If the issue of a s 375 secrecy certificate is invalid, then the AAT’s reliance on that certificate for not producing documents to the applicant may in turn be affected by jurisdictional error. See Ahmad v Minister for Immigration and Border Protection [2015] FCCA 1038, esp [40]:
If the reason given could not sustain the public interest claim, then the Tribunal was not as a matter of law bound by the purported certificate.
In Kanagul v Minister for Immigration [2014] FCCA 1219 it was held that the evidence from a witness was not information that was ‘given’ by the applicant for the purposes of the applicant’s review. As such, and given (on those facts) that the applicant did not otherwise adopt the witness’s evidence, s 359A required the Tribunal to (re-)put the witness’s evidence. to the applicant.
There is a brief summary of the authorities on when discourteous behaviours of RRT members can amount to a denial of natural justice by reason of apprehended bias, in AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193.
On the facts in AZAEY, there was no apprehended bias. This was so, even though the Court found that on some occasions the Tribunal member did interrupt the Applicant on ‘a number of occasions’, was ‘incredulous’ towards the Applicant and raised her voice towards the Applicant. The Court also referred to a number of occasions in which the Applicant was crying, presumably as a result of the Tribunal member’s behaviour.
The Court concluded however, that when having regard to the transcript and recording of the RRT hearing as a whole, an informed person ‘would satisfactorily reach a conclusion that the Applicant had been afforded a hearing in which the Tribunal member was “open to persuasion”‘: [29]. That is the ‘governing principle’ in relation to apprehended bias: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 to 345, cited in AZAEY at [17].
At [46] of SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 the Court recited the basic principle:
The Federal Court concluded in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (‘SZQRB’) at 544-546 [200] and 546 [204] that the power of removal in s 198 could not be exercised whilst a person in detention had made claims for protection (including by way of non-refoulement) until those claims had been assessed by a process which accorded an applicant procedural fairness and which addressed the correct questions according to Australian law.
This principle arises from Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319. The assessment of non-refoulement claims is the second step of the two-step process of the Minister deciding (step one) whether to exercise certain non-compellable powers (step two) such as lifting the bar (s 48A) or granting a visa (s 195A). Procedural fairness is required in the exercise of step two: M61.
The consequence is that detention of a person who has made non-refoulement claims, but such claims are not being considered, or being considered without procedural fairness, may be unlawful: see SZSSJ [86].
This article provides a good general outline of the protection visa system, and this paper by McDonald is an excellent overview on how to identify jurisdictional error in asylum cases.
There are also some primers from training sessions run by the Law Institute of Victoria on 10 and 17 March 2016: