Were the documents subject to the certificate and the notification admissible in the judicial review proceeding?
59 Before we turn to the primary question, it is convenient to note here that counsel for CQZ15 submitted at the hearing of the appeal that the argument advanced before the primary judge to justify the reading of the first Murano affidavit was more limited than the argument advanced by the Minister on appeal. This may be accepted. Before the primary judge, the Minister made a formal submission that MZAFZ had been wrongly decided. It was also said that:
Jurisdictional error does not follow from the Tribunal acting on an invalid certificate unless by doing so the Tribunal's jurisdiction to review the delegate's decision miscarries or by so doing the applicant is denied procedural fairness.
60 The balance of the Minister's submissions were, as counsel for CQZ15 submitted, directed to supporting the proposition that the Tribunal should not be taken to have acted on the certificate or the notification, and to refuting CQZ15's contentions that the filing of the first Murano affidavit was an abuse of process and that a finding made by the Tribunal about his brother was objectively unreasonable. The Minister's argument on the appeal, like that in the FCC, sought to justify the judicial examination of the documents covered by the certificate and the notification on the ground that they were relevant in the judicial review proceeding, because the contents of those documents would show that the Tribunal's decision did not involve jurisdictional error as alleged and CQZ15 was not entitled to the relief he sought.
61 It may be accepted that, speaking generally (and subject to limited exception), it is not open to a party, "after a case had been decided against him, to raise a new argument which ... he failed to put during the hearing when he had an opportunity to do so": see, for example, Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. The Minister's argument was not, however, a new argument in the sense discussed in that case and the other relevant authorities. The Minister's argument was essentially the same as that made in the FCC, although more developed in the appeal than that in the FCC. In this circumstance, we rejected the submission made by counsel for CQZ15 that the Minister should not be permitted to rely on his first ground of appeal.
62 It was common ground between the parties that the first Murano affidavit exhibited: (1) the certificate and the documents said to be subject to it; and (2) the notification and the documents said to be subject to it. The relevance and, in this case, the admissibility of the first Murano affidavit depended on whether the documents covered by the certificate and the notification (Documents) "could rationally affect ... the assessment of the probability of the existence of a fact in issue" in the judicial review proceeding before the primary judge: see Evidence Act 1995 (Cth), ss 55 and 56. In substance, the primary judge accepted that she was bound by MZAFZ to hold that the first Murano affidavit was inadmissible because it contained nothing relevant to a fact in issue before her in that proceeding.
63 It may be accepted that the Documents exhibited to the first Murano affidavit had been provided to the Tribunal by the Secretary of the Department prior to the hearing by the Tribunal of CQZ15's case. They were, therefore, documents that the Secretary considered to be relevant to the Tribunal's review of the delegate's decision to refuse CQZ15 a protection visa. Of course, the Tribunal was not obliged to have the same view of the documents as the Secretary, although the Tribunal was obliged to familiarise itself with their contents.
64 It may be observed that, as a general rule, the documentary material before a decision-maker is treated as being relevant, in the broad sense, for the purposes of judicial review: see Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 202 at pp 6-9; 23 FCR 536 at 539-540 (Lockhart J); compare also SZRCI v Minister for Immigration and Citizenship (No 2) [2012] FCA 1291 at [13]. We, therefore, accept that, as the Minister submitted, the Documents (as exhibited to the first Murano affidavit) were prima facie relevant to the judicial review proceeding in the FCC.
65 Further, in the absence of evidence to the contrary, it may be assumed, as Beach J did in MZAFZ, that the Tribunal has had regard to (or, in his Honour's words "acted in some unspecified way on": MZAFZ at [40]) any document said to be covered by a s 438 certificate in coming to its decision. To say this, however, is to allow for the possibility that evidence may be led to show that the decision-maker could not in fact have had regard to such a document in coming to his or her decision. In this context, to say a decision-maker has had 'regard' to or 'acted on' a document is to say that the decision-maker has treated the document as material in some way to the decision on review.
66 The Minister relied the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (Lam), for the proposition that whether or not there has been a denial of procedural fairness depends on the circumstances of the particular case. Lam raised a different kind of procedural fairness question, arising from a failure to act in conformity with a Departmental representation regarding the inquiries to be conducted before a visa cancellation decision was made. Nonetheless, as Gleeson CJ's reasons for judgment in that case show, and subsequent cases confirm, whether or not there has indeed been a breach of procedural fairness will almost always depend on the attendant circumstances. It was just such an inquiry into the circumstances of the case that led Gleeson CJ to reject the applicant's claim in Lam at [38], on the basis that:
No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.
