ABT17 v Minister for Immigration and Border Protection & Anor

[2019] HCATrans 207

[2019] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M65 of 2019

B e t w e e n -

ABT17

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 OCTOBER 2019, AT 10.18 AM

Copyright in the High Court of Australia

MS M.A. SCHILLING:   Your Honours, if the Court pleases, I appear on behalf of the applicant with my learned friend, MR A.N.P. McBETH.  (instructed by Clothier Anderson Immigration Lawyers)

MR G.A. HILL:   Your Honours, I appear for the first respondent.  (instructed by Sparke Helmore)

NETTLE J:   There is a submitting appearance for the second respondent.  Yes, Ms Schilling.

MS SCHILLING:   Thank you.  Your Honours, this appeal raises two important points of legal principle which require clarification from the High Court.  Each of those points makes this matter, in our submission, a suitable vehicle for a grant of special leave.  The first points of legal principle which is raised by proposed ground 1 of the amended application concerns the relationship between the principles of procedural fairness and the legal standard of reasonableness attending discretionary decision‑making.  The question at the heart of this issue is what is the role or overlap between the principles of procedural fairness and the standard of legal reasonableness when construing the legal boundaries of the exercise of the procedural discretions arising under Part 7AA of the Migration Act, including section 473DC of the Act. 

The applicant contends that the Court should endorse the principle that in construing a procedural discretion such as section 473DC the purpose of the statutory power should inform the identification of the standard of legal reasonableness.  In this case, the purpose of the power in section 473DC is to provide a measure of procedural fairness and an opportunity to be heard within a regime in which that opportunity is otherwise strictly curtailed.  Accordingly, the principles drawn from procedural fairness should inform the extent to which an applicant should be given a reasonable opportunity to be heard. 

We say that the first point of principle has implications beyond the correct construction of section 473DC having relevance to the identification of the implied standard of reasonableness in relation to procedural discretions more broadly.  The second point of legal principle which is raised by proposed ground 3 of the amended application concerns the correct role of materiality in assessing whether an unreasonable exercise of discretionary power will result in jurisdictional error.  We say that there is a need for clarification of the Court – by this Court of the scope and application of the principles identified in SZMTA and the case of Hossain.  That need is demonstrated by differences of opinion within the Federal Court on this issue.

On this point, we contend that the Court should endorse the proposition that the question of materiality is bound up with the characterisation of an exercise of a power as legally unreasonable with the result that no separate assessment of materiality need occur for a finding of jurisdictional error.  There is a third point of legal principle raised by this appeal which is set out in ground 2.

NETTLE J:   I suppose that last ground that you have just mentioned is really perhaps foreclosed by the majority’s decision in SZMTA, is it not?

MS SCHILLING:   We would say that that decision in SZMTA concerned the role of materiality in relation to procedural fairness.  It was not expressed to extend so far as the assessment of legal reasonableness.  There is a question arising as to its scope and we certainly accept that the statements of the majority in SZMTA were expressed in terms of fairly high generality.

However, there have been differing views as to the scope of those observations – of those statements, in particular, by – in the judgment of Justice Mortimer in DPI17.  Her Honour took the view that the statements did not – the ratio of the decisions in Hossain and SZMTA did not require a separate assessment of materiality in the case of the application of the test for legal reasonableness.  In her Honour’s view, the test for legal reasonableness involved an inherent assessment in itself of the question of materiality so that no separate assessment of materiality needed to occur.  So, there is a difference there that is evident within this Court – with the Federal Court. 

We would also note that there has been a question raised – perhaps, saying a question is putting it possibly too far ‑ the Victorian Court of Appeal in a recent decision of Chang v Neill, we have a copy here if the Court would like to see that, merely noted that the statements of the majority in SZMTA were not restricted in terms as to the types of jurisdictional error covered but noted that until clarified by the High Court they were proceeding on the basis that it did cover the spectrum of jurisdictional errors.  Their Honours footnoted the reference to Justice Mortimer’s position on that within the Federal Court.  So, we would say that there is a suggestion that the scope of the principles in SZMTA may require further clarification.

NETTLE J:   Thank you.

MS SCHILLING:   Your Honours, I would like to just briefly address, first of all, ground 1 which is our ground ‑ ‑ ‑

GORDON J:   Sorry, did you wish to say anything about ground 2?  I think we cut you off.  Are we finished that?

NETTLE J:   I think I cut you off, I am so sorry.

MS SCHILLING:   I think that is probably the nub of the argument and that is as high as we can put it really.  We would say that Justice Bromberg below did proceed on the basis of his understanding of the majority in SZMTA and there is a question there that is raised in this appeal.

Now, going then back to the first point of principle which we would probably say is our strongest point of principle here, that is the question of the relationship between legal reasonableness and procedural fairness in the case of procedural discretions.  I will just briefly, if I may, highlight several of the relevant facts that arose in this matter. 

The applicant here applied for a temporary protection visa on the grounds, among others, that he had a well‑founded fear of persecution by reason of his Tamil ethnicity.  A central feature of his claim was that he had been repeatedly detained and subject to repeated physical assaults at the hands of the Sri Lankan army.  The applicant attended an interview with the Minister’s delegate.  At the delegate’s request, the applicant showed the delegate the scarring on his back which he said was the result of those assaults.

At the interview, the applicant gave evidence that he had been subjected to sexual torture at the hands of the SLA.  He also gave evidence as to why that information had not been provided earlier.  The delegate accepted that evidence as plausible.  Justice Bromberg below found, correctly, in our respectful view, that the delegate’s acceptance of the applicant’s evidence as plausible encompassed the evidence of physical assaults and sexual torture.  His Honour also found that the discretion to obtain new information under section 473DC was not affirmatively exercised. 

Obviously, the position here is that the IAA went on to reject those accounts of the applicant’s claims in respect of the physical assaults and his detention, including the claims relating to his sexual torture.  We say that having regard to the purpose of section 473DC(3) and the factual circumstances of this case, it was legally unreasonable for the IAA to fail to exercise the discretion under section 473DC(3) to invite the applicant to give new information in the form of an interview.  We reached that conclusion by a process of statutory construction which discloses the point of legal principle which, we say, warrants the grant of special leave. 

We start from the proposition that the presumption of reasonableness is applicable to the exercise of the procedural discretions conferred by Part 7AA of the Act.  That proposition was established by the case of M174.  The next proposition that is relevant is that the content of the standard of legal reasonableness is to be assessed in light of the terms, scope, purpose and object of the statute in question.  Again, those propositions are well established by SZBFW and by the case of Li where Justices Hayne, Kiefel and Bell said that the legal standard of reasonableness must be the standard indicated by the true construction of the statute.

We then turn to the express purpose of the power in section 473DC which is to provide an opportunity to be heard when the circumstances of the case require it within a system of review where procedural fairness is otherwise excluded by 473DA, as this Court found recently in the case of BVD17. 

The question, then, in determining whether the power has been exercised reasonably is whether a reasonable decision‑maker would conclude that the purpose of the power that an applicant have an opportunity to be heard has already been met at the delegate stage and, therefore, does not require further exercise of the power under 473DC.  This, we say, requires the exercise of the power to be examined by reference to procedural fairness principles, not because there is an inherent link between procedural fairness and all examples of unreasonableness, but because the purpose of the power in this case was to ensure a measure of procedural fairness.  In that sense, the lens through which the IAA needed to consider the exercise of the 473DC discretion was thus whether the exercise of that power was necessary to ensure that the decision was made fairly in the circumstances.

We say that BVD does not stand in the way of this analysis.  What the Court has said recently in that case is that the purpose of the exhaustive statement provision in 473DA(1) is to codify the incidence of the authority’s acknowledged obligations of procedural fairness.  That codification includes the power in 473DC.  Although, as determined in BVD17, 473DA(1) precludes the implication of other procedural fairness obligations other than those referred to in 473DA(1).  It does not mean that the standard of legal reasonableness in the exercise of those codified procedural fairness obligations should not be informed by the principles of procedural fairness if the true construction of the statute supports that construction.

