NETTLE AND GORDON JJ. These appeals concern the review by a Tribunal, under Pt 7 of the Migration Act 1958 (Cth), of a refusal to grant a protection visa where a notification was issued, or purportedly issued, under s 438(2) of the Migration Act by the Secretary of the Department of Immigration and Border Protection to the Tribunal, and neither the existence of the notification, its contents, nor the documents covered by the notification, were disclosed to the applicant for review. In those circumstances, what is "required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made"? The legal framework is to be found in Pt 7 of the Migration Act.
Section 438 confers discretions on the Tribunal, in the context of a review under Pt 7 of the Migration Act, in relation to a document or information given to the Tribunal to which the section applies, to "have regard to any matter contained in the document, or to the information" and to "disclose any matter contained in the document, or the information, to the applicant". Relevantly, s 438 applies to a document or information only if one of two pre‑conditions is met: first, if 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 ... 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, second, if 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".
Here, the Secretary's provision of an incorrect, and therefore invalid, notification that s 438 applied to a document or information, without more, amounted to an unauthorised act in breach of a limitation within the statutory procedures which conditioned the performance of the overarching duty of the Tribunal to conduct a review.
As was said in Minister for Immigration and Border Protection v WZARH:
"Where ... the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a 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." (citation omitted) (emphasis added)
As will be explained later in these reasons, that was the position here. The procedure adopted by the decision-maker, the Tribunal, failed to afford each applicant a fair opportunity to be heard. As the Full Court of the Federal Court of Australia correctly concluded in BEG15 v Minister for Immigration and Border Protection and Minister for Immigration and Border Protection v CQZ15, notification under s 438(2) triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant. A breach of that obligation of procedural fairness constitutes jurisdictional error.
There is then the question of whether the court should exercise its discretion to refuse relief because the breach of obligation did not deprive the person of the possibility of a successful outcome. In BEG15 and SZMTA, relief would have been futile because the contents of the undisclosed and incorrect notification did not deprive the person of the possibility of a successful outcome. In CQZ15, the position is different. The Full Court were correct to hold that evidence of the documents subject to a s 438 certificate may be relevant for the purpose of establishing that, if there were a denial of procedural fairness, the Court should nonetheless have refused relief in the exercise of its discretion.
First, however, it is necessary to say something more about the nature of jurisdictional error and, then, why the Tribunal's failure to inform an applicant that it has received notification that s 438 applies in relation to a document or information, without more, constitutes a jurisdictional error.
Jurisdictional error
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf:
"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." (emphasis added)
In the context of the exercise of statutory powers, the question is whether the decision-maker has exercised, or not exceeded, the jurisdiction conferred by the statute. This is because the central premise of jurisdictional error is as articulated by Brennan J in Attorney-General (NSW) v Quin:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise." (emphasis added)
The question, and the answer, as to whether jurisdictional error is made out is thus to be found in the statute. It is by construing the statute that conferred the power, so as to understand the limits of the power, that it is possible to determine whether a decision-maker has made an error, and whether any error is jurisdictional. Of course, that process of construction does not occur in a vacuum but is shaped by reference to principles and traditions of the common law. But for present purposes it is unnecessary to enter the debate as to whether the rules underpinning grounds of review are better understood as statutory implications or as arising from the common law. A finding of jurisdictional error is a conclusion that the decision-maker has failed to comply with an essential pre‑condition to, or limit on, the valid exercise of the particular statutory power. It reflects a distinction between acts unauthorised by law, and acts that are authorised.
What then are the consequences of a finding that a decision is affected by jurisdictional error? The decision is properly to be regarded as no decision at all. However, after jurisdictional error has been established, there are two possible further enquiries. The first is whether, as a matter of statutory construction, a purported decision affected by jurisdictional error may be treated as having had some legal effect until set aside. That, again, is an exercise in statutory construction. The question is whether the decision, although infected with error, has some legal consequence. The legal and factual consequences of the decision, if any, will depend upon the statute. That issue does not arise in these appeals.