67 Wherever there is an issue as to whether there has been a breach of procedural fairness of the kind alleged in Lam and in this case, the complainant must establish a loss of opportunity to advance his or her case, and whether he or she will succeed in this usually depends on the circumstances of the case.
68 It may be accepted that the non-disclosure by the Tribunal of the existence of a notification under s 438(2) of the Act may give rise to a denial of procedural fairness, as decided in MZAFZ. The Minister did not contend to the contrary. It does not, however, follow that the non-disclosure of such a notification will always give rise to a denial of procedural fairness. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined.
69 If, as the Minister contended, the contents of documents covered by the certificate or the notification in this case were found on inspection to be incapable of having any bearing on the decision of the Tribunal, then one would likely conclude that the non-disclosure of the certificate and the notification could not have deprived the applicant before the Tribunal of an opportunity to advance his or her case. This would be the case, whether or not the certificate or the notification was valid.
70 Reference was also made by CQZ15 at the hearing of the appeal to the comments of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55] that '[t]he concern of procedural fairness ... is with procedures rather than outcomes" and to their dictum 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."
71 CQZ15 relied on this passage to support the proposition that a failure to follow a process, which ought fairly to have been followed constituted "without more" a denial of procedural fairness and 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.
72 The Minister, on the other hand, placed emphasis on the need to show "a failure ... to give the opportunity to be heard" referred to in [55] and on the qualification at [60] 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." The Minister emphasised that "the requirement of fairness is one of substance over form", which necessitates consideration of the relevant circumstances, including, in this case, the documents subject to the certificate and the notification, in order to determine whether or not there was unfairness in failing to disclose the certificate or the notification. 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 the applicant and could not and did not, even possibly, undermine the applicant's prospects of a favourable decision by the Tribunal. We accept the Minister's submissions in this regard.
73 It would not be necessary, in such a case, 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 the reviewing court 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); see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609; 81 ALJR 1190 at [29], [85].
74 Furthermore, it may be accepted that jurisdictional error may arise in a case where a certificate has been invalidly issued under s 438(1)(a) of the Act, as decided in MZAFZ. The Minister rightly accepted that the s 438(1)(a) certificate in this case was invalid. This was because the reason stated in the certificate was that the specified folios contained "information relating to the [D]epartment's document examination process and internal workings" and, on no view, could this reason support a public interest immunity claim of the kind contemplated by s 438(1)(a). The fact that the Tribunal is given notification of an invalid certificate under s 438(1)(a) does not, however, always result in jurisdictional error.
75 In this connection, the Minister referred to Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 (SZIZO) in which the High Court held that the Tribunal's failure to comply with the procedural steps, which were required by the Act and designed to ensure an applicant for review received "timely and effective notice of the hearing", did not in that case result in a denial of procedural fairness giving rise to invalidity: see SZIZO at [35]-[36]. Rather, notwithstanding the imperative terms of the relevant statutory provisions, to determine the effect of a departure from statutory requirements of this kind, it was necessary to consider "the extent and consequences of the departure", including whether the applicant had lost an opportunity to advance his or her case.
76 Although the provisions under consideration here are different in nature and purpose to those in SZIZO, we accept that the effect of a departure from the requirements of s 438(1)(a) will depend on the circumstances in each case, particularly the effect of the departure on the decision under review, including whether or not the documents said to be covered by the certificate could be regarded as material to the decision under review.
77 We do not consider that the decisions in MZAFZ and Singh compel the conclusion that the contents of the documents covered by s 438 certificates can never be relevant in a judicial review proceeding in which the Tribunal has made a decision without disclosing to an applicant that the Minister has issued a certificate (or the Secretary has given a notification) that the documents identified in the certificate (or the notification) had been provided to it. This is equally so with respect to the non-disclosure of a notification under s 438(2) and the documents to which that notification is subject.
78 In MZAFZ the Minister sought to tender the documents covered by the certificate for limited purposes. These have been identified above at [27]. 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 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 that the contents of documents covered by a certificate under s 438(1)(a) and/or a notification under s 438(2) of the Act that the Tribunal failed to disclose to the applicant can never be relevant in a judicial review proceeding, especially when an issue of procedural fairness arises.
