CONSIDERATION
62 The documents which the Minister sought to tender before the FCC had been provided to the Tribunal by the Secretary prior to the hearing of BJN16's case. They were, therefore, documents which the Secretary considered to be relevant to the review: see s 418. It may be assumed, as did Beach J in MZAFZ, in the absence of evidence to the contrary, that the Tribunal had had regard to the documents when coming to its decision. As a general rule, such material is treated as being relevant for the purposes of judicial review: see Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; [1989] FCA 202 at pp 6-9 (Lockhart J).
63 It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
64 Both parties relied on the dictum of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 343; [2015] HCA 40 at [60] that:
denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
65 BJN16 relied on this passage to support the proposition that a reviewing court will not be concerned to enquire as to what the person prejudiced by the breach might have said or done, had there been no such breach.
66 The Minister, on the other hand, placed emphasis on the qualification that relief will be forthcoming "unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome." Whilst acknowledging that he might confront considerable forensic difficulties in establishing that the exception applied in a given case, the Minister argued that their Honours had left open the possibility that it could be established, in a case such as the present, that the documents contained material that, on no view, could be thought to have prejudiced the interests of an applicant and could not and did not, even possibly, undermine the applicant's prospects of a favourable decision by the Tribunal. Such might be the case, so the Minister said, if the documents dealt with procedural matters such as the means by which the Department obtained information or were documents which it was established were already in the possession of the applicant at the time of the Tribunal hearing. It would not be necessary, in such cases, for the reviewing court to speculate as to what the applicant might or might not have done had he or she known about the contents of the documents before appearing at the Tribunal. What it would have to determine was whether the documents contained material which negatived the suggestion that the non-disclosure deprived the applicant of the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (Mason, Wilson, Brennan, Deane and Dawson JJ).
67 It was common ground that a reviewing court might withhold relief on discretionary grounds despite finding that an administrative tribunal had made a jurisdictional error in coming to a decision. Although rare, the possibility that circumstances might arise which would justify such a course has been acknowledged in cases such as Stead at 145 and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 107-109, 122, 137, 156; [2000] HCA 57 at [53]-[60] (Gaudron and Gummow JJ), [104], [122] (McHugh J), [149]-[150] (Kirby J), [217] (Callinan J).
68 If a party wishes to rely on the material to establish that relief should be refused that party should not be prevented from tendering material which he or she claims supports such a submission.
69 Even if, as BJN16 submitted, there was a relevant analytical difference between breaches of procedural fairness obligations and other kinds of jurisdictional error, the material remains relevant to relief. In Ex parte Aala at 109 [59], Gaudron and Gummow JJ identified the rationale for procedural fairness in the exercise of statutory power as "the concern ... with observance of fair decision-making procedures rather than with the character of the decision" and stated that this rationale differed from "that which generally underpins the doctrine of excess of power or jurisdiction". Their Honours nonetheless recognised that relief might not be secured for "trivial" breaches on the basis that "where the obligation to afford procedural fairness exists, its precise or practical content" is to be determined by reference to the controlling legal framework and the particular circumstances of the case (at 109 [60]). Although expressed from a different analytical perspective, the same essential concern informs the statements by Gageler and Gordon JJ in WZARH at 343 [60], to the effect that, where there is a denial of procedural fairness because of the denial of a fair opportunity to be heard, "the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given."
70 We do not consider that the decisions in MZAFZ and Singh compel the conclusion that material contained in documents covered by s 438 certificates can never be relevant in the course of judicial review proceedings in which the Tribunal has made a decision without disclosing to an applicant that the Minister has issued a certificate and that the documents identified in the certificate had been provided to it.
71 In MZAFZ the Minister sought to tender the documents covered by the certificate for limited purposes. These have been identified above at [36]. Two of those purposes related to aspects of procedural fairness. Neither went so far as to suggest that an examination of the documents would establish that MZAFZ had not been deprived of the opportunity of obtaining a favourable decision. The Minister, in MZAFZ, did not submit that the documents were relevant to the exercise of the Court's discretion to grant relief and the Court was not invited to withhold relief on any discretionary ground. Accordingly, we do not consider that MZAFZ stands for the broad proposition contended for by BJN16.
72 In Singh the Full Court was not called on to deal with the rejection of an attempt, by the Minister, in the FCC, to tender documents covered by a s 375A notification. The Court clearly left open the possibility that it will be appropriate, in some cases, at least, for documents covered by s 375A notifications (and, by analogy, s 438 notifications) to be tendered.
