BVD17 v Minister for Immigration and Border Protection & Anor

[2019] HCATrans 123

[2019] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S46 of 2019

B e t w e e n -

BVD17

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 JUNE 2019, AT 9.46 AM

Copyright in the High Court of Australia

MR A. ALEKSOV:   May it please the Court, your Honour, I appear for the appellant.  (instructed by Australian Presence Legal)

MR G.T. JOHNSON, SC:   May it please your Honours, I appear with MR N.D.J SWAN for the first respondent.  (instructed by Minter Ellison)

KIEFEL CJ:   Yes, Mr Aleksov.

MR ALEKSOV:   May it please the Court.  As the Court will know, this is an appeal from the decision of the Full Court of the Federal Court on appeal from the Circuit Court, concerning an application for judicial review in respect of the Immigration Assessment Authority.  There are two grounds of appeal.

The first ground of appeal, your Honours, concerns an allegation that the IAA was obliged to inform the applicant of the existence of a certificate made under section 473GB of the Migration Act, and in failing to do so, it failed to observe a requirement of the Act and its decision is thereby affected by jurisdictional error because that failure was material.

The second ground alleges that an inference should be drawn that the IAA failed to consider the possible exercise of the discretion available to it under section 473GB(3)(b) to give to the applicant the material that was covered by that certificate and in failing to consider that possible exercise of that power its decision on the review is thereby affected by legal unreasonableness.

The facts relevant to ground 1 may be very briefly stated, and we have done so in paragraph 2 of our outline of oral argument.  In short, the IAA had before it material that was subject to a certificate made under section 473GB(1), which concerned – we all now understand – information regarding his brother’s protection claims in association with being granted a protection visa in Australia.

That material was before the delegate at the time the delegate made the decision but it was not used adversely to the applicant in any way.  Indeed, it was helpful to the applicant before the delegates and no obligation under section 57 of the Migration Act arose for the delegate to put that information to the applicant.  It was then referred to the Authority under cover of the certificate, and the applicant was not aware of that fact.

And, ultimately, the Authority relied on an aspect of that material being an omission adversely to him in a manner that is discussed in paragraph 18 of the Authority’s reasons.  I anticipate your Honours are all familiar with those paragraphs.

The appellant’s argument in relation to ground 1 proceeds essentially from accepting what was said by this Court, or at least the plurality of this Court, in SZMTA in relation to analogous but not identical, the analogous provisions in Part 7 in respect of certificates, but of course Part 7 is a different regime than Part 7AA of the Migration Act.  Your Honours have considered Part 7 and Part 7AA quite a bit recently, so I propose not to take your Honours through the skeleton of those provisions, unless it was thought desirable to do so, and move straight to the key part of the reasoning in SZMTA which your Honours will find behind tab 16 of the joint volume of authorities.

On page 377 of volume 1 of that book in the reasons of your Honours Justices Bell, Gageler and Keane and commencing at paragraph [22], there is discussion about the impact of a certificate issued under section 438 which, but for immaterial changes as between Tribunal and Authority is relevantly identical to section 473GB in Part 7AA.

There is discussion at paragraph [23] that the impact of section 438(3)(a) which, again, is identical to 473GB(3)(a).  In our written submission, we have identified some potential alternative constructions to 473GB(3)(a) that might be open in relation to Part 7AA.  But, on reflection, it does seem to us that the same reasoning as was adopted in SZMTA, at paragraph [23], that the presence of that provision implies a negative that there the Tribunal could not consider certificate information unless it went through that discretion probably also applies in relation to Part 7AA. 

The impact of a certificate in relation to Part 7AA reviews is that it changes – accepting that construction of 473GB(3)(a) that the Authority would not have power to consider certificate material unless it affirmatively exercised that discretion, the impact of that provision then is that, as we see it, the general duty under section 473DB(1) to review by considering all of the review material provided by the Secretary is qualified to the extent of the certificate itself.  So, unless the Authority chose to entertain, or to have regard to, certificate material, it would not otherwise be obliged to do so. 

There is also perhaps a sidebar to this case, a separate question about what might happen if the certificate material was not before the delegate at the time that the delegate made the decision, and so capable of being new information.

We would perceive that the correct structure there would be that first, the Authority would need to affirmatively exercise the discretion under GB(3)(a), and choose to have regard to that information.  And then if it chose to have regard to that information, it would still need to assess whether or not it formed the view that it may be relevant for the purposes of section 473DC(1), which contains the definition of “new information”.

And if the Authority formed the opinion, having chosen to have regard to it, that it may be relevant to the review, it would then meet the definition of “new information” and it would separately need to then pass through the loop, or the loophole of 473DD about exceptional circumstances.

GAGELER J:   None of that arises in the present case.

MR ALEKSOV:   Of course not, it is a sidebar.  Yes, your Honour.  I return then to SZMTA, and paragraph [29], which is on page 378 of the bundle of authorities, which contains the essential basis on which the procedural fairness obligation was found to have been implied there, which is that the existence of the certificate was an event that altered the procedural context in which the various opportunities for participation that an applicant under Part 7 reviews had was altered and that an applicant was entitled to be notified of that effect.

In the present context, the impact of a certificate, as would have applied in this case, is that unless an applicant is told of that certificate, their right to make submissions to the IAA seeking that the IAA provide to the applicant aspects of the review material is significantly hampered because unless the applicant knows the certificate is there, they do not know that they would need to address the, what I call, confidentiality considerations as arise from the fact of the certificate. 

EDELMAN J:   Is the power to tell the applicant about the existence of a certificate derived from 473DC?  Is that where you source the power to do so?

MR ALEKSOV:   I say it is implied from several sources – that is one.  Another is 473GB(3)(b) itself.  In considering whether the Authority might exercise that discretion, it is, in our respectful submission, obvious that the Authority might wish to hear from the applicant about that and in doing so it must have a power to disclose to them the existence of the certificate, and such information as might be relevant that the Authority might think might be relevant to assist it in exercising that discretion.

GORDON J:   You said before it was a right to make submissions.  Is that different from what you have just put to us?

MR ALEKSOV:   As your Honour will know, the word “right” can have various meanings in different contexts.  Here an applicant knows that the review is taking place because they have been notified of it.  If they do make submissions to the Authority, the Authority is under an obligation to consider those submissions to the extent that they are substantive and relevant and appropriate to what is going on.  If the Authority is under such an obligation, it is appropriate to speak of the applicant having a right to do so.

