MZAFZ v Minister for Immigration and Border Protection

1. The time within which the applicant be permitted to seek leave to appeal from the decision of the Federal Circuit Court be extended to 16 May 2016.
2. The applicant have leave to appeal the said decision on the grounds set out in the draft notice of appeal filed with this Court.
3. The appeal be allowed.
4. Order 1 of the Federal Circuit Court be set aside, and in lieu thereof it is ordered that the decision of the second respondent made on 15 May 2014 be quashed and the matter be remitted to the second respondent for hearing and determination according to law.
5. Order 2 of the Federal Circuit Court be set aside and in lieu thereof it is ordered that there be no order as to the costs of the proceedings in the Federal Circuit Court.
6. The first respondent pay the applicant's costs of and incidental to the proceedings in this Court to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BEACH J: 1 The applicant has applied for an extension of time within which to apply for leave to appeal and has sought such leave from an interlocutory determination made by the Federal Circuit Court of Australia on 10 March 2016. That Court summarily dismissed the applicant's application for judicial review of a decision of the second respondent (the Tribunal) made on 15 May 2014 that affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the applicant a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). It would appear that the Federal Circuit Court exercised its summary powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). 2 Notwithstanding the submissions of the Minister, I would grant the extension of time sought, grant leave to amend the applicant's proposed notice of appeal in the form sought by the applicant, grant leave to appeal and allow her appeal. 3 In terms of the extension of time sought, leave to amend and leave to appeal, I have accepted the submissions advanced on behalf of the applicant by her pro bono counsel Mr Adam McBeth. The applicant has given a reasonable explanation for the modest delay in filing her application for leave to appeal, a delay which causes no prejudice to the Minister. Moreover, her proposed amended grounds of appeal are at the least reasonably arguable. Indeed, I have accepted one of the grounds and allowed her appeal. The applicant has succeeded in establishing a jurisdictional error based on a deficiency in the legality of the procedure adopted by the Tribunal concerning a s 438(1)(a) certificate. The form of the certificate did not conform to the statutory prescription and is invalid. Moreover, neither its existence nor its effect were ever disclosed to the applicant, let alone in such a way as may have invited consideration by the applicant of the potential operation of s 438(3). As against this, the Minister principally sought refuge in two arguments. First, it was said that the information quarantined by the certificate was innocuous to the applicant's interests. Who knows? But in any event that is no answer. Second, the Minister sought to rely upon the legislative prophylactic of s 422B(2) such that any invalidity of a s 438(1)(a) certificate or the failure to draw the certificate to the attention of the applicant could not be used to challenge the legality of the procedure before the Tribunal. I disagree. 4 It is convenient to first discuss the relevant background and then to deal with the grounds of appeal in turn.

RELEVANT BACKGROUND 5 The applicant is a citizen of Pakistan. In February 2013, she arrived in Australia and then applied for a protection visa on or about 22 April 2013. 6 On 31 December 2013, a delegate of the Minister refused that application. On 22 January 2014, the applicant filed an application with the Tribunal to review that determination. On 26 February 2014, the Tribunal wrote to the applicant saying that it had considered the material that she had provided but was unable to make a decision in her favour on that information. The Tribunal invited her to appear before it on 8 April 2014 to give evidence and present arguments. 7 On 8 April 2014, the hearing took place and was then adjourned to 7 May 2014. On both occasions, the applicant was unrepresented and required the assistance of an interpreter in the Urdu and English languages. 8 On 15 May 2014, the Tribunal affirmed the decision under review. 9 The Tribunal did not find the applicant to be a credible witness in respect of most of her claims. The Tribunal set out a number of reasons in support of this assessment (at [27] to [35]). First, the Tribunal found that the applicant's evidence was marked with "highly significant inconsistencies and omissions". Second, the Tribunal found that the applicant, on her own admission, had submitted a number of documents that were false and that in that context she had made a false statement. The Tribunal stated that it was aware that "asylum seekers may provide false information to be able to leave their country if they have a genuine fear of being harmed", but said that "in all the circumstances her willingness to provide false information to the Australian government, taken in concert with other concerns about her credibility, [was] another reason that leads me to reject her claims". 10 At [34] and [35], the Tribunal then said: Given all these highly fundamental concerns about her credibility, I do not accept that the applicant entered into a relationship with man [sic] at her hospital who was married or engaged. I do not accept that his family members or any of her family members (including her father's cousin) or anyone else found out about this relationship and that they became hostile to the applicant. I do not accept a group of men (including a Maulvi or Maulvis) came to the hospital where she worked, threatened her and demanded that she cease the relationship and that she return to Islam. I do not accept that she received threatening calls from this man's brother or anyone else or that he told her parents to poison her. I do not accept that the applicant was in a car with her boyfriend and his driver and it was shot and they were injured. I do not accept that her boyfriend rang her and told her about another incident where he was shot at or that her family had threatened him or that this incident actually happened. I do not accept that she was threatened or physically harmed by her parents or anyone else as she has claimed due to this claimed relationship. I do not accept that she had to flee from her parents' home to Rawalpindi and that she was in hiding. I do not accept, as she claimed at the hearing, that shopkeeper [sic] near her where she was in Rawalpindi had said that persons had come to his shop asking about her. I do not accept that the applicant was or is of any adverse interest to her parents, other relatives, her claimed boyfriend's brother, his family, Muslims, the Taliban or anyone else. I find that she does not have a well-founded fear of persecution in relation to these untrue claims. I further find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Pakistan that there is a real risk that she will suffer significant harm on the basis of these untrue claims. 11 On the question of religion, the Tribunal said the following at [36] to [39]: Religion In her visa application the applicant stated that she did not believe in Islam and that she did not agree with its treatment of women and that she wanted to live independently and freely as there were too many cultural and Islamic barriers. She said she could not say anything openly because there is a law in Pakistan to kill anyone who rejects Islam. However, at the hearing she stated that she believed in a creator and when asked if she thought Mohammed was a prophet of God, she answered that she believed in him and trusted in him. She said she that she did not agree with the boundaries that Islam imposed on women. She said that it did not give equal rights to women and that it was male dominated. She said that women have no say if children are taken away and that if there was a rape case, females are second and only witnesses who were present and seen it are allowed to give evidence. I accept that the applicant has concerns about the treatment of women within Islam but I do not accept, given her answer about Mohammed, that she has rejected Islam. I have previously not accepted that she was ever of adverse interest to Muslims and have rejected that she was in an "un-Islamic" relationship that brought adverse attention and harm to her. I do not accept she has ever been targeted by anybody because of her comments about discrimination against women in Islam - her only claim of having been so was in her visa application in relation to a Maulvi and I have rejected that she was ever visited by one and told to come back to Islam. I accept that she stopped going to mosque when she was 18 years of age (as she stated at the hearing) but she has not claimed there was any adverse treatment or consequences for her in relation to this. At the hearing the applicant claimed that she had sometimes attended a church and that a cleaning supervisor and two other persons at the hospital (a cleaning supervisor and two officers) had queried this and had suggested the Christians are trying to convert her. However, the applicant did not claim that she had been targeted or harmed because of these occasional visits. Nor did she claim that she had undertaken any Christian activities since coming to Australia over a year ago. Given these matters and my concerns with overall credibility set out above, I do not accept that she has attended Christian church services as she has claimed or that she would want to do so upon return to Pakistan. I do not accept that when she returns to Pakistan she would face a real chance of being targeted due to her beliefs or comments about religion or because she does not attend mosque. I have taken into account the articles she has provided about honour killings and the blasphemy laws in Pakistan but I do not accept that in her individual circumstances there is a real chance she will be accused of blasphemy or subject to an honour killing or face any other type of serious harm or significant harm. Considering all her circumstances, I find that she does not face a real chance of persecution, now or in the reasonably foreseeable future for reasons of religion. Considering all her circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Pakistan that there is a real risk that she will suffer significant harm on this basis. 12 I have set this out in some detail as another part of the Tribunal's reasoning headed "Dob in" relates to this topic and also one of the grounds of appeal. At [53], the Tribunal said: Dob in The Department received information from a third party that the applicant's claims were false and that she was regularly attending a mosque in Fawkner. As mentioned to the applicant at the hearing, I do not know what the motivation of this person was and I have placed no weight on this information in making my decision. 13 The Tribunal dealt with the applicant's other claims concerning the treatment of women in Pakistan (at [40] to [42]), her occupation and training as a nurse which it was asserted was disrespected in Pakistan (at [43] to [48]), her treatment as a child (at [49] and [50]) and her mental state (at [51] and [52]). 14 The Tribunal at [54] and [55] said: Cumulative assessment I find even when considering the applicant's claims cumulatively, that she does not have a well-founded fear of persecution for a Convention (or non-Convention) reason. I find, even when considered the applicant's claims cumulatively, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Pakistan, there is a real risk that she will suffer significant harm. 15 The Tribunal then concluded at [56] and [57]: For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 16 On 18 June 2014, the applicant filed an application for judicial review of the Tribunal's determination in the Federal Circuit Court. This application was heard and summarily dismissed on 10 March 2016. 17 Before the Federal Circuit Court, the applicant was unrepresented. It is well apparent that the applicant did not properly articulate her then grounds. Nevertheless, the following may be gleaned from the primary judge's reasons: (a) First, the applicant complained that before the Tribunal she did not get the chance to set out her whole version of events, including "a better explanation for the various false documents". This ground was rejected by the primary judge and no complaint is now pressed before me on this aspect. (b) Second, and relevantly to one of the new grounds of appeal, the applicant "raised the question of whether or not the Tribunal member had placed inappropriate weight upon information from a person known to her and who had 'dobbed her in' to the Department". The primary judge at [13] and [14] rejected this ground and said (in relation to the Tribunal's reasons at [53]): This paragraph makes clear that the Tribunal member has not placed any weight upon this dob in information. anything that should affect a visa [sic]. It would not have been appropriate for the Tribunal member to look at that information and not mention it in the decision because one would then not have known what weight, if any, the Tribunal member placed upon that. The reasons make clear that the Tribunal member placed no weight on that information. (c) Third, the applicant raised other matters which the primary judge rejected and which have not been pressed further before me. Ultimately, the primary judge was not persuaded that the applicant had an arguable case for establishing jurisdictional error. His Honour dismissed the application for judicial review.

GROUNDS OF APPEAL 18 I have given the applicant leave to appeal on two grounds, neither of which were in substance put to the primary judge. In summary, I reject ground 1 and uphold ground 2. It is convenient to discuss each ground in turn.

