SZGIZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The proceeding below 5 The sole ground of review advanced below was: The Tribunal has denied the Applicant procedural fairness by failing to disclose material evidence that was the subject of a certificate issued pursuant to section 438 of the Migration Act 1958 as per the binding authority of Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252. 6 Section 438 of the Migration Act 1958 (Cth) (the Act) provides: (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 7 As s 438(4) makes clear, s 440 is also relevant if the Tribunal exercises the discretion conferred by s 438(3). It provides: Tribunal may restrict publication or disclosure of certain matters (1) If the Tribunal is satisfied, in relation to a review, that it is in the public interest that: (a) any evidence given before the Tribunal; or (b) any information given to the Tribunal; or (c) the contents of any document produced to the Tribunal; should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly. (2) If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not: (a) excuse the Tribunal from its obligations under section 430; or (b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal. (3) A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person. Penalty: Imprisonment for 2 years. 8 I draw attention to s 440(2)(a) which provides that the giving of a written direction under s 440(1) does not excuse the Tribunal from its obligations under s 430 of the Act. The Tribunal's obligations under s 430 of the Act concern the need for the Tribunal to provide a written statement of its decision in respect of a Part 7-reviewable decision which, among other things, sets out the reasons for its decision; sets out its findings on any material questions of fact; and refers to the evidence or any other material on which its findings of fact are based. In SZMTA, the majority observed (at [26]): 26 … there appears to be no reason why a direction under s 440 cannot direct non-disclosure or non-publication of the whole or some part of a statement of reasons or of evidence or information or the contents of any other documents, to the extent that such evidence, information or the contents of a documents are referred to in a statement of reasons. 9 As stated in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69], s 430 entitles a reviewing court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. 10 The evidence before the primary judge showed that a certificate had been issued in reliance on s 438(1)(b) and that, under s 438(2), the Tribunal had been notified accordingly. The certificate applied to a number of documents. Only one document, covered by that certificate, was relevant to the application for judicial review. It was characterised by the primary judge as a "dob-in-letter", although it appears to be a precis or summary of information made by a Departmental officer of a communication provided by someone who wished to remain anonymous. 11 The information in the "dob-in-letter" includes the following: (a) the appellant was living and working illegally in Australia; (b) the appellant held a bridging visa, which had expired; (c) the appellant was scared that the Department of Immigration and Border Protection might catch him; (d) the appellant had been caught before by field officers; (e) there was one front door and one rear entrance to the premises where the appellant works, and the appellant entered and exited from the rear entrance; (f) the appellant was working with others who may have no work rights; and (g) the appellant might be violent. 12 The Tribunal did not inform the appellant that it had received a notification under s 438(2)(a) in relation to a certificate issued in reliance on s 438(1)(b). The application for judicial review in the Federal Circuit Court proceeded on the basis that the Tribunal's non-disclosure of the notification would constitute a denial of procedural fairness, if the fact of non-disclosure was material. 13 In that connection, the primary judge noted, at J[27], the following statement of principle by the majority in SZMTA (at [45] - [46]): 45 Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. 46 Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. 14 The primary judge then said (at J[28]): 28. The question, then, is whether the Tribunal's disclosure to the applicant of the 438 Certificate could realistically have resulted in the Tribunal making a different decision. In my opinion, that question is to be answered in the negative. At least some of the material contained in the dob-in letter, namely, the applicant's migration history, was information of which the Tribunal was already aware. In any event, I am not satisfied the Tribunal had regard to the applicant's migration history or to any of the information contained in the dob-in letter when determining the applicant's application for review. That is apparent from the Tribunal's reasons for decision. The Tribunal there identified each of the matters on which it relied for not accepting the applicant's claims. The matters on which the Tribunal relied were the applicant's [sic] demonstrating little or no understanding of the concept of denomination or the difference between Catholicism and the Uniting Church, his limited knowledge of the Bible, including his inability to relate a single story from it, and the applicant's delay in applying for a protection visa. There is nothing to suggest the Tribunal relied on the applicant's migration history, or the applicant's having possibly worked unlawfully in Australia, or the applicant's possibly being a violent person. 15 His Honour concluded (at J[29]) that the Tribunal's failure to disclose the certificate issued in reliance on s 438(1)(b) could not realistically have resulted in the Tribunal making a different decision. He therefore dismissed the application for judicial review, with costs. 16 The evidence before the primary judge also showed that a certificate had been issued in reliance on s 438(1)(a) of the Act and that, under s 438(2), the Tribunal had been notified accordingly. The Tribunal did not inform the appellant that it had received a notification under s 438(2)(a) in relation to this certificate. The appellant raised no issue, and advanced no submission, before the primary judge to impugn the Tribunal's decision based on its non-disclosure of this notification.

