BES16 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 126

[2018] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S43 of 2018

B e t w e e n -

BES16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON THURSDAY, 21 JUNE 2018, AT 10.18 AM

Copyright in the High Court of Australia

MR J.F. GORMLY:   May it please the Court, I appear for the applicant.  (instructed by Labour Pains Legal)

MR G.R. KENNETT SC:   May it please the Court, I appear with MR G.J. JOHNSON for the respondent Minister.  (instructed by Sparke Helmore Lawyers)

KIEFEL CJ:   Yes.

MR GORMLY:   The contest between the parties concerns what material might constitute information as would engage obligations under section 424A(1) of the Migration Act, upon a Tribunal in the Tribunal’s role in administering section 91WA of that Act, relating to bogus documents. The applicant’s contention is that the current jurisprudence on section 424A is not appropriate to identify what adverse information might engage section 424A obligations in these bogus document cases. This is because these cases, led by SZBYR, are in respect of a different statutory context for the operation of section 424A. What might be information in section 424A(1) is conditioned or qualified by the expression in that section:

that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review -

Now, what is information then will depend on and will differ according to the statutory criteria the Tribunal is administering in making its decision.  In this case, the documents provided by an applicant which the Tribunal found were bogus documents, as that term is defined at section 5 of the Act, were two birth certificates.  The Tribunal found the two birth certificates were bogus documents as they were not issued by the Bangladesh authorities in respect of the applicant and having regard to section – subsection (a) of the section 5 definition of “bogus documents”.  The relevant information ‑ ‑ ‑

EDELMAN J:   Mr Gormly, at paragraph 25 of the Federal Court judge’s reasons, he says:

Material that is a source of information that a Tribunal considers generally reliable and which it then uses to weigh and assess evidence about the claims advanced by the appellant does not fall within the scope of “information” in the relevant sense.

Is that really the core issue or is the core issue really whether the BRIS misinformation is information but is not information that is the reason or part of the reason for affirming the decision under review?

MR GORMLY:   Well, the Federal Court did find that the BRIS information was a reason for affirming the decision under the review, but also found that it was not information because it required analysis by the Tribunal and therefore, I think, what the court had in mind was that the – this processing rather than the information itself was the real reason for the Tribunal’s decision.  Although, having said that, the court did find that ‑ ‑ ‑

EDELMAN J:   You keep defining the information by reference to information.

MR GORMLY:   Yes, well, the court found that it was not information but at the same time found that it was a reason for the Tribunal’s decision.  So it is an odd finding in that respect, but his Honour has been led to that conclusion by the difficulties presented because the only guidance he has is jurisprudence on the administration of section 36(2) of the Act in relation to the refugee criteria.  So he has been thrown off by that, it is submitted. 

Otherwise, there is no issue that the word “information” in section 424A considered, apart from that qualifier, would be the reason. It simply refers to communication of knowledge about a particular fact, subject or event and that it does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. These propositions are common to section 424A whatever statutory context is directing the relevance of the information to the Tribunal’s decisions, so there is no challenge to SZBYR ‑ ‑ ‑

EDELMAN J:   But that was really the import of my earlier question to you.  Do you say that SZBYR is really focusing upon the nature of information or is it focusing upon whether something that is information would be the reason, or part of a reason, for affirming the decision - in other words, whether by itself it would be sufficient or whether you also need to include the process of reasoning?

MR GORMLY:   I think what has happened with the cases is that the – because SZBYR was considering, or came to a conclusion that material was not information on the basis that it was not a reason for the Tribunal’s decision, but rather the appraisal of that information was, it was inconsistent – an inconsistent statutory statement by the applicant.

So the court there was reasoning on material that was not information. It came to that conclusion but it did not come to that general proposition which your Honour, I think, is referring to and which was expressed by the Federal Court, that information has to be, of itself, of dispositive relevance to engage section 424A(1).

KIEFEL CJ:   But here, in this case, what happened was the BRIS information, or what was contained in the records, was compared with the birth certificate tendered.  It was the process of comparison that has produced the reason for refusal and that would not seem to fall within what was said in SZBYR to amount to information. 

MR GORMLY:   What the applicant says about that is that you could say that of any information in the sense that because the information is communicated knowledge how it is used will rob it of that character.

KIEFEL CJ:   No - is that right?  In SZBYR it was already pointed out that the information itself must contain something which requires a rejection or denial or an undermining of the applicant’s claims.

