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What is the consequence if the Secretary of the Department does not forward to the Tribunal all documents that are relevant to a review, and the review applicant conducts her/his case on the mistaken assumption that a certain critically important document is before the Tribunal when it is actually not before the Tribunal?
Does that amount to jurisdictional error which would warrant the quashing of an AAT decision that is adverse to the applicant?
A recent decision of the Full Court, BBS15 v Minister for Immigration and Border Protection (2017) FCAFC 61 (13 April 2017) tells us that it is.
As readers will be aware, the Migration Act 1958 imposes an obligation on the Secretary to give to the Registrar of the AAT each document, or part of a document, that is in the Secretary’s possession or control and is considered to be relevant to the review of the decision.
This duty must be carried out by the Secretary “as soon as is practicable after being notified of the application” for review.
And the duty exists whether the application for review is either a “Part 5” or a “Part 7” reviewable decision of the Department: the obligation is expressed in identical wording in sections 352(4) (with respect to Part 5 decisions) and in section 418(3) (in relation to Part 7 decisions) of the Migration Act.
So what happened in BBS15I?
This was a case in which the applicant, a citizen of Iran, sought a Protection visa on the basis of his claimed conversion to Christianity.
Following an interview with an officer of the Department, the applicant’s solicitor asked him if there was anyone from his church who could provide a letter to support his account of his conversion to Christianity. The applicant then approached his pastor, who provided a letter that stated that the applicant had been baptized and that he regularly attended worship services. The applicant’s solicitor then forwarded this letter to the Department’s officer by email. The solicitor also informed the applicant that she had sent the pastor’s letter to the Department as part of his file.
Nonetheless, another officer of the Department proceeded to refuse the application for the Protection visa.
Along with the notice of the refusal of the visa application, the Department sent the applicant information concerning his right to seek merits review before the Tribunal. This information included a brochure which included a statement that: “The tribunal will ask the department to send us its documents relating to your case.”
Then, after the applicant filed an application for review of the refusal of his visa application, the Tribunal sent him a letter which stated: “We have requested that the Department of Immigration and Citizenship (the department) provide us with all documents and files which they consider to be relevant to your application.”
However, owing to an “administrative error”, the letter that had been written by the applicant’s pastor, which confirmed that he had been baptized and had been attending church services, was not provided by the Secretary to the Tribunal.
After a hearing, the Tribunal decided to affirm the refusal of the Protection visa application.
In its written reasons, the Tribunal stated that: “….no supporting letters confirming (the applicant’s) attendance and participation in Church or other Christian activities conducted by the Church were provided”.
A judicial review application was then brought (in the first instance, unsuccessfully before the Federal Circuit Court).
The primary ground of the judicial review application was that the applicant had been inadvertently misled into believing that the letter from his pastor had been provided to the Tribunal by the Department, and for that reason he had refrained from submitting a further copy of that letter to the Tribunal or otherwise seeking to be heard in relation to that letter.
While this submission did fail before the FCC, it was ultimately the basis for a successful appeal to the Full Court.
In its decision, the Full Court reviewed the case authorities relevant to situations in which the Secretary has not forwarded all documents to the Tribunal, as required by sections 352(4) and 418(3).
This case law holds that a simple failure by the Secretary to forward all relevant documents to the Tribunal does not in and of itself, without “something more” amount to jurisdictional error.
However, in BBS15, the Full Court held that such a failure is jurisdictional error when the Tribunal, even innocently, misleads an applicant to mistakenly believe that a certain state of affairs exists (specifically, that certain evidence is before the Tribunal for consideration) and that error in turn “affects the manner in which the case is conducted to the applicant’s detriment” (in this case, again, not seeking to produce another copy of the pastor’s letter confirming the applicant’s participation in events at the church).
So the lesson of this case is that if the Secretary, for whatever reason, doesn’t forward to the Tribunal all the documents that are relevant to a review, and the Tribunal sends out correspondence to the applicant which (however innocently) misleads the applicant into believing that certain critical evidence is before the Tribunal when it is actually not before the Tribunal, and the applicant then runs the case before the Tribunal on the mistaken assumption that the material is before the Tribunal, then that is a situation where jurisdictional error has occurred.
It is therefore critical for representatives assisting applicants to be keenly alert to whether all documents that were before the Department are actually also before the Tribunal.