The second is whether to exercise the residual discretion to refuse relief, after jurisdictional error has been established, if no useful result could ensue. The residual discretion to refuse relief entails a different and separate exercise from the identification of jurisdictional error. It looks to the utility of another hearing, although it is not confined to being "forward-looking".
These two enquiries should not be confused with the anterior issue of whether breaches of a provision of a statute, expressly or impliedly, are to be treated as depriving the decision‑maker of power − or, put in different terms, asking whether it "was a purpose of the legislation that an act done in breach of the provision should be invalid". The division in approach between finding whether there was jurisdictional error, and, separately, considering the consequences that flow from a finding of jurisdictional error, is important.
As the plurality explained in Plaintiff S157/2002 v The Commonwealth:
"The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision‑maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function." (emphasis added)
That passage recognises that people affected directly or indirectly by administrative decisions must know where they stand. A statutory power is to be exercised under, and according to, the terms of the statute. If the power is exercised in excess of jurisdiction, the invalidity cannot be unwound or cured by a court exercising its discretion to refuse to grant relief. The question of whether jurisdictional error is made out, and the separate question of what consequences flow from a finding of jurisdictional error, are and must remain distinct; because ultimately they are governed by different enquiries and imperatives.
In particular, in relation to jurisdictional error, decision-makers and those affected by the decisions of decision-makers are entitled to expect that decisions will be valid and enforceable under and according to the statute and not under a statute subject to some margin of error or principle of construction described as "materiality". As just explained, jurisdictional error involves a distinction between acts authorised by law and acts that are not authorised by law. And this distinction requires working out what acts the relevant law authorises. That is a question of statutory construction.
Certainly, courts make assumptions in relation to statutory power. Courts assume, for example, that Parliament intends that statutory powers be exercised subject to certain implied requirements, including that of procedural fairness. Further, courts accept that Parliament intends that some acts done in breach of certain statutory provisions should not result in invalidity. But acknowledging and accepting those assumptions does not mean that the exercise of statutory powers in accordance with the laws which underpin them is subject to some general implied requirement of "materiality". Parliament cannot be taken to intend that a decision‑maker need only comply with laws to the extent that failure to comply would not bring about a different result. Any such conception would be contrary to the notion, central to the conceptual foundations of judicial review, that everyone (including a decision-maker) is bound by the law. The only place for that kind of analysis (about the materiality of the error to the applicant) is in the exercise of the court's discretion whether to grant relief after jurisdictional error is made out.
Further, whilst the concept of "materiality" has been a focus in certain decisions in England, the approach there must be understood against a backdrop where the distinction between jurisdictional and non-jurisdictional error has been reduced to a "vanishing point". It would be wholly inappropriate to import such a concept into this country, where the distinction between jurisdictional error and non-jurisdictional error is the essence of judicial review.
Making materiality of error a criterion of jurisdictional error should be rejected for two further reasons.
First, it would impose the onus of establishing "materiality" on the applicant. That is reason in itself to reject it. As noted above, a finding of jurisdictional error means that the decision is to be regarded as a nullity. Thereafter, it is for the decision-maker, if seeking to have the court exercise its discretion to refuse to grant the relief that would otherwise follow, to establish that the relief would be futile in the applicant's circumstances. To shift the onus of proof of materiality to the applicant would put in doubt the fundamental principle that a statutory power is to be exercised under, and according to, the terms of the statute. To repeat, a person affected by a decision made by an exercise of statutory power is entitled to apply for a decision and have a decision made by a decision-maker under, and in accordance with, the terms of the statute, not the terms of the statute subject to some level of materiality that the person is obliged to identify after the decision has been made. The playing field is set by the statute, not the decision-maker or the court on review.
Of course, an applicant must demonstrate that there was error and that the error was jurisdictional. For any claim of denial of procedural fairness, an applicant must demonstrate that the impugned procedure deprived them of a fair opportunity to be heard. But that involves demonstrating that there was a purported exercise of some statutory power (of which the exercise is conditioned by obligations of procedural fairness) that was not within power and that it was adverse to the applicant. The concern is to ascertain whether the decision was within power. If the decision was not within power, then it is invalid. It cannot be a little bit invalid or a little bit beyond power. There is only one answer - yes or no.
Second, to shift the onus of proof would fundamentally change the nature of judicial review. Instead of a court concluding that an act or omission constitutes an error going to jurisdiction - meaning that the decision is invalid and that relief should be granted subject to the exercise of the court's discretion to refuse relief - it would become a form of merits review where jurisdictional error is found only if the breach is material to the applicant for review because it has denied that applicant the possibility of a successful outcome. That would have very large consequences for courts of review.
Part 7 of the Migration Act
Part 7 of the Migration Act provided, in the case of BEG15, for the review of "RRT‑reviewable decisions" by the Refugee Review Tribunal (as it then was), and provided (and continues to provide), in the cases of CQZ15 and SZMTA, for the review of "Part 7 reviewable decisions" by the Administrative Appeals Tribunal. Part 7‑reviewable decisions include decisions to refuse or to cancel a protection visa.
Once a valid application for review is made, the Tribunal must review the decision. The Registrar of the Tribunal must give the Secretary written notice of the application. The Secretary then has ten working days to give to the Registrar a statement about the decision under review that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based and gives reasons for the decision. The Secretary must also, "as soon as is practicable after being notified of the application", give to the Registrar "each other document ... that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision".
The way the Tribunal is to operate is addressed in Div 3 of Pt 7. The Tribunal is to pursue an objective of providing a mechanism of review that is "fair, just, economical, informal and quick". It is not bound by technicalities, legal forms or rules of evidence. It "must act according to substantial justice and the merits of the case". The way the Tribunal is to operate is the product of the interaction between the three branches of government established by the Constitution: as a matter of statutory construction, the common law usually will imply a condition that a power conferred by a statute on the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.
Here, the conduct of a review under Pt 7 is addressed in Div 4. The Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That obligation sets the boundaries of the playing field. The phrase "the issues arising in relation to the decision under review" is central to the operation of Pt 7. An applicant is entitled to know of, and therefore be in a position to respond to, the issues arising in relation to the decision under review. An applicant is entitled to know what is in play. Otherwise it is difficult to see how a Tribunal could be said to be pursuing an objective of providing a mechanism of review that is fair and just.
Consistent with, and building on, the premise that an applicant is entitled to know of the issues arising in relation to the decision under review, other provisions in Pt 7 expressly provide for notification to the applicant of, and for the applicant to respond to, those issues.
First, the applicant for review is entitled to give to the Registrar a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review.
Second, the Tribunal must: give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review"; ensure so far as is reasonably practicable that the applicant understands why it is relevant to the review and the consequences of it being relied on in affirming the decision that is under review; and invite the applicant to comment on or respond to it. Of course, that obligation does not extend to providing an applicant with all of the information which the Tribunal might ultimately take into account in making its decision on the review. And the obligation does not arise if the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it.
Third, for the purpose of the review, the Tribunal may take sworn evidence, summon a person to appear before the Tribunal, "require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination" and, subject to ss 438 and 440, give information to the applicant and to the Secretary.
Fourth, the Tribunal in the conduct of the review must consider the merits of the decision under review "in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself".
Fifth, the Tribunal in the conduct of the review must take account of any substantial, clearly articulated argument advanced by an applicant in support of their case.
Sixth, the Tribunal is required to make a written statement that, among other things, sets out the decision on the review, the reasons for the decision, and the findings on any material questions of fact, and refers to the evidence or any other material on which the findings of fact were based. And if a matter is not mentioned by the Tribunal in that written statement, a court is entitled to infer that the matter was not considered by the Tribunal to be material.
That list is not exhaustive but it is sufficient to set the scene for the proper construction of the Tribunal's powers, "subject to sections 438 and 440, [to] give information to the applicant …".
Division 7 of Pt 7 is relevantly headed "Miscellaneous". Section 437 contains a prohibition: in spite of anything else in the Migration Act, the Secretary must not give to the Tribunal a document or information if the Minister certifies 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 because it would prejudice the security, defence or international relations of Australia or because it would involve the disclosure of deliberations or decisions of the Cabinet or a committee of the Cabinet. The Tribunal does not know of the Minister's certificate and does not know of, or see, the document or information the subject of the certificate.