MR GORMLY:   That is perfectly appropriate for the Tribunal’s role in administering section 36(2), the positive criteria, the Tribunal has to reach a status – a state of satisfaction in administering those criteria.  However, in these cases – in these bogus document cases all that is required of the Minister is that he be roused to a state of suspicion.  So what can rouse a person to a state of suspicion can be anything - an irregular document or a case of mistaken identity.  Because you are coming at it from that perspective it is just not useful to say information is – must be a rejection, denial or undermining ‑ ‑ ‑

EDELMAN J:   Your point essentially is that information by itself is neutral.  The information can only undermine once it is considered.  So there always needs to be some consideration when you are linking the information to part of the reason for affirming the decision.

MR GORMLY:   Yes, that is right.  There has to be some room for information to be neutral, otherwise the section has such a restrictive effect.  If it was designed to afford procedural fairness in respect of adverse information, if it is taken the other way, if dispositive relevance is required upfront, then the scope of information is so narrow, it is reduced to things like “dob in” letters or confessions by the applicant, whereas in these kinds of cases of bogus documents ‑ ‑ ‑

EDELMAN J:   Even then I suppose you would say a “dob in” letter or a confession, you still need to engage in a thought process when you take the information to compare it with the applicant’s situation.

MR GORMLY:   Yes, that is true.  There will be some material that fits, that is, on its face dispositive but a lot of material that will not be and if it is to be taken that material has to be dispositive on its face, the scope of this section is just reduced to a state – to an application which I do not think the Parliament intended because it is so narrow.  So the current cases all

concern section 36(2) and there really needs to be a development or statement of principles applicable to bogus document cases.  Those are my submissions.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Kennett.

MR KENNETT:   Your Honours, we submit, contrary to my learned friend, that this case really involves the application of fairly well‑established principles which can be traced back to the decision of this Court in SZBYR which, in turn, relate to the construction of a particular statutory provision so that there is really no broader issue or principle here that would support a grant of leave.

EDELMAN J:   Do you say, Mr Kennett, that the application is an application of 424A in the sense that there was no information here or in the sense that the BRIS document was information but it was not something that would be the reason or part of a reason for affirming the decision under review?

MR KENNETT:   We would say the latter, your Honour, appreciating that that involves ‑ ‑ ‑

EDELMAN J:   You do depart from the Federal Court judge to that extent?

MR KENNETT:   We do, your Honour.  So we do make that criticism of the way his Honour set out the reasoning.  What his Honour does at paragraph 19 on page 64 of the application book seems to be to analyse the Tribunal’s reasoning and to hold that the Tribunal, in the end, gave some weight to the BRIS information ‑ ‑ ‑

EDELMAN J:   So what your submission really is, is that the judge in the Federal Court was wrong to find that this was not information, but then also wrong to find that whatever it was would be a reason or part of the reason for affirming the decision that is under review.  So as respondent you are challenging every aspect of the reasoning on this point.

MR KENNETT:   I perhaps would not quite go that far, your Honour, but we have some difficulty with the way his Honour appears to have subdivided the terms of the section in a way which, in the end, is not helpful, but has come to the right conclusion we would say.  Paragraphs 19 to 21 seem to treat the question of part of the reason as depending solely on the analysis of the Tribunal’s reasoning at the end of its process, and that is not what the decision of this Court in SZBYR calls for, and then his Honour has, in effect, treated two submissions of the Minister below as relating to two different parts of the statutory language when, I think it is fair to say in reality, they were not that – the two propositions were not that distinct. 

So, his Honour turns at paragraph 22 to a question which he describes in terms of whether the BRIS details amount to information. We, with respect, would not quite put it that way and what his Honour really decides in that and the succeeding paragraphs is whether it is not information simpliciter but information to which section 424A applies and his Honour, we submit, at paragraph 30, has reached the right conclusion in relation to that.

He is right, we would say, for reasons which follow from SZBYR and we would say that section 91WA(1) here, which your Honours will see reproduced at page 115, really operates as a visa criterion.  It clouds the issue somewhat to describe the Tribunal as administering this section.  It is a section which obliges refusal of a visa.  Subsection (1) is objective in its terms but, as my learned friend rightly points out, it revolves around the definition of “bogus document” which involves reasonable suspicion by the Minister.  That definition is on page 109. 

So what it requires to be done is analogous to what section 65 requires to be done which is to say that a visa is to be refused if the Minister or his or her delegate, or here the Tribunal, reaches a particular state of satisfaction about something.  So it is functionally a visa criterion in the same way that section 36 considered in SZBYR was a visa criterion so that what was said in that case - the key paragraphs are reproduced by his Honour on page 66 of the application book.