GORDON J:   Where do you say where there is a right to make submissions that they must be considered by the IAA?

MR ALEKSOV:   Your Honours have held – and this Court has held in Plaintiff M174 that the rules of legal reasonableness apply to all of the discretions that are available to the IAA, the dominant one being 473DC, getting new information.  There may be in a review many steps along the way that an applicant needs to confront before the Authority is persuaded to get and then admit for consideration new information.

In the context of certificate material, one of those may be – or would be – to be provided with a copy of the certificate, then to obtain a favourable exercise of the discretion under GB(3)(b), then to make whatever submissions might flow from that seeking to persuade the Authority to get or receive for consideration new information relevant to whatever issue emerges from there.

BELL J:   That answer to her Honour’s question went to your complaint respecting legal reasonableness ‑ ‑ ‑

MR ALEKSOV:   Yes.

BELL J:   ‑ ‑ ‑ coming back to the question of the right which was the subject of the question.

MR ALEKSOV:   We submit that if legal reasonableness does condition those discretions a request made to the Authority which was substantial and not considered would give rise to legal unreasonableness unless there was some explanation for why it was not considered, because the failure to consider a substantial request that the Authority exercise some discretion, in our respectful submission, is beneath the minimum to be expected by the Authority, having regard to the function that it is performing both in terms of the applicant’s interests but also the broader public interest, given the criteria in issue.

I have spoken of it as a right.  It is also one which arises under the practice direction which your Honours would be familiar with from M174.  I do not think we have it in the materials.  But the easiest way perhaps for me to answer that is if I just go to M174 itself, which is behind tab 25.  I think it was settled by paragraph [26] of that decision in the reasons of Justices Gageler, Keane and Nettle that the Authority has power to provide review material to an applicant and also that legal unreasonableness or the principles thereof condition the power to invite the giving of new information under 473DC(3).

Now, if an applicant has made or were to make a substantial submission requesting that they be provided with information that is before the IAA in the review material and there is some cogent reason why that is important to the applicant being able to make submissions to the IAA, which are specifically contemplated under the practice direction, then it would be difficult to see how the Authority could simply ignore that submission.

Another way to conceive of the idea would be to understand that as a constructive failure to perform a review.  It would also have been an obligation of procedural fairness to consider any substantial submission, but that is probably excluded by 473DA.  But it is difficult to see how Parliament contemplated a review, even one with the attenuated system in Part 7AA, to be performed without the Authority taking into account substantial submissions made to it.

The Full Court of the Federal Court has accepted as much in a case called CLV16, which we have mentioned in our authorities.  The decision concerned a Bhardwaj situation where an authority had made a decision but noticed for itself that it had not considered material submissions made to it and then itself chose to set aside its own decision, considered those submissions and gave a fresh decision and the Full Court said, “Yes, that is acceptable.  It was right in the first instance to say, not having considered those material submissions was jurisdictional error”, and so applying Bhardwaj, there had not yet been a decision effective in law and the second decision was the one which had relevant legal consequences.  And I believe this Court refused the grant of special leave on the basis that the Full Court’s construction was correct.

I accept the questions put to me by your Honours Justice Bell and Gageler that, when I speak of an applicant having a right to participate, including a right to make submissions, it is different to the right that exists under Part 7.  I accept that.  Part 7 contains two very important provisions which make express an applicant’s right to request information, which is 271C, which is a corollary of the Tribunal’s power to give information, and section 423, which gives an applicant express rights to give statutory declarations to the Tribunal, together with obviously what arises at a hearing that is conducted in the Part 7 review.  Implied in a hearing is that you have a mind open to any substantial arguments that are there made.

I accept it is different.  But, the right to present proposed new information to the IAA is plainly contemplated by 473DC and DD which may be relevant to – I beg your pardon.  An applicant may need to present such new information in relation to whatever issues emerge from a certificate.  And, in the usual course, the applicant will know if they wish to present such submissions or new information based on the review material, they can ask for it and they can make whatever submissions they wish.  One of the things they will have to overcome is the interests of efficiency that the IAA has exalted to do together with the default rule that this is to be done on the papers without further participation from an applicant.

But, when it comes to certificate material, there is the additional hurdle that an applicant would need to confront – which is whatever justified the issue of the certificate in the first place, the supposed public interest immunity or the confidentiality.  Unless an applicant knows that the certificate exists, they are simply unable to make submissions about that.  So, in our respectful submission – there is also, I should add – it does not arise in this case because it has not been conducted on this basis below but in the general run of cases there would also be the question of the validity of the certificate.

An applicant has an interest in that question because if the certificate – if they know the certificate exists and can persuade the Authority that it is not valid, then the default obligation in DB(1) to consider all of the review material is engaged and the Authority must consider anything underneath an invalid certificate because anything provided to the Authority under an invalid certificate is not certificate material, in my language, but properly would have just been review material provided by the Secretary and CB(1) – probably (1)(c).

NETTLE J:   If the certificate were invalid and if, as you say, that means that the material would not be certificate material but would just be ordinary review material ‑ ‑ ‑

MR ALEKSOV:   Yes.

NETTLE J:   ‑ ‑ ‑there would no obligation on the IAA to disclose it, would there?

MR ALEKSOV:   No.

NETTLE J:   It being a document that was before the delegate.

MR ALEKSOV:   No.  I accept that.  Nor is there any obligation to disclose certificate material.  I do not concede that the certificate is valid but no challenge has been made to it in the courts below and I do not make any challenge to it now, including because the Minister might have been able to meet that with evidence.

NETTLE J:   It is an odd result, is it not, that because a certificate issues it imposes an obligation on the IAA to disclose, in effect, the existence of the document where, within the absence of a certificate, there would be no such obligation.

MR ALEKSOV:   I accept that.

NETTLE J:   It seems to suggest that it might not be the correct path of reasoning to the conclusion, does it not?

MR ALEKSOV:   It is, in our respectful submission, difficult to say that that is the incorrect path of reasoning, given what was said by this Court in SZMTA about the consequences of a provision which is, in its terms, materially identical to this one.  I accept that might have been an odd policy choice to make, and perhaps if the drafters had their time again, it might have been different, but the provision is relevantly identical to SZMTA, and involves the IAA in making decisions along the way about things which affect an applicant’s interests, which are different in nature and character to the general run of decisions it makes.

