KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
BVD17 APPELLANT
AND
MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
BVD17 v Minister for Immigration and Border Protection
[2019] HCA 34
9 October 2019
S46/2019
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation
A Aleksov for the appellant (instructed by Australian Presence Legal)
G T Johnson SC with N D J Swan for the first respondent (instructed by MinterEllison)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
BVD17 v Minister for Immigration and Border Protection
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where decision by delegate of Minister for Immigration and Border Protection to refuse protection visa referred to Authority for review – Where Secretary of Department of Immigration and Border Protection gave Authority documents and information – Where Secretary notified Authority that s 473GB applied to documents and information – Where s 473GB(3) conferred discretions on Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant – Where documents and information not disclosed to referred applicant during review – Where fact of notification not disclosed to referred applicant during review – Whether procedural fairness required Authority to disclose fact of notification to referred applicant.
Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Where Div 3 of Pt 7AA, s 473GA and s 473GB provided exhaustive statement of natural justice hearing rule in relation to reviews by Authority – Whether implied obligation of procedural fairness precluded.
Words and phrases – "disclosure", "document or information", "exclusion of procedural fairness", "exhaustive statement", "fact of notification", "natural justice hearing rule", "notification".
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. This Court accepted in Minister for Immigration and Border Protection v SZMTA[1] that the giving of a notification under s 438(2)(a) of the Migration Act1958 (Cth) ("the Act") triggers an obligation of procedural fairness on the part of the Administrative Appeals Tribunal ("the Tribunal") to disclose the fact of notification to an applicant for review under Pt 7. The question of general importance in the present appeal is whether the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority ("the Authority") to disclose the fact of notification to a referred applicant in a review under Pt 7AA.
The short answer is that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
Case
[2019] HCA 34
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia by a Sri Lankan citizen who had applied for a protection visa. A delegate of the Minister for Immigration and Border Protection had refused the visa, and this decision was subsequently referred to the Immigration Assessment Authority (the Authority) for review. The Secretary of the Department of Immigration and Border Protection provided the Authority with documents and information from a departmental file, notifying the Authority that section 473GB of the *Migration Act 1958* (Cth) applied. This section confers discretions on the Authority to consider and potentially disclose such material to the applicant. Crucially, neither the documents nor the fact of the section 473GB notification were disclosed to the appellant during the review process. The Authority affirmed the delegate's decision, finding the appellant's claims to be fabricated, partly based on the absence of corroboration in the undisclosed departmental file.
The primary legal issue before the High Court was whether the Authority's failure to disclose to the appellant the fact that it had received material under section 473GB, and the existence of the section 473GB notification itself, constituted a breach of procedural fairness. The appellant argued that this failure amounted to jurisdictional error. The Court was also required to consider whether the provisions of Division 3 of Part 7AA of the *Migration Act*, specifically sections 473GA and 473GB, provided an exhaustive statement of the natural justice hearing rule in relation to Authority reviews, thereby precluding any implied obligation of procedural fairness beyond what was statutorily prescribed.
The High Court, in a joint judgment, dismissed the appeal. The Court held that the failure to disclose the fact of the section 473GB notification did not reach the threshold of legal unreasonableness or legal unfairness required to establish jurisdictional error. The Court reasoned that the existence of the notification would not have revealed anything new to the appellant regarding the subject matter of the undisclosed documents, nor would it have illuminated any significance the Authority might have placed on the evidence or omissions within that material. Therefore, the procedural fairness owed to the appellant was not breached by this non-disclosure. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Finally, s 473FB, which is located within Div 5, permits the President of the Tribunal to issue directions as to the conduct of reviews[16] and requires the Authority so far as practicable to comply with those directions whilst making plain that non-compliance does not have the result that a decision of the Authority is invalid[17]. Directions that have in fact been issued by the President make provision for a referred applicant to provide written submissions to the Authority on topics identified as "why you disagree with the decision of the Department" and "any claim or matter that you presented to the Department that was overlooked"[18].[16]Section 473FB(1)(b) of the Act, read with s 473BB (definition of "President").[17]Section 473FB(3) of the Act. [18]Practice Direction for Applicants, Representatives and Authorised Recipients, Practice Direction 1 (2018) at 3 [23]. Facts The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 13 October 2012. He applied for a protection visa, which a delegate of the Minister refused. The Minister referred the decision of the delegate to the Authority for review. The Authority affirmed the decision of the delegate. The Authority's written statement of its reasons for decision records that the Authority found that the appellant had fabricated his claims to have been of interest to authorities in Sri Lanka. The statement indicates that, in so finding, the Authority placed weight on the absence of corroboration of one of the appellant's claims in information contained in documents in a file of the Department which related to an application for a protection visa which had been made by another member of the appellant's family. The departmental file had been before the delegate at the time of making the decision to refuse the appellant a protection visa but the delegate had not relied adversely on the contents of the file in making that decision. The file had been included in the review material given to the Authority by the Secretary to the Department under s 473CB of the Act and had been accompanied by a notification given to the Authority under s 473GB(2)(a) by a delegate of the Secretary. The notification stated that s 473GB applied to the documents and information in the file and expressed the view of the delegate that the documents and information in the file should not be disclosed to the appellant because they had been given to the Minister or to an officer of the Department in confidence. In the course of the review, the Authority did not disclose any of the documents or information in the file to the appellant and did not disclose the fact of having been given the notification under s 473GB(2) of the Act to the appellant. The Authority's written statement of its reasons for decision records that the Authority had regard to the review material and to particular country information, which it specifically identified as "new information", and that no further submissions or new information were provided to it. The statement makes no reference to the notification under s 473GB(2)(a) of the Act and makes no reference to the exercise of any discretion by the Authority under s 473GB(3) of the Act.Procedural history
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
EDELMAN J
(dissent)
The important point for this appeal is that in this process the anterior question to whether an error is jurisdictional, or whether a miscarriage of justice is substantial, is whether the action or error qualifies as legally unjust or legally unreasonable or, in the language of the criminal law, a miscarriage of justice. It was not asserted in this Court that the failure of the Authority to disclose to the appellant that it had received material that was the subject of a certificate was a jurisdictional error due to legal unreasonableness. The failure did not reach the sufficient threshold of unreasonableness. Nor did it reach the required threshold of legal unfairness. The failure to inform the appellant of the existence of the certificate did not affect the manner in which the review was conducted. The fact of the existence of the certificate would not have revealed to the appellant anything new about the subject matter to which the certificate related. It would not have revealed to the appellant anything about his brother's evidence or omissions from that evidence, and would not have revealed any significance that the Authority might have placed on that evidence or those omissions.Conclusion For these reasons the first ground of appeal must be dismissed. I agree with the reasons of the joint judgment for dismissing the second ground of appeal, and with the orders proposed in the joint judgment.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ,