High Court: non- disclosure certificates

Summary

Three matters were heard together by the Court. They concerned s 438 of the Migration Act 1958 (Cth), which is about the Minister giving the AAT power to withhold relevant (and usually adverse) documents or information from review applicants by notifying the AAT that their disclosure would be contrary to the public interest.

The Court held that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose that fact to the review applicant and that ‘incorrect notification results in jurisdictional error’, but that errors are jurisdictional only if they are material [see Hossain].

The Court also held that ‘where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof… [E]vidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application’ (emphasis added).

Section 438 reads as follows:

(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

Extract

BELL, GAGELER AND KEANE JJ (emphasis added)

2. The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material [see Hossain]. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.