Federal Court of Australia Abdulqadir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 949 Appeal from: Abdulqadir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 40 File number(s): VID 139 of 2024 Judgment of: ANDERSON J Date of judgment: 22 August 2024 Catchwords: MIGRATION – invalid certificate under s 375A of the Migration Act 1958 (Cth) – appeal from decision to dismiss application for judicial review of Administrative Appeals Tribunal's decision to affirm Minister's cancellation of visa under s 116(1)(e) of the Act – whether it could be inferred that Tribunal read the material subject of the invalid certificate – whether it could be inferred that the Tribunal gave weight to the material subject of the invalid certificate – where the Tribunal made no reference to material subject of the invalid certificate in its reasons – no error identified – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Border Protection v Singh (2006) 244 FCR 305; FCAFC 183 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; HCA 3 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; HCA 63 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 53 Date of hearing: 1 August 2024 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: Bardo Zouki Noureddine Lawyers Counsel for the First Respondent: Mr J Lessing Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent The Second Respondent did not appear ORDERS VID 139 of 2024 BETWEEN: MOHAMED ABDULQADIR Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: ANDERSON J DATE OF ORDER: 22 August 2024 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the First Respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ANDERSON J: Introduction 1 This proceeding is an appeal from a decision of the Federal Circuit and Family Court of Australia (FCFCOA), Abdulqadir v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 40 (the judgment). The primary judge in the FCFCOA dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of the first respondent (the Minister), through his delegate, to cancel the appellant's Subclass 444 (Special Category) visa in reliance on s 116(1)(e) of the Migration Act 1958 (Cth). 2 Section 116(1)(e) of the Act authorises the Minister to cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. 3 In appealing the judgment, the appellant relies primarily on an invalid certificate issued under s 375A of the Act. The appellant argues that he did not receive a fair hearing as required by s 360(1) of the Act as he was not informed of prejudicial material which was contained in the documents subject to the invalid s 375A certificate. 4 For the reasons that follow, the appeal should be dismissed with costs. Background 5 The background to this matter was set out by the primary judge at [4]-[15] of the judgment. It is convenient to extract the relevant background below: The applicant is a citizen of New Zealand. He was granted the visa on 11 December 2009 upon his arrival in Australia with his family. The applicant was nine years old at the time. On 20 March 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by a delegate of the Minister. The NOICC recorded (in table form) that the applicant had been charged with (but not convicted of) a series of offences in April 2019, had been convicted of affray on 30 November 2018 and had been convicted on 24 October 2018 of "traffic methamphetamine", "deal property suspected proceed of crime", affray and "unlawful assault". The NOICC also recorded that the applicant had been previously charged with multiple offences in relation to armed robbery and the theft of motor vehicles (on 7 December 2017, 8 May 2018, and 2 August 2018). The NOICC contained a statement informing the applicant that given his criminal history and the current alleged behaviour involving violence in relation to aggravated carjacking and the trafficking of dangerous drugs, there was sufficient evidence to satisfy the author of the NOICC that the applicant's presence in the community (sic) may pose a risk to the health and safety of the Australian community. The applicant was informed that the visa was being considered for cancellation under s 116(1)(e)(i) of the Act and that he was invited to comment on this ground for cancellation and to give reasons why the visa should not be cancelled. The applicant responded to this invitation on 23 March 2019. The applicant's response emphasised his time spent in Australia (as distinct from New Zealand) and his "loving mother, father and 3 siblings in Melbourne". The applicant explained that he was "not ready to leave my family and fend for myself". On 30 April 2020, a delegate of the Minister cancelled the visa under s 116(1)(e)(i) of the Act. On 8 May 2020, the applicant applied to the Tribunal for review of the cancellation decision. The application was supported by a written statement from the applicant. On 24 February 2021 the Tribunal wrote to the applicant inviting him to attend a hearing via telephone, scheduled on 10 March 2021. On 26 February 2021, the Tribunal wrote to the applicant inviting him to comment on the validity of a certificate issued by the Department of Home Affairs (the Department) on 25 May 2020 under s 375A of the Act regarding the disclosure of certain material held on the applicant's file with the Department which (according to the certificate) "may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods". The applicant was invited to respond by 9 March 2021 but did not take up this opportunity. On 10 March 2021, the applicant attended the hearing and later on the same day, the Tribunal affirmed the delegate's decision to cancel the visa. The Tribunal identified the issue before it as whether the ground for cancellation of the applicant's visa was made out and if