At paragraph 34 of BVD17 the Court has averted to the overlap between procedural fairness and reasonableness.  The Court did that in the context of the exercise of the discretion under section 473GB(3).  What the Court said there ‑ and I will just read this briefly ‑ in analysing the consequences of the codifying effect of section 473DA said that:

The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.

Consistent with the earlier conclusion of the Full Court in BBS16, the entirety of the content of the Authority’s obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3).

We say those propositions apply equally to the outworkings of the discretions conferred on the Authority under DC(3).  That leads us to the question of legal principle that arises which is what is the extent of the overlap between the principles of procedural fairness and reasonableness and how should those principles inform whether an exercise of procedural discretion falls within the boundaries of legal reasonableness.  We would submit that this case presents a suitable vehicle to provide authoritative guidance on those questions.

We would say that in this case only one legally reasonable course was available to the IAA in exercising the discretion in circumstances where the delegate accepted the applicant’s claims, including the sexual torture.  The delegate saw the scarring on the applicant’s back.  The delegate reached the conclusion that the claims were plausible notwithstanding the inconsistencies in respect with which the IAA’s decision makes clear that the delegate questioned the applicant.

The inference available from those matters was that the visual evidence of scarring and the applicant’s demeanour was critical, if not decisive, to the delegate’s acceptance of the claim.  The difficulties of which the IAA was clearly aware associated with the giving of evidence in relation to sexual torture, and in the circumstances of this case we say those matters – the IAA should have been aware that a critical, if not decisive, aspect of the evidence before the delegate, namely, the applicant’s evidence of scarring and demeanour, was not available to her.

Given the nature of the claims made regarding sexual torture and serious physical assault, the IAA acting reasonably should have concluded that the discretion under section 473DC should have been both considered and exercised to ensure that that critical aspect of the evidence was considered by the IAA before making its determination of the review.  We would say that the purpose of the power would not otherwise have been served.  In any event, in our submission, the IAA’s reasons, and in particular paragraph 23 of those reasons, demonstrate that the IAA was alive to matters which would have affected the applicant’s ability to be heard in relation to the sexual assault. 

The IAA noted that the quality of the hearing the applicant had had before the delegate on this sexual assault claim was potentially seriously compromised because of a cultural taboo, the difficulty of the subject matter and the fact that all other persons in the room were of the opposite gender.  But, nevertheless, the IAA disbelieved his account as given in the audio recording of that compromised hearing on the basis of the applicant’s hesitancy to elaborate on his account.

In those circumstances, having noted those concerns, we say a reasonable decision‑maker would not have departed from the delegate’s findings without inviting the applicant to an interview at which it could be confident of giving the applicant a meaningful hearing that was not compromised in the same way.  For those reasons, we contend that the applicant has good prospects on the appeal in relation to this ground.

Your Honours, the remaining ground arises under ground 2 and this turns on Justice Bromberg’s finding at paragraph 25 of his Honour’s judgment, to the effect that it was essential for a finding of unreasonableness for the court to be first satisfied that the IAA failed to consider exercising the discretion.  We would say that that is an incorrect statement of the proper approach to the reasonableness analysis which would have permitted a conclusion to have been reached that the exercise of the power was unreasonable notwithstanding ‑ ‑ ‑

NETTLE J:   That reasoning has got some Full Court support behind it somewhere, has it not?

MS SCHILLING:   Yes, there is an endorsement of that in the case in our footnote to that proposition, ASB17 v Minister for Home Affairs, that is at footnote 9 of our ‑ ‑ ‑

NETTLE J:   So, that is the view now generally followed in the Federal Court, is it, that there is no lack of reasonableness if it is not apparent that the Tribunal did not fail to consider the possibility of exercise of the power?

MS SCHILLING:   Your Honour, I apologise, I did not hear the start of that question.

