consideration
39 It is convenient first to set out the relevant provisions of the Migration Act.
40 Section 375A of the Migration Act provides:
375A Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or 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 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
41 Section 359A of the Migration Act provides that the Tribunal must provide an applicant for review with particulars of information which might form part of a decision by it to affirm the decision under review. It provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and
(b) ensure, as 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
(c) invite the applicant to comment on or respond to it.
42 It was common ground that s 375A of the Migration Act prohibits disclosure by the Tribunal of particulars of information which is the subject of the s 375A certificate; that the existence of the certificate should ordinarily be disclosed to permit the applicant to make submissions about it; and that a failure to do so may give rise to a denial of procedural fairness. See also Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 at 309, [12], and 317-318 [53]-[59].
43 It was also common ground that "[b]reach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby deprive the applicant of the possibility of a successful outcome". See SZMTA at 257, [2].
44 SZMTA involved the operation of s 438 which is in Part 7 of the Migration Act (which deals with protection visas). Section 375A is, on the other hand, in Part 5 of the Migration Act, which deals with most classes of visas other than protection visas. The provisions are not the same. As the Full Court noted in Minister for Immigration and Border Protection v Singh at 312, [24], "there are significant textual differences between s 375A and s 438. In particular, s 438(3)(b) permits what s 375A does not, viz, disclosure to an applicant of the material subject to the certificate".
45 A large part of the written submissions filed by the parties in respect of SZMTA dealt with the question of how, if at all, the reasoning of the High Court in SZMTA affects the Full Court's obiter observations about s 375A in Minister for Immigration and Border Protection v Singh. See, by way of example, the first respondent's Outline of Supplementary Submissions dated 22 March 2019 at [2]-[16], and the whole of the appellant's Reply, dated 29 March 2019.
46 It is not necessary to resolve whether what the Full Court said in Minister for Immigration and Border Protection v Singh about s 375A of the Migration Act should be revisited in the light of SZMTA. The only issue that arises on the appellant's case is whether the failure to disclose the existence of the certificate and the confidential information, as defined, was material - that is, did those failures operate to deny the appellant an opportunity to give evidence or make arguments to the Tribunal and thereby deprive her of the possibility of a successful outcome.
47 In any event, a number of the observations made by the plurality in SZMTA relate to the obligation of a Tribunal to accord procedural fairness generally, and obviously apply as much to the non-disclosure obligations under s 375A as they do to s 438.
48 First, where materiality is put in issue in an application for judicial review of a decision of a tribunal, it is a question of fact in respect of which the applicant bears the onus of proof. See SZMTA at 257, [4]. And like any ordinary question of fact, "it is to be determined by inferences drawn from evidence adduced on the application". See SZMTA at 263, [46].
49 Secondly, "… procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded". See SZMTA at 261, [29], citing Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 339, [43]-[44] and 343-344, [62]-[67].
50 Thirdly, "[b]ecause procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a 'practical injustice': the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision". See SZMTA at 262-263, [38], citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14, [37] and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341-342, [56]-[57]. As the plurality went on to say (at 264, [49]):
Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome", the task is not impossible and can be done in these appeals (citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 and comparing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 [104], 128 [122]).
51 Fourthly, treating sections such as ss 375A and 438 of the Migration Act as applicable to information or documents, "the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision … Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision". See SZMTA at 264, [47].
52 In this case, it is tolerably clear that because the Tribunal referred to part of the undisclosed information, which it referred to as originating from "confidential sources", that information must have been regarded by the Tribunal as being relevant to its decision.
