Peach Melba gets her head around the government's secrecy certificates ... Visa applicants not supposed to know what the government knows ... Procedural fairness ... Secret evidence ... Material and immaterial obligations to disclose ... Public interest ... AAT ... Groping for successful outcomes
The Minister for Home Affairs has the power to issue a certificate which prevents or limits the Administrative Appeals Tribunal from disclosing any matters in a document, or disclosing information to an applicant challenging a decision before the tribunal.
In effect, the tribunal can consider material relevant to the applicant's case, without revealing the content of this material to the applicant.
In the context of visa applications, undisclosed material can include unsubstantiated "dob-in" letters provided to the government, notes from the immigration file, and police records.
"Secrecy certificates" can only be issued by the federal government on two grounds: if disclosing the information to the applicant would be against the public interest, or if the information or document was given in confidence.
Barrister Adam McBeth estimated that in 2017, there were almost 500 cases in which a certificate had been issued but not disclosed to the applicant.
Under the law, the AAT is obliged to advise applicants that a certificate has been issued. The Federal Court confirmed in two decisions in 2016 that failure to disclose the existence of a certificate was a denial of procedural fairness.
In MZAFZ, the applicant was not told by the tribunal that part of the evidence before it was information received by the Department of Border Protection from a third party.
The third party alleged that that the applicant's claims about her religious beliefs, which were pertinent to her application for a protection visa, were false.
If the existence of this dob-in material is not disclosed to the applicant, they are unable to make submissions regarding the tribunal's discretion to disclose the information. Justice Beach observed that there could be cases where only the applicant's knowledge could contextualise whether the material covered by the certificate was prejudicial or advantageous.
Justice Beach found that procedural fairness required the tribunal to have disclosed the existence of the certificate, given the applicant the opportunity to make submissions on the validity of such a certificate, disclosed the extent to which the tribunal was going to take into account information covered by the certificate and whether the information was favourable, unfavourable or neutral to the application.
It may even require the applicant to be given the opportunity to make submissions on the tribunal's discretion to disclose the material covered by the certificate.
In Singh, the court observed that it would be possible in many cases to meet these procedural fairness requirements without compromising the secrecy requirements of a certificate.
Their Honours Kenny, Perram and Mortimer said:
"The fact is the existence of the certificate has an immediate and adverse impact on an applicant's entitlement to participate in the hearing."
According to Victoria Legal Aid, following MZAFZ and Singh, the government then took a different approach to litigation for non-disclosure of certificates.
It argued that the courts should hypothesise about whether it would have made a difference if the applicant had been told about the existence of the certificate and potentially about the information it disclosed.
Victoria Legal Aid represented in the High Court an Iranian asylum seeker (referred to as CZQ15) to test whether the materiality of the information covered by the certificate is relevant to the lawfulness of failing to disclose its existence.
In mid-February, the High Court delivered its judgment.
CQZ15 had applied to the tribunal for review of the department's decision in 2014 to refuse his application for a protection visa. The tribunal had received material covered by a certificate on public interest grounds.
The material "contained specific information relating to the department's 'document examination process and internal workings'." The tribunal later received a notification from the department that the information was given in confidence and that there was a discretion not to disclose it.
The tribunal affirmed the department's refusal, and the applicant sought judicial review at the Federal Circuit Court, where the minister conceded that the certificate was invalid but that the notification was valid.
He sought to tender an affidavit that the documents which were the subject of the certificate and the notification had not affected the tribunal's decision. The FCC found that such an affidavit was not admissible, a decision which the minister appealed.
The Full Federal Court found that it was open to the minister to argue that even though the tribunal had not disclosed the existence of the certificate and the notification, there was no breach of procedural fairness because the material was irrelevant to the issues to be decided.
The High Court upheld the Full Federal Court's finding. Unanimously, they thought that notification to the tribunal that information was given in confidence triggers an obligation of procedural fairness to disclose to the applicant that such a notification exists. However, the majority also found:
"Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the tribunal if, and only if, the breach is material. 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."
The High Court's decision means that breaches of procedural fairness with regards to the use of secrecy certificates by the AAT will not always render the AAT decision unlawful.
This seems to be consistent with the principle that breach of the fair hearing rule will not amount to jurisdictional error and therefore void the decision where the breach does not affect the outcome.