NETTLE J:   I beg your pardon.  Is that the general view now taken in the Federal Court, the ASB view that there is no lack of reasonableness if it is not demonstrated the Tribunal did not turn its mind to the question?

MS SCHILLING:   I will just confirm with my junior.  My learned junior informs me it is hard to say, there has not been sufficient cases to confirm whether that is indeed the position, but it is informed by the recent decision of BVD given that the Court there has held that there is no obligation on the IAA to state in the reasons whether the discretion – whether the exercise of the discretion was considered or not.

So, in those circumstances, it is an almost impossible hurdle for an applicant.  But, in any event, we would say that it does not properly reflect the way in which the test for legal unreasonableness should be applied and it is not necessary ‑ if a failure to consider can be identified that is one thing but that does not preclude a conclusion that there has been an unreasonable failure to exercise the discretion from the fact of its non‑exercise. 

GORDON J:   It may be that the facts themselves dictate that ‑ as I understand from your ground 1, the facts themselves would require it so, therefore, the fact that they have not or have not referred to it is sufficient.  Does ground 2, therefore, add much to ground 1?

MS SCHILLING:   Exactly, yes.  But possibly, it is a more minor point; I accept that, your Honour, yes.

NETTLE J:   Except to say it does not add much?

MS SCHILLING:   Well, we would say that it is an incorrect statement of principle which is potentially apt to mislead and so perhaps it is not a central part, so, yes, perhaps it does not add a great deal, no.  Certainly ground 1 proceeds on the premise, yes, that legal unreasonableness can be found without finding that intermediate step.  So, yes, it does not add a great deal.  We accept that, your Honour.

NETTLE J:   Thank you very much, Ms Schilling.

MS SCHILLING:   The only final point that I would make, your Honours, relates to our alternative ground in relation to the materiality point.  It has been put against us that Justice Bromberg’s conclusion on the materiality point is an impediment to the grant of special leave as there was an alternative basis for the IAA’s conclusion arising from the findings as to – based on the country information.  As we have set out in our amended application, we think that, with respect to his Honour, that conclusion was plainly wrong.  It is quite apparent that the assessment of likelihood of risk

to the applicant if he were to be returned rested on a number of matters, an essential one of which was the applicant’s profile.

NETTLE J:   No, I think we have got that point, thank you.

MS SCHILLING:   Thank you.  Thank you, your Honours.  Unless there is anything further.  Thank you, your Honour.

NETTLE J:   Thank you very much.  Mr Hill.

MR HILL:   Could I start with that last point, your Honours, because it is the Minister’s view, is that unless the applicant could overturn that finding on materiality of any error then any important question of principle raised by ground 1 will not be necessary to decide.

NETTLE J:   Would that be so if, as is contended, as I understand it, materiality is not the same relevant consideration in relation to unreasonableness that it is or has been said to be in relation to procedural fairness?

MR HILL:   Your Honour is quite correct.  My submission just put is on the assumption – and which I say is correct, SZMTA sets out a statement of general principle which applies to all categories of jurisdictional error.  In fact, as my learned friend correctly said, even on Justice Mortimer’s approach ‑ so hers is a dissenting judgment.  What your Honour understands from our outline is that her Honour participated in another Full Court judgment saying that materiality is irrelevant to the ground of illogicality and irrationality.  We say, well, it would be at the very least untidy.  There is no reason why materiality would be relevant to one of those grounds but not the other.

NETTLE J:   Perhaps not to any.

GORDON J:   That is the question.

MR HILL:   I appreciate, of course, that your Honours take a certain view of this but if I can say this with the utmost of respect, as things stand that is a minority view, which is why I say that it is correct for me to say that the point of principle sought to be raised is contrary to the majority view in SZMTA.

GORDON J:   What do we do about the decision of the Full Court of the – I am sorry, the Court of Appeal of the Supreme Court of Victoria?

MR HILL:   I say that – that raises no doubts at all.  Consistently with what I have said, their Honours say their observations in Hossain and SZMTA as to the role were not confined to any particular type of jurisdictional error. 