53 The short point of the appellant's case on ground 3 (which both parties addressed first, before ground 2) as it was put in counsel's Outline of Supplementary Submissions dated 1 March 2019 at [13] is that "[d]isclosure to the appellant of the existence of the s. 375A certificate would have permitted her lawyers to have requested the Tribunal to disclose, consistently with Burton at [40], information that was not covered by the certificate". (Emphasis added). She says that had that happened, the Tribunal could have disclosed the facts that it had been observed that:
(1) between 2007 and 2010 Mr Hussain and Ms Dalia Taguiam were living together, that they have never lived separately and apart, and that they attended social functions together as a couple; and
(2) the appellant lived with her sister and brother in law from her arrival in Australia in 2007 and that Mr Hussain and Ms Taguiam were regular visitors to that address.
54 The appellant says such a disclosure would have permitted the appellant an opportunity to adduce evidence to the contrary.
55 The submission is, and must be, limited to a case that particulars of the confidential information should have been given because: (i) the appellant accepts that the certificate was valid; (ii) s 375A prevents the information or documents subject to the certificate from being disclosed to the appellant; and (iii) s 375A requires the Tribunal to conduct its review without disclosing that information or those documents. See Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 at [40] and [42].
56 Thus understood, the appellant's case is that the Tribunal should have given particulars of the confidential information, without disclosing the information itself. That is, in substance, the same point that arises under ground 2 of the Amended Notice of Appeal - namely, whether the Tribunal failed to comply with the obligation under s 359A of the Migration Act to give clear particulars of adverse information.
57 In any event, as the Minister submitted, the Minister's delegate in fact had invited the appellant to comment on non-disclosable information, which suggested that the appellant and Mr Hussain had not lived in a "genuine spousal relationship" and that the appellant had entered the relationship for "the sole purpose of obtaining permanent residence in Australia". The appellant was expressly told in the delegate's letter of 30 May 2012 that her visa was cancelled because "the Department received non-disclosable information verifying that the visa holder and Mr Hussain, her sponsor, had not lived together in a genuine spousal relationship and that the visa holder entered into a relationship with Mr Hussain for the sole purpose of obtaining permanent residence in Australia" and that it had "received confidential information verifying that the relationship the visa holder entered into with Mr Hussain for the purpose of obtaining permanent residence ended on 29 June 2008, that is approximately 5 months before the grant [of the visa]". See [14] above.
58 The Tribunal also invited the appellant to comment on information received from "a number of different sources". See [18] above.
59 As the Minister submitted, the appellant and her solicitor were thus well aware that the Tribunal had before it relevant confidential information. In those circumstances, it was open to the appellant to have requested further detail of the confidential information, to the extent the Tribunal was permitted to disclose it.
60 It follows, in my view, that the non-disclosure of the certificate did not deprive the appellant of any opportunity to give evidence or make arguments to the Tribunal and thereby to deprive her of the possibility of a successful outcome. It follows that no jurisdictional error is made out in respect of ground 3.
61 As for ground 2 - that the Tribunal did not comply with s 359A because it did not disclose the confidential information - it may be accepted that the two items of information referred to in subparagraphs 2(a)(i) and 2(a)(ii) of the amended notice of appeal, at [31] above, viewed in isolation, could be said to negate the appellant's claim. See SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at 1195, [17]. But, consistently with the conclusion of the primary judge, those two items of information were self-evidently subsumed within the proposition, of which the appellant had been well aware since May 2012 (when she received the letter notifying her of the visa cancellation) and March 2014 (when she received the s 359A letter), that the Department had formed the view that the appellant was not, and, at all material times, had never been, in a genuine spousal relationship with Mr Hussain. In my view, the Tribunal complied with s 359A(1) by notifying the appellant that it had received information, in confidence, to that effect, and inviting her response. Cf Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 458, [34].
62 The only other item of non-disclosed information the subject of ground 2 concerns the confidential documents that were written "in the hands of" the declarants. The appellant's counsel did not press this point in oral submissions, no doubt for the obvious reason that such a piece of information could not possibly enliven any obligation under s 359A, as the primary judge found.
63 It follows that no jurisdictional error is made out in respect of ground 2.
64 The appeal must therefore be dismissed with costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.