provide information to support its claims, in particular, regarding evidence about a future business plan to start his proposed business.
There is no general obligation on a Tribunal to investigate an applicant's claims: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire: see Minister for Immigration and Citizenship v SZIAI[2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Further, it is well settled that it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well founded fear of persecution for a Convention reason: see Abebe v Commonwealth of Australia(1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. The Tribunal must then decide whether that claim is made out.
Ground 7 has no merit.
In Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; (2019) 264 CLR 421 (SZMTA), the High Court considered a certificate that had been issued in respect of certain information under s 438 of the Act. Section 438 in Part 7 of the Act is a cognate provision to s 376 in Part 5 of the Act. A plurality of the High Court (Bell, Gageler and Keane JJ) held at [2] that:
...the fact of notification [under s 438] triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
At [38] their Honours elaborated further on s 438 (or s 376 in the present case):
Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision.
At [45]-[47] their Honours discuss materiality in the context of a breach of s 438 (or s 376 in the present case);
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
(2019) 268 CLR 76
(2022) 289 FCR 21
(2024) 98 ALJR 610
(2019) 264 CLR 421
(2011) 241 CLR 59
(2003) 211 CLR 476
(2004) 207 ALR 12
(1999) 197 CLR 510
The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.
In MZAOL v Minister for Immigration and Border Protection[2019] FCAFC 68 (MZAOL), the Full Court of the Federal Court applied SZMTA in a case concerning s 438 of the Act. In that case the Full Court concluded that there was a denial of procedural fairness by reason of the failure of the Tribunal disclose the existence of the certificate under s 438, but found that it was not a material jurisdictional error because, the Court found, applying SZMTA at [46], the Tribunal had no regard to the information referred to in the certificate in reaching its decision. Their Honours held at [76]:
In this case, it must be presumed that the Tribunal acted on the basis that the certification and notification made under s 438 was valid. The Tribunal did not exercise its discretion under s 438(3)(b) to disclose any of the impugned information to the appellants. So much is apparent from the fact that none of the impugned information was disclosed. In those circumstances, and particularly given the highly prejudicial nature of the information which emanated from the New South Wales police, there is good reason for thinking that a fair-minded Tribunal member in the regular administration of the Act and acting on the basis that s 438 had application would not have affirmatively exercised the discretion to have regard to the impugned information without good reason. If good reason for the exercise of the discretion existed, it is not apparent. Additionally, absent any contrary indication in the Tribunal's reasons or elsewhere in the evidence that the Tribunal gave active consideration of the s 438(3)(a) discretion, there is further justification for inferring that the Tribunal paid no regard to the impugned information in reaching its decision (see SZMTA at [47] (Bell, Gageler and Keane JJ)).
Turning to the present case, on 17 December 2020, a delegate notified the Tribunal that a s 376 Certificate had been issued in respect of the information received on 26 November 2020. The first respondent at paragraph [28] of his submissions makes the following concession about the s 376 Certificate:
The Tribunal did not disclose to the applicant the fact that a certificate under s 376 had been issued. The Minister accepts that, consistent with SZMTA, the failure to disclose the existence of the certificate constituted a denial of procedural fairness.
The first respondent submitted that despite this, the denial of procedural fairness was not a jurisdictional error because it was not material. This is because, the first respondent submitted, there was nothing in the reasons, or elsewhere in the evidence, that would indicate that the exercise of the discretion under s 376(3)(a) was considered by the Tribunal. In those circumstances, the court can be justified in inferring that the Tribunal did not exercise its discretion under s 376(3)(a), and therefore it paid no regard to the document in reaching its decision. It was submitted the Tribunal's failure to disclose the certificate to the applicant was immaterial to the decision it in fact made. The first respondent cited LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] HCA 12 at [7] in support of its submission that there was no material jurisdictional error.
I agree for the following reasons.
It is now well established that (as occurred here) the Tribunal's failure to disclose the fact that a s 376 Certificate had been issued, is a jurisdictional error. Applying SZMTA it is a denial of procedural fairness.
However, nowhere in the Tribunal's reasons, and/or elsewhere in the Court Book, is there any evidence that the Tribunal either considered exercising its discretion, or in fact exercised its discretion, under s 376(3) to disclose the document the subject of the s 376 Certificate to the applicant. In other words, the Tribunal in fact paid no regard to any document that was subject to the s 376 certificate when it made its decision. Thus, applying SZMTA and MZAOL, as the Tribunal did not consider the document that was subject to the s 376 certificate when making its decision, its failure to disclose the existence of the s 376 Certificate to the applicant was not material to its decision: see also LPDT at [7] and [32].
For completeness, the first respondent also drew the Court's attention to another potentially arguable ground of review in relation to the s 376 Certificate, namely apprehended bias. The first respondent referred to CNY17 v Minister for Immigration and Border Protection[2019] HCA 50; (2019) 268 CLR 76 (CNY17) in drawing this possible argument to the Court's attention. There is no evidence before me to support a finding of apprehended bias by the Tribunal based on what the High Court said in CNY17.
Accordingly, while there was a denial of procedural fairness in this case, applying SZMTA, I find the Tribunal did not commit any material jurisdictional error in relation to the s 376 Certificate.