GORDON J:   Until it is clarified.

MR HILL:   Well, they say subject to any clarification, and no intermediate judge worth their salt would ever discount the possibility of this Court clarifying any area of the law, but my submission to your Honours is that there is no need for clarification on the existing state of authority because it is entirely clear that materiality is a requirement that applies to jurisdictional error generally, including an assessment of legal unreasonableness.

As Justice Mortimer would say, yes, materiality is relevant in deciding whether there is unreasonableness at all, in which case his Honour Justice Bromberg was correct to consider materiality, it is just that rather than saying it is provisionally unreasonable but that error was not material, he would have said the question of materiality shows that there was no unreasonableness to begin with.  So, either way, one is looking at materiality.

I was going to take the Court briefly to what is in the IAA’s decision to say why I say his Honour was correct to say the findings at paragraph 33 of its decision were not bound up with the findings or the rejection of the applicant’s account.  The short point is that if your Honours look at paragraphs 30 and 31 of the IAA’s reasons and the country information referred to ‑ ‑ ‑

NETTLE J:   Paragraphs 30 and 31?

MR HILL:   Yes, so what 30 and 31 say ‑ ‑ ‑

GORDON J:   Is this because this assessment comes after the IAA’s assessment of the country information, is that the point?

MR HILL:   No, it is the assessment – or this is the relevant assessment of country information.  What your Honours see is that the country information assessment starts at paragraph 26 but the relevant part that I want to focus on is the reference in the 2012 guidelines at paragraph 30:

certain real or perceived links with the LTTE continue to expose individuals to treatment which may give rise to a need for protection.  However, there is nothing to support a finding that all Tamils are imputed with LTTE affiliation or membership . . . that even those Tamils who lived within LTTE‑controlled areas and had contact . . . are not, without more, in need of protection.

So, in 31, a key finding is the applicant’s evidence.  So, even on the applicant’s own case is:

that neither he nor any member of his family was a member of the LTTE or supported the LTTE.

His case was his brother was detained for two years but the applicant was not questioned in any detail about the brother or his suspected affiliations.  Then what the IAA says:

While I accept that the applicant has experienced some incidents of monitoring and harassment –

Now, of course, my learned friends would say, well, that is an implicit rejection perhaps but what it does say I am not satisfied ‑ ‑ ‑

GORDON J:   Implicit rejection by the IAA?

MR HILL:   Of the more serious claims.  But what it does say, he does not have a profile:

because he would be perceived as an LTTE supporter on the basis of his ethnicity, the fact that he originates from the north of Sri Lanka or his brother’s detention on suspicion of LTTE involvement.

NETTLE J:   Mr Hill, could I ask for your assistance?  Under this new rendition of materiality as it emerges from the majority in SZMTA, is it still a test of realistically, it could possibly have made a difference or is it now something laxer than that?

MR HILL:   No, no, that is the test.  I would accept that because the Court does not engage in merits review to say would a decision‑maker have reached the same decision?  Of course it has to be could the decision‑maker have reached a different possibility?  But what I stress in partial answer to your Honour is that you look at the findings actually made, you do not assume that the decision‑maker starts with a blank slate and undertakes a whole assessment again.  You ask me that question of could it have realistically made a difference in the light of findings made.

NETTLE J:   Is it not possible, realistically possible, that if one were persuaded that the man had been subjected to sexual torture in the way alleged that it might change one’s perception of the likelihood, notwithstanding the improvements in the country information, that he would still be subject to problems if he were returned?

MR HILL:   I would say not, your Honour, and the reason I say that is because – of course, it all depends on the circumstances, in some cases that might be exactly.  Could I briefly take the Court to paragraph 15 because this is the central matter, the sexual torture, and all I say is this:  if your Honours have a chance to read through paragraph 15, what you will see is the instigating event for his claim of detention in May 2011 is nothing to do with the LTTE at all, it is this man protecting his sister and pushing the officer away and he is beaten and it was indicated for having pushed the officer. 

So, what I say is that the country information referred to in paragraph 38 is saying the danger is not people who have been harassed, even seriously harassed, if you accepted the claim in May 2011 does not really – is not sufficient to call it harassment but, nonetheless, my submission is it has got nothing to do with affiliation with the LTTE and the country information turns on that.  They are the people who are now subject to harassment, is former LTTE people.  Now, that point emerges even more clearly from the delegate’s decision which refers to the 2012 guidelines.  I have a copy of the delegate’s decision if the Court is interested in looking at it but in 20 minutes it might be the Court’s time is better spent doing something else.

NETTLE J:   Yes.

MR HILL:   So, the short point on ground 3 is that his Honour Justice Bromberg was correct to say there is country information which referred to affiliation with the LTTE, be it the matter that exposes one to risk now, and my submission that even the applicant’s own claims are not about affiliation with the LTTE, it is a rather severe mistreatment of him because he is a Tamil, because he is a Tamil in the northern part of the country.  That is why I say this country information provides an independent basis of support.

On ground 1, of course I accept that the interrelationship between unreasonableness and procedural fairness in the appropriate case raises important questions of principle.  What I say, though, is there is not a basis in the facts actually found to support the argument my learned friends put.  They say, they accept my point which is it cannot be that an interview is required whenever there is a decision based at least in part on demeanour which is the phrasing his Honour Justice Bromberg used at reasons 24.  My learned friends say in their reply submissions, no, no, their argument says you need an interview if a decision is substantially based on demeanour.  What I say is, there is nothing in the delegate’s reasons to show that it was substantially based on reasons, and again I could hand the Court ‑ ‑ ‑

GORDON J:   Based on reasons or demeanour?

MR HILL:   Sorry, on demeanour.

NETTLE J:   Is it not the IAA’s decision we are worried about?  Is it their decision ‑ ‑ ‑

MR HILL:   No, your Honour, because the argument is can you depart from a decision that was primarily based on demeanour without yourself having regard to the applicant’s demeanour.

GORDON J:   Is it demeanour or is it more than demeanour?  If you look at the ‑ we do not have the delegate’s decision, but if we take ‑ ‑ ‑

MR HILL:   I can give your Honour ‑ ‑ ‑

GORDON J:   No, I do not want it, but if we take what is in front of the Authority, it is, as I read it, hesitancy on the part of the applicant at the time of giving evidence.  It is the exposure of the physical evidence which was not before the IAA, so it is more than demeanour, is it not?  It is facts ‑ ‑ ‑

MR HILL:   Using demeanour to describe those things that are not apparent from ‑ ‑ ‑

GORDON J:   Well, it is more than demeanour.

MR HILL:   That is what my learned friend says though.

GORDON J:   Well, it may be but I think it is a misdescription of what it was that we are dealing with.

MR HILL:   Because what I would say, your Honour, if one looks at the position of IAA one would say is the information it has a sufficient basis to reach the decision it did and I would say, yes, it is.

GORDON J:   That is not the question, is it?

MR HILL:   The reason that there is any question is because it reaches a different decision from someone who had more information than they have.  That is why I say the point of comparison is:  is the delegate’s decision substantially based on demeanour such that if you wanted to part from the credibility findings they made you need to have an interview yourself.

GORDON J:   That would be right, I accept, to a point, but here you had IAA doing something else.  It is actually changing and reaching a different conclusion by rejecting things which are accepted by the delegate.

MR HILL:   Now, all I want to say, your Honour, clearly that is true.  As your Honours know, this Court has said that the IAA conducted de novo review, so there is no necessary difficulty with it reaching a different view from the delegate based on the same material.  In my submission ‑ ‑ ‑

GORDON J:   It has not got the same material.