The Tribunal's decision 17 The primary judge summarised the Tribunal's reasons expressed in its Decision Record. The following is taken substantially from J[1], J[6], and J[9] - [19] of his Honour's reasons, and the documents referenced in those paragraphs. The account given in those paragraphs is not challenged. 18 The appellant, who is a national of Bangladesh, arrived in Australia in 1996 as the holder of a business visa. He applied for a protection visa in 2005 and again in 10 October 2012. He claims that he was born into a conservative Muslim family; that he is a moderate, and a liberal thinker; and that he gradually started to distance himself from Islam until he converted to Christianity in 2010. He claims to have been attending a particular parish church of the Uniting Church in Australia (the Uniting Church). 19 He claims that he will face significant harm because of his religious conversion. He says that this is because Islamist fundamentalists consider him to be an apostate and Islamic society considers apostasy a sin. He also claims that, because of his long stay in Australia, he will be considered a Westerner, and will be harmed for that reason. 20 The appellant provided a number of documents to the Tribunal, including a letter dated 30 August 2015 from the minister of the parish church he attends (the parish minister). This letter states that the appellant was baptised in 2010; that he has attended worship services on a regular basis; that he is a person of faith; and that he has discussed his hopes to volunteer in one of the parish's ministry projects. The letter also states that, as a Christian convert, the appellant would be an "especially vulnerable person" and that the "situation in Bangladesh is not conducive" to his "safe return". 21 The documents also included a purported letter from a "Mr R" stating that a "case" had been "lodged against" the appellant in Bangladesh; that a "warrant of arrest" has been issued against him; and that the police "are searching to arrest you everywhere". 22 At the hearing, the Tribunal questioned the appellant about his claimed conversion to Christianity, including: (a) the Christian-related activities he was involved in before he was baptised in August 2010; (b) the specific books of the Bible he had studied, including whether he had read the Old Testament or the New Testament (to which the appellant did not answer, but only said he was given the Bible, although he later said that he thought he had read the Old Testament); (c) whether he knew the difference between the Old Testament and the New Testament (to which the appellant said that the parish minister would explain those matters to the Tribunal, and later said that he could not remember anything); (d) whether he knew the denomination of Christianity to which he belonged (to which the appellant replied "I like Jesus and that's it", but on further questioning said he was a Catholic); and (e) whether he had any favourite stories in the Bible (to which the appellant said he could not recall). 23 The Tribunal also questioned the appellant about his delay in lodging his application for a protection visa and his migration history, as summarised in the delegate's Decision Record. The appellant said that he had not applied for a protection visa earlier because he believed he would be granted "an independent migration visa". 24 As to the purported letter from "Mr R", the Tribunal recorded that the appellant had substantial difficulties explaining details of the warrant, noting that the appellant stated that terrorist groups had to be "pacified", and that his father had been shot in October 2005 by persons whose identity the appellant did not know but who, he said, initiated the arrest warrant. 25 The parish minister also gave evidence. He said that the appellant has been consistently engaged with the Uniting Church, helping at morning tea and with donations. He agreed that it was not his role to question the purpose for which the appellant was involved in the church. He said, however, that he expected a person in the appellant's position to be able to understand the difference between Christian faiths (for example, Catholicism and the Uniting Church). The Tribunal discussed this part of the parish minister's evidence with the appellant, pointing out to the appellant that, in his earlier evidence, he did not understand the difference between "Catholicism and the Uniting Church faiths". 26 After the hearing, the appellant provided written submissions in which he responded to matters raised by the Tribunal during the hearing, including his conversion to, and knowledge of, Christianity. 27 The Tribunal accepted, as plausible, the appellant's claims that he does not practise Islam. It did not accept, however, that the appellant was a genuine convert to Christianity. The Tribunal found that, in the course of the hearing, the appellant demonstrated little or no understanding of the concept of Christian denominations, including the difference between Catholicism and the Uniting Church. In his post-hearing submissions, the appellant stated that he did understand this difference, but the Tribunal noted that this was not the evidence given by the appellant at the hearing. The Tribunal preferred to rely on the appellant's oral evidence given at the hearing. 28 Further, although the appellant claimed that he had read the Bible, his evidence was inconsistent about whether he had read the Old Testament or the New Testament; he was unable to tell the Tribunal about any story in the Bible; and when the Tribunal had asked him whether he knew the difference between the Old Testament and the New Testament he referred the Tribunal to the parish minister for an explanation. 29 Further, the Tribunal considered that the appellant's delay in applying for a protection visa supported its findings that the appellant does not fear harm because of his claimed conversion to Christianity. 30 The Tribunal referred to particular items of evidence. First, it referred to the purported letter from "Mr R". The Tribunal found that the appellant was unable to articulate, in a coherent manner, significant details about the document. The Tribunal had credibility concerns about the appellant's evidence relating to the letter to which the Tribunal concluded it should give no weight. It found that no arrest warrant had been issued in relation to the appellant. 