The question then is, in our respectful submission, is there an indication with the requisite level of clarity that that implied obligation, we say implied by the presence of the provision itself, is excluded?  And the drafters, or Parliament, specifically turned its mind to this question when it drafted 473DA because it says – I mean, your Honours will know this provision fairly well by now – but it specifically chose, in our submission, to preserve whatever requirements are express or implied by the existence of Division 3, 473DA and GB.  That is a choice which, I accept, sits in some tension with the oft‑stated policy of this regime about quickness and efficiency but it is a choice made by Parliament.

EDELMAN J:   There are really two steps, are there not?  The first step is whether there is an implied power to provide the information relating to the existence of the certificate.

MR ALEKSOV:   Yes.

EDELMAN J:   You source that implied power in the provisions of 473DC and also 473GB(3).

MR ALEKSOV:   Yes, I do.

EDELMAN J:   Then the second step is, if there is that implied power, is there anything in Part 7AA that would exclude the usual implication that would come with the existence of a power that it be exercised fairly?

MR ALEKSOV:   Yes, that is a fair way to understand it.  In terms of the existence of the implied power, we pick up the analysis in M174 at paragraph [26] about the observation that there is nothing to – I might have the wrong paragraph.  It is the second part of paragraph [26], 675 of the book of authorities – that there is nothing to preclude the Authority from giving material to an applicant.  There their Honours are obviously talking about review material but the same proposition would apply to a certificate. 

There is nothing to preclude the Authority telling an applicant a certificate exists and if one thinks it through in practical terms, an Authority may wish to hear from an applicant, assuming it has gone through GB(3)(a); an Authority may wish to hear from an applicant about matters relevant to (3)(b).  This case provides an excellent example of that, your Honour, where the basis of the certificate is something about which the applicant might be able to seriously comment.  So here, as your Honour will know, the brother’s protection visa file and its confidential nature justified the certificate.

Now, the applicant might have been able to say something like, for example, “Well, my brother is okay with you providing that information to me”, bearing in mind there is the power under 473GD to restrict derivative use of any information disclosed.  So if it is the case – if it be accepted that it is implied within (3)(b) to that point that the Authority would have power to hear from an applicant if it wished to do so, then it is a very short step to conclude “and it also has power to provide to an applicant the certificate”.  I hope that answer your Honour’s question.

Unless there are any other questions about GB itself, that probably brings me to the killing ground of this case, which is 473DA and whether there is the unmistakable clear language that your Honours would ordinarily search for to exclude any obligations of procedural fairness.  The appellant does not place any meaningful weight in his argument on any comparisons with 422B in relation to Part 7.  As your Honours well know, that provision is differently drafted and has different operation.  I will make just a couple of observations about the differences between the two provisions, given the Minister has gone into some length about 422B.

As we apprehend the operation of that provision, it requires attention to what is the matter which might be thought of as a bubble around the various provisions to which it directs its attention and it says you must define that bubble, that is the matter that it deals with, and whatever is implied in terms of the content of procedural fairness within that bubble, you get only that which is provided by the Act.  Everything else within that bubble that might have been implied in terms of content or procedural fairness is excluded.  It does that in respect to several bubbles and then whatever is left outside of those bubbles is untouched, and if there is any content to procedural fairness that sits outside of those bubbles, then it continues to survive.

In 473DA we see the provision as creating a bubble around this division – I should say the requirements of the natural justice hearing rule as are expressed or implied by the presence of this division, which is Division 3, the conduct of the review, as well as 473GA and GB.  Then it says within that bubble, whatever requirements of the hearing rule exist, they are preserved and everything else outside that bubble is cut down.  So if I can source the implied obligation that ground 1 depends on within the opening eight words or so of DA(1) then, in my respectful submission, DA does not achieve the result that the Minister submits.

GAGELER J:   What result does it achieve?  What does it do, in your submission?

MR ALEKSOV:   It excludes – yes, your Honour, the cases in relation to 422B reveal that there are many other obligations or requirements of the hearing rule that would not be included by reference to whatever is in this Division, GA and GB, including I think the decision in WAJR, your Honours, which is behind tab 26.  I will not ask your Honours to go to it at the moment but that is one example where Justice French, as his Honour then was, identified the existence of a procedural fairness obligation about bringing to an applicant’s attention an issue – used in a non‑technical sense – about the voracity of documents that was not obvious in discussions at the hearing.

If one thinks of what is required by Alphaone and the many cases where your Honours repeat those principles, it is impossible to say in advance just what the requirements of procedural fairness might require.  One of the requirements, certainly, is to inform an applicant of an adverse finding which is not obviously open on the known material – DA(1) would exclude that requirement at the least. 

EDELMAN J:   Would one view of DA(1) be that, enacted against a very long‑standing understanding in this country, that procedural fairness is a rule that arises by implication from the terms of the legislation?

MR ALEKSOV:   Yes.

EDELMAN J:   That a provision like DA(1) is proscribing the universe of terms from which that implication can be drawn and no further.  In other words, other provisions in the Act cannot be looked at in order to draw the implication and the implication could only be confined to matters that are contained within the division and 473GA and 473GB.

MR ALEKSOV:   Yes, I think that is right. 

NETTLE J:   When you just read it in accordance with its natural and ordinary meaning to say that this division and the two named sections are all that you get by way of natural justice under this part?

MR ALEKSOV:   Yes.  We submit that when it says “all that you get”, some close attention needs to be given to what this division gives you.

EDELMAN J:   It must be express and implied.  It is all that you get that is express and all that you get that is implied from those provisions.

MR ALEKSOV:   We say, “implied by the presence of” those provisions.  There are different ways in which one might analyse the way the implication arises.  I think there is a debate in the Academy about whether natural justice – there has been a debate and it might have been settled by this Court about whether natural justice is an application of a common law rule of interpretation or whether it is a statutory implication itself.  Those debates probably do not need to be had.  But, yes, I agree with what your Honour Justice Edelman puts to me, with the qualification of “implied by the presence of”.

And to answer your Honour Justice Nettle’s question, yes, that is exactly right.  That is the way we read it.  And, then, you need to look – but you need to look to what the provisions give you to understand just what that means.  This division gives you really only one thing, which is the right under DE, the obligation on the authority under DE to put certain kinds of new information.  One thing ‑ ‑ ‑

GORDON J:   It tells you a bit more than that, does it not?  It tells you a couple of things up‑front, and that is that there is nothing that requires the Authority to give the applicant any documents, that it is to be done on the papers only.  They are things you cannot ignore, can you?