MR HILL:   Sorry, on the same papers and normally on the same material, I accept that, your Honour.  So, what I say ‑ if I can just make this point without giving your Honours the decision ‑ the delegate actually sent this ‑ just so the Court has the full facts.  This is what the delegate said.  First, it set out at page 2 of its decision, the applicant’s claims and the summary of claims do not include a claim of sexual assault.  That is the first point.  It includes the May detention.  It does not specifically in summary refer to sexual assault.  On page 3 the delegate says this:

the applicant’s evidence at the protection visa interview . . . was plausible –

It was also:

broadly consistent with country information –

concerning Sri Lanka referred to below.  That is what the delegate says.  So, in my submission, this is quite a different case from DPI17.  Your Honours would have seen the facts of that case.  A delegate says in terms, I see these inconsistences but they do not trouble me, and the Full Court of the Federal Court says that decision of the delegate was primarily based on what it calls “demeanour”.  I accept the point that your Honours put to me; it is more than just demeanour.

That is why I say this case is different.  We can have arguments about the relationship between procedural fairness and unreasonableness but the factual basis for my learned friend’s argument does not arise here.  There is nothing in the record that I see from which you could say the delegate’s decision was primarily or even substantially based on matters that were not available to the Authority.

NETTLE J:   Would it be fair to say that the IAA’s decision is at least to a significant extent based on their assessment of the credibility and reliability of the applicant’s evidence?

MR HILL:   That is certainly true, your Honour. 

NETTLE J:   They have not seen him in the box, as it were, like the delegate did.

MR HILL:   That is also true, your Honour.

NETTLE J:   Their assessment of him, notwithstanding that lack of opportunity to see him give his evidence departs, in this respect, significantly from the delegate’s decision.

MR HILL:   The significance of it I might want to quibble with, but your Honour – I have to accept what your Honour puts to me.  What your Honour understands though is that my submission is that that is the scheme of Part 7AA, ordinarily review is done on the papers.  What your Honours have said in BVD17 is that – so this is where I part company with my learned friends ‑ you do not import the requirements of procedural fairness through legal unreasonableness.

So, what my submission is is that it is just a feature of the scheme that you only require a hearing when I would put it as high as this:  without a hearing the IAA is disabled from having the relevant information it needs.  Now, what I say is there can be situations if a delegate’s decision is primarily or substantially based on things that are not available to the IAA then the Authority will not have a proper or sufficient basis to depart from that decision because it will not have the essential information.

GORDON J:   It is arguably not all the material, though, is it?

MR HILL:   I say that is certainly true but that is an inherent feature of the scheme is that there will be that visual element that the delegate will have that the IAA will not have to say that the IAA needs to conduct a hearing to have all the relevant information to say the IAA needs to conduct an interview in all cases which is clearly not what the scheme is.

GORDON J:   I do not think it goes that far.  The question is whether or not the particular circumstances – the argument put against you is when one looks at the scheme of the Act whether or not the facts and circumstances are such that it compels the exercise of the discretion in a way in order to give the person an opportunity to address that which is missing. 

MR HILL:   So, your Honour, that is the point I make, that my learned friend says the purpose of this power to get information is to afford a measure of procedural fairness and I say that is to start from the wrong point.  The purpose is to ensure that the IAA has enough information to make its decision and there are situations – so what your Honours are aware of is that in M174 a situation was posited, imagine that the information that should have been provided to the person before the delegate was not.  So, the person has never seen this information.  Imagine then the IAA now has that information, the Court all but says it would be unreasonable not to give that person an opportunity to respond to that information before making a decision because they have never seen it. 

In my submission, that fits comfortably with my analysis that if it is information about the person, to accept information of that sort without giving the person a chance to respond is to proceed on unreliable, unsatisfactory information, the IAA would be disabling itself from having information on which it could make a proper decision.  In my submission, it is much too broad to say whenever the delegate has visual information that is not available to the delegate it is necessary for the IAA to conduct a hearing because, as I say, that is contrary to the scheme. 

Could I say one last point about the ground 2 just to make clear what I think the position is?  My learned friend correctly says his Honour Justice Bromberg was referring to the Full Court decision ASB17 ‑ this is my understanding to respond directly to your Honour Justice Nettle.  Often these arguments are put, the unreasonableness is a failure to consider to exercise the power.  Of course, if the argument is the unreasonableness is the failure to exercise then that is a different point.

