THE APPEAL
73 On 14 June 2016, the appellant filed a notice of appeal from the orders of the Federal Circuit Court to this Court. The appellant's notice of appeal contained the following ground:
My all grounds are genuine and based on the facts. I want honourable Court to review them.
74 The appellant appeared at the hearing and made submissions with the assistance of an interpreter. The appellant did not file an affidavit nor any submissions in support of his case.
75 The appellant's single ground of appeal fails to identify any appealable error by the primary judge.
76 At the hearing, when questioned about the appealable error he relied on, the appellant did not make any submissions in support of there having been any error made by the primary judge and stated that he sought "a whole case review…and a review of the documents which I have provided".
77 In my view, the following observations of McKerracher J in the case of CGN15 v Minister for Immigration and Border Protection [2017] FCA 1035 (CGN15) are apposite:
[32] The task of the Federal Circuit Court was to determine whether the Tribunal's decision was affected by jurisdictional error and the task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error.
[33] Although an appeal to this Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court explained in Rawsthorne v Minister for Immigration & Citizenship (2013) 140 ALD 524 per Cowdroy, Katzmann and Farrell JJ (at [27]) an appeal by way of rehearing is not an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge.
78 In this case, as in CGN15, the appellant's single ground of appeal fails to identify any appealable error by the primary judge. In the absence of any allegation of error by the primary judge, the appeal, would on its face, appear to be incompetent.
79 I have, however, in any event, had regard to the reasons for decision of the primary judge and have not discerned any error by the primary judge in the disposition of the first seven grounds of review.
80 However, ground eight of the grounds of review requires further discussion.
81 As mentioned, this ground of review was treated by the primary judge as a complaint that the Tribunal had in reliance upon a certificate issued under s 375A of the Migration Act failed to provide all the information relevant to the appellant's application to the Tribunal for review of the delegate's decision.
82 The primary judge's judgment was delivered on 30 May 2016.
83 This appeal was heard on 18 August 2016. At that time there was an appeal pending in the Full Court of this Court from a decision of the Federal Circuit Court in Singh v Minister for Immigration and Border Protection (2016) 313 FLR 1 (Singh). In that case, there had been, as in this case, a certificate issued to the Tribunal under s 375A of the Migration Act to prevent the disclosure to the review applicant, Mr Singh, of documents relating to the same proceedings in the County Court of Victoria affecting Mr Amarante as in this case. In accordance with the prohibition in the s 375A certificate, the documents covered by the certificate had not been provided to the review applicant, nor was the existence of the s 375A certificate disclosed to the review applicant in that case. The review applicant did not become aware of the existence of the s 375A certificate, nor the legal limitations imposed by it, until after the Tribunal's review of the delegate's decision and in the course of the judicial review of the Tribunal's decision by the Federal Circuit Court.
84 The Federal Circuit Court held that the Tribunal had fallen into jurisdictional error as it was bound to inform the review applicant of the existence of the s 375A certificate, and that it had denied him procedural fairness in failing to do so.
85 In light of the pending appeal in the Full Court in Singh, the first respondent requested that judgment in this appeal not be delivered until the outcome of the Full Court appeal.
86 On 19 December 2016, the Full Court of this Court delivered its decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (Singh (Full Court)).
87 In Singh (Full Court), the Full Court dismissed the first respondent's appeal and found that in the circumstances there had been a failure to accord procedural fairness to the review applicant in the Tribunal failing to disclose the s 375A certificate to him.
88 The first respondent then requested that judgment in this appeal not be delivered until the outcome of the first respondent's application to the High Court for special leave to appeal. In May 2017, the first respondent's application for special leave to appeal was refused by the High Court.
89 Subsequent to the refusal of special leave, I invited the parties to make further submissions as to the effect of the Full Court decision in Singh (Full Court) on the present appeal.
90 On 1 September 2017, the first respondent filed submissions. Also, on that day, the first respondent filed an affidavit of Ms Ellen Lucy Goldsworthy Tattersall, a solicitor in the firm representing the first respondent. The affidavit attached the documents which were the subject of the s 375A certificate, namely, folios 14-55 of the departmental file in respect of the appellant. The first respondent expressly declined to claim privilege or confidentiality over the documents.
91 Ms Tattersall's affidavit shows that all but three folios in folios 14-55 had been disclosed to the appellant or his migration agent during the course of the proceedings before either the delegate or the Tribunal. The three folios which were not disclosed comprised the confidentiality orders made by the County Court of Victoria in relation to the documents in Mr Amarante's criminal proceedings, and a related document. These three folios were irrelevant to the matters upon which the Tribunal's decision turned.
92 On 19 September 2017, Da Gama Pereira & Associates went on the record as solicitors for the appellant by filing a notice of acting.
93 On 29 September 2017, the appellant filed submissions on the effect of the decision in Singh (Full Court), but, also, without leave having been given, made submissions contending that the Tribunal had contravened s 362A of the Migration Act and so had fallen into jurisdictional error.
94 I deal first with the question of the effect of Singh (Full Court).
95 As mentioned, in Singh (Full Court), the review applicant was neither given a copy of the s 375A certificate before the Tribunal hearing, nor was he advised of the existence of the s 375A certificate prior to the Tribunal hearing. The documents the subject of the s 375A certificate were never disclosed to the review applicant.
96 The Full Court in Singh (Full Court) held that whereas s 357A(2) of the Migration Act would preclude an argument that the failure to disclose the documents the subject of a s 375A certificate would be a denial of procedural fairness, that section did not affect the argument that the general law notions of procedural fairness might require the disclosure of the s 375A certificate.
97 The Full Court then went on to observe that that conclusion did not relieve Mr Singh of the obligation to show that the rules of procedural fairness did, in fact, require disclosure of the s 375A certificate.
98 The Full Court observed that the existence of the s 375A certificate had an "immediate and adverse impact on an applicant's entitlement to participate in the [Tribunal] hearing" and found that the existence of such a s 375A certificate would have "substantial and immediate practical consequences". The Full Court found that Mr Singh, therefore, had a sufficient interest as an applicant in the Tribunal proceedings to "give rise to an obligation to afford him procedural fairness upon the issue of the certificate".
99 The Full Court found that, on the facts, in Mr Singh's case, the obligation to afford him procedural fairness required that the Tribunal be required to disclose to Mr Singh the s 375A certificate.
100 A reason for the Full Court holding that procedural fairness required the disclosure of the terms of the s 375A certificate, was that such a disclosure would afford the review applicant an opportunity to challenge the validity of the certificate and, thereby, to contend that the documents covered by the certificate, should have been disclosed to the review applicant.
101 In this case, the existence of the certificate, but not the certificate itself, was disclosed to the appellant's migration agent. Accordingly, on the principle approved by the Full Court in Singh (Full Court), there was, to that extent, a denial of procedural fairness by the Tribunal.
102 Further, had the terms of the certificate been disclosed, the appellant could have made an argument that the certificate issued to the Tribunal was invalid. This is because s 375A(1)(a) of the Migration Act requires that the certificate specify the reason why it would be contrary to the public interest that the documents, the subject of the certificate, not be disclosed. It is evident from [27] above, that the certificate specified the reason in starkly succinct terms, namely, "Investigation documents". Whilst it may be possible to infer from those words that the reason for the issue of the certificate was that disclosure would prejudice an ongoing criminal investigation, it is, nevertheless, the case that the failure to provide the certificate did deprive the appellant of an opportunity, if properly advised, to have made the respectable argument, either before the Tribunal or before the primary judge, that the certificate was invalid and the documents covered by the certificate should have been disclosed to him.
103 However, in my view, notwithstanding the aforegoing, this is not a case where the failure to provide the appellant with the s 375A certificate gave rise to jurisdictional error on the basis of a denial of procedural fairness.
104 This is because the failure to provide the certificate to the appellant did not give rise to any practical injustice.
105 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ observed at [36]-[38]:
36 The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.
37 A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
38 No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.
(Footnotes omitted.)