(a) Ground 1 19 It is said that the primary judge erred in not identifying jurisdictional error in relation to the Tribunal's consideration of the "dob-in information". In terms, it is said that the primary judge "ought to have found that the Tribunal's consideration of the 'dob in' information, without giving the appellant an opportunity to respond to that information, amounted to a denial of procedural fairness, even if the Tribunal ultimately placed no weight on it". 20 That was not how the "dob-in information" issue was put to the primary judge. Rather what was put was that the Tribunal had placed "inappropriate weight" upon that information (see the primary judge's reasons at [12] to [14]). But I am content to deal with the reconceptualisation of this point before me. Moreover, it is appropriate to deal with the applicant's point finally (and also the next ground) notwithstanding that the primary judge was only exercising a summary power to dismiss. It would not be appropriate to decide that the applicant's point was reasonably arguable but to refer the matter back to the primary judge for final hearing in circumstances where I have taken the view that ground 1 is ultimately unsustainable (and, as I will discuss, ground 2 is sustained). I am in as good a position as the primary judge to finally dispose of these points. 21 In support of ground 1, the applicant principally relied on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 and the observations of Allsop J (as he then was) in NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at [84] and [94]. It was said that the principles expounded therein were not displaced by the procedures in ss 424AA and 424A of the Act. It was also contended that the obligation in s 425(1) was required by s 422B(3) to be applied "in a way that is fair and just" (BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at [49] per Edelman J). Moreover, it was said that the Tribunal had not complied with the procedures under ss 424AA and 424A. 22 In my opinion, ground 1 should be rejected for the following reasons. 23 First, given that s 422B(1) provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals, the observations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs at [10] are not apposite in the present context. That decision, as it explains in footnote 16, addressed the legislative regime in force prior to the introduction of s 422B. Similarly, NIB Health Funds is of no direct assistance. 24 Second and in any event, the information in the "dob in" email did not contain information of the type dealt with in s 424AA or s 424A. The Tribunal said that it gave the information no weight. Accordingly, the phrase in each provision "… that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review…" was not engaged. The Tribunal did not so consider in the "positive" terms of the statutory language, as it explained at [53] of its reasons. 25 Third, if it is necessary to say so, the Tribunal, given the context and nature of the information and its anonymous source, gave the applicant "clear particulars". Moreover, the delegate also provided the applicant with the information and referred to it in the delegate's decision notified to the applicant on 31 December 2013. In other words, by the time of the Tribunal's hearing the applicant was aware of its substance. I should say, for completeness, that there was no necessity for the applicant to be given a copy of the relevant underlying email. 26 Fourth and generally, the applicant was not denied any relevant opportunity "to give evidence and present arguments relating to the issues arising…" (s 425(1)); see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33] to [35]. The applicant was put on notice of the substance of the "dob in" email. But in any event it was put to one side by the Tribunal. The Tribunal had properly and fully identified the issues that were determinative and as against the applicant including, to the extent necessary, the evidence probative to such issues. 27 In summary, ss 424AA and 424A were not engaged by the "dob-in information". Further, s 425(1) had been satisfied. Moreover, if it is necessary to say so, in any event, s 425(1) had no additional residual operation requiring disclosure of adverse information beyond the scope of ss 424AA and 424A. But even if it did, s 425(1) had been satisfied. There is also little doubt that the Tribunal acted in a way that was "fair and just" (s 422B(3)) on this aspect relating to the "dob-in information".

(b) Ground 2 28 The second ground of appeal asserts a denial of procedural fairness due to the erroneous application of s 438. This ground of challenge was not raised before the primary judge. Ground 2 states: The Federal Circuit Court erred in failing to find that the decision of the Second Respondent was affected by jurisdictional error, by failing to find that a purported s 438 certificate was invalid and that the consequent failure to put the material purportedly covered by the certificate to the Appellant for comment constituted a denial of procedural fairness. Particulars The certification in the purported s 438 certificate did not relate to a matter permitted under s 438(1) Migration Act, with the result that it was invalid. The non-disclosure of material before the Tribunal constituted a denial of procedural fairness. 29 A certificate was purportedly issued under s 438(1)(a) of the Act on 31 December 2013 by a delegate of the Minister in relation to the information in "folios 77-85 and 87-88 attached to file number CLF2013/87392". The certificate stated that the disclosure of this information "would be contrary to the public interest because it contains internal working documents". The certificate, in the form of a letter addressed to the Tribunal, also stated that the Tribunal's use and disclosure of this information was subject to ss 438(3) and 438(4). It is common ground that the existence of the certificate and the material that it covered was not drawn to the attention of the applicant at any relevant stage. It is appropriate to set out the full text of the certificate: CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s 438 OF THE MIGRATION ACT 1958 I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 77-85 & 87-88 attached to file number CLF2013/87392. The disclosure of this information would be contrary to the public interest because it contains internal working documents. The Refugee Review Tribunal's use and disclosure of this information is subject to the provision of subsection 438(3) and (4) of the Migration Act 1958. 30 Section 438 provides as follows: (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. 31 The applicant has contended the following. 32 First, it was said that the statement in the certificate "contains internal working documents" is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that information should not be disclosed. Accordingly, it was said that the s 438(1)(a) certificate was invalid. As a consequence, so it was said, the Tribunal was not permitted to withhold the relevant information from the applicant. It was said that the Tribunal had before it information that was not put to the applicant for comment and which may have been part of the reason for the Tribunal affirming the decision of the Minister's delegate. It was said that the failure to put that material to the applicant constituted a denial of procedural fairness. 33 Second, the applicant said that even if the s 438(1)(a) certificate was valid, the applicant ought to have been given notice of the fact of the issue of the certificate and that "the Tribunal had decided not to disclose certain material". It was said that the applicant ought to have been given an opportunity to make submissions on the exercise of the discretionary powers under s 438(3). Reference was made to NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473 at [38] per Moore J. 34 There is some force in the applicant's interesting contentions, subject to a slight re-modulation of her arguments.