so, whether the visa should be cancelled on discretionary grounds. The Tribunal was satisfied that the ground for cancellation in s 116(1)(e) did exist. Its reasons are encapsulated by what is said at [12], being: [12] The Tribunal finds that the applicant had been convicted of multiple offences since around 2018. The Tribunal places significant weight on the fact that many of the offences appear to involve violence towards others, such as attempted armed robbery, assault and assault with a weapon, carjacking and intentionally causing injury. The seriousness of these offences is reflected in the fact that the applicant had been given a custodial sentence and in relation to the most recent offending, the sentence is a lengthy one of four and a half years imprisonment. The Tribunal also finds it significant that despite the earlier offending and sentencing, the applicant continued to re-offend. The Tribunal has formed the view that the applicant has little regard for the law and the welfare of others. The Tribunal acknowledges that the applicant will be incarcerated for some time but given his past conduct and repeated offending despite past incarcerations, the Tribunal is not satisfied that the imprisonment would act as a strong incentive for the applicant to change his conduct. The Tribunal is of the view that there is a real risk that the applicant may re-offend in the future. The Tribunal finds that the applicant's presence in Australia is or may be a risk to the safety of the Australian community. The Tribunal also found that, for discretionary reasons, the visa should be cancelled. In reasoning to this conclusion, the Tribunal addressed itself to the matters identified in the Department's Procedures Advice Manual "General visa cancellation powers". 6 The application for judicial review was filed in the FCFCOA in December 2021, and heard before the primary judge on 8 August 2022 and 18 October 2022. On 25 January 2024, the primary judge published the judgment and made orders dismissing the application for judicial review. 7 The judgment considered two grounds for judicial review which were raised by the appellant, namely that: (a) the Tribunal misconceived the notion of "best interests of the children" in that it failed to appreciate that the best interests of the appellant's siblings would see him remain in Australia; and (b) the appellant had been denied a fair hearing as required by s 360(1) of the Act given the prejudicial effect of material that was the subject of the certificate issued by reference to s 375A of the Act on 25 May 2020 (the certificate). 8 The first ground was directed at [26]-[27] of the Tribunal's reasons. The ground for review was dismissed by the primary judge for reasons which are not relevant to this appeal. 9 In relation to the second ground, the initial question for determination by the primary judge was whether the certificate was, in fact, invalid. The appellant accepted that his argument would fail, as a threshold issue, if he was unable to establish that the certificate was invalid. 10 Section 375A of the Act, under which the certificate was issued, relevantly provided: 375A Certain information only to be disclosed to Tribunal (1) This section applies to a document or information if the Minister: (a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or 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 375(a) or (b)); and (b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal. (2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies: (a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. 11 The certificate was issued to the Tribunal by the Department on the stated basis that disclosure of the relevant documents would be contrary to the public interest because the information in the documents might disclose lawful methods of preventing, detecting and investigating breaches or evasions of the law which would, or be likely to, prejudice the effectiveness of those methods. 12 The documents referred to in the certificate were tendered by the Minister and admitted into evidence before the FCFCOA. The key issue contained in the documents was allegations that the appellant was involved or associated with a gang. It is primarily this allegation which the appellant argues that he was not informed of or provided a specific opportunity to respond to, and therefore, which resulted in him not receiving a fair hearing before the Tribunal. 13 On review of the underlying information disclosed by the certificate material, the primary judge found that the certificate was invalid, stating at [50] of the judgment: [H]aving reviewed the entirety of the certificate material and noting that the matters and information conveyed by the material reaches its zenith in the passages reproduced at [47] above, I cannot be satisfied that a probative, rational or logical basis emerges to support the public interest justification given. The references to the applicant having alleged links to a Melbourne youth gang do not identify methods for preventing, detecting or investigating breaches or evasions of the law even if there was evidence to support the drawing of the inferences that the Minister suggested could be drawn from that information. I find therefore that the certificate is invalid. 14 In the appeal before me, the Minister did not seek to argue that the primary judge's findings in this respect were incorrect. It is therefore now common ground between the parties that the certificate was invalid. 