AUS17 v Minister for Immigration and Border Protection & Anor

[2020] HCATrans 55

[2020] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S322 of 2019

B e t w e e n -

AUS17

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 24 APRIL 2020, AT 9.37 AM

Copyright in the High Court of Australia

MR J.B. KING:   May it please the Court, I appear for the applicant.  (instructed by Varess)

MR B.D. KAPLAN:   If the Court pleases, I appear for the first respondent.  (instructed by Sparke Helmore)

KIEFEL CJ:   Yes, Mr King.

MR KING:   For this application for special leave, your Honours, the applicant requires a short extension of time of one day.

KIEFEL CJ:   Is there any objection to the extension being granted?  It is explained, I see.

MR KAPLAN:   No, your Honour.

KIEFEL CJ:   The extension is granted.

MR KING:   Thank you, your Honours.  The application for special leave is put primarily as a visitation case, but also raises a question of principle of public importance.  In support of the application I read the affidavit of Farid Varess affirmed 12 December 2019, which is at application book 135. 

KIEFEL CJ:   Yes.

MR KING:   In summary, on the visitation case, the case put by the applicant is that the Federal Court misunderstood the well‑established legal principles upon which the primary judge granted relief to the applicant at first instance, with the result that there has been no appellate consideration of whether the applicant was entitled to keep the relief granted to him in accordance with those principles, and the appeal has miscarried. 

As part of that process, there has been a denial of procedural fairness in the manner explained in that affidavit, to which I will come.  I propose first to address the basis upon which the primary judge granted relief to the applicant, and then come to the Federal Court’s judgment and the error found by Justice Logan. 

The primary judge’s judgment rested principally on what is now called a well‑established line of authority beginning with the decisions of the Federal Court in BVZ16 and BBS16 with respect to the operation of section 473DD of the Migration Act.  We have collected those cases and those principles in our reply at application book 131, paragraphs 5 and 6, for convenient reference. 

The relevant proposition on which this case turned was that the Immigration Assessment Authority may be obliged to consider the matters stated in section 473DD(b) in a particular case where that is necessary for the Authority to give appropriate breadth to the phrase “exceptional circumstances” in considering paragraph (a) of that section.  Coming now to the primary judge’s ‑ ‑ ‑ 

KEANE J:   That is to say, Mr King, the considerations in (b) may also shed light on the question in (a), but they are separate questions, are they not?

MR KING:   Yes, your Honours.  They are separate questions and this Court has held that they are cumulative criteria.  Nevertheless, the line of authority to which we have referred establishes clearly, first, that although paragraph (b) need not be considered in every case as a general proposition, the circumstances of a particular case may be such that in order to give an appropriate breadth to exceptional circumstances in paragraph (a), regard must be had to matters in paragraph (b).

Especially is that so where the Authority has reasoned that the new information could have been provided to the Minister sooner and that that was not done and where that reasoning is treated as decisive of whether there existed exceptional circumstances for considering that new information or not.

KIEFEL CJ:   So, Mr King, are you saying that the matter in ground 4(b) about the understanding of what the letter actually conveyed must necessarily be understood to have potentially informed the IAA’s view about whether there were exceptional circumstances for the purpose of ground 4(a)?

MR KING:   Yes, that is my submission.  In this case that ‑ ‑ ‑

KIEFEL CJ:   If you are right about that for the purpose of ground 4, the other grounds fade into the background, do they not?

MR KING:   That is correct.

KIEFEL CJ:   That is all you need?

MR KING:   That is correct, your Honours, yes.

KEANE J:   Mr King, looking at page 7 of the application book, paragraph 10, the Authority says:

I accept that the letter of support . . . could not have been provided to the delegate as it was written after the delegate’s decision.  However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister.  I am not satisfied that any exceptional circumstances exist that justify considering the new information.

In the context where it is evident that there is a restriction imposed on the Authority in acting upon or receiving new information, why would it not be correct to proceed on the footing that in this context exceptional circumstances must, at the very least, explain why the information relied on was not made available to the delegate – made available to the delegate before the delegate decided the case?