Validity of the certificate 35 It is appropriate to first address the validity of the s 438(1)(a) certificate; I will discuss procedural fairness questions and the legislative fail-safe of s 422B(2) later. In order to address validity, it is necessary to consider what is meant by the phrase in s 438(1)(a), "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". 36 In my view this phrase is referring to public interest immunity or what is sometimes referred to as Crown privilege, albeit that the latter description is not wholly apposite given the nature of the interest protected. First, the words of the text so suggest. Second, the context of s 438 does not suggest a broader ambit. Third, the explanatory memorandum for the predecessor s 166GC suggests that the legislature was considering "the basis of a claim for Crown privilege" (see the explanatory memorandum at [387] to the Bill which ultimately became the Migration Reform Act 1992 (Cth)). Fourth, the Minister before me did not contend for any broader ambit. Fifth, provisions such as s 47C of the Freedom of Information Act 1982 (Cth) are irrelevant as they deal with conditional exemptions under that Act rather than claims entitling non-disclosure in judicial proceedings. Sixth, my construction is consistent with how an analogous phrase has been construed and applied in s 36B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (see Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority and Ors (1991) 25 ALD 160 at [11] per Gray J). Finally, and for completeness, I note that the analysis of Wilcox J in Burton v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 20 was dealing with s 375A(1) of the Migration Act, which provides an analogous power to the Minister to issue a certificate if the disclosure of information would be contrary to the public interest. But that provision is differently formulated to s 438(1)(a), although the views of this eminent jurist are relevant to the next issue dealing with the adequacy of disclosure on the face of the certificate. 37 Now given that the phrase is referring to public interest immunity, one can appreciate that the certificate on its face is invalid. What had to be specified in the certificate was "any reason … that could form the basis for a claim …". But the only reason stated was "… contains internal working documents". But that has never been either a necessary or sufficient basis for public interest immunity, whether at common law (Sankey v Whitlam (1978) 142 CLR 1 at 38 to 46 per Gibbs ACJ) or under statute (s 130 of the Evidence Act 1995 (Cth)). The certificate in the present case is as deficient as the certificate purportedly produced under the legislative analogue analysed by Wilcox J in Burton at [43] to [52], albeit by way of obiter dicta. The certificate in the present case manifests imprecision and overreach. At best, it only disclosed one of a set of conditions (not fully specified in the present case) that together might have been sufficient to disclose a "reason … that could form the basis for a claim …". At best, it only disclosed a reason that could form part of the basis for a claim, not the basis. It did not meet the statutory prescription of s 438(1)(a). It did not communicate to the Tribunal or indeed any reader any reason which met the description "could form the basis…". The description was not unimportant. It permitted the prima facie concealment from the applicant of documents or information. It triggered the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information could be dealt with. It potentially impacted on procedural fairness questions as narrowed by the s 438(3) boundaries. 38 The certificate is invalid. But what flows from this conclusion?