106 If the appellant had been provided with the certificate and he had successfully argued that the certificate was invalid, the documents the subject of the certificate, would have been provided to him. However, the appellant already had in his possession all of the documents which were the subject of the certificate and which were relevant to his review application. This is apparent from the affidavit of Ms Tattersall, who, as I have said (see [90] and [91] above), deposed that the documents covered by the certificate were essentially the same documents which had been given to the appellant's migration agent by the delegate in August 2012 (see [15]-[17] above). The only documents which were covered by the certificate but which were not disclosed to the appellant by the delegate, were irrelevant to the matters before the Tribunal.
107 Accordingly, the failure to provide the appellant with the certificate did not, thereby, result in the appellant losing an opportunity to advance his case before the Tribunal because of his ignorance of the content of the documents covered by the certificate. Nor did the appellant, thereby, lose an opportunity to put any information or argument to the decision-maker, or suffer any detriment because of his ignorance of the content of those documents.
108 Secondly, for the same reason, it is apparent that failure to provide the certificate to the appellant prior to the Tribunal hearing, did not have an immediate adverse impact upon the Tribunal's entitlement to participate in a fair and meaningful hearing and so did not lead to any contravention of s 360(1) of the Migration Act.
109 Accordingly, insofar as the appellant's appeal is founded on a contention that there was a denial of procedural fairness because of the failure of the Tribunal to disclose the terms of the s 375A certificate, that ground of appeal is dismissed.
110 As mentioned, the appellant also contended in the written submissions filed after the hearing, that the Tribunal had fallen into jurisdictional error because it failed to comply with s 362A of the Migration Act, and that, in effect, the primary judge had erred in failing so to find. I observe in passing that this, also, was not an argument which was made before the primary judge.
111 Section s 362A provides as follows:
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
112 The appellant contended that, in response to his request under s 362A for the documents on the departmental file and the Tribunal file, the Tribunal failed to provide the appellant with the documents the subject of the s 375A certificate, as well as the correspondence between the department and the Tribunal referred to at [29] and [30] above. Relevantly, as mentioned, that correspondence attached printed versions of the work references for the appellant provided by the Cake Shop which were found on the USB stick recovered from Mr Amarante's premises. It was also to be inferred from that correspondence that no copy of a work reference for the appellant from the Baking Firm had been found on Mr Amarante's premises.
113 There are no findings by the Tribunal or by the primary judge that this correspondence was not provided to the appellant. This is not surprising as no argument, as is now advanced, was put in either forum. That may, on one view, be sufficient to dispose of the contention advanced by the appellant. However, the inference is open from the Court book and the affidavit of Ms Tattersall that the documents referred to in [29] and [30] above, were not disclosed to the appellant and I will proceed on that assumption.
114 The question of a failure by the Tribunal to comply with s 362A was considered by the Full Court in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 (Dhillon).
115 In that case, Mr Dhillon had, like the appellant in this case, applied for a skilled residence visa for the occupation of pastry cook. Mr Dhillon's skills assessment by TRA was obtained on the basis of a work reference which stated that Mr Dhillon had completed more than 900 hours of work as a pastry cook at Axilleon Cakes. That is the same business as the Cake Shop referred to in this case. Mr Dhillon's work reference was signed by Ms Tina Galanos as the manager and owner of Axilleon Cakes.
116 As previously mentioned, Axilleon Cakes was one of the businesses in respect of which Mr Amarante admitted he had manufactured and sold false work references with the business owner's complicity. The delegate of the first respondent refused to grant the visa on the basis that the skills assessment was a bogus document and that it had been obtained by reason of a work reference which contained false information, namely, that Mr Dhillon had completed at least 900 hours of work at Axilleon Cakes.
117 Mr Dhillon applied to the Tribunal for review of the delegate's decision; and also applied under s 362A of the Migration Act for access to written material held by the Tribunal in relation to his visa application.
118 The material held by the Tribunal included the Amarante police statement and the Amarante agreed statement of facts. These were the same documents to which reference was made in [17] above.
119 In response to Mr Dhillon's application under s 362A, the Tribunal only provided Mr Dhillon with partial access to the file which was in its possession and excluded the redacted information on the basis that s 362A(2) of the Migration Act applied.
120 The redactions to the documents given to Mr Dhillon obscured statements, including, in particular, a statement by Mr Amarante in para 23 of the Amarante police statement, where Mr Amarante had said that he told employers for whom he provided references that it was up to them to decide how many hours the students actually worked; and that the employers needed to tell TRA or the department, if either inquired, that the students named in the references he provided, had worked 900 hours, even if this was not true. Among the employers Mr Amarante mentioned was Ms Galanos, the owner of Axilleon Cakes. He also said that from his recollection, none of the students for whom he had provided work references had actually worked the 900 hours referred to in the references.
121 The redactions to the documents given to Mr Dhillon also obscured a paragraph in the Amarante agreed statement of facts which qualified Mr Amarante's statement in para 23 of the Amarante police statement. The obscured paragraph stated that Mr Amarante had no way of knowing whether the students had actually worked the requisite number of hours or not (para 34 of the Amarante agreed statement of facts).
122 Subsequently, the Tribunal sent Mr Dhillon a letter under s 359A of the Migration Act calling on Mr Dhillon to comment on matters in relation to his review application which could be the reason or part of the reason for the Tribunal affirming the delegate's decision under review. That letter referred to Mr Amarante being involved in the production of fraudulent work references and of Ms Galanos' participation in those activities. The letter referred, inter alia, to Mr Amarante's statement at para 23 of the Amarante police statement that from his recollection, none of the students completed the full 900 hours of work with any of the employers he mentioned in the references he had created. However, the particulars did not mention the qualifying statements in para 34 of the Amarante agreed statement of facts.
123 Before the Full Court, Mr Dhillon contended that the refusal to provide the redacted material was a breach of s 362A(1) of the Migration Act and that the Tribunal decision should be set aside because the redactions were not justified by s 362A(2). The Full Court agreed. The Full Court went on to observe at [15]:
The Tribunal's decision to the extent that it is based on the acceptance of a failure to meet the Public Interest Criterion should not be affirmed if made in breach of s 362A in circumstances where access to the redacted material might, as was the case here, reasonably have affected the decision of the Tribunal on that ground.
(Emphasis added.)
124 The circumstances which the Full Court identified as falling within the category of material which might reasonably have affected the decision of the Tribunal was that:
The qualification to Mr Amarante's statement in the agreed summary of facts bore relevantly and probatively upon the vital findings that the document relied upon by Mr Dhillon was bogus and that he ought not to be believed. It was also relevant and probative to forensic decisions that might have been made about the conduct of the proceeding before the Tribunal including whether to persuade the Tribunal to subpoena either Ms Galanos or Mr Amarante.
125 The Full Court also considered whether, in failing to provide the redacted material under s 362A(1), the Tribunal had failed to give Mr Dhillon a fair and meaningful hearing to which he was entitled under s 360 of the Migration Act.
126 The Full Court said at [25]:
However, whilst it may be accepted, as the Minister contended, that the Tribunal had no obligation under s 359A(1) to give Mr Dhillon particulars of the information in the redacted material to the extent that it was not adverse, the Tribunal also had obligations under s 357A(3) to act in a way that is fair and just, and under s 360(1) to provide Mr Dhillon with a real chance to present his case. The Tribunal's decision not to give Mr Dhillon access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which Mr Dhillon was entitled under s 360 of the Migration Act.
127 The circumstances of this case differ significantly in material respects to Dhillon.
128 The documents at [29] and [30] above, which I have assumed were not disclosed to the appellant, related to two matters relevant to the Tribunal hearing. Those were that no copy of a work reference for the appellant from the Baking Firm had been found on Mr Amarante's premises; and that the work references for the appellant found on the USB stick on Mr Amarante's premises were from the Cake Shop. The appellant contended that the Tribunal's failure to disclose the documents, prior to the Tribunal hearing, prejudiced the conduct of his case before the Tribunal.
129 In my view, for the following reasons, information contained in the undisclosed documents was not of such a character that if the appellant had obtained access to it prior to the Tribunal hearing, that circumstance might reasonably have affected the Tribunal hearing.