His Honour points out, in my submission, correctly, when the argument is the unreasonableness is a failure to consider, which is often an attractive argument because it is a lower threshold, then you only get to that argument if you can show that the IAA has, in fact, failed to consider.

Now, what normally happens is if there is no indication in the IAA’s reasons it has thought about it, then the Court readily accepts that there has been a failure to consider.  In the ASB case itself there was sufficient in the reasons to make it clear the Authority had thought about it and that is why they said the onus had not been discharged.  But in the cases I have worked on at least, an argument that an applicant cannot show the IAA has failed to consider the power foundered on the rocks or there is nothing in the reasons to suggest they have ‑ ‑ ‑

GORDON J:   So you accept the proposition that ground 2 adds little to ground 1 then?

MR HILL:   I do, I say that nothing – because of that point, I just did not want your Honour Justice Nettle to think that there was more in that statement by Justice Bromberg than there is.  It is properly understood as responding to an – now…..your Honours understand, we are a little bit disabled than my learned friends and their excellent legal argument were not available before his Honour Justice Bromberg so the argument has been put in favour of the applicant were being put by me and then immediately rebutted which, of course, is a less than ideal process.

So, I had thought on his behalf perhaps the argument that would be made on his behalf is a failure to consider point and said but that would require this step and then what your Honours appreciate is that his Honour Justice Bromberg noted that point and then attached no significance to it all because his Honour decided the case on the basis of materiality.  Unless there are any other questions, your Honour.

NETTLE J:   No, thank you very much, Mr Hill.  Anything in reply, Ms Schilling?

MS SCHILLING:   Just really one short point, your Honour.  Just going to the proposition that the country findings had nothing to do with the applicant’s real or perceived association with the LTTE, the 2011 incident which was the most serious incident of detention during which course the applicant says that he was sexually tortured, that was a continuance of the incidence of detention which arose in connection with his real or perceived links.  It certainly – the suggestion is that the severity of that particular incidence arose from the particular circumstances where the applicant’s sister had been assaulted on the SLA officers coming to the house but it certainly was not a separate discrete incident that had nothing to do as a continuance.  We would reinforce that the centrality of the applicant’s profile and that can be seen also in paragraphs 25 of ‑ ‑ ‑

NETTLE J:   Could I ask you one thing.  There are a number of cases in the pipeline here, there and everywhere regarding materiality, some of which might finish up getting decided before this would if special leave were granted.  If materiality were decided by the Full High Court in one of those cases in a fashion which is adverse to your contention as to its limitations, what, if anything, would be left off this appeal?

MS SCHILLING:   We would submit that the first ground would remain on the basis that the application of the materiality analysis in this case by Justice Bromberg was plainly incorrect and we say that it is in the interests of justice that the Court would allow the special leave question on question 1 to go ahead and once that preliminary issue of the application of the test is disposed of, that question remains there.

His Honour proceeded not to complete the reasonableness analysis because of his Honour’s – in fact, his Honour’s observations about the way in which he might have approached that, indeed, supported the applicant to some degree but his Honour has applied the materiality test in a way that meant he did not need to proceed but we would submit that the special leave – sorry, the appeal would nevertheless have a proper basis on the basis that that finding which might then, in effect, present a gateway but it is plainly wrong, in our submission, and it is in the interests of justice for the Court to allow that matter to be resolved and then ‑ ‑ ‑

NETTLE J:   It would be visitation jurisdiction then and no more.

MS SCHILLING:   It would be just in respect of that one issue.

NETTLE J:   Very well, thank you.

MS SCHILLING:   Thank you, your Honour.

NETTLE J:   In this matter there will be a grant of special leave on grounds 1 and 3 only.  The parties will need to consult with the Registrar as to the interlocutory steps to be undertaken.  I am grateful to counsel for their assistance, thank you.

AT 11.03 AM THE MATTER WAS CONCLUDED