31 Secondly, the Tribunal referred to the evidence given by the parish minister. In a post-hearing letter dated 21 August 2016, the parish minister stated that it was, perhaps, remiss of him not to have spoken at greater length with the appellant about the differences in Christian denominations. He offered, as a reason for this oversight, "the strong ecumenical commitment of the congregation". The Tribunal found the parish minister's oral evidence to be significant, and the fact that the appellant, on his own evidence, needed time to gain a deeper understanding of Christianity. This indicated to the Tribunal that the appellant's understanding of Christianity was limited, contrary to the appellant's claims that he had been a practitioner for many years and that he had converted to Christianity. 32 Thirdly, the Tribunal referred to the evidence of two other witnesses, Ms P (who gave evidence that she had been to Bangladesh a number of times and observed the ill-treatment of converts by Muslim fundamentalists) and Ms G (who gave evidence that the appellant's conversion to Christianity was real and that he would be harmed if returned to Bangladesh). The Tribunal accepted that these witnesses, and the parish minister, believed the appellant to be a Christian convert. The Tribunal noted, however, that the determination of whether the appellant was a Christian convert was a matter for it to determine. 33 Fourthly, the Tribunal referred to the appellant's baptism certificate. The Tribunal accepted that the appellant was baptised, but did not accept that the appellant was "a Christian of any faith" or that he had converted to Christianity. The Tribunal did not accept that the appellant's engagement in Christian-related activities, such as attending and assisting at church, meant that he was a genuine Christian or that, because of those activities, he would be perceived to be a Christian. 34 The Tribunal considered the appellant's claims based on being perceived as a Westerner. Relying on country information, the Tribunal was satisfied that, having lived in Australia for over 20 years, the appellant would not have a profile that would be adverse to any individual. It found the appellant's claim that he would be perceived as wealthy, because he had lived in Australia for 20 years, to be speculative. The Tribunal acknowledged that it was plausible that the appellant could face difficulties in finding accommodation and employment. It reasoned, however, that this was a difficulty any person would face if moved to an area in which the person had not lived for some time. 35 The Tribunal also considered the appellant's medical condition. It accepted that he suffers from diabetes and other clinical conditions and that it is possible that the medical services he would receive in Bangladesh would not be of the same standard as those available to him in Australia. Even so, the Tribunal was not satisfied that the appellant would be denied access to adequate clinical services, or that there is a real risk he would face significant harm. 36 As to whether the appellant would face a real risk of significant harm if returned to Bangladesh, the Tribunal referred to country information which noted that, although Christians in Bangladesh were treated equally in law, they were, nevertheless, discriminated against in many ways. But the Tribunal found that the appellant would not practise Christianity if returned to Bangladesh because the appellant is not genuinely interested in the Christian faith. The Tribunal also found that, although the appellant is not a strict practitioner or an adherent of Islam, it did not follow that he is a Christian. 37 In sum, the Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Bangladesh, there is a real risk that the appellant would suffer significant harm.

The notice of appeal 38 The notice of appeal contains a single ground: 1. His Honour in the Federal Circuit Court erred in failing to find that there had been a breach of procedural fairness in circumstances where the Tribunal had failed to disclose material evidence that had been the subject of an invalid certificate issued pursuant to section 438 of the Migration Act 1958 (Cth). Particulars His Honour erred in failing to apply and/or in his construction of relevant principles drawn from Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 at [47]. 39 At the outset, three things should be noted about this ground. 40 First, the ground of appeal expresses the breach of procedural fairness as a failure to disclose material the subject of a notification under s 438(2)(a) of the Act, rather than the non-disclosure of the notification itself. The primary judge treated the breach of procedural fairness as the non-disclosure of the notification itself: see J[28] - [29]. It seems that this was the way in which the case was framed for his Honour, particularly having regard to the emphasis placed on SZMTA in that ground of review. So, too, in this appeal did the Minister treat the breach of procedural fairness as the non-disclosure of the notification. The appellant's written submissions do not seem to make much of the distinction between non-disclosure of the notification and non-disclosure of the documents covered by the notification. The submissions seem to stride both matters. That said, the appellant's submissions do direct attention to what the appellant says he would have done had he known the contents of the "dob-in-letter". 41 For practical purposes, the difference of approach between the appellant and the Minister might not matter because the appellant's case turns on whether or not the Tribunal had regard to the information in the "dob-in-letter". To have regard to the information in the "dob-in-letter" would have required the Tribunal to positively exercise the discretion conferred on it by s 438(3)(a) of the Act. Only in those circumstances could it be said that the occasion would then arise for the Tribunal to consider exercising the discretion in s 438(3)(b) of the Act to disclose the notified information to the appellant. If the Tribunal did not have regard to the information then, as the Minister submitted, there could not have been a material breach of procedural fairness resulting in jurisdictional error. In the circumstances, it will be sufficient, for the purposes of the appeal, to treat the non-disclosure of the notification under s 438(2)(a) of the Act as the breach of procedural fairness. 42 Secondly, the certificate referred to in this ground is the certificate given in reliance on s 438(1)(b) of the Act. The certificate given in reliance on s 438(1)(a) of the Act played no part in the judicial review proceeding. 43 Thirdly, the ground alleges that the s 438(1)(b) certificate was invalid. However, the question of validity was not part of the appellant's application for judicial review.