MR ALEKSOV:   That obligation, your Honour, is in DB(1), which is expressly made “Subject to this Part”.

GORDON J:   I accept that, but you cannot ignore the fact that you have got DA(2).

MR ALEKSOV:   I accept that; of course not.  That is entirely consistent with our argument, your Honour, because the certificate itself is accepted by all parties ‑ the document being the certificate is not itself review material, nor could the certificate have been before the delegate and so there is nothing incompatible with DA(2) and our argument.

GORDON J:   Then subject to the part, which is the…..point you raise in DB(1), “Subject to this Part”, then the review is to be conducted on the papers.  The primary rule, the default rule, is it is to be done “without accepting or requesting new information” and “without interviewing the . . . applicant”.

MR ALEKSOV:   Can I take those in turn, your Honour.  On the papers, there is nothing incompatible with our argument and a review on the papers.  Correspondence in writing is the usual way certificates are notified to applicants in Part 5 and Part 7 reviews.  There is nothing to say that that would not be the way it would be done in this case.  Indeed, it is the obvious way it would be done.  And the Authority would have very extensive scope to control what happens.  Once a certificate is given to an applicant it can impose pretty narrow timeframes in terms of telling an applicant, “I will proceed to decision on this date, unless you do X, Y and Z”.  If an applicant responds to the provision of a certificate with some arguments about GB(3)(b), exercise of power, the Authority can consider that and do whatever it needs to.  And if it chooses to exercise that power then, again, any further material that is provided by an applicant, if they are provided with aspects of the certificate material, is also tightly controlled by the IAA. 

There is no automatic right to have it admitted for consideration if it is irrelevant or if the Authority does not think it goes to something it needs to decide, then it just simply would not be admitted for consideration through DD(b).  You would also need to meet of course the two elements of DD(a) and DD(b) and the dual element in (b).

That is a long‑winded answer to your Honour Justice Gordon’s question about:  well, you are starting with a default rule, and we accept that, but the impact of accepting our argument on that default rule is quite minimal, in our respectful submission.  We would also, then, to pick up the next point, say that the Authority does not need to accept or request new information and not interview an applicant remains so.  There is nothing incompatible with accepting our argument and those provisions because, whatever an applicant does in response to being provided with a copy of the certificate, falls to be considered by reference to that default obligation.  And, in our respectful submission, the words “Subject to this Part” give our argument on that matter pretty strong foundation.

NETTLE J:   Mr Aleksov, just to come back to 473DA(1), is not the effect of your construction of it to make it have the same result as 422B(1)?

MR ALEKSOV:   No.  The example, when your Honours come to it in – the example I gave in the answer to Justice Gageler’s question about:  what else does it exclude, it excludes an obligation to inform an applicant of issues arising in the review that might not be obvious on the known material.

NETTLE J:   You say that, and undoubtedly by reason that it has been held that would be so under 422B(1), but the terms of 422B(1) are different and more restricted than those of 473DA(1).

MR ALEKSOV:   We would not accept, necessarily, the expression “more restricted”, they are just different.  If I could ask your Honour to indulge my analogy of the bubbles, 422B creates bubbles and has an exclusionary effect within them.  The matters that are dealt with by the provisions to which 422B refers to, the exclusionary effect is within that.  It is a different kind of exclusionary provision than 473DA.

NETTLE J:   Well, there is only one bubble under 473DA(1).

MR ALEKSOV:   Exactly.

NETTLE J:   That is the whole of the review.

MR ALEKSOV:   422B, your Honour, does not exclude anything outside the bubble, whereas 473DA specifically excludes things outside the bubble – that is its object ‑ and so they are different in character.

NETTLE J:   I am sorry, I am missing this.

MR ALEKSOV:   Yes.

NETTLE J:   Is not the bubble under 473DA(1) the conduct of the review?

MR ALEKSOV:   No, the bubble under – well, that is the universe, and the bubble within the universe is this division, together with 473GA and GB, in my metaphor.  Your Honour might have revealed a problem with my metaphor.

NETTLE J:   I am just trying to follow it.  I mean, it says these sections, for want of a better term, are the exhaustive requirements of natural justice in relation to the conduct of the review.  I mean, how much more plainly can it be said?

MR ALEKSOV:   I accept that.  The question that arises in this appeal is – so I think it is accepted that 473DA assumes that some requirements of the hearing rule are found in this division, GA and GB.  If that be so, this division, there is clearly some requirements of the hearing rule there, but unless we are right, it seems impossible to see what requirements of the hearing rule arise from GA and GB.  Not to accept our argument would, in substance, strike out the reference, together with sections GA and GB.  Let me take your Honour to those provisions, to show why that is so.  GA is headed:

Restrictions on disclosure of certain information –

It says information might not be provided to the Authority in those circumstances, and that a certificate might be issued under subsection (2) for those purposes.  Unless there is an implied obligation to notify an applicant of that certification, there is no requirement of the hearing rule arising from 473GA.

GORDON J:   There may be, though, under 473GB(3).  It may be that if you take the express words of that, sitting with DA(1), that that is the limit of the hearing rule.

MR ALEKSOV:   I accept that is a possible construction of DA(1), your Honour, but it is not the preferable construction because DA(1) needs to be read as a whole.

GORDON J:   Of course.

MR ALEKSOV:   If that construction were correct, it would strike out GA from DA(1) because if the only requirement of the hearing rule is a silent possibility of the Authority to give information under GB(3)(b), then there is nothing that ‑ ‑ ‑

GORDON J:   It does not strike out GA.  All GA does is, in effect, reinforce the limitation of the hearing rule by reference to its inclusion in DA.  In other words, what it is saying is, you cannot get the information, because there is no obligation on the Secretary to give it to the IAA.  So that, in effect, informs the extent of and the conditioning of the hearing rule.  It does not cut it out.  On the contrary, it reinforces the existence of what is there.

MR ALEKSOV:   In my respectful submission, that is intention with the way that DA is structured because it clearly takes an assumption that some of the requirements of the hearing rule are found in this division, together with GA and GB.

EDELMAN J:   In any event, on your submission, one still needs to go to 473GB and work out what the powers are – both express and implied – that are contained within that.  And, then, one turns to 473DA(1) which purports to retain some degree of procedural fairness, to the extent that that is contained within 473GB.