79 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 notification under s 375A (in like terms to s 438). The Court clearly left open the possibility that it will be appropriate, in some cases, at least, for documents covered by a notification to be tendered: see Singh at [16].
80 Since the primary judge declined in CQZ15's case to allow the first Murano affidavit to be read, there have been a number of instances in which FCC judges have taken a different course. They have received evidence of this kind and examined the documents to which notifications applied, and, in consequence, held that the failure to disclose the existence of the notification did not give rise to a denial of procedural fairness: 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] 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(2) 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. In each of these cases MZAFZ was distinguished. In those which post-dated delivery of judgment in Singh, it too was held not to prevent the FCC 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.
81 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" 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." 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.
82 To these examples may be added the decisions of Barker J and White J, in this Court, in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (AVO15) and SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 (SZMTA).
83 In AVO15 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 as "an outcome notification which resulted in [a] reconstituted Tribunal hearing." In these circumstances his Honour found 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 at [87]-[91]. In the circumstances, his Honour dismissed the application for leave to appeal the judgment of the FCC.
84 In SZMTA a notification had been issued under s 438(2) in accordance with s 438(1)(b), in respect of some 15 folios in a specified file on the basis that the "information was given to the Minister of the Department of Immigration and Border Protection [or to] an officer of the Department of Immigration and Border Protection in confidence". The notification further stated that in the delegate's view "this information should not be disclosed to the applicant or the applicant's representative because [the] folios ... contain information relating to an internal working document and business affairs". In providing that notification, however, the delegate overlooked that the whole of the Department's file, including the identified folios, had earlier been provided to SZMTA in response to a request under the Freedom of Information Act 1982 (Cth). White J (at [54]) examined the documents covered by the notification and held that the notification was defective because "it purported to apply to at least some documents and information which could not reasonably be regarded as having been given to the Minister or to an officer of the Department 'in confidence'". Whilst his Honour accepted that there was some force in the Minister's submission that there had been no denial of procedural fairness in a practical sense, he ultimately rejected it, because "the presence of the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision" and "the effect of the jurisdictional error in the present case is not to be determined by reference only to whether the appellant had the opportunity to make submissions about the matters in the identified documents which were adverse to him" (emphasis added): see SZMTA at [58]-[60].
85 As the different outcomes in AVO15 and SZMTA emphasise, the decisions in this Court and the FCC turn on their particular facts and circumstances. In most, the decision to issue a certificate or notification under s 438 may be open to question. They do, however, illustrate the utility in a reviewing court receiving in evidence the documents covered by s 438 notifications. The primary judge was not referred to any of the above-mentioned cases that had been decided at the time of her Honour's decision.
86 It may be borne in mind that, in some cases, an applicant may wish to have access to the documents covered by a s 438 notification for the purpose of further supporting his or her case on judicial review. The documents might, for example, contain material which is prejudicial to the applicant's interests and 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.
87 It will, perhaps, be an unusual case in which the reviewing court will be satisfied that the contents of the documents the subject of a s 438 notification, although relevant, can have had no bearing on the outcome of the Tribunal's decision. Nevertheless the possibility that such cases may exist cannot be foreclosed. In any event, it is likely that such material may be relevant if the reviewing court is invited to withhold relief on discretionary grounds.
88 In the present proceeding, the Minister's primary purpose in seeking to read the first Murano affidavit was to show that, even though the Tribunal had not disclosed existence of the certificate and the notification to CQZ15 (and thereby afforded him an opportunity to make submissions of the kind Beach J had in mind in MZAFZ) there was in fact no denial of procedural fairness; or that, if there was, relief should nonetheless be withheld as a matter of discretion. For the reasons we have stated, it was open to the Minister to read the affidavit for this purpose. The FCC should have admitted the first Murano affidavit with its accompanying exhibits, and considered and determined the case the Minister sought to make in the judicial review proceeding.
89 The primary judge declined to allow the first Murano affidavit to be read on the basis that its contents were not relevant to any fact in issue in the proceeding. Her Honour reached this view because she adopted what we consider, with respect, to be a mistaken view of the decisions in MZAFZ and Singh. A consequence was that the Minister was unable to rely on potentially relevant documents when seeking to answer the applicant's case on judicial review.
90 In this circumstance, we consider that the judgment of the FCC should be set aside and the matter remitted to that Court for hearing and determination in accordance with these reasons.