The appellant's written submissions 44 The appellant filed written submissions in chief dated 10 August 2020, and supplementary written submissions dated 13 July 2021. As I have noted, the supplementary written submissions address the decision in MZAPC. Each of these submissions is signed by (the same) senior and junior counsel. 45 In his written submissions in chief, the appellant makes clear that his appeal relates to the certificate issued in reliance on s 438(1)(b) of the Act and that, even though that certificate applied to a number of documents, the only document of relevance to the case before the primary judge, and on appeal, is the "dob-in-letter". He submits that the "dob-in-letter" contains allegations made against him that are "significant, adverse and credible". 46 As to their significance, he submits that the allegations cast doubt on his candour and his character, and "directly contradict assertions made by him when he had an obligation to tell the truth". These contradictions are not specified or identified. The appellant submits that these allegations "may raise doubts" about his credibility generally. 47 As to their adverse nature, the appellant simply relies on the allegations themselves. 48 As to their credibility, the appellant submits that the maker of the allegations must have given the impression to the Department that he or she knew the appellant; his work; how the appellant enters his workplace and the times he works; his tax status; his appearance; and his likely demeanour if confronted. 49 The appellant submits that, in J[28] of his reasons, the primary judge erred by failing to correctly apply the principles relating to materiality. He submits that the primary judge erred by: (a) not looking at the potential impact of the information as a whole on the Tribunal's treatment of the appellant's credibility, which was central to its rejection of his claim that he had converted to the Christian faith; (b) relying on the absence of any explicit reference to the "dob-in-letter" in the Tribunal's reasons, in circumstances where it can be assumed that the Tribunal proceeded on the basis that the certificate was valid, and that the information in the letter could not lawfully be referenced or contained in its reasons; and (c) relying on other aspects of the Tribunal's reasons for rejecting the appellant's credibility when those matters only went to a rejection of his "intellectual knowledge of the doctrine and text of Christianity" as opposed to his claim to have Christian faith. 50 In a nutshell, the appellant's case, in his written submissions in chief, is that it was an error for the primary judge to infer that the Tribunal did not have regard to the contents of the "dob-in-letter" when reaching its conclusions on the appellant's credibility - particularly in relation to the genuineness of his assertion of Christian faith. It is true that the Tribunal did not refer to the "dob-in-letter" or its contents. But the appellant's case is that the "nature of the letter itself" is sufficient indication in the evidence to show that the Tribunal must have taken the "dob-in-letter" and its contents into account. This is because it was capable of "poisoning the well" so far as the appellant's "credibility and believability" were concerned. As this case was put in the written submissions: The aspersions cast by the letter on the appellant's character and credit could be not unseen - and he was incapable of answering them. The [dob-in-letter] cast him as a liar, a deceiver, a dishonest and violent criminal. 51 Therefore, the appellant submits, the primary judge was not justified in reaching the conclusion he did at J[28]. 52 Moreover, the appellant submits that, had procedural fairness been afforded, he could have made submissions to the Tribunal about the likely motivation of the author of the "dob-in-letter", the believability of the allegations made therein, and the danger of relying on such letters. 53 The appellant submits that, on appeal, the Court should conclude, contrary to the finding below, that the admitted denial of procedural fairness "could not have had had no bearing on the outcome in the Tribunal"; or, as the appellant expressed the position in his supplementary written submissions: Applying reasonable conjecture within the parameters … set by the historical facts would lead to the inference on the balance of probabilities that had procedural fairness been afforded to the [appellant] in relation to the relevant information in this case then the decision could have been different. 54 The appellant's written submissions in chief make a glancing reference to the Tribunal having proceeded on the erroneous assumption that the notification under s 438(2)(a) of the Act was valid. However, no reason is advanced for that statement and the question of validity is otherwise left untouched. 55 In his supplementary written submissions, the appellant accepts that the decision in MZAPC made "no effective variation" to the majority approach in SZMTA. The supplementary written submissions otherwise affirm the case made on appeal in the written submissions in chief.

The appellant's oral submissions 56 Counsel who appeared for the appellant at the hearing of the appeal was not an author of the written submissions summarised above. He nevertheless adopted those submissions and made oral submissions which he described as "complementary and additional submissions". The argument he developed has three limbs. 57 The first limb is that, the primary judge erred in concluding that the Tribunal had not taken the contents of the dob-in-letter into account. On the face of the evidence before the Tribunal, the appellant had abandoned his Islamic faith and had accepted Christianity. This, he said, was a serious and significant step because, in the appellant's case, it amounted to apostasy, the appellant having been born into a conservative Muslim family. Counsel submitted that the appellant had adduced substantial evidence of his conversion to Christianity. I was taken to this evidence, specifically: the appellant's baptism certificate; the evidence given by the parish minister, Ms G, and Ms P; and certain photographs which I was asked to accept related to the appellant's attendance at church activities. 58 Counsel submitted that the fact of the appellant's baptism is incontrovertible given the existence of his baptism certificate. He submitted that the appellant's own evidence, supported by the evidence of the parish minister, Ms G, and Ms P, was to the effect that he is a person of Christian faith. Counsel asked, rhetorically: why was the appellant not believed? The evidence before the Tribunal of the appellant's conversion was not "incredible". What basis was there for the Tribunal to doubt the appellant's conversion? As counsel put it, it could not simply be the fact that the appellant did not know much about "the technical aspects of Christianity". 