Denial of procedural fairness
61 The Minister did not contend, either below or on appeal, that the non-disclosure to a review applicant by the Tribunal of a s 375A certificate would not or could not amount to a denial of procedural fairness. That is perhaps not surprising given the decision of the Full Court in Singh; see also SZMTA at [27]. In this case, however, the existence of the certificate was disclosed to Mr Singh. The question is whether that disclosure was sufficient or adequate to discharge the Tribunal's procedural fairness obligations.
62 The Minister contended that the Tribunal disclosed the existence of the certificate and sufficiently disclosed the material covered by it. The Minister also relied on the fact that the Tribunal informed Mr Singh that it did not intend to rely on the documents or the information in them. In the Minister's submission, the primary judge was right to find that there was no practical injustice established in the circumstances.
63 It may be accepted that the Tribunal's Reasons do not expressly refer to any of the documents covered by the certificate or the information referred to in them. Nor is there anything in the Reasons to suggest that the Tribunal consciously took the documents or the information into account in arriving at the findings it did concerning the nature of the relationship between Mr Singh and Ms Weatherall. It is, however, difficult to accept that the Tribunal could realistically have put those documents or that information entirely out of its mind when making those findings.
64 There could be little doubt that the documents and the information in them were directly relevant to the nature of the relationship between Mr Singh and Ms Weatherall. But for the certificate, there could be little doubt that the Tribunal would have been entitled to, and most likely would, have had regard to the documents and information. There is merit in Mr Singh's submission that, while the Tribunal's Reasons do not refer to the documents, there is nonetheless a strong likelihood that the information in the documents did "enter the Tribunal's consciousness" and, at least in that respect, were part of the reason for affirming the decision under review.
65 There is, in any event, a more compelling reason to find that the manner in which the Tribunal dealt with the certificate gave rise to a denial of procedural fairness. It is clear from the decision in Singh that one of the reasons why procedural fairness requires a Tribunal to disclose the existence of a certificate to a review applicant is to enable the applicant to challenge the validity of the certificate, either before the Tribunal or in separate judicial review proceedings: Singh at [41]-[49].
66 Singh, of course, was a case in which the existence of the certificate was not disclosed at all. Here, the existence of the certificate was disclosed. The difficulty for the Minister, however, is that, contrary to the conclusion reached by the primary judge, the Tribunal's disclosure to Mr Singh was insufficient and inadequate to enable him to consider whether to challenge the validity of the certificate, or whether he had any grounds to challenge the validity of the certificate. That is because the Tribunal did not, among other things, disclose to Mr Singh that the certificate was issued under s 375A of the Act, or that it had been issued supposedly on the basis that disclosure of the documents was contrary to the public interest, or that the basis upon which it was said that the disclosure was contrary to the public interest was that the documents had not been supplied to the Minister's department by him or Ms Weatherall. Without that information, it would have been impossible for Mr Singh to consider whether or not he could or should challenge the certificate, let alone make any meaningful submissions to the Tribunal about the validity of the certificate.
67 The Tribunal's disclosure of the existence of the certificate was also deficient, in terms of its procedural fairness obligations, in another material respect. There could be little doubt that the information in the documents, or the documents themselves, were potentially adverse to Mr Singh's case. As discussed earlier, they were, on one view at least, capable of casting considerable doubt on the genuineness of Mr Singh's relationship with Ms Weatherall. The Tribunal could have disclosed the potentially adverse nature of the documents to Mr Singh without necessarily contravening subs 375A(2) of the Act: cf Singh at [55]-[56]; Burton v Minister for Immigration and Multicultural and indigenous Affairs (2005) 149 FCR 20; [2005] FCA 1455 at [40]. Procedural fairness also required that the Tribunal disclose to Mr Singh that some of the information in the documents covered by the certificate were potentially adverse to his case that he was Ms Weatherall's spouse.
68 It should perhaps be emphasised, in this context, that Mr Singh did not contend in the Circuit Court that the non-disclosure to him of the information in the documents amounted to a breach of s 359A of the Act. Nor was that issue squarely raised in Mr Singh's further amended notice of appeal, though it was raised obliquely in his submissions. It is accordingly unnecessary and undesirable to make any finding, or express any view, as to whether there was a direct conflict between s 359A and s 375A in the circumstances of this case: cf Singh at [56]. It suffices to say that procedural fairness obliged the Tribunal to disclose the potentially adverse nature of the documents to Mr Singh in a way that did not contravene s 375A of the Act so that he could properly consider whether to submit that the certificate was invalid and that he should be given access to the documents. Disclosure of the potentially adverse nature of the documents would also have enabled Mr Singh to consider making an application that the Tribunal, as constituted, disqualify itself on the basis that a fair-minded lay observer, acting reasonably, might apprehend that, having seen the adverse material, the Tribunal might be subconsciously influenced by it: cf Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136 at [73]-[76].
69 The inadequate and insufficient disclosure by the Tribunal of the legal and factual basis upon which the certificate was issued, and the failure to disclose that the documents covered by the certificate were adverse to Mr Singh's case, gave rise to practical injustice in the particular circumstances of this case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. The practical injustice was that Mr Singh was denied the opportunity to consider whether he could or should challenge the certificate, or seek access to the documents, or apply for the Tribunal, as constituted, to disqualify itself on the basis of apprehended bias. The limited disclosure of the existence of a certificate to Mr Singh was essentially meaningless. There was nothing he could have done with the information that was provided to him.
70 The primary judge accordingly erred in finding that there was no denial of procedural fairness. It does not follow, however, that the denial of procedural fairness gave rise to a jurisdictional error. It is that issue which must now be addressed.