MR ALEKSOV:   Yes.  In our submission, it purports to retain all of the requirements of procedural fairness as arise directly from the “by implication from” ‑ ‑ ‑

EDELMAN J:   Yes.

MR ALEKSOV:   ‑ ‑ ‑ those provisions.  Now, this division might have – this is, perhaps, in passing but one thing that might have been implied by this division is that the Authority has an obligation to notify an applicant that it is considering admitting new information for consideration but that is not possible because of DE which, pretty clearly, sets out when such new information might need to be put to an applicant.

So, I do not want your Honours to perceive our argument as carrying an implication that the Authority would also have to notify an applicant every time it is considering obtaining new information.  I am not sure I have put that all that well.  This division – as mentioned in 473DA – refers to the powers to get new information and to consider and admit it. 

EDELMAN J:   Does the point, in short, just come down to the fact that, if you are right, that in 473GB, there is an implied power to reveal the information about the certificate to an applicant?

MR ALEKSOV:   Yes.

EDELMAN J:   If that implied power would ordinarily carry with it an implication that it would be exercised fairly, or consistently with the requirements of natural justice, then 473DA does not exclude that, rather it expressly preserves it.

MR ALEKSOV:   Yes.  And, what it does – the way we submit is the correct way to think of the provision – is that it says providing the Authority complies with this division – and 473GA and GB – it has complied with the hearing rule.  It is commonly spoken of as a rule of exclusion but, really, it might be better characterised as a deeming rule which has an effect of exclusion.

NETTLE J:   Just one more question.

MR ALEKSOV:   Yes, your Honour.

NETTLE J:   Why would you not – to come back to Justice Gordon’s inquiry – why would you not read 473GB(3) as being the express and exhaustive requirements for natural justice when a certificate has been issued?

MR ALEKSOV:   If your Honour – to read 473GB requires attention to the implications that arise by the application of the common law rule of statutory interpretation – that where an authority makes decisions or exercises power which may affect an applicant’s interests – so that is Kioa v West – it is implied that it will do so in a manner that is procedurally fair.

NETTLE J:   Absent 473DA(1) and 473GB(3).

MR ALEKSOV:   Yes, exactly.  I accept that but we say that the proper analysis is to start from, would there ‑ but for DA, would there be an obligation on the Authority?

NETTLE J:   Let so much be assumed. 

MR ALEKSOV:   Then, one looks at how clear – are the words in 473DA so clear that they just leave no room for doubt?

NETTLE J:   I should have thought so.

MR ALEKSOV:   In our respectful submission, we read the provision as saying whatever you get in this division and implied from GA and GB, that is exhaustive, and in GB you get the implied right to be told a certificate exists. 

GAGELER J:   How do you get the implied right to be told, other than through an implication of procedural fairness?

MR ALEKSOV:   You do not through an implication of procedural fairness but, in our submission, the way that DA works is to say that whatever in the requirements of the hearing rule as expressed in GB and as implied by the presence of GB, which is that requirement.  It does not say “and implied by the presence of”, but that is, in our respectful submission, the only reasonable way or the correct way to construe it because otherwise you just do not have any requirement of the hearing rule arising from GA which we submit on our construction presents a tension which favours our submission.

I accept it might be thought that there is a – well, Justice Gordon and Justice Nettle put to me there may be another view of it, which is that what this is telling you is that here is the bundle, this Division, GA and GB, they are the only provisions that might have anything to do with procedural fairness in this regime and whatever is expressed there, that is all you get.  The words in DA(1) are just not sufficiently clear to achieve that outcome.  A lot is needed by way of inference, implication and understanding of policy that just does not get you there and that is abundantly clear, given that the only place where that inference might be found in the Act is in DB, the general function about how a review is to be performed and potentially the exultation in 473FA:

efficient, quick, free of bias and consistent with Division 3 –

GORDON J:   There is another provision as well, is there, in this context in that you have got 473GB(3) which says the Immigration Assessment Authority, if they are given a document or information which is subject to this provision, there is no obligation at all to give anything, especially not the certificate.  What it says is they may, if they think it appropriate in a sense:

for the purpose of the exercise of its powers . . . have regard to –

And then may:

disclose any matter contained in the document, or the information ‑ ‑ ‑

MR ALEKSOV:   I accept that, your Honour, but it is in relevantly identical terms to 438(3)(b).

GORDON J:   It might be, but it sits in a very different regime.

MR ALEKSOV:   It does, but in itself the certificate, in our respectful submission, has to be understood as an event which does alter the procedural context of the way in which the applicant comes to approach what I have called their right ‑ it is a qualified and limited right ‑ but I still call it their right to make submissions to the IAA which extends to, as your Honours correctly recognised in SZMTA, any procedural discretion available to the IAA.  How is an applicant to know – and the facts of this case provide a stark example – how is the applicant to know to request that the IAA provide to him that part of the certificate material which was under (b) and that part of the review material which was under the certificate, and how is he to know he needs to address considerations arising from the reason for the certificate, the confidentiality issue, unless he is told it exists?

GAGELER J:   In SZMTA, on my understanding, the implication of procedural fairness was not found within section 438, it was found in the presence of section 438 in circumstances where the giving of the certificate altered the nature of the review.  It was found in the more general requirements implied within the part to conduct the review.  That is, it was a more general implication, and that was the reason why it was not excluded by section 422B.  If you want to draw the analogy between section 473GB and 438 and apply the reasoning in SZMTA, I think you need to accept that the implication is not to be found in the section itself.

MR ALEKSOV:   I understand what your Honour is putting to me but it is impossible to deny that in SZMTA, the presence of 438 was part of the context which implied the procedural fairness obligation.  Here, although there are not express equivalents to section 423 and 427(1)(c), there are implied and limited analogues to those provisions in that an applicant has the opportunity to present information or submissions to the IAA, and the IAA has the power to give him or her such information as might be relevant.

EDELMAN J:   You accepted, I think, in relation to a question you were asked by Justice Gageler, that the power to provide that information, at least so far as it is implied by 473GB, would itself be dependent upon an implication of procedural fairness but what about 473DC(3)?  At least, as I understand the joint judgment in M174 at paragraph 49, there is an implied power under 473DC(3) for the Authority to provide documents to an applicant.

MR ALEKSOV:   There is certainly that but I probably do not need to go to 473DC to identify the source of a power in the Authority to give an applicant so much information about the existence of a certificate as might be necessary for the Authority to perform the review.