What are the consequences of invalidity? 39 Let me defer for the moment discussion of s 422B(2). The following consequences would seem to flow from an invalid certificate. 40 First, if the Tribunal acted on the invalid certificate it followed a procedure contrary to law. In the absence of evidence to the contrary, I am entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents the subject thereof in its possession. So much can be implied from the Tribunal's reasons at [19] (see my later discussion at [47] and [48]). Relatedly, the purported issue of an invalid certificate by the delegate of the Minister infected the process or procedure adopted by the Tribunal in relation to such documents. 41 Second and relatedly, in acting on the invalid certificate, it is open to infer that the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s 424AA or s 424A. I cannot confidently say that the Tribunal: (a) properly read the documents the subject of the invalid certificate; (b) determined that the documents did not contain information that would be a reason, or part of a reason, for affirming the decision under review; and (c) then decided that no disclosure was required under s 424AA or s 424A. 42 But if the Tribunal had realised that the certificate was invalid, it would have had to have undertaken all such steps. 43 Third, if the Tribunal had realised that the certificate was invalid, it would have, in contrast to the conditions triggering s 424AA or s 424A, also had to consider (but apparently may not have) whether: (a) the documents supported the applicant's visa application; (b) disclosure should be made to the applicant (assuming, for the moment, that s 422B was no bar to or excluded such a requirement), perhaps as part of ss 425 and 427(1)(c). 44 In my view, for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error. And as so expressed, that category of jurisdictional error may not be impacted by s 422B(2).

Alternatively, what are the consequences of validity? 45 Let me now discuss the scenario assuming the certificate to be valid, whilst also continuing to defer discussion of s 422B for the moment. 46 If the Tribunal proceeded on the basis that the certificate was valid, it is entirely unclear to me how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. All that one knows is that the Tribunal had the certificate and its subject documents, but did not exercise any power of disclosure under s 438(3)(b). One is also left in the dark as to the extent to which the Tribunal had regard to any matter contained in the documents or information therein as it was entitled to do under s 438(3)(a); the Tribunal's reasons at [19] are too general to answer that question. Perhaps one can infer that it was not adverse to the applicant. If it had been adverse, and was taken into account, then this may have manifested itself in some form of disclosure under s 424AA or s 424A and under s 438(3)(b) itself. But no such disclosure was made. Accordingly, it may be inferred that the documents or information were either neutral or positive to the applicant's interests. But it is still unclear the extent to which the "entitlement" in s 438(3)(a) was availed of. Perhaps one can assume that it was not substantially availed of. If it was, perhaps disclosure might have occurred under s 438(3)(b) and as a part of ss 425 and 427(1)(c). Disclosure would not have been made under s 424AA or s 424A in combination with s 438(3)(b) as the former provisions deal with information adverse to the applicant's interests; the immediate hypothesis is that the information is neutral or positive to the applicant's interests. But to be clear, it does not necessarily follow that because s 438(3)(a) was invoked, s 438(3)(b) would then have been triggered. 47 What does one know? The Tribunal in its reasons said at [19]: I have before me the Department's file relating to the applicants [sic]. I have also has [sic] had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. This material includes: • Application for protection visa; • Copy of applicant's passport; • Interviews with delegate dated 14 November 2013 and 11 December 2013; • Original family registration certificate; • A number of articles about honour killings, blasphemy laws, punishment for illegal relationships and women's rights. 48 As is apparent, the s 438(1)(a) certificate covered part of the Department's file (the certificate referred to "file number CLF2013/87392"). Accordingly, the Tribunal had before it the documents covered by the certificate. Moreover, from the second sentence of [19], "I have also has [sic] had regard to …" (my emphasis), one can infer in relation to the first sentence of [19] that the Tribunal had regard to the Department's file including the documents covered by the certificate (see also s 430(1)(d)). But how it so had regard in relation to the documents covered by the certificate is opaque. 