Section 438, with which these appeals are concerned, does not contain a prohibition. It 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."
Section 440(1), to which reference is made in s 427(1)(c), confers power on the Tribunal to give a written direction that evidence, information or the contents of any document given to the Tribunal should not be published or otherwise disclosed except in a particular manner and to particular persons if the Tribunal is satisfied that the non-publication or non-disclosure is in the public interest. A direction under s 440(1) does not excuse the Tribunal from its obligation under s 430 to provide a written statement of its reasons.
In aggregate, those provisions inform the proper construction of s 438.
As has been noticed, the section applies to a document, a matter contained in a document or information in two specified circumstances. The first is if 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 a reason specified in the certificate. The Minister must act within the bounds of reasonableness and according to law. The reason specified in the certificate must be one (other than a reason set out in s 437) that could form the basis of 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. It was common ground that the reason must be capable of grounding a claim for public interest immunity from disclosure at common law.
The second specified circumstance is if 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. If the Secretary gives to the Tribunal a document or information which is the subject of written certification under s 438(1)(a) or to which 438(1)(b) applies, then s 438(2) provides that the Secretary must notify the Tribunal that s 438 applies in relation to the document or information and may give to the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. As is evident, s 438 sits alongside and operates in conjunction with the Secretary's obligation under s 418(3) to give to the Registrar of the Tribunal any document or part of a document that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
Once the Tribunal has been given a document or part of a document (which, under s 418, the Secretary must have considered was relevant to the review), or information, by the Secretary, and notification that s 438 applies to the document or information, s 438(3) provides that the Tribunal is to deal with that document or information in a particular way. The Tribunal may have regard to any matter contained in the document or to the information and the Tribunal may, after taking into account any advice given by the Secretary under s 438(2), disclose any matter contained in the document, or the information, to the applicant. Both discretions must be exercised within the bounds of reasonableness and consistently with the obligations imposed on the Tribunal by ss 424A and 425. In relation to the second discretion - disclosure to the applicant of the matter contained in the document, or the information - s 438(4) requires the Tribunal to give a direction under s 440.
Where the Secretary notifies the Tribunal that s 438 applies to a document or information, the common law implies an obligation of procedural fairness on the Tribunal to disclose the fact of the notification to the applicant for review. That obligation of disclosure arises because a notification under s 438 is an essential aspect of the playing field. The notification must be disclosed so that an applicant seeking the exercise of an administrative power has an opportunity to choose, as the applicant may, to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is impossible for an applicant to do so if the issues are not disclosed. Put in different terms, procedural fairness requires that an applicant be told of an event which alters the procedural context in which the review is to be conducted. As Bell, Gageler and Keane JJ observe, a notification by the Secretary under s 438 alters that procedural context.
Lest that be doubted, it may be tested this way: had the notification been disclosed at the outset, it would be difficult to conclude that an applicant had not been given a reasonable opportunity to be heard. The extent to which the applicant would seek an opportunity to be heard is limited to issues arising in relation to the decision under review. On being told of the notification, those issues might include seeking to contest the basis of the Secretary's notification to the Tribunal that s 438 applies to a document or information; submitting that the Tribunal should exercise one or both of the discretions conferred by s 438(3); and subject to the contents of the notification, seeking to obtain access to the information through, for example, an application under the Freedom of Information Act 1982 (Cth).
Procedural fairness requires disclosure of the fact of notification by the Secretary. Non-disclosure of the fact of notification constitutes a breach of the Tribunal's implied obligation of procedural fairness. It is an unauthorised act in breach of a statutory procedure which conditions the performance of the duty of the Tribunal to conduct a review in the manner outlined above. A breach of that obligation of procedural fairness constitutes jurisdictional error. An incorrect and therefore invalid notification by the Secretary that s 438 applies in relation to a document or information also gives rise to jurisdictional error in the conduct of a review.
Appeals
The facts and procedural history are set out in the judgment of Bell, Gageler and Keane JJ and need not be repeated.