MR KING:   Yes, I will make several points in response to your Honour’s question.  The first point is that, in my submission, on its face the letter did explain why the information could not have been provided to the delegate sooner and in this case that is because the information spoke to circumstances that prevail, even after the delegate’s decision.  Both sides have referred to the line - on the second page of the letter beginning with the words “Even still” – that is, “Even still . . . the Army” and other parties continued to visit the applicant’s home to make inquiries about his whereabouts.  So that is one reason why, on its face.

KEANE J:   But that point - to the extent that the point that is being made there is that after your client departed Sri Lanka and, indeed, if you like, up to the date of the determination of his application the authorities were still indicating their interest by visiting the premises, that information could have been provided.  I mean, the question, the substantive question is not whether between the date of the decision of his application by the delegate and the date of the Authority’s decision the police had started visiting, the question is whether there was information that bore upon the issue whether he had a particular profile that should have resulted in a decision to grant the visa.

So, if one is looking at that question, it does not seem to be necessarily an answer to say the letter itself speaks of things that happened after the decision.  What is really relevant is the information insofar as it bore upon your client’s profile with the authorities, and that information could have been provided by providing a letter earlier.  There is certainly no suggestion, is there, of any reason to think that the letter that was obtained could not have been obtained from the writer before the delegate’s decision?

MR KING:   No, we do submit that there is clear evidence, on the face of the letter, that it could not have been obtained before the delegate’s decision because of the way in which the letter is expressed.

KEANE J:   Yes, but that is just talking about the content, the “Even still”, and treating “Even still” as “as of today”.

MR KING:   Yes, in my submission, understanding that properly, the author of the letter is stating as at today, that is, one month after the delegate’s decision ‑ ‑ ‑

KEANE J:   But we are not interested in whether they have just started indicating an interest in him.  Are we not interested in the circumstance that the authorities have continued to be interested in him ever since he left?  That is really the point, is it not?

MR KING:   Yes, ever since he left and up to and continuing until the date of the letter. 

KEANE J:   Yes.  So what I am actually asking you about is whether there is information which shows that the person who wrote the letter could not have been prevailed upon to provide it, directing its attention up to the date of the delegate’s decision - that is to say this information as to the continuing interest of the authorities in your client could have been provided to the delegate, just not the extra bit that on your interpretation of the letter they are interested – they have been interested for a few further months. 

MR KING:   Yes, insofar as it applied to that earlier period, prior to the delegate’s decision, there is not a suggestion that it could not have been obtained sooner and provided ‑ ‑ ‑ 

KEANE J:   So the thrust of the information, that is to say the continuing interest of the authorities in your client could have been provided to the delegate?

MR KING:   In respect of that earlier period, yes, that is correct, your Honour.  In my submission that was not a sufficient basis for holding that there were no exceptional circumstances though, because it fails to take account of the significance of the information in the overall evaluation of the applicant’s claims and that is what was seen as important by the Full Federal Court in the line of authorities to which I have referred, that is, that reasoning that merely because information could have been provided to the Minister sooner in a manner contemplated by paragraph (b)(i) of the section, that reasoning on that basis alone that there are not exceptional circumstances is not sufficient.

In this case, as in those other cases, regard ultimately was not had to those matters in paragraph (b) about it being personal credible information, or if the characterisation that I put of the letter were accepted the significance of that for the applicant’s overall claims. 

Just on that point, can I go to the primary judge’s treatment of the letter which is a characterisation that is slightly at odds with what is found in the Authority’s decision which is – and I am taking your Honours to page 56 of the application book, in particular to paragraph 47.  At the top of page 56 in the third line down the primary judge said that the:

letter in issue was provided to corroborate several of the applicant’s claims –

That is the first step, but secondly was provided:

in response to the adverse decision of the delegate.