EDELMAN J: Could you give me an example of when section 424A - or when information, and you accept that it is information simpliciter here, under section 424A would ever have a bearing on section 91WA within the terms of section 424A on your submission?

MR KENNETT:   There could be information relating directly to the document in question which tends to show that that document is bogus.  For example, there could be an expert report by a document analyst concluding that it is bogus and giving reasons.

EDELMAN J:   Would you still not need to engage a process of reasoning when considering that report and deciding whether that report is something that by itself would be a reason for dismissing the application or finding a document to be bogus?

MR KENNETT:   There will always be some kind of process of reasoning involved.  The Court in SZBYR at paragraph 17 spoke in terms of information which would contain in its terms, in that case, a rejection, denial or undermining of the appellant’s claims and we would submit that what their Honours are seeking to identify there is information which when looked at is contrary in and of itself to the position that the visa applicant is advancing.  So, in that case, it would be information in its terms, suggesting that the person was not a refugee and here, we would say, it would be information in its terms suggesting that a document is bogus.

There could be an example of that in the present case.  At page 17 of the book in paragraph 15, the Tribunal noted that it had attempted to find a match on the BRIS system for the earlier birth certificates and failed.  It had put that problem directly to the applicant in the course of the hearing.  Then, subsequently, it attempts to find a match for the new birth certificate whose authenticity ultimately is not in question and succeeds.  It was the fact that ‑ ‑ ‑

EDELMAN J:   If this BRIS information had contained an additional line that said “and documents not bearing the same identification number are not genuine”, would that have been sufficient?

MR KENNETT:   Quite possibly, your Honour, or if there had been something that had come up on the ‑ ‑ ‑

EDELMAN J:   It becomes a very fine line then, does it not, when the whole purpose of putting an identification number on to a document is to establish that it is genuine?

MR KENNETT:   There was already in play and already put to the applicant here information that the identification number on his earlier documents did not produce a match on the system.  Then, what intervenes later and to what relevance is really unclear because the Tribunal does not directly rely on it, but what intervenes later is the fact that a different document does produce a match. 

Now, if there was something on the screen that said something along the lines of there can only be one match for each person so if this matches any other document it is bogus, for example, then that would be a direct statement that the documents in question here were bogus documents but we do not see anything of that kind referred to in the material. 

What we have instead is a piece of information relating to another document which, as their Honours below saw the reasons and we would – if the matter went further we would respectfully differ from this but as their Honours below saw the reasons – construed the reasons, the Tribunal drew from the status of that third document some kind of inference which borders on the status of the earlier two. 

But there are some steps of reasoning involved in there.  It is not a case of a piece of information which directly contradicts the visa applicant’s

position.  So that is how we would seek to suggest the matter ought be resolved.  It has some differences in terminology from the way the Federal Court judge described it but it reaches the same conclusion and for substantially the same reasons as his Honour did at paragraph 30. 

So, my first proposition, as your Honours will recall was that this was really a case about applying existing principles to a particular section and we certainly press that but further, when one looks at how those principles were applied below, it becomes tolerably clear that the judge in the Federal Court and, indeed, the Circuit Court reached the right conclusion.  Those are the submissions of the Minister, if the Court pleases.

KIEFEL CJ:   Thank you.  Mr Gormly, do you have anything in reply?

MR GORMLY:   Yes, simply to point out in relation to my friend’s first point that SZBYR was expressed by that Court to be concerned specifically with section 36.  The Court said the Tribunal does not operate in a statutory vacuum and the Court was there concerned with section 36 directly.  If what my friend says is correct in relation to information that a Tribunal may find relevant to determining whether a document is bogus, for example, if a person - and this is drawn from my own experience – had come to Australia, left but returned under a different name, then all the material which proved his first departure and would be used to prove that his second coming was made with the use of bogus documents would not be – on my friend’s argument - need not be disclosed to him and it would not be information. 

Now, that just leads to a simply unfair situation for that person, even more unfair for those people whose identity has been taken and those documents can only ever be – do not show on their face that an identity has been taken but require some assessment or appraisal by the decision‑maker to work out what has gone on.  If what is required is that material be of dispositive relevance on its face it would just, as I said, lead to a too restrictive application of a section that is designed to afford procedural fairness.  Those are my submissions.

KIEFEL CJ:   Thank you, Mr Gormly.

The Court is of the view that the proposed appeal would not be an appropriate vehicle for the further consideration of the question of what is information for the purposes of section 424A of the Migration Act 1958 (Cth). Special leave is refused with costs.

The Court will now adjourn to 10.00 am on Tuesday, 7 August in Canberra.

AT 10.44 AM THE MATTER WAS CONCLUDED