15 While the primary judge determined the certificate was invalid, her Honour nevertheless found that the ground for review should be dismissed. Her Honour was, firstly, not persuaded that the Tribunal had, in fact, read the material behind the certificate. Her Honour also determined that even if the Tribunal did read the relevant material, the Tribunal did not take the certificate material into account when making its decision, and therefore did not fail to afford the appellant a fair hearing under s 360(1) of the Act. 16 On 20 February 2024, the appellant lodged the notice of appeal from the judgment. The notice of appeal identified three grounds for appeal, being: (a) ground 1 – the Tribunal misconceived the notion of "best interests of the children" in that it failed to appreciate that the best interests of the appellant's siblings would unambiguously see him remain in Australia; (b) ground 2 – the Tribunal failed to consider the legal consequences of its decision, being the application of special return criteria 5002, resulting in a one-year ban, and public interest criterion 4013, applicable to any future visa applications by the appellant; and (c) ground 3 – the appellant did not receive a fair hearing as required by s 360(1) of the Act, given the prejudicial effect of the certificate material in the mind of the Tribunal, even if the effect was only subconscious. 17 In the appellant's written submissions, and in the hearing before me on 1 August 2024, the appellant's submissions referred only to the third ground. It is therefore understood that the appellant only presses the third ground of his notice of appeal. The Minister also responded to the appellant's submissions on this basis. 18 The appellant's submissions also failed to refer to the "subconscious" effect that the certificate material was alleged to have had in the notice of appeal. In response to this submission before the primary judge in the FCFCOA, her Honour stated at [91] of her judgement: Insofar as the certificate material might have created a subconscious effect I accept, for the reasons identified by the Minister in his submissions, that beyond a finding of apprehended bias (which, for good reason the applicant disclaimed reliance on) it could not establish legal error in the Tribunal decision. 19 Again, from the appellant's submissions, I understand this aspect of the third ground of appeal is not pressed. Consideration 20 As identified above, it is common ground that the certificate was invalid. Under the ordinary principles of natural justice, a person likely to be affected by a decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports their interests. That entitlement extends to the right to rebut or qualify adverse material from other sources put before the decision maker, and to require a decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made: see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; HCA 63 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), referring to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; FCA 1074 at 591-592 (Northrop, Miles and French JJ). 21 The appellant was not informed of the allegations that he was suspected of being involved or having associations with a gang which were contained in the certificate material. It is, in effect, the failure to notify the appellant of these allegations which the appellant argues has resulted in him not being afforded a real and meaningful hearing under s 360(1) of the Act since he did not have an opportunity to respond to the allegations contained in the certificate material. The appellant argues that the allegations were highly prejudicial, and went to the issue of his criminality and prospects for rehabilitation, which were key issues in the Tribunal's review. 22 The Appellant's case relies on establishing, on the balance of probabilities, that: (a) the Tribunal read the certificate material; and (b) the certificate material was taken into account by the Tribunal in making its decision to affirm the Minister's decision. Did the Tribunal read the certificate material? 23 The appellant's argument that the Tribunal did, in fact, read the certificate material, relies primarily on a document that was produced by the Tribunal to the FCFCOA on subpoena. The document is a screenshot of an application which recorded the Presiding Member of the Tribunal requesting a member of the NSW Member Support Team to provide the appellant with a copy of the certificate and to invite comments from the appellant on the certificate's validity. 24 An invitation to provide comments or submissions as to the validity of the certificate, dated 26 February 2021, was sent to the appellant alongside a copy of the certificate itself. The appellant did not take up the invitation. 25 The appellant argues, by reference to the screenshot, that the only reason the Tribunal would ask the appellant to make submissions as to the validity of the certificate is if the Tribunal had formed the view that the certificate was valid, or at least, might be valid. Further, the only way in which the Tribunal could have formed that view was if it had read the certificate material, since the validity of the certificate required an assessment of the public interest reason stated in the certificate against the underlying certificate material. 26 The appellant also refers to s 375A(2) of the Act which refers to certificate material being provided by the Secretary to the Tribunal "pursuant to a requirement of or under this Act". The Secretary provides the certificate material to the Tribunal pursuant to the obligation under s 352(4) which requires the Secretary to give the Tribunal all documents considered by the Secretary to be relevant to the review. The appellant submits that it is difficult to imagine why the Tribunal would not, in the usual course, read the material which was given to it by the Secretary specifically on the basis that the Secretary thought it to be relevant to the review. 27 I am not persuaded by the appellant's submissions. In my view, there is no error in the conclusion reached by the primary judge in that the appellant cannot establish that the Tribunal actually read the certificate material. 28 I agree with the primary judge that it is appropriate to accept, by reference to the fact that the Presiding Member requested the appellant be provided a copy of the certificate and invited to comment on the certificate's validity, that the Tribunal read the certificate. However, I do not accept that any further inference can be drawn from this alone, and therefore, I am not prepared to accept that the Tribunal did, in fact, read the underlying certificate material. 29 The appellant's submission requires accepting that by inviting the appellant to make submissions on the validity of the certificate, the Tribunal had considered, at least to some extent, the validity of the certificate. In my view, the primary judge was correct in rejecting this. 30 The mere fact that the Tribunal invited submissions on the validity of the certificate does not reveal whether the Tribunal formed a view as to the validity of the certificate. The Tribunal was entitled to treat the certificate as valid and was not required to assess the validity of the certificate for itself. The most that may be inferred is that the Tribunal was aware of, and may have read, the certificate. As the primary judge stated at [61] of her judgment, it is at least equally plausible and likely that the Tribunal extended the invitation to the appellant without reviewing the underlying material. 31 The Tribunal is obliged, in the ordinary course, to disclose the existence of the certificate to an applicant so that the applicant may challenge its validity: Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; FCAFC 183 at [43]-[49] (Kenny, Perram and Mortimer JJ, as her Honour then was). This obligation arises irrespective of any determination by the Tribunal as to the validity of the certificate. Therefore, inviting the appellant to provide submissions regarding the validity of the certificate was consistent with the Tribunal's obligation, and does not, of itself, indicate that the Tribunal actually assessed the validity of the certificate in doing so. 32 Additionally, neither the invitation sent to the appellant, nor the task note, indicate that the Tribunal had, in fact, assessed or reached a view as to the validity of the certificate. 33 At [64] of the judgment, the primary judge stated that if the Tribunal read the certificate material, it would have had doubts about the validity of the certificate and said something about the matter in its reasons. The primary judge considered that the failure to refer to the certificate or the certificate material in the Tribunal's reasons actually lent weight to the argument that the Tribunal did not, in fact, read the certificate material. The appellant submits that this reasoning is incorrect as inviting submissions as to validity presupposes that the Tribunal considered the certificate to be valid. Again, for the reasons already provided, this submission is rejected. 34 The appellant also made submissions relying on the Blatch v Archer maxim and the presumption of regularity. I do not consider that these principles assist the appellant's case. Was the certificate material taken into account? 35 Given that the appellant cannot establish that the Tribunal read the certificate material, the appeal must be dismissed. Nevertheless, akin to the approach taken by the primary judge, I have considered what follows if I am incorrect in this respect and the Tribunal should have been considered to have read the certificate. 36 As outlined above, the appellant must also establish that, having read the certificate material, the certificate material was taken into account by the Tribunal in making its decision to affirm the Minister's decision. To the extent the material was not taken into account by the Tribunal, it cannot be argued that the failure to notify the appellant of the information contained in the certificate material resulted in the appellant not receiving a fair hearing under s 360(1) of the Act. In other words, it could not be argued that the breach of procedural fairness was material such to have resulted in jurisdictional error. 37 In the Tribunal's reasons for its decision to affirm the Minister's decision to revoke the appellant's visa, the Tribunal made no reference to the certificate, or the information in the certificate material, namely the appellant's alleged involvement in youth gangs. 38 The appellant accepts that it may usually be accepted that where an administrative decision maker does not mention something in their reasons, the proper inference is that the matter was not material to their decision. However, the appellant submits that such an inference is not available in the present scenario. Rather, the appellant submits that not referring to the certificate material was consistent with the Tribunal's obligations under s 375A(2)(b) which required the Tribunal to ensure that the relevant document or information subject to the certificate was not disclosed to any person other than a member of the Tribunal. 39 The appellant submits that the Tribunal was obliged not to say anything, both during the course of the hearing and in its statement of reasons that would disclose the document or information covered by the certificate. Therefore, the appellant submits that nothing can be taken, one way or another, from the omission of the certificate material in the Tribunal's decision. 40 I do not accept the appellant's submissions. 41 In the absence of any reference to the certificate material, the better inference to be drawn is that the Tribunal did not give weight to the certificate material in making its decision. 