Now, the delegate had accepted most of the applicant’s claims, and the context in which this letter was sought was not to provide support for claims that had been accepted by the delegate, it was to provide support for what had not been accepted by the delegate which, as your Honour indicated before, was the continuing interest of the Authority and the applicant as at the present day and whether that affected matters such as relocation. 

In my submission our characterisation of the letter is supported by the primary judge’s consideration there.  Nothing that Justice Logan said, in my submission, undermines that characterisation.  In any event, whatever characterisation one takes of the letter, the approach of the IAA is to conclude in respect of both the earlier period before the decision and the later period that there could have been no exceptional circumstances either way.  So, in our submission, the error still applies, or was still committed.

The basis upon which Justice Logan came to find error in the approach of the primary judge appears at page 77 of the application book, paragraph 24, where his Honour appears to have treated the primary judge as proceeding upon the basis that paragraph (b) and the matters stated therein are mandatory relevant considerations.  Now, had the primary judge proceeded on that basis that would have been an error.  We certainly accept that.  No one in this case was putting the proposition that they were mandatory relevant considerations. 

What the line of authority referred to by the primary judge and upon which we rely said was that there may be particular cases in which consideration must be given to the matters in paragraph (b) in order to properly consider exceptional circumstances in paragraph (a).

With respect, Justice Logan has not gone on to consider whether those principles, correctly understood, had any application to this case.  That conclusion at paragraph 24 on page 77 has been treated as a sufficient basis for allowing the appeal.  His Honour has also said in that paragraph that in light of the decisions in M174 and AQU17:

the basis upon which the primary judge proceeded must now be regarded as mistaken.

One of those decisions, the second, AQU17, was a decision handed down after his Honour reserved judgment and in relation to which the parties were not heard and, insofar as that has been relied upon as a basis for holding the primary judge’s approach to be mistaken, in our respectful submission, that has involved a denial of procedural fairness. 

KEANE J:   Was there any reason why your client properly advised could not have brought that decision to his Honour’s attention?

MR KING:   The way in which the parties conducted the appeal was that the relevant principles were stated in this line of Full Federal Court authority and there was no substantial dispute about the level of principle, but his Honour Justice Logan appears to have treated that decision – if I could take a step back, so because there was no real disagreement about the principles to be applied, there was no reason for the parties to call his Honour’s attention to further decisions which reaffirmed the same principles. 

But his Honour appears to have treated this new decision as a reason for now regarding those principles as a mistaken approach.  That is what his Honour has said in paragraph 24 of the judgment, and both parties agreed that in fact on a correct view of AQU17, the law was not changed.  So there was no reason to approach his Honour to address that decision or any other decision but unfortunately because of the reasoning his Honour has adopted in the result the applicant has not been heard on a matter that was plainly adverse to him.

KEANE J:   Well, his Honour thought that conclusion followed from this Court’s decision in M174.

MR KING:   In light of both decisions, that is correct, your Honour.

KEANE J:   Yes.

KIEFEL CJ:   In M174 judgment was given before the hearing in this matter, so it was a decision available to the parties.

MR KING:   Yes, I have no objection to the treatment of M174.  The truth is ‑ ‑ ‑

KIEFEL CJ:   And how it was taken up by the Federal Court as well?

MR KING:   No, I do object to that, because what has happened is that his Honour appears to have read this Court’s decision in M174, which was really not dealing with this point at all, with the point addressed by the line of authorities to which I have referred, has treated that decision as overtaking BVZ16, one of the original decisions, but apparently without realising that even after this Court’s decision in M174, subsequent Full Federal Court decisions, which we have extracted in the authorities, continued to apply the earlier principles confirmed in BVZ16.

So there is a series of Full Federal Court decisions affirming this line of authority at the level of principle.  None of the other Full Courts held that this Court’s decision in M174 foreclosed that line of authority and, indeed, in this case it was not argued that all of these decisions, this line of authority was plainly wrong and should not be followed.  So these conclusions, with respect, have surprised the applicant.  That is where the unfairness arises.

