[2021] HCA 17
HIGH COURT OF AUSTRALIA
Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
M77/2020
D J Hooke SC with S H Hartford Davis, S G Lawrence and D J Reynolds for the appellant (instructed by Conditsis Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, with M A Hosking for the first respondent (instructed by Clayton Utz)
Submitting appearances for the second respondent
Immigration — Refugees — Application for protection visa — Where appellant applied to Refugee Review Tribunal (“Tribunal”) for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) (“Act”) — Where s 438 notification issued under Act in relation to material including appellant's criminal record — Where Tribunal did not disclose existence of s 438 notification to appellant — Where first respondent conceded failure to disclose amounted to breach of procedural fairness — Where information covered by s 438 notification not referred to in reasons for decision — Whether breach material — Whether Tribunal in fact took s 438 notification information into account in making decision — Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account — Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision — Whether appellant or first respondent bore onus of proof of materiality — Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences.
Words and phrases — “counterfactual inquiry”, “credit”, “discharging the burden of proof”, “failure to disclose”, “judicial review”, “jurisdictional error”, “lost opportunity to present legal and factual argument”, “materiality”, “onus of proof”, “opportunity to be heard”, “practical injustice”, “presumption”, “procedural fairness”, “realistic possibility”, “reasonable conjecture”, “statutory interpretation”, “subconscious impact”, “threshold of materiality”.
Appeal dismissed with costs.
Kiefel CJ, Gageler, Keane and Gleeson JJ. This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection 1 as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.
Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA 2 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited.
SZMTA was correctly applied in the result in the decision under appeal 3 to hold that a breach of an implied condition of procedural fairness by the Refugee Review Tribunal (“the Tribunal”) in the conduct of a review under Pt 7 of the Migration Act 1958 (Cth) (“the Act”) did not result in jurisdictional error in the decision of the Tribunal which affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a protection visa. The breach was constituted by a failure on the part of the Tribunal to disclose to the appellant the existence of a notification by the Secretary of the Department of Immigration and Border Protection under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary under s 418(3) of the Act.
The appellant is a citizen of India. He arrived in Australia in 2006 on a student visa which expired in 2008. He applied in 2007 for a further student visa which a delegate of the Minister refused in 2012. He then applied to the Migration Review Tribunal (“the MRT”) for merits review of the decision of that delegate under Pt 5 of the Act. The MRT decided that it lacked jurisdiction because the application was lodged out of time. He then applied to the Federal Circuit Court for judicial review of the decision of the MRT. The Federal Circuit Court dismissed that application in 2013.
Having failed to obtain a further student visa, the appellant applied in 2014 for a protection visa. Amongst the claims he made in support of that application was a claim to fear that his uncle would kill him on his return to India in connection with a dispute between his uncle and his father over land in Punjab. He claimed that he was his father's oldest son and that his uncle had threatened to kill him if the land went under his name. He claimed that he had been kidnapped when visiting Punjab from Delhi in 2004. The kidnappers demanded that his father sign papers putting the land in their names. They released him after his father paid them a settlement amount.
Another delegate of the Minister refused the protection visa in June 2014. The appellant then applied to the Tribunal for merits review of that decision under Pt 7 of the Act.
As required by s 418(3) of the Act, the Secretary gave to the Tribunal documents within the Secretary's possession or control which the Secretary considered to be relevant to the review by the Tribunal. Accompanying the documents so given was a letter notifying the Tribunal under s 438(2)(a) that s 438(1)(b) applied to information contained in specified documents on a specified departmental file. By way of advice under s 438(2)(b), the letter expressed the view that the information should not be disclosed to the appellant or his representative because the information had been “shared by Victoria Police with the Department for investigative purposes only”.
The documents specified in the notification included a “Court Outcomes Report” which indicated that the appellant had been convicted of offences in the Dandenong Magistrates' Court in September 2011. The offences of which he had been convicted were three counts of drink driving, eight counts of driving while disqualified, three counts of using an unregistered vehicle on a highway, two counts of using a vehicle not in a safe and roadworthy condition, one count of removing a defective vehicle label, one count of failing to wear a seat belt and one count of an offence described as “state false name”. There is no dispute between the parties to the appeal that the offence described as “state false name” was an offence of dishonesty.
Neither the existence of the notification nor any of the information contained in the documents specified in the notification was disclosed to the appellant by the Tribunal.
Proceeding on the mistaken understanding that the appellant had been invited to a scheduled hearing and had failed to attend, the Tribunal made an initial decision in September 2014, affirming the decision of the delegate. The Tribunal's statement of reasons for that initial decision stated that it had “considered all the material before it relating to [the] application”. The statement of reasons went on relevantly to explain that, on the “limited and vague evidence”, the Tribunal did not accept the appellant's claim to fear harm in connection with the dispute over land in Punjab. The statement of reasons made no reference to the notification or to any information contained in any of the documents specified in the notification.
When later it emerged that the appellant had not been notified of the time of the scheduled hearing, the Tribunal accepted advice that the initial decision was affected by jurisdictional error 4 and re-opened the review. The Tribunal, constituted by the same member who had made the initial decision, conducted a rescheduled hearing in October 2014 which the appellant attended. The Tribunal made a final decision in November 2014, again affirming the decision of the delegate.
The Tribunal's statement of reasons for that final decision set out the member's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab as follows:
...“Despite some concerns about the applicant's credibility, I am willing to accept that there was a dispute between his father and his uncle over land in Punjab. I accept that when the applicant visited Amritsar in 2003 or 2004, he was taken to a house by his cousin (though not actually threatened as he stated at the hearing), drugged and held there until his father arrived and paid the amount of $AUD3500 for his release. I accept that the applicant stopped going to the Punjab after this until he came to Australia in 2006.
I do not accept that the applicant has been subject to continuing threats in relation to the land dispute because he is the eldest son of his father. The applicant was able to reside in Delhi, India for 2–3 years after the Amritsar incident without facing any further harm from his uncles and his relatives. The Amritsar incident was 12–13 years ago and resolved when the father made payment to his uncle. Furthermore, on the applicant's oral evidence at hearing, in recent times his father has been pressured but not actually harmed or threatened by the relatives despite his father refusing to sign over the land through an affidavit. I do not accept that if the relatives wanted to
harm the applicant over the land that they would not be threatening or harming his father in circumstances where the dispute originates in relation to the