EDELMAN J:   Well, unless you can source the power independently of the obligation of procedural fairness then the argument becomes circular, does it not?

MR ALEKSOV:   It does not become circular if one accepts our construction of DA, which is that the provision makes an assumption which should be validated, that this division and GA and GB imply some of the requirements of procedural fairness by their very presence.

Just coming back to your Honour Justice Gageler’s question, in this context 473GB(3)(b) itself is sufficient to imply the requirement of procedural fairness because it is a provision which confers on the Authority power to do something which affects the applicant’s interests.  The usual rules of statutory interpretation mean that, absent clear indication to the contrary, that in itself would imply an obligation of procedural fairness.

I accept what your Honour puts to me that, in the context of Part 7 reviews, there was a broader source for the obligation to notify an applicant of the event of a certificate but I can also submit that, in this context, (3)(b) itself directly implies that obligation because the Authority is doing things, making decisions, which affect an applicant’s interests.

The presence of that power, we submit, implies the obligation of procedural fairness that would usually accord with it.  The content of that is a matter for debate in other cases and it would surely be less than in the usual run of Part 7 cases, but there is at least the implication of the duty.  If one accepts that, because the Authority is making decisions and potentially exercising power or not doing so, which affects an applicant’s interests and the provision itself implies the obligation that I am contending for, then when one turns to 473DA it is not so much of the implication of procedural fairness as might arise from broader contextual features as were relevant in SZMTA is excluded but so much as arises from the presence of the power itself in GB(3)(b) is not.

KIEFEL CJ:   Well, on one view 473DA, as you say, preserves what appears in 473GB and that would be the possibility of the exercise of the power.

MR ALEKSOV:   I accept that is an open construction, but what we are talking about here is a provision which would cut down procedural fairness, so one reaches for the principle of legality and says, if there are fairly open ‑ ‑ ‑

KIEFEL CJ:   That might be the content of your procedural fairness, the mere possibility.

MR ALEKSOV:   That would be a question, in my respectful submission, best understood as a materiality argument, which is put against us by the Minister in a slightly different way.  But the content in a particular case might be simply – or the Authority might do so silently ‑ but the content in other cases – and this is a clear example – is, well, we really did have to tell the applicant about that, which starts to blend with the arguments about ground 2.

KIEFEL CJ:   Are you going to develop the argument or meet the Minister’s submissions about materiality at this point or are you moving to ground 2?

MR ALEKSOV:   Just before I do, your Honour, I just want to make sure I have answered Justice Gageler’s question about the basis on which we say an implication of procedural fairness arises from within the things mentioned in DA.  I am not sure if I got to the end.

KIEFEL CJ:   Certainly.

GAGELER J:   You are asking for an indication from me?

MR ALEKSOV:   No, I am just wondering if your Honour had any subsequent questions about that issue.

GAGELER J:   No, I do not.  Thank you.

MR ALEKSOV:   Thank you, your Honour.  Yes, your Honour, so I would come to materiality now.

EDELMAN J:   Is there not a step before materiality, which is whether or not there has been any breach of procedural fairness at all, in circumstances in which all of the information on the certificate was known to the applicant anyway?

MR ALEKSOV:   That is not so, your Honour.  All that the applicant knew about the information of the certificate is that which is mentioned in the delegate’s reasons and there are only references to it in the delegate’s reasons which is that, in general terms, it supported his claims about his family members.

EDELMAN J:   What else is there on the certificate?

MR ALEKSOV:   As far as the Authority was concerned, it perceived that there was a significant omission, being that the brother had not mentioned that my client had suffered any harm in the past.

EDELMAN J:   Sorry, that is said on the face of the certificate?

MR ALEKSOV:   It is not said on the face of the certificate but in terms of materiality, if I have persuaded your Honours that there was the obligation, it is accepted by everyone it was not complied with, the applicant has then lost a valuable opportunity to seek the exercise of the power under (3)(b) and that is as far as I would need to go for materiality.

EDELMAN J:   What I am asking you about is whether or not there was a breach of an obligation of procedural fairness to fail to disclose the existence of a certificate where the content of that certificate did not go beyond the information that was contained in the delegate’s reasons.

MR ALEKSOV:   The answer is yes, respectfully, your Honour, because knowing of the existence of the certificate, the applicant may have made arguments in aid of the Authority exercising the power under (3)(b) and he lost that ‑ what we say is a valuable opportunity – including to address the reason for the certificate being issued, the confidentiality in the brother’s file.

EDELMAN J:   Why could he not have addressed those particular issues independently of the certificate?

MR ALEKSOV:   Because he did not know it was there.  All he could have addressed was to ask the Tribunal to provide to him review material.  Nor could he have known, with respect, that his brother had omitted to mention anything ‑ supposedly, he had never seen the material ‑ omitted to mention anything about him, because there is no mention of that by the delegate.  Indeed, the delegate reasoned, entirely favourably, from the brother’s file, saying, “What you are saying is generally consistent with what he said many years ago, and I accept your broader family member’s stories”.

So I think that roughly wraps up everything we need to say about materiality.  It is a point about loss of opportunity.  In our respectful submission, if we have got to the point where we have persuaded your Honours that there was an obligation to disclose the existence of the certificate and it was not complied with, it is difficult to see how it was not material because, had he known of the certificate, he could have easily sought – the obvious thing he could have done that he was not able to, being ignorant of the certificate, is to request its disclosure and that might have yielded the information, which in turn might have yielded any number of possibilities but the opportunity is what was valuable.

Just before I leave it, there is a small amount that we get from the headings to 473 – it is Division 6, 473GA and GB.  By section 13(2)(d) of the Acts Interpretation Act, the headings are not part of the Act, and the heading to GB is:

Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.

In our respectful submission, the provision with that heading is directed to the potential disclosure of the information to the applicant which is obviously – and I have made this point – something he has a very significant interest in.

If there are not any other questions in relation to ground 1, your Honours, I propose to move to ground 2.  The argument on ground 2 is that it was unreasonable in the legal sense not to consider the possible exercise in the circumstances of the power under section 473GB(3)(b).  Perhaps the first consideration in assessing any argument of reasonableness is always to understand the statutory context, and presently there is obviously debate about that in relation to ground 1.  I will presume for ground 2 that ground 1 is resolved against us and there is no general obligation to disclose the existence of the certificate, as alleged.