49 I accept that the above observations contain regrettable but unavoidable speculation. But it is in this context that, absent s 422B, I have no hesitation in finding that there was an absence of procedural fairness. 50 Procedural fairness required that the Tribunal ought to have (but did not in the present case): (a) disclosed the existence of the certificate to the applicant; on this aspect, I do not propose to follow what was said in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 at [29] per Dowsett J who was in any event discussing s 375A and was influenced by the strictures thereof that did not contain an equivalent to s 438(3) (his Honour was not discussing s 376); (b) given the applicant the opportunity to make submissions on the validity of the certificate if she so chose; of course there is an air of unreality to affording such an opportunity to a self-represented litigant who requires an interpreter, but that does not deny the existence of any such requirement; (c) disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant; (d) given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b). 51 Putting to one side for the moment s 422B, given that the Tribunal ex hypothesi would have relevant documents covered by the certificate, for the applicant not even to have knowledge of the existence of the certificate is antithetical to her interests. Only with knowledge of the certificate would she then be able to: (a) challenge its validity; (b) enquire of the Tribunal how it was going to use the material; and (c) seek an exercise of power under s 438(3)(b). 52 To deny her knowledge of the existence of the certificate would effectively preclude her from taking any one or more of steps [51] (a) to (c). Moreover, the fact that s 438 does not itself contain an express statutory obligation to disclose the certificate does not foreclose any procedural fairness requirement, subject of course to the operation of s 422B. 53 Further, if the applicant was told of the existence of the certificate, it would be a denial of procedural fairness for the applicant not to be given the opportunity to take steps [51] (a) to (c) (cf NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473 at [35] to [43] per Moore J). The applicant may be seen as a beneficiary of any exercise of power under s 438(3)(b). It is counter-intuitive to suggest that as such a beneficiary she should be denied the opportunity to take any one or more of steps [51] (a) to (c). 54 Now the Minister submitted that I should look at the documents covered by the certificate, with the suggestion floated that once I looked at them I would be satisfied that: (a) the certificate had properly been issued; (b) there was nothing advantageous to the applicant not disclosed; and (c) there was nothing disadvantageous to the applicant not disclosed. 55 I declined that invitation for a number of reasons. First, I am entitled to proceed on the basis that the documents covered by the certificate had relevance to the applicant's visa application, whether favourable, unfavourable or neutral. If not, the s 438(1)(a) certificate would not have been necessary and the documents would not have been before the Tribunal. Second, it was the Tribunal's task to review the documents, not mine. Third, even if I accepted points [54] (a) to (c), it does not address the points set out at [50] above in terms of what procedural fairness required that the Tribunal ought to have done, save for any operation of s 422B. 56 Further, at one stage in the course of argument, the Minister submitted that the applicant may have been able to obtain or at least seek the documents covered by the certificate from the Minister or Department under other statutory mechanisms. But even accepting that proposition for the sake of argument, this seems to me to be beside the point. First, the real question was what was before the Tribunal. Second, the applicant may not have known of such mechanisms. Third, and relatedly, even if she had, she may have assumed that it was not necessary to pursue such avenues if it could otherwise be assumed that the Tribunal would disclose to her what it had before it or in this context, at the least, the fact that a s 438(1)(a) certificate had been issued. 57 Finally on this aspect, the scenario dealt with by Gilmour J in WZANC v Minister for Immigration and Citizenship (2012) 210 FCR 585 at [48] to [60] which involved the effect of non-compliance with s 438(2)(a) and whether notice thereunder was a jurisdictional fact is a different context to the one I am considering.

