Federal Court (Full Court): although the Tribunal informed the Appellant about the existence of confidential information, it did not inform her about the existence of a non-disclosure certificate; that was an error; the question was whether that error was jurisdictional; that depended, to some extent, on whether the Appellant should have have requested further detail of the confidential information that was not covered by the non-disclosure certificate
Summary and discussion
The Department cancelled the Appellant's partner visa under s 109 of the Migration Act 1958 on the basis that it had found the Appellant had provided incorrect information. The information said to be incorrect was that the Appellant had lived with the sponsor during a certain period of time.
The Appellant applied for review of the Department's decision to the Tribunal. The Department gave the Tribunal a non-disclosure certificate under s 375 of the Act, along with confidential information protected by that certificate. Other pieces of information were also provided to the AAT by the Department, although those other pieces were not protected by the certificate.
In essence, both the protected and non-protected pieces of information were treated as confidential by the Tribunal and suggested that the Appellant had not lived with the sponsor.
The Tribunal did not inform the Appellant about the existence of the certificate, but did inform her through a s 359A (natural justice) letter that it had received confidential information from different sources suggesting she had not lived with the sponsor, without disclosing the content of the confidential information.
Presumably, the existence of the certificate was only discovered (or confirmed) following an application to the Federal Circuit Court (FCCA) for judicial review of the AAT's decision. The FCCA application was dismissed and the Appellant appealed from the FCCA's decision to the Federal Court (FCA). The appeal was heard by the Full Court of the FCA (FCAFC).
Essentially, the Appellant made 2 arguments, as follows:
Argument 1:
The Appellant argued that the omission of the details of the non-protected pieces of information in the s 359A letter amounted to jurisdictional error. The FCAFC held that the natural justice letter's details had subsumed the non-protected pieces of information by informing the Appellant about the existence of evidence that suggested that she had not lived with the sponsor. As a result, the FCAFC held that the Tribunal complied with s 359A letter and Argument 1 failed.
Argument 2:
The Appellant argued that, had she been notified of the existence of the non-disclosure certificate, that 'would have permitted her lawyers to have requested the Tribunal to disclose, consistently with Burton at [40], information that was not covered by the certificate', that is the non-protected pieces of information.
Based on SZMTA, it was not in dispute that the fact that the AAT did not inform the Appellant of the existence of a non-disclosure certificate (as opposed to the content it protected), amounted to a legal error. The question was whether that error was jurisdictional.
The FCAFC observed that the error was only jurisdictional if, had it not been made, it could have resulted in a different outcome (see the materiality test in Hossain and SZMTA).
It was not in dispute that it was open to the Appellant 'to have requested [from the Tribunal] further detail of the confidential information, to the extent the Tribunal was permitted to disclose it'. It was also not in dispute that the Appellant did not make that request to the Tribunal.
The question to the FCAFC was whether the non-disclosure of the non-protected pieces of information gave rise to a practical injustice, depriving the Appellant of the opportunity to make submissions in that respect and to obtain a different outcome, despite the fact that the Appellant could have, but did not, make a request for the Tribunal to disclose the content of the non-protected pieces of information. In other words, did the lack of such a request render the AAT's error non-jurisdictional?
The FCAFC held that ...