The first thing I need to tell your Honours is that I do not say that it was unreasonable not to disclose or to exercise the power under (3)(b).  I cannot say that in this Court.  One of the considerations that had to be relevant in the consideration of that power by any authority would have been the reason for the issue of the certificate itself and, not having seen the material, I do not know whether the interests of confidentiality that the Secretary or the Minister thought justified the certificate were such as might have outweighed the interests in favour of disclosure, and that is a burden I just have to live with because of the way the case was run below.  But I do say that your Honours should infer from the limited record that we have that the Authority did not even consider the possible exercise of the discretion under (3)(b), and that was legally unreasonable.

NETTLE J:   In seeking, as it were, to set aside the Full Court’s finding to the contrary, do you need to persuade us that it was not open to the Full Court on the evidence before it to come to that conclusion, or would some lesser standard suffice?

MR ALEKSOV:   No, I think this point, your Honour, was settled in SZVFW.  The standard of review is what do your Honours think about the argument?  Is it right or is it wrong?  There is no standard of deference to the lower court in relation to matters of this kind.  It is a large question.  If it were otherwise, it has not been put against us.  I am not sure I could say it was not open.  It is a reasonably arguable point. 

The argument needs to go to the reasons which are in the core appeal book in, relevantly, pages 4 and 5.  Before I say some things about these reasons, I accept that the Authority’s obligation to provide reasons, the obligation is in relation to the substantive decision, not in relation to every procedural discretion that might have been considered along the way, nor is it an obligation to set out everything that might have been done along the way.  I accept that.  If we did not have paragraphs 2 and 3, and there was not ‑ ‑ ‑

BELL J:   I am sorry, where are you in the book?

MR ALEKSOV:   Pages 4 and 5, your Honour, at the top.

BELL J:   Thank you.

MR ALEKSOV:   Of the core appeal book.  If an Authority decision is absolutely silent about procedural matters and it emerges there is a certificate but there is no reference to the certificate or any of the material that might have been underneath the certificate, it would seem – at least in the usual run of such cases – the proper inference to draw would be that the Authority did not exercise the power under 473GB(3)(a).  It did not choose to have regard to that information.  That would be lawful because the quarantining of that certificate material from the general obligation to consider review material arises by negative implication from GB(3)(a) itself.

The silence does not justify an inference that the Authority did not consider those discretions.  But, we do not have silence in this case.  What we do have is the Authority specifically addressing itself to at least two procedural considerations – starting under the heading, “Background to the review” which is at the very top of page 4 in the core appeal book.  It is a small point but it does refer to what it is doing in paragraph 1.  And, then, in paragraph 2, it says that it:

had regard to the material referred by the Secretary under s.473CB –

It does not mention the existence of the certificate at this point.  There is another paragraph I need to take your Honours to and then return to make a submission about paragraph 2.

In paragraph 3, the Authority chooses to set out its action under 473DC and its thinking on 473DD(a).  It did not have to do so.  It chose to do so.  That is a significant matter in our case because it justifies an inference that the Authority did choose to discuss what procedural matters had arisen in the course of the review for the purposes of whoever reads this decision. 

Also significant is paragraph 11 of the reasons, which is on page 6 of the core appeal book.  The second sentence, referring to:

A summary of his brother’s protection claims is before the IAA –

No mention is made of 473GB at all in these reasons.  And, together with 2 where there is specific mention of CB, in my respectful submission, the better inference is that the Authority just was not thinking about the issues that arise under GB.  The Minister puts against us that, because the Authority clearly did consider the certificate material, it must have affirmatively and deliberately exercised the discretion under (3)(a). 

That is, in our submission, not necessarily so.  The Authority could have been mistaken about its obligation to review all of the material before it, including what was under a certificate and just not known that it needed to go through (3)(a) but because, in substance, it clearly did choose to have regard to that information the substantive requirement of (3)(a) is met, so there is no question about validity in that respect.

But what is material, in our respectful submission, is that if the Authority was properly minded, was properly thinking about this regime, when it spoke of new information it admitted for consideration, in addition to the review material, it would have at this place also mentioned that it affirmatively exercised the power under (3)(a) for the purposes of admitting the certificate material into the review.  The omission to mention that is highly significant and justifies the inference that it just did not think about, at the very least, the possible exercise of the power under GB(3)(b).

There are other matters that we say corroborate or fortify that inference.  One of them is that, objectively speaking, there was very much to be said for the actual exercise of that power in this case under (3)(b).  The Authority had to have known from listening to the delegate’s interview and from reading everything that came before it that the applicant had never been put on notice of the existence of this omission.  Now, that in itself might be a procedural fairness complaint but it is not one we bring to this Court.

However, it is relevant that the Authority had to have known that.  The omission that is relied upon in reason 18 of the Authority is only probative if it is unexplained where an applicant has been given a reasonable opportunity to explain it.  So had they been given such an opportunity, the failure to explain it is very probative.

The Authority had to know that was not the case here and that any absence of an explanation by the applicant was not because he could not give one or could not give a good one, because he just did not know.  Any conscientious decision‑maker, having appreciated that, in our respectful submission, would have had to have turned their mind to whether or not it was appropriate to give the applicant notice about that possibility, including possibly exercising (3)(b).

If that is right, the Authority must have had some cogent reason for not exercising that power.  A cogent reason might have been found in the confidentiality of the documents – we have not seen them, so we do not know – or perhaps the exaltation to be efficient, but it is unthinkable that having formed in its mind a cogent reason of that kind, having gone through the intellectual process, that it would not reduce it to writing, especially where it has chosen to reduce to writing its consideration in relation to another procedural matter relevant to the admission of information in the review.

BELL J:   Bearing in mind the provisions of 473EA(1) your argument is significantly dependent upon the inference to be drawn from the election to go beyond the requirements of a decision and to record the matters that appear, in particular, in paragraph 3, is it?

MR ALEKSOV:   Yes, your Honour.

BELL J:   So we are to draw from the fact that the Authority chose to include reference to the new information that, had it turned its mind to 473GB(3), it would have recorded that fact.

MR ALEKSOV:   And the outcome of why.

BELL J:   And the outcome.

MR ALEKSOV:   And the outcome of why it was not exercised.

BELL J:   It was under no obligation to do so.

MR ALEKSOV:   Yes, I accept that.

BELL J:   So it is an implication upon an implication drawn from paragraph 3.