59 Counsel submitted that, realistically, the only reason to doubt the appellant was the information covered by the s 438(1)(b) certificate. Counsel went through this information. He relied heavily on the fact that the appellant was identified by the acronym POI - a person of interest. He said that this designation is only used for persons who are regarded to be "at least potentially a criminal". Counsel characterised the other information (the fact that the appellant was an illegal worker, that he used the back door to gain entry to the premises where he worked, and so on) as signifying that the appellant was engaged in wrongdoing. He also emphasised the fact that the appellant was referred to as someone who "may be a violent person". 60 Counsel explained that it was significant that "no basis at all [was] given for any of these allegations" and that the "dob-in-letter" provided no additional information in respect of them. I agree. The information in the "dob-in-letter" simply consists of allegations that have been made anonymously without, it seems, any substantiation by the informant, particularly the qualified allegation that the appellant "may be a violent person". 61 It will be appreciated that the first limb of the argument advanced in oral submissions reflects, substantially, the arguments advanced in the appellant's written submissions. However, significantly, in oral submissions, counsel also drew attention to the notification to the Tribunal under s 438(2)(a) of the Act based on the certificate issued in reliance on s 438(1)(a). The information covered by that certificate includes the fact that the appellant had been convicted of criminal offences in Australia for which he had received a fine and had been given a 12 months good behaviour bond. 62 Although this certificate, and the information it covered, was in evidence before the primary judge, the appellant's application for judicial review placed no reliance whatsoever on the fact that the Tribunal had not disclosed this notification or the information itself. What is more, the fact of non-disclosure is not part of the appellant's ground of appeal, properly understood. Further, as I have noted, the appellant's written submissions in chief make clear that the only information relied on is that contained in the "dob-in-letter" - that is, the information covered by the s 438(1)(b) certificate. 63 Even so, counsel submitted that the Tribunal's possession of the information that the appellant had criminal convictions would also stand as a reason for doubting his credibility. Once again, counsel submitted that the Tribunal must have had regard to this information. 64 In this connection, counsel accepted that, as a matter of general principle, a party is bound by its conduct of the proceeding at first instance. He nonetheless submitted that the question of the non-disclosure of the notification based on the s 438(1)(a) certificate, or of the information covered by that certificate, requires no further factual investigation and that the Minister is not prejudiced by the point being taken now (in circumstances where I have allowed the Minister the opportunity to file further written submissions dealing with this act of non-disclosure). Counsel stressed that reliance on the non-disclosure of the notification based on the s 438(1)(a) certificate was potentially dispositive of the appeal. 65 The second limb of the argument advanced in oral submissions is that a fair-minded lay observer, acting reasonably, might entertain the possibility that the Tribunal was affected by the information (the information in the "dob-in-letter" and the fact that the appellant had criminal convictions), in the sense that, subconsciously, the Tribunal was influenced by this information in coming to its finding on the appellant's credibility in relation to the genuineness of his claimed conversion. 66 This limb of the argument is different to the first limb in that the first limb invites a finding by the Court that the Tribunal was, in fact, influenced (in the sense of consciously influenced) by the information in coming to its conclusions. In other words, this fact is to be inferred given (on the appellant's case) the otherwise compelling evidence before the Tribunal attesting to the genuineness of his conversion. 67 The second limb invokes the device of the fair-minded lay observer. In invoking this device, the appellant relies on the observations made by the plurality in MZAPC at [72]: [103] below. Counsel for the appellant stressed that he was not seeking to raise an independent ground that the Tribunal's review was affected by jurisdictional error in the form of apprehended bias. 68 The third limb of the argument advanced in oral submissions is that the primary judge applied the wrong test in finding that the Tribunal did not have regard to the information (once again, the information in the "dob-in-letter" and the fact that the appellant had criminal convictions). Here, the argument is that the primary judge erred by looking only to the Tribunal's reasons and not to the totality of the evidence, including the character of the information covered by the two certificates. This contention appears to be no more than an aspect of the first limb, already covered by the appellant's written submissions, at least insofar as the information is the information contained in the "dob-in-letter": see [57] above. 69 The question of the validity of the two notifications under s 438 was not addressed.

Summary of new matters 70 It will be apparent from this summary that, in oral submissions, two new contentions were advanced: first, the contention concerning the non-disclosure of the notification based on the s 438(1)(a) certificate; secondly, the contention that the fair-minded lay observer, acting reasonably, might entertain the possibility that the Tribunal was affected by the information covered by both certificates. 71 A further matter - not addressed in substance in the written or oral submissions and only alluded to in the notice of appeal - is the alleged invalidity of the s 438(1)(b) certificate and, hence, the invalidity of the notification referable to this certificate.

The Minister's submissions 72 The Minister objected to the appellant's reliance on the two new matters raised in oral submissions. It is fair to say that the first of these matters featured more prominently in the Minister's submissions. 73 As to that matter, the Minister pointed out, correctly, that the non-disclosure of the notification concerning the s 438(1)(a) certificate was not part of the appellant's case for judicial review in the Federal Circuit Court, was not raised in his notice of appeal in this Court, and was not even referred to in the appellant's written submissions. In short, an entirely new point was being raised for the first time in oral submissions. 74 The Minister submitted further that the appellant was legally represented in the judicial review proceeding in the Federal Circuit Court and that his legal representatives evidently made a forensic decision not to rely on any argument concerning the s 438(1)(a) certificate, bearing in mind that the certificate, and the documents it covered, were in evidence before the primary judge. The Minister submitted that to grant leave, now, to rely on the non-disclosure of the notification based on the s 438(1)(a) certificate would effectively turn this Court into a trial, rather than an appellate, court: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [92]; Han v Minister for Home Affairs [2019] FCA 331 at [4] - [21]. 75 The Minister submitted that the argument based on the non-disclosure of this notification was, in any event, without merit. I will return to that question. 76 As to the appellant's reliance on the second limb of the argument advanced in oral submissions, the Minister submitted that this too was without merit. I will also return to that question. 77 As to the validity of the s 438(1)(b) certificate, the Minister submitted that, although the sole ground in the notice of appeal contains an allegation of invalidity, no such contention was advanced in the judicial review proceeding in the Federal Circuit Court, or pursued in the appeal submissions, either in writing or orally. The Minister submitted that the certificate was prima facie valid and that, in the circumstances, this was, effectively, the end of that matter. 78 Dealing with the non-disclosure of the notification with respect to the s 438(1)(b) certificate, the Minister submitted that the primary judge did not err in finding that the Tribunal did not have regard to the information in the "dob-in-letter". The fact that the Tribunal did not have regard to that information is a complete answer to the contention that there was a material breach of procedural fairness. 79 The Minister submitted that, objectively viewed, it is most unlikely that the information in the "dob-in-letter" would be capable of affecting the appellant's credit. The information has no logical bearing on the assessment of whether the appellant is a genuine Christian. In any event, there is no reference to the information in the Tribunal's reasons, and there is no necessary inference that, somehow, the Tribunal had regard to the information. The Minister submitted that there is nothing in the Tribunal's reasons to indicate that its view of the appellant's credit was coloured in any way by the allegations in the "dob-in-letter", as opposed to an examination of the appellant's claims and evidence. 80 Dealing with the non-disclosure of the notification with respect to the s 438(1)(a) certificate, the Minister submitted, firstly, that there appeared to be a question concerning the validity of the certificate given that, on its face, the certificate simply referred to "information relating to an internal working document and business affairs". The certificate does not specify any reason that could form the basis for non-disclosure within the meaning of s 438(1)(a): MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 at [35] - [37]. 81 Secondly, the Minister submitted that if the certificate is invalid for this reason, it does not follow that the Tribunal's decision is invalid, unless the invalid notification is, itself, material: SZMTA at [44]. Where it can be inferred that the Tribunal did not have regard to the notified information, the appellant must establish that there is a realistic possibility that the Tribunal's decision could have been different if the Tribunal had taken the information into account: SZMTA at [48]. 82 The Minister submitted that, here, it can be inferred that the Tribunal did not take into account the documents covered by the purported s 438(1)(a) certificate. None of the documents are referred to by the Tribunal. Further, the appellant has not suggested that anything in the documents might have led the Tribunal to make a favourable decision. Rather, the appellant referred only to the disclosure in the documents that he had criminal convictions for which he received a fine and a 12 months good behaviour bond. The Minister submitted that there is nothing to indicate that the Tribunal's conclusion in respect of the appellant's credit was coloured in any way by this particular information. 83 Dealing with the second limb of the appellant's oral submissions, the Minister submitted that, given the nature of the information in the "dob-in-letter", and the fact that the documents covered by the purported s 438(1)(a) certificate said nothing at all about the nature of the appellant's criminal convictions, there is nothing that would sustain the contention that a fair-minded observer might entertain the possibility that the Tribunal might have been subconsciously influenced by that material in making its decision.

Analysis 84 I will deal, firstly, with the notice of appeal. 85 As I have observed, the certificate referred to in the single ground of appeal is the certificate that was issued in reliance on s 438(1)(b) of the Act. The essential issue that is raised by this ground is the materiality of the denial of procedural fairness by the Tribunal in not disclosing to the appellant the existence of the notification given to the Tribunal under s 438(2)(a) in respect of this certificate. This, in turn, raises the question whether disclosure to the appellant of the existence of the notification (the s 438(1)(b) certificate) could, realistically, have resulted in the Tribunal making a different decision. 86 Although the notice of appeal alludes to the invalidity of the s 438(1)(b) certificate, the question of validity was not raised in the application for judicial review. The application for judicial review proceeded on the basis that the certificate was valid and that the notification given to the Tribunal under s 438(2)(a) was, accordingly, valid. Strictly speaking, reliance on the invalidity of this certificate, in this appeal, requires leave because it stands as a new argument that was not raised below. 87 The question of leave was not explicitly raised or argued before me. Nevertheless, I do not think that that question can be ignored. 88 I am not prepared to grant leave. First, the appellant did not address the question of validity in either written or oral submissions. The question was simply ignored. Secondly, had the question been raised below it could have been addressed, fully, by the Minister including, if thought necessary, by calling evidence directed to the factual question raised - the giving of the information in confidence. I say "if thought necessary" because on its face the "dob-in-letter" suggests the real possibility that the information it contains was, in fact, given in confidence. 89 In these circumstances, I am not persuaded to go behind the certificate itself, which plainly states that the information was given in confidence. I will proceed, therefore, on the basis that the notice of appeal raises the correctness of the judgment below dealing with the non-disclosure of a valid notification under s 438(2)(a) of the Act in relation to the certificate given in reliance on s 438(1)(b). 90 The appellant's case is that, in reaching its findings on the appellant's credibility in relation to the genuineness of his conversion to Christianity, the Tribunal took into account the information in the "dob-in-letter", and that the outcome of the Tribunal's review could, realistically, have been different had the appellant been given the opportunity to make submissions about that information. The appellant bears the onus of proving these matters on the balance of probabilities: MZAPC at [39] and [60]. The Minister contends, correctly, that failure to establish that the Tribunal did take into account the information in the "dob-in-letter" is a complete answer to the case that there was a material denial of procedural fairness by the Tribunal. 