CQZ15
Written certification was made by the Minister under s 438(1)(a). Written notification was given by the Secretary to the Tribunal under s 438(2) in relation to s 438(1)(b). Neither the certification nor the notification was disclosed to CQZ15.
The Tribunal affirmed the decision of the delegate to refuse to grant a protection visa to CQZ15. CQZ15 sought review of the Tribunal's decision in the Federal Circuit Court. CQZ15 asserted that the certificate was invalid and that there was a want of procedural fairness because the Tribunal failed to disclose the fact of the certificate and the fact of the notification. The Minister conceded the certificate was invalid. The Minister contended the notification was valid and that the information which was the subject of both the certificate and the notification had no bearing and could have had no bearing on the Tribunal's decision. In the Federal Circuit Court, the Minister unsuccessfully sought to tender an affidavit exhibiting the documents the subject of the certification and the notification. The Court held that the failure to disclose the certificate and the notification resulted in jurisdictional error, set aside the decision of the Tribunal, and remitted the matter to the Tribunal for determination according to law.
The Full Court of the Federal Court allowed the Minister's appeal, set aside the orders of the Federal Circuit Court and remitted the matter for redetermination by the Federal Circuit Court. The Federal Circuit Court was correct that the failure to disclose the certificate and notification resulted in jurisdictional error. However, as the Full Court found, the evidence sought to be adduced by the Minister was at least potentially admissible as relevant to whether the Court should, in the exercise of its discretion, refuse relief. That is the issue to be considered and determined by the Federal Circuit Court.
BEG15
The decision of the delegate to refuse BEG15 a protection visa was affirmed on two separate occasions by two differently constituted Tribunals. On the hearing of the second application for review to the Federal Circuit Court, the Minister disclosed the existence of a certificate purportedly issued by a delegate of the Minister under s 438(1)(a). The certificate had been issued after the initial decision was quashed but before the second hearing was conducted. The certificate had been notified to the Tribunal under s 438(2)(a) but not disclosed to BEG15. The Minister conceded that the certificate and the notification were invalid.
The invalid certificate and the non-disclosure of the fact of the notification resulted in jurisdictional error. But as the Federal Circuit Court found, that error made no difference to the outcome of the review. The information in the documents covered by the certificate was largely known to BEG15, was not relevant to the decision to be made by the Tribunal and had not been taken into account by the Tribunal. Thus, relief was rightly refused. The Full Court of the Federal Court correctly found that the decision of the Federal Circuit Court contained no appealable error.
SZMTA
The first respondent, SZMTA, applied for judicial review of a decision of the Tribunal to affirm the decision of a delegate of the Minister to refuse SZMTA's application for a protection visa. The application was dismissed by the Federal Circuit Court.
On appeal to the Federal Court, SZMTA was permitted to raise that the Tribunal had not disclosed the fact of a notification purportedly made under s 438(1)(b) and s 438(2). The Tribunal had failed to comply with an essential pre‑condition to or limit on the valid exercise of the particular statutory power. The non-disclosure of the notification resulted in jurisdictional error.
The Tribunal did not refer to the notification, or the documents or information the subject of the notification, in its reasons. There was no dispute that the notification was not disclosed to SZMTA and that the Tribunal had not disclosed the documents the subject of the notification to SZMTA. However, the documents were in SZMTA's possession as a result of a prior freedom of information request.
The question is whether the orders of the Federal Court should be set aside on the basis that, because the documents underlying the notification were already in SZMTA's possession, disclosure of the fact of the notification would not have deprived SZMTA of the possibility of a successful outcome on remittal to the Tribunal. The appeal by the Minister should be allowed.
The documents covered by the notification, and thus the information in those documents, were known to and in the possession of SZMTA at the time that the matter was considered by the Tribunal. There is no reference in the Tribunal's reasons for decision to the notification or the documents and information the subject of the notification, and there is no reason to suppose that the Tribunal took them into account. To the contrary, the Tribunal's reasons show clearly that its analysis was in no way affected by them. In those circumstances, the failure of disclosure could not have deprived SZMTA of the possibility of a successful outcome on remittal to the Tribunal, and thus it is appropriate that relief should be refused in the exercise of discretion.