Had an opportunity been given to the applicant to address this perspective, in particular, the perspective of AQU17, the applicant could have drawn the Court’s attention to the many subsequent decisions of the Full Federal Court which reaffirmed the original statement of principle relied on by the primary judge.  There has been, in my submission, a constant line of authority in that regard and I do not think that is a matter of controversy in this application, with respect.

KIEFEL CJ:   I think the light - there is one minute to go.

MR KING:   Yes, unless I can ‑ ‑ ‑

KIEFEL CJ:   You do not have the same light system here, so I am reliant on my associate telling me.  Yes, Mr King, make the most of your minute.

MR KING:   Just briefly, the question of principle which also arises is that, in my submission, the ratio of Justice Logan’s decision is that those principles stated in this Court’s decision in the Full Federal Court authorities to which I have referred must now be regarded as mistaken.  That is the ratio of his decision.  That means there is a divergence of judicial opinion in the appellate jurisdiction of the Federal Court between the principles accepted by Justice Logan as applicable and the principles

enunciated by this series of Full Federal Court decisions, which we have summarised in reply at paragraphs 5 and 6.

If his Honour was right to allow the appeal on the basis said at paragraph 24, that is an important question of principle because of that divergence and if his Honour was wrong to allow the appeal on that basis then, in my submission, there is a clear visitation case.  Unless I can be of further assistance, those are my submissions.

KIEFEL CJ:   Yes, thank you Mr King.  Yes, Mr Kaplan.

MR KAPLAN:   May it please the Court.  Your Honours, there is a complete answer to the application for special leave and it is to be found in Justice Logan’s reasons for judgment in paragraph 26, application book 77.  If I can invite your Honours to go to that paragraph, what your Honours will see there is his Honour Justice Logan, having dealt with the Minister’s second alternative proposition on his appeal, which was to the effect that even if the primary judge’s reasons at paragraph 47 said nothing more than that applying Justice White’s judgment in DVZ16, in the particular circumstances of this case the Authority’s assessment under section 473EA needed to involve more than just the temporal condition in 473DD(b)(i), it did so. 

Your Honours see that in his Honour Justice Logan’s reasons at paragraph 26 where his Honour accepted, in accordance with the Minister’s submissions, that the Authority in paragraph 10 of its reasons to which your Honour Justice Keane referred a little earlier, appreciated the potential corroborative nature of the new information in referring to the letter as one that supported the applicant’s claims. 

So, your Honours, in broad terms on a fair reading of the Authority’s albeit brief reasons in paragraph 10, it can be said that the Authority had regard to and implicitly accepted, in my submission, the credibility of that information, being a matter directed to section 473DD(b)(ii).  What the Authority ‑ ‑ ‑ 

KIEFEL CJ:   But, Mr Kaplan, the point that is perhaps not dealt with clearly in paragraph 26 of his Honour’s reasons is that the letter conveys something more that the applicant’s own claims in terms of corroboration.  It not only corroborates what he says occurred at the times at which he says them, it goes further and says they are still looking for him. 

Now, if one looks at paragraph 10 of the Authority’s reasons you say that one can infer from that that the Authority appreciated what the letter actually conveyed because if it misunderstood the evidence that that letter provided we are in the territory of jurisdictional error, are we not?

MR KAPLAN:   Can I answer your Honour the Chief Justice’s question in this way.  First, there is no mention of the point that your Honour has raised in paragraph 26 of his Honour Justice Logan’s reasons for this reason.  The point was never taken by the visa applicant before the Federal Court or, indeed, the Federal Circuit Court.  No notice of contention had been filed in the court below.  So the point that your Honours see agitated in ground 4, to which I will come shortly, is one that was not raised in the court below. 

Now, the Minister, as I will come to submit shortly, has a different characterisation of that first sentence commencing “Even still” on the second page of the letter of 12 October 2016, but we say in the light of the issues that were agitated by both parties before the Federal Court there is no error in paragraph 26 of his Honour Justice Logan’s reasons, and even if your Honours were to permit the point raised by ground 4, which your Honours in my submission should not do because it was not raised by way of notice of contention below, the point we say is wrong, for this reason.

If your Honours have the letter of support with your Honours, the Minister submits that it was reasonably open to the Authority in the light of what appears in the final sentence on the first page, and the absence of any reference to a particular date or time period in the first sentence on the second page of that letter, that it was reasonably open to the Authority to find, as it did, that the letter merely recounted the applicant’s claims as it did not state that the searches that had allegedly been carried out by the EPDP and the army had occurred in the period between the date of the delegate’s decision and the date of the letter. 

It may well be, in my respectful submission - and this was a reasonable approach for the Authority to take which your Honours can infer from paragraph 10 it did take – that the author of the letter was referring merely to the EPDP and the army having conducted these searches following the applicant’s departure for Australia in the latter part of 2012. 

If your Honours were to accept that construction of the letter and that construction of paragraph 10 of the Authority’s reasons then ground 4, in my respectful submission, even if your Honours were to entertain it, must fail, which in turn must mean that Justice Logan’s reasons at paragraph 26, in particular in the penultimate sentence in that paragraph, are unimpeachable.

I think that I made the point a few moments ago, your Honours, that dealing with the point of construction advanced by the applicant that even if the (b)(i) and (b)(ii) considerations had to, as a matter of construction, feed into the Authority’s analysis of exceptional circumstances under subparagraph (a) of section 473DD, that was done and his Honour Justice Logan your Honours should find, in my respectful submission, so held in paragraph 26, though at the very least, your Honours, we say that unlike cases such as Justice White’s decision in BVZ16, the Authority here was not just concerned in paragraph 10 with temporal considerations in assessing whether exceptional circumstances existed and accordingly cannot be said to have failed to appreciate the breadth of that phrase.

Now, without detracting from the force of that submission, the Minister submits that the primary judge in fact erroneously went much further than that in the second and third sentences in paragraph 47 of his Honour’s reasons and in doing so his Honour misunderstood BVZ16.  Justice Logan, in my respectful submission, at application book 76, paragraph 24, correctly identified the error, namely the primary judge thought, albeit erroneously, that BVZ16 stood for the proposition that section 473DD will be misapplied if a conclusion on the condition in subparagraph (a) which, with respect, your Honour Justice Keane correctly observed is a separate condition - and that was established by this Court’s judgment in M174 – is not informed by the condition in subparagraph (b)(ii).

However, BVZ16, your Honours, dealt with a narrower issue, and that was that to treat the absence of a satisfactory explanation as to why new information could not have been given to the Minister before a decision is made under section 65 as in and of itself decisive of exceptional circumstances may supply an inference that subparagraph (a) has been misconstrued, though BVZ16, your Honours, stands for a narrower proposition than that which his Honour the primary judge thought it stood in paragraph 47 of his Honour’s reasons, and that is not this case.

Now, we do say, your Honours, that it was entirely appropriate for the Authority to find against an applicant on the condition in subparagraph (a) without having regard to subparagraph (b).  The questions are separate.  That is not to say, however, that the (b)(i) or (b)(ii) considerations might not permissibly be considered by the Authority in making a determination under section 473DD(a).  That subparagraph, of course, as this Court held in M174, calls for an evaluative judgment to be made.  So, in a sense, your Honours, the Authority went further than what was required of it here in the sense that it turned its mind to both (b)(i) and (b)(ii) in making the finding that it made in paragraph 10 of its reasons.

So, your Honours, not only was the primary judge’s reasoning inconsistent with this Court’s judgment in M174 and inconsistent with the structure of the section, but it also wrongly imputed to the legislature an intention to treat subparagraph (b)(ii) as somehow more relevant to the Authority’s assessment of exceptional circumstances in subparagraph (a)

than subparagraph (b)(i).  That last proposition is inconsistent with a decision to which I referred in my written submissions, namely, the Full Court’s judgment in CAQ17 at paragraph 36.  That is in her Honour Justice Mortimer’s reasons for judgment.