91 I am not persuaded that the Tribunal did take into account the information in the "dob-in-letter" in reaching its findings on credibility in relation to the genuineness of the appellant's conversion to Christianity. The primary judge did not err in the ultimate conclusion to which he came at J[29]: [15] above. 92 First, I do not accept that the primary judge erred in relying on the Tribunal's statement of its reasons. The Tribunal clearly set out its reasons for not accepting the appellant in this regard. These reasons included the appellant's delay in applying for a protection visa and, more particularly, his unconvincing evidence of his conversion to the Christian faith, as recounted in T[18] - [28] of the Tribunal's Decision Record. 93 In reaching its conclusions in this regard, the Tribunal gave careful consideration to the evidence of the parish minister, Ms P, and Ms G (at T[29] - [37]). It also acknowledged (at T[26]) that "one's faith is personal", with "no prescribed rules or guidelines". Nevertheless, for the reasons it gave, the Tribunal was not persuaded that the appellant was a genuine Christian convert. This finding was within the Tribunal's decisional freedom. 94 Secondly, there is nothing in the Tribunal's reasons or elsewhere in the evidence to indicate that the Tribunal made a choice to exercise the discretion under s 438(3)(a) of the Act to have regard to this information when undertaking its review. Given the Tribunal's obligations under s 430(1) of the Act, it can be inferred that a matter not mentioned by the Tribunal in its reasons is not a matter considered by it to be material to its decision: MZAPC at [67]; [8] - [9] above. 95 Thirdly, I do not accept that the information itself fills this gap, as the appellant contends. For one thing, I do not accept that the information in the "dob-in-letter" bears the dramatic character for which the appellant contends. I think the appellant's submissions overplay the significance of the information, particularly in contending that the "dob-in-letter" casts the appellant as "a liar, a deceiver and a dishonest and violent criminal". 96 The "dob-in-letter" contains reference to a number of mundane matters, particularly in relation to the appellant's migration history and status. The primary judge was correct to observe that this information must have been already known to the Minister. 97 The "dob-in-letter" also contains a good measure of tittle-tattle, such as: the appellant enters and leaves his work premises from a rear entrance; the appellant is scared that Departmental officers might catch him; and that the appellant is working with others who also might not have work rights. 98 Also, the allegation that the appellant "may be a violent person" is not only qualified in terms, but also completely unsupported by any objective circumstance that would give credence to it. It is also an allegation that was made anonymously. Rationally, little, if any, weight can be given to such an allegation, in such circumstances. 99 I am not persuaded, therefore, that the information in the "dob-in-letter" is of such a character that it would stand to impugn the appellant's credit - certainly not in relation to his expression of the genuineness of his conversion to Christianity. Moreover, as the Minister emphasised in oral submissions, none of the information in the "dob-in-letter" has a logical bearing on whether the appellant had genuinely converted to Christianity. 100 Fourthly, it is to be remembered that the appellant's case is that the evidence before the Tribunal of his conversion to Christianity was so compelling that the only reason not to accept him on that score was the information in the "dob-in-letter". I do not accept the appellant's premise. The Tribunal explained why it did not accept the genuineness of the appellant's conversion. Having regard to its reasons, it is clear that it did not consider the evidence in support of the appellant's claim of conversion to be compelling. 101 The Tribunal's reasons for not accepting the appellant on this question are coherent, even if the appellant does not agree with them. Importantly, the appellant does not go so far as to contend that, in reaching its view on this question, the Tribunal was not acting rationally or that the conclusion it reached was legally unreasonable. He simply seeks to attribute to the Tribunal an alternative basis for not accepting him and then attributes, to that alternative basis, legal significance arising from the fact of non-disclosure. However, as I have said, there is nothing in the Tribunal's reasons or elsewhere in the evidence to indicate that the Tribunal made a choice to exercise the discretion under s 438(3)(a) of the Act to have regard to this information when undertaking its review. 102 This then leaves the second limb of the appellant's oral submissions directed to the question of the potential of the information to have had some subconscious impact on the Tribunal, even if the Tribunal did not consciously take the information into account. 103 In MZAPC, at [70], the plurality observed that there is an oddity in conceiving of a lost opportunity to direct legal and factual arguments on a matter affecting the Tribunal's subconscious, just as there is an oddity in thinking that the Tribunal can examine its own subconscious in considering the discretions conferred by s 438(3). At [71] - [72], their Honours said: [71] Best is to conceive of the potential for information covered by a notification to have had a subconscious impact on the Tribunal not as bearing on the statutory consequence of non-compliance with the Tribunal's procedural fairness obligation to give notice of the notification but rather as having the potential to bear on the discharge of the Tribunal's distinct obligation of procedural fairness to ensure that what occurs in the conduct of the review "is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which [Pt 7] provides might reasonably apprehend that the [Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review". [72] In the case of potentially adverse information covered by a notification that has not been proven to have been taken into account by the Tribunal in making its decision, a question for a court on judicial review in an appropriate case can still remain whether the information was so "highly prejudicial" to the applicant for review that "the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [the information] albeit subconsciously". So much was illustrated by the approach taken in CQZ15. The Full Court there found that a breach by the Tribunal of its procedural fairness obligation to give notice of a notification did not result in jurisdictional error because the Tribunal did not in fact take the highly prejudicial information covered by the notification into account in making the decision. The Full Court nevertheless went on to find that the decision was affected by jurisdictional error on the basis that "[t]he fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3), the Tribunal might have been subconsciously influenced by the prejudicial information … in making its decision". The structure of that analysis undertaken by the Full Court was sound in principle. (Footnotes omitted.) 104 The analysis undertaken by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 at [88] - [119], to which the plurality in MZAPC referred, was one directed specifically to the question of apprehended bias, not to the materiality of information not disclosed to a review applicant. 105 At the hearing of the appeal, the Minister objected to the appellant raising, as a separate ground, any allegation that an apprehension of bias attended the Tribunal's decision-making. The Minister pointed to the fact that this ground was not raised as a ground of judicial review before the Federal Circuit Court. Moreover, it is not a ground raised in the notice of appeal or even addressed in the appellant's written submissions. 106 As I have noted, the appellant eschewed reliance on jurisdictional error in the form of apprehended bias. And, although accepting that the second limb "does seem to smack of an apprehended bias point", counsel contended that the second limb of the oral submissions was, in substance, directed only to the question of materiality. It is clear, however, that this is not how the question of subconscious influence was treated by the plurality in MZAPC: see at [81]. 107 I accept the Minister's submission that leave is required to rely, in the appeal, on this argument, which is, properly characterised, an allegation of jurisdictional error in the form of apprehended bias. 108 There are cogent reasons for not granting leave. While the appellant's submissions on subconscious influence appear to be inspired by what was said by the plurality in MZAPC, it is to be remembered that the initially appointed hearing of this appeal was adjourned to await the final determination of the appeal in MZAPC. Following the High Court's judgment in that case, the appellant was given the opportunity to provide written submissions addressing the decision that was given. As I have noted, the appellant took that opportunity in the form of the supplementary written submissions dated 13 July 2021, which were signed by senior and junior counsel. Those submissions are silent on the question of subconscious influence. It is extremely unlikely that the issue of subconscious influence escaped the attention of senior and junior counsel, given the way that topic is addressed in MZAPC. This is another instance where it can be assumed that a forensic decision was made not to place any reliance on subconscious influence in this appeal. 109 Be that as it may, I do not think the point has any merit. In my view, the information in the "dob-in-letter" is somewhat underwhelming, despite the contrary view forcefully urged by the appellant. The information in the "dob-in-letter" does not bear the "highly prejudicial" character suggested by the plurality in MZAPC, at [72], that would warrant the conclusion that the fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretions in s 438(3), the Tribunal might have been subconsciously influenced by the information in making its decision. For these reasons, I am not persuaded that leave should be granted to the appellant to rely on the second limb of the oral submissions. But even if I had been persuaded that leave should be granted, I would not have been persuaded that the ground of apprehended bias was established or, if it should otherwise matter, that the Tribunal was subconsciously influenced by the information in reaching its decision. 110 I now turn to the question of the non-disclosure of the notification based on the s 438(1)(a) certificate. Reliance on this non-disclosure, in the appeal, also requires leave. 111 Once again, there are cogent reasons for not granting leave. Despite the appellant's submission that the documents covered by this certificate were in evidence before the primary judge, and that there are no further issues of fact requiring investigation, the fact remains that the appellant has been legally represented throughout the application for judicial review and this appeal. If anything was to be made of the non-disclosure of this notification, the time to do it was in the judicial review proceeding. 112 I accept the Minister's submission that, in the absence of a contrary explanation, the appellant, through his legal advisers, must have made the forensic decision not to rely on this non-disclosure. The existence of the s 438(1)(a) certificate, and the documents it covered, could not have been overlooked. What is more, the written submissions filed in this appeal reveal the considered position of senior and junior counsel that the only information of significance to the appellant's case is that contained in the "dob-in-letter". 113 In any event, I accept the Minister's submission that the contention made with respect to the non-disclosure of this notification stands in no better position than the non-disclosure of the notification with respect to the s 438(1)(b) certificate. As with the non-disclosure of the notification with respect to the s 438(1)(b) certificate, there is nothing in the Tribunal's reasons or elsewhere in the evidence to indicate that the Tribunal made a choice to exercise the discretion under s 438(3)(a) of the Act to have regard to the fact of the appellant's criminal convictions when undertaking its review. 114 Once again, I do not accept that the information in relation to the appellant's criminal convictions fills this gap. The documents are silent on the nature and character of the appellant's offending. If anything, his convictions appear to be at the lower end of offending, given the sentence imposed. There is nothing to suggest that the offences involved any form of dishonesty. In the absence of information as to the nature and character of the appellant's offending, I am not persuaded that knowledge that he has unspecified criminal convictions, attracting a fine and 12 months good behaviour bond, stands to impugn his credit, particularly in relation to the genuineness of his conversion to Christianity. As with the information in the "dob-in-letter", the fact that the appellant has criminal convictions has no logical bearing on whether he genuinely converted to Christianity. 115 For these reasons, I am not persuaded that leave should be granted to the appellant to rely on the non-disclosure of the notification based on the s 438(1)(a) certificate. But even if I had been persuaded that leave should be granted, I would not have been persuaded that the Tribunal took this information into account in reaching its decision. Moreover, had I allowed the ground of apprehended bias to be raised, I would not have been persuaded that the ground was established or, if it should otherwise matter, that the Tribunal was subconsciously influenced by the fact of the appellant's unspecified criminal convictions in reaching its decision.

Disposition 116 The appellant has not made out his ground of appeal as articulated in his written submissions or as advanced in his "complementary and additional submissions". There was no breach of procedural fairness by the Tribunal which was material in the sense that, had the particular breach not occurred, there was a realistic possibility that the Tribunal's decision could have been different. The primary judge did not err in his ultimate finding to this effect. No jurisdictional error has been demonstrated. No appealable error has been shown. The appeal should be dismissed, with costs. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.