130 As to the first matter, it had never been put to the appellant before the delegate or before the Tribunal that a work reference from the Baking Firm had been found on Mr Amarante's premises. Indeed, in [4] of the Tribunal's reasons for decision, the Tribunal specifically acknowledges that no electronic evidence of a work reference from the Baking Firm was located on the USB stick seized during the execution of the warrant at Mr Amarante's premises. The Tribunal went on to observe that the department informed the Tribunal that the two work references for the appellant on the USB stick were from the Cake Shop.
131 Accordingly, the disclosure to the appellant of a document or documents to the effect that no work reference for the appellant from the Baking Firm was found at Mr Amarante's premises would not reasonably have affected the hearing before the Tribunal because the delegate and the Tribunal proceeded on that basis in any event.
132 As to the second matter, the Tribunal also proceeded, as had the delegate, on the basis that the work references found on the USB stick which contained the appellant's details were from the Cake Shop and not the Baking Firm. However, the aspect of this circumstance which was adverse to the appellant was that his details were in possession of Mr Amarante and had been used in the manufacture of a work reference for the appellant, albeit, for a different entity. The appellant knew from as early as 17 August 2012 that these work references for the Cake Shop had been found on the USB stick at Mr Amarante's premises. Further, the appellant appreciated that this circumstance could give rise to an adverse finding against him by the Tribunal and that he needed to explain how his details came to be in a work reference for him from the Cake Shop found on the USB stick at Mr Amarante's premises.
133 The appellant, therefore, addressed this issue in detail in his letter to the Tribunal of 11 February 2015 (see [43] above), and the Tribunal acknowledged that it had received a letter from the appellant that provided possible explanations as to why his personal details were found on Mr Amarante's USB stick.
134 Accordingly, the fact that the appellant had not, before the Tribunal hearing, seen the actual content of the references from the Cake Shop bearing his name (if that indeed was the case), did not prevent the appellant from responding to the damaging element of this evidence. Accordingly, the fact that the appellant had not seen the content of the Cake Shop work references bearing his name was not a circumstance which might reasonably have affected the decision of the Tribunal.
135 There is another distinguishing feature between this case and Dhillon. In this case, the documents disclosed to the appellant by the delegate on 17 August 2012 identified and disclosed fully Mr Amarante's involvement and the involvement of Mr Kordemir in the production of false work references. This was not the case in Dhillon. Also, unlike in Dhillon, the documents disclosed to the appellant on 17 August 2012 included both para 23 of the Amarante police statement and also the qualifying statement in para 34 of the Amarante agreed statement of facts.
136 Further, at all times leading up to the Tribunal hearing, the appellant was represented by a migration agent. In light of the information available to them from the disclosed documents, the appellant and his migration agent had the opportunity to request the Tribunal to subpoena Mr Kordemir and/or the documentation relating to the Baking Firm, before the hearing. This was an opportunity denied to Mr Dhillon because of the paucity of the information in his possession.
137 Accordingly, in my view, the information which was not disclosed to the appellant consequent upon his s 362A application was not such that if it had been disclosed it might reasonably have affected the decision of the Tribunal, nor the fairness of the hearing.
138 I note in passing that the appellant has referred to the decision in Sandhu v Minister for Immigration and Border Protection [2015] FCA 987 (Sandhu) where the reasons of Logan J may be construed as finding that a breach of s 362A of the Migration Act per se would amount to jurisdictional error. To the extent that the reasons in Sandhu may be read in that way, that reading would fail to have regard to the words of qualification I have emphasised in the observations of the Full Court in Dhillon referred to at [123] above. I would, therefore, prefer to base my decision upon those observations of the Full Court in Dhillon.
139 It follows that had a ground of review been raised before the primary judge, which squarely raised this issue, the primary judge would not have erred in dismissing the ground of review.
140 Alternatively, if there was a contravention of s 362A of the Migration Act by the Tribunal giving rise to a jurisdictional error, the primary judge would not have erred in declining, for the reasons referred to in [127]-[137] above, to grant relief in the exercise of the Court's discretion.
141 It follows that the appeal is dismissed.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.