42 I accept the Minister's submission that if the Tribunal considered the certificate material to have been at all significant in the reasons for affirming the decision under review, it would have been open to the Tribunal to say, in general terms, that it had considered or had regard to the certificate material without breaching the obligation in s 375A(2)(b). 43 It is relevant to consider the specific obligation which s 375A(2)(b) creates. The obligation in s 375A(2)(b) requires a Tribunal to do all things necessary to ensure that the document or information subject to s 375A, the disclosure of which is certified to be contrary to the public interest, is not disclosed to any person other than the Tribunal. Therefore, the obligation under s 375A(2)(b) should not be generally understood as precluding the Tribunal from referring, in its reasons, to the fact that a s 375A certificate has been issued, that material relevant to the determination was subject to a s 375A certificate, or that the Tribunal had considered or had regard to material that was subject to a s 375A certificate. It was possible for each of the above to have been disclosed in the Tribunal's reasons without disclosing the confidential information which was sought to be protected under the certificate. 44 The primary judge accepted (at [87] of the judgment) that the principle stated by the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; HCA 3 at [47] could be transposed to the present case. In a joint judgment, Bell, Gageler and Keane JJ stated at [47] that: Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision. 45 SZMTA was concerned with s 438 of the Act. The appellant submits that the Court should be cautious when adopting reasoning in "certificate cases" which have concerned certificates under s 438 (or s 376), as the section differs to s 375A in important ways. A key difference is that under s 438(3)(a), the Tribunal has a discretion under s 438(3)(a) to have regard to the information or any matter contained in a document that is subject to s 438. Implicit in the conferral of the discretion is that the Tribunal has no power to have regard to the information or document for the purpose of making a decision on the review unless the discretion is affirmatively exercised: SZMTA at [23]. 46 A Tribunal would therefore be expected in the ordinary course to leave a document or information out of account in reaching its decision in the absence of actively considering the exercise of its discretion under s 438(3): SZMTA at [47]. The appellant's submission, as I understand it, is that in the absence of an equivalent provision in s 375A, the same inference could not be drawn in certificate cases concerning s 375A. 47 While I accept the appellant's submission that there are relevant differences between s 375A on the one hand, and ss 376 and 438 on the other, I agree with the ultimate position reached by the primary judge. As outlined above, in my view, the obligation under s 375A(2)(b) did not preclude the Tribunal from stating, in general terms, that consideration and regard was had to the certificate material in reaching its decision. In the absence of any such contrary indication, it should not be inferred, by reference to the obligation under s 375A(2)(b) alone, that the Tribunal paid regard to the certificate material. 48 Rather, to the extent that the Tribunal considered the material to be relevant to its decision, it was likely open, and perhaps incumbent, upon the Tribunal to put particulars of the information to the appellant under s 359A, to the extent it was possible to do so without disclosing the confidential information that was sought to be protected by the certificate: see Singh at [55]. 49 I further agree with the primary judge's reasoning at [88] of the judgment that the Tribunal's reasons directed at the risk of the appellant re-offending (particularly at [31] of the Tribunal's reasons) provided a self-contained, intelligible, and cogent justification for the conclusion reached that there remained a risk that the appellant would re-offend. I accept the Minister's submission that the Tribunal's findings in this respect did not depend on the certificate material. 50 In circumstances where no particulars regarding the certificate material were put to the appellant, no reference was made to the certificate or the certificate material in the Tribunal's reasons, and the Tribunal's reasons provide a self-contained and cogent justification for the decision reached, the primary judge was correct in determining that the Tribunal did not take the certificate material into account when making its decision. 51 The Minister also submitted that, to the extent the Court found that the Tribunal took the certificate material into consideration in its decision, the requirement under s 360(1) of the Act was nevertheless satisfied as the provision did not require the Tribunal to invite the appellant to give evidence or present argument specifically in relation to the certificate material. The Minister submitted that the relevant "issue" which arose under s 360(1) was the likelihood that the appellant would reoffend. This was said to be an issue that the Minister's delegate identified in their reasons, and which the appellant had an opportunity to give evidence and present argument on. It was submitted that whether or not the appellant was in a gang was not itself an "issue" for s 360(1). 52 Given the view expressed above, that the Tribunal did not consider the certificate material in its making decision, it is not necessary for the purposes of this appeal to consider these further submissions of the Minister. Disposition 53 The appeal will be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate: Dated: 22 August 2024