So, for those reasons, your Honours, the Minister respectfully submits that the judgment of his Honour Justice Logan was plainly correct, that no question of principle arises for this Court’s consideration on the grounds of appeal advanced by the applicant, but nor is there any warrant, in my respectful submission, for the grant of special leave on the basis that the interests of the administration of justice require consideration of the judgment by this Court.  There is, for example, no glaring error on the part of his Honour Justice Logan.

All that remains to be dealt with, your Honours, is the question of procedural fairness.

KIEFEL CJ:   We do not need to hear from you in relation to that ground, Mr Kaplan.

MR KAPLAN:   If the Court pleases, those are the Minister’s submissions.

KIEFEL CJ:   Yes, thank you.  Mr King, what do you say about the point made by Mr Kaplan that ground 4 is a new ground and was not the subject of a notice of contention below?

MR KING:   We disagree that it is a new ground and that is not a submission that has been put in relation to this application before today.  Had it been put, we would have put on evidence of what was run below.  The phrase of the letter beginning with “Even still” was at the forefront of the applicant’s submissions, at least in the Federal Court, and, in my submission, the ground was squarely put.

As to the proposition that paragraph 26 was a complete answer to this application, I make two points in response to that.  If your Honours would go to page 77, again at the end of that paragraph, his Honour has said in the third‑last line:

That is a sufficient basis . . . for satisfaction that no exceptional circumstances exist.

The sufficient basis is that the corroborative letter could have been provided:

to the Minister before the delegate made the decision under review.

That reasoning is precisely what is addressed and rejected by the series of Full Federal Court decisions which it extracted in reply.  It is not a sufficient basis to reason solely by - with reference to paragraph (i) of 473DD(b) - that there are no exceptional circumstances.  If that is to be the reasoning consideration must also be given to subparagraph (ii).  That is seen most clearly from the decision of BBS16, at paragraph 112.

To conclude, can I just take your Honours to the legislation itself to make good this point.  The section is reproduced in the book at page 124.  What we are talking about is a case where the Authority has reasoned that because (b)(i) could not be satisfied, that is, the information could have been given to the Minister sooner, because (b)(i) could not be satisfied, (a) is not satisfied.

But, of course, the disjunction between subparagraphs (i) and (ii) there means it denies that reasoning as a matter of statutory construction.  That has to be so and that is what the Full Federal Court has held in the decisions to which I have referred.  If the Authority is to reason in reliance upon what is said in (b)(i), it must give consideration to (b)(ii) in its consideration of whether there are exceptional circumstances under paragraph (a). 

So, in my submission, the point was clearly raised and we would have addressed it before today had that dispute come out in the written submissions, and in any event it is not a complete answer, for the reasons I have just given.

KIEFEL CJ:   The Court will adjourn briefly to consider the course that it will take.

AT 10.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.16 AM:

KIEFEL CJ:   There will be a grant of special leave in this matter, limited to ground 4(a), that is to say, Mr King, the line of authorities to which you have referred, which you say has the consequence that paragraph (b) does not rule (a). 

MR KING:   I understand. 

KIEFEL CJ:   You might need to consider whether the ground needs a little more refinement to bring that point out. 

MR KING:   We will do that, your Honours. 

KIEFEL CJ:   Yes.  How long do you think the matter will take given that it is limited to that question?

MR KING:   Less than half a day.  

KIEFEL CJ:   You would agree with that I take, Mr Kaplan? 

MR KAPLAN:   I would, your Honours. 

KIEFEL CJ:   Yes, thank you.  Would you ensure that your solicitors obtain a copy of the timetable from the Registrar at some convenient point.  The Court will now adjourn until 10.30. 

AT 10.17 AM THE MATTER WAS CONCLUDED