How does section 422B(2) apply to section 438? 58 Section 422B provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. 59 Now s 422B(2) has direct application to s 438. Moreover, as stipulated in s 422B(2), one is considering s 438 as it "relate(s) to this Division", ie Division 4. What is then meant by the expression in s 422B(2), "are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with"? More particularly, what is meant by and what is the scope of "in relation to the matters they deal with"? This is a tricky issue requiring some nuancing. There are two realistic possibilities as to how that phrase applies to s 438: (a) First, it could relate to any matter concerning a s 438(1)(a) certificate including validity, how the Tribunal uses the documents or information covered by the certificate as contemplated by s 438(3)(a) and any disclosure under s 438(3)(b). (b) Second, it could relate simply to the narrowing of an otherwise procedural fairness obligation such that for documents covered by a s 438(1)(a) certificate, they may be taken into account by the Tribunal without the applicant having access to them, subject to any exercise of power under s 438(3)(b) (see also s 427(1)(c)). 60 Under the narrower possibility, s 422B(2) would not cover off or exclude any obligation to give an applicant procedural fairness by: (a) disclosing the existence of the certificate; (b) affording the applicant an opportunity to make submissions on the validity of the certificate; (c) affording the applicant an opportunity to at least make submissions on the Tribunal's approach under s 438(3)(a); (d) affording the applicant an opportunity to at least seek a favourable exercise of power under s 438(3)(b), although perhaps this last element may be debated. 61 In my view, there are good reasons for adopting the narrower possibility, notwithstanding the submissions adeptly put by the Minister's counsel, Ms Julia Lucas, contending for the broader possibility. 62 First, the purpose of the phrase in s 422B(2) "in relation to the matters they deal with" is to be contextualised by reference to the natural justice hearing rule. That then requires looking at s 438 to see how it affects any procedural fairness question. But when one does so, it is the narrower perspective that is addressed in s 438. What s 422B(2) then does is to say that, in essence, the applicant cannot get the documents covered by a s 438(1)(a) certificate any other way from the Tribunal than through a favourable exercise of discretion under s 438(3)(b). In other words, there is no otherwise entitlement, notwithstanding that the Tribunal is permitted to take them into account without the applicant having access to them. 63 Second, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [39] and [40] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ (see also MZZMG v Minister for Immigration and Border Protection (2015) 234 FCR 180 at [44]) would not suggest any expansive meaning of the phrase "in relation to the matters they deal with" although Saeed was dealing with an analogue to s 422B(1) rather than to s 422B(2). 64 Third, if the narrower approach was not taken, it would be a surprising result, to say the least. The consequences set out in [60] could then be avoided. No statutory purpose or object supports giving s 422B(2) such a broad reach or effect. Relatedly, one might suggest that the principle of legality and Gleeson CJ's observations in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [30] would support the narrower possibility. 65 In summary, in my view, s 422B(2) only has the narrower operation and would not exclude the requirements set out in [60]. It follows that if the s 438(1)(a) certificate is valid, there has been a denial of procedural fairness and accordingly a jurisdictional error is established. Alternatively, if the s 438(1)(a) certificate is invalid, in addition to the denial of procedural fairness, there is also a jurisdictional error established as a consequence of the Tribunal not following a procedure according to law as I have previously discussed. 66 I would make one final observation. Perhaps to some, to conceal "internal working documents" through the use of a s 438(1)(a) certificate would not excite interest. But such a prosaic and seemingly innocuous description conceals more than it reveals. Moreover, the appropriate Charpy-like test to apply to assess whether the procedural fairness obligations referred to in [60] have sufficient strength to withstand the statutory framework is the scenario where a certificate on its face describes material that is clearly from the description either highly prejudicial or highly advantageous to an applicant. Can it seriously be suggested that the applicant should not even be told of the existence of such a certificate? And what about another scenario where it is only the knowledge that the applicant has which can inform whether the material is prejudicial or advantageous? If the applicant is not even told of the existence of the certificate, the Tribunal may then be oblivious as to the possibilities.

CONCLUSION 67 For the foregoing reasons, I will allow the appeal and make orders setting aside the Federal Circuit Court's orders and the determination of the Tribunal. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.