s 438: a different interpretation of materiality?

Federal Court: Either we have misinterpreted Hossain, SZMTA or this FCA decision involving a non-disclosure certificate issued under s 438 of the Migration Act 1958 (Cth) or, with respect, it is possible to interpret this FCA decision as deviating from Hossain and/or SZMTA in two important respects. We invite readers to email us their views on why we might have misinterpreted any of those decisions.

The Tribunal used its discretion under s 438(3)(b) of the Migration Act 1958 (Cth) to reveal to the Appellant at a hearing the existence of a non-disclosure certificate issued pursuant to s 438.

In summary, the information protected by the certificate concerned anonymous accusations that the Appellant, who had applied for a protection visa, did not fear harm and was an economic refugee.

The Tribunal put to the Appellant only the first aspect of those accusations, namely that she did not fear harm, but not the second, namely that she was an economic refugee.

The Tribunal affirmed the decision to refuse the Appellant a protection visa and its reasons included a passage saying that the Tribunal had not relied on those accusations as they were not "credible or relevant".

The questions to the Federal Court (FCA) were as follows:

Question 1: What is the test for determining whether there was breach of procedural fairness related to the existence of a valid s 438 certificate?

Question 2: Is 424A subject to s 438?

Question 3: Even if the answer to Question 2 is "yes", can it be said that there was a failure to comply with ss 424A(1)(a) and 424A(2) in that, once the Tribunal decided that information "the subject of s 438 was to be disclosed pursuant to s 438(3)(b) but failed to disclose part of that information", "s 438 did not prevent the Tribunal from complying with s 424A(1) and giving to the now-Appellant 'clear particulars' of the allegation as to her being an 'economic refugee'"?

Question 4: In SAAP, the High Court had decided that non-compliance with s 424A necessarily amounted to jurisdictional error. In other words, according to the decision in SAAP, whether or not the steps required by s 424 "would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point". Can SAAP be reconciled with the materiality test in SZMTA and Hossain?

Question 5: Could the disclosure of the accusations that the Appellant was an economic refugee "realistically have resulted in a different decision"?

The FCA answered those questions as follows:

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