73 There are numerous cases in which FCC judges have received evidence and examined such documents and gone on to hold that the failure to disclose the existence of the notification did not give rise to a denial of procedural fairness. Many of them preceded the trial judge's decision in the present proceeding: see, for example, BZV15 v Minister for Immigration and Border Protection [2017] FCCA 981; ALP15 v Minister for Immigration and Border Protection [2017] FCCA 1418; SZMJM v Minister for Immigration and Border Protection [2016] FCCA 2884; SZVCP v Minister for Immigration and Border Protection [2016] FCCA 3333; DBF16 v Minister for Immigration and Border Protection [2016] FCCA 3291; BIE15 v Minister for Immigration and Border Protection [2016] FCCA 2978; BEG15 v Minister for Immigration and Border Protection (2016) 315 FLR 196; [2016] FCCA 2778; and BJD16 v Minister for Immigration and Border Protection [2016] FCCA 2537. In each of these cases the FCC received the documents, covered by the relevant s 438(1) notification, into evidence. In most cases the documents had been exhibited to a solicitor's affidavit and had been read without objection by the applicant. In one case the Minister had simply incorporated the documents in the court book prepared prior to trial: see DBF16 at [36]. In each of these cases MZAFZ was distinguished. In those cases which post-dated delivery of judgment in Singh, that judgment too was held not to prevent the FCC from examining the documents and taking them into account for the purpose of determining whether the fact that the documents had been before the Tribunal without the knowledge of the applicant had given rise to any practical injustice to the applicant.
74 For the most part this conclusion was reached in these cases because the material in the documents was found to be completely irrelevant to the issues which fell for the Tribunal's decision. In BZV15, for example, the material was found to be of a "most mundane character" (at [48]) and was "of the most anodyne nature and did not contain any information adverse to the applicant or [which was] otherwise relevant to the issues that the Tribunal was required to consider" (at [50]). In BEG15, the documents covered by the certificate recorded legal advice about errors in an earlier Tribunal decision which had led the Minister to agree to orders setting aside that Tribunal's decision. In another judgment, delivered today, we have dismissed an appeal from this decision: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. In another case (CQH16 v Minister for Immigration and Border Protection [2017] FCCA 1498), decided on the same day as the FCC's decision in this case, the documents covered by the certificate revealed that the Minister's delegate had utilised an incorrect template when making her decision. Because the Tribunal had conducted a full re-hearing and made a fresh decision on the merits, it was found that the applicant had been in no way prejudiced by the failure of the Tribunal to disclose the existence of the certificate or the contents of the document covered by it.
75 To these examples may be added the decision of Barker J, in this Court, in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566. In that case a certificate had been issued under s 438(1)(a) in respect of five documents. The existence of the certificate and the documents covered by it was not disclosed to the applicant by the Tribunal. The applicant sought judicial review of the Tribunal's decision. He did not rely on this failure in seeking review in the FCC. The FCC dismissed his application and he then sought leave to appeal from that decision in this Court. Again, he did not raise the issue. Nonetheless, the Minister, as a model litigant, drew the Court's attention to MZAFZ and Singh and tendered the certificate and the related documents to the Court. The applicant, who was not legally represented, did not object to the Court receiving the documents. Barker J examined them. Two were departmental internal working documents which, his Honour found, could have had no or only passing contextual relevance to the application. Two other documents dealt with the granting of a bridging visa to the applicant. The fifth document was what was described (at [89]) as "an outcome notification which resulted in [a] reconstituted Tribunal hearing." In these circumstances his Honour found (at [90]) that "the jurisdictional error principles and outcomes disclosed in MZAFZ and Singh have no practical application in this case." He also held that, even if there may have been some technical breach of disclosure obligations arising under the Act, it did not deprive the applicant of any opportunity to advance his case. No practical injustice arose: see AVO15 at [87]-[91]. In the circumstances, his Honour dismissed the application for leave to appeal the judgment of the FCC.
76 These decisions, of course, all turned on their own facts. In most, the decision to issue a notification under s 438 may be open to question. They do, however, gainsay the proposition that the reviewing court should never receive in evidence and consider documents covered by s 438 notifications.
77 None of these authorities was referred to by the trial judge in the present proceeding.
78 It is also to be borne in mind that, in some cases, an applicant may wish to have access to such documents for the purpose of bolstering his or her case on judicial review. The documents might, for example, contain material which is prejudicial to the applicant's interests. Despite this the applicant may not have been advised of the substance of the prejudicial information and afforded the opportunity to deal with it. Depending on the particular circumstances, this may give rise to complaints of procedural unfairness under either or both limbs of that concept, ie, fair hearing and apprehended bias.
79 It will, perhaps, be an unusual case in which the reviewing court will be satisfied that the material in the documents, although relevant, can have had no bearing on the outcome of the Tribunal's decision. Nevertheless the possibility that such cases may exist may not be foreclosed. It is more likely that such material may be relevant if the reviewing court is invited to withhold relief on discretionary grounds.
80 In the present proceeding the Minister's primary purpose in seeking to tender the documents was to counter BJN16's contention that he (the Minister) had no reasonable prospect of defending the application in the FCC. In order to do this the Minister sought to tender and rely on the documents in order to persuade the Court that he had an arguable case that no denial of procedural fairness had occurred or that, if it had, there existed discretionary grounds which would justify the FCC in withholding relief. The FCC should have admitted the material and considered whether it supported the Minister's case.
81 The trial judge refused to admit the evidence because of what we consider, with respect, to be a mistaken view of the decisions of this Court in MZAFZ and Singh. A consequence was that the Minister was unable to rely on potentially relevant documents when seeking to resist the summary judgment application.