MR ALEKSOV:   We say it is an inference, and one of the contributing factors is the choice made at paragraph 3 to go into writing about procedural discretions.  There are other contributing factors.

BELL J:   The other factor is that you say, having regard to the nature of the material and the issues, we would draw some inference from the fact that it did not at least raise the matter with the applicant?

MR ALEKSOV:   No, I say your Honours would draw the inference from the omission to mention anything about that in the statement of reasons, building upon the first inference.

BELL J:   Just to understand that second basis, it is because you say, having regard to the materiality of this information ‑ ‑ ‑

MR ALEKSOV:   Yes, centrality of it, yes.

BELL J:   ‑ ‑ ‑ the inference would be drawn that it would be unreasonable for the Authority, were it mindful of 473GB(3)(a), not to consider the exercise of the power under subsection (b) and, accepting all of those things, we would draw some inference from its failure to record that thought process?

MR ALEKSOV:   Yes, although there is more detail around that.  So there are two steps in our argument on ground 2.  The first one is a purely factual question, about whether your Honours would – and it does not have regard to principles of legal reasonableness, it is just simply a factual question from the evidence in the materials, would your Honours infer, as I ask your Honours to do, that the Authority did not consider the possible exercise of 473GB(3)(b).  If that question is answered favourably to us, the second stage of our argument is, was that failure unreasonable in the circumstances?

BELL J:   As to the first, why are we drawing that inference unless you are right on your second limb?

MR ALEKSOV:   The considerations relevant to the first and the second overlap very much.

BELL J:   Yes.

MR ALEKSOV:   I accept that, your Honour.  I was trying to, perhaps I did not do it successfully, take them in turn, and at the risk of potentially repeating myself, explain all of the contributing factors to stage one and stage two.

BELL J:   All right.

MR ALEKSOV:   I mean, in summary I can say the contributing factors on the first stage are the choice to make ‑ go into writing at paragraph 3 ‑ the reference at paragraph 11 to the summary of the brother’s protection claims being before the IAA without there being any mention of the certificate or 473GB at all.

KIEFEL CJ:   Mr Aleksov, how long will you be on ground 2?

MR ALEKSOV:   Ten more minutes, your Honour.

KIEFEL CJ:   We might hear you and then have the morning break.

MR ALEKSOV:   If the Court pleases.  Also the observation that, given what your Honours see at paragraphs 2 and 3 and 11, if it is the case that the Authority turned its mind to the discretion under (3)(b), it would have formulated a reason in its mind for not exercising it, and that has to be inferred because it did not exercise it. 

If the Authority has gone to the trouble to form an opinion reasoned out as to why it would not exercise that power – and this is where it overlaps with the second stage – where there are obviously compelling – I say powerful, but not conclusive – reasons why it might have done so, in fact exercise the power, it is on the balance of probabilities more likely than not that it would have actually said what that reason was, and the failure to do so with those three contributing factors in mind, in my respectful submission, answers the factual question at stage 1 favourably to us.

If your Honours are not with me at that stage, one simply does not get to the question of reasonableness.  I do not think I can add any more to why we say that inference should be made at the factual level.  If it is the case that the Authority failed to consider the possible exercise of (3)(b) then, in our respectful submission, it is beneath the minimum to have been expected of the Authority in a case such as this one.

As I have mentioned – and this is at risk of repeating myself – the reasoning at paragraph 18 was said by the Authority itself to be significant.  I accept it was not the only reasoning.  But it is not possible to say, as the Federal Court did, that perhaps the Authority might have had sufficient other bases for rejecting the applicant’s claims.  It specifically said that there was an accumulation of factors and the matter at paragraph 18 was one of those significant factors in the accumulation.  It is obvious that the probative value of this omission was affected by whether or not the applicant has had the opportunity to say anything about it.  It is uniquely well placed to potentially answer it.  Indeed, the delegate recorded that the applicant and his brother had lived together in Australia for a time.

The Authority had extremely significant powers to control what might happen.  First, the act of consideration is just so simple that it takes a few minutes but, thinking it through more logically, if it were to exercise those powers, because it has such significant control over what happens if it does invite the applicant – or does give any of the material and invites new information, the efficiency or inefficiency of the review is not blown out.  Those are factors that are relevant to the consideration of the balance about whether or not it was reasonable in the circumstances. 

This is a case where we say it was just so plainly unjust because it was just utterly disproportionate not to at least think about the possible exercise of the power, including having regard to the dual function of performing a review, very important rights for the applicant but also a very important public interest under consideration.  On top of that, the Authority of course had scope to significantly control derivative disclosure under 473GD, punishable by criminal law.

Unless your Honours have any other questions, those are the appellant’s submissions.

KIEFEL CJ:   Thank you, Mr Aleksov.  The Court will adjourn for a short period.

AT 11.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

KIEFEL CJ:   Yes, Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honours.  Do your Honours have the outline that we distributed this morning?

KIEFEL CJ:   Yes, thank you. 

MR JOHNSON:   Your Honours, focusing upon ground 1, which alleges that the Authority was obliged to inform the appellant of the fact that it had a notification under section 473GB(2) of the Act, or a certificate under section 473GB(5) of the Act, we submit that there was no such obligation and there was no jurisdictional error as a result of any such failure to inform.  The provisions of Part 7AA are of course very different in multiple respects from Part 7, and that of course lies at the heart of our distinction of the present case from SZMTA. 

What I proposing to do was just to shortly step through these provisions.  In relation to section 473GB itself, it does in fact confer upon the Authority in subsection (3) two discretions, the first being whether to have regard to any matter contained in the documents or to the information which is the subject of the certificate.  That is in paragraph (a).  Then in paragraph (b), if it thinks appropriate, having regard to any advice from the Secretary under subsection (2), there is a discretion to disclose any matter contained in the document or the information to the referred applicant.  Those provisions do not in terms provide for the applicant to be involved in that process and the section should be seen, in this respect, as being express and exhaustive as to what it does require. 

We say, too, that there is a distinction between the notification or the certificate, on the one hand, and the document or information to which it relates.  There is no provision in the Act for the disclosure, either of the existence of the certificate or of the certificate itself, to a review applicant.  The discretion in paragraph (b) of section 473GB is limited to the document or information in the certificate. 

GAGELER J:   When you describe section 473GB as express and exhaustive, do you allow for the implication of a requirement of reasonableness?

MR JOHNSON:   Not from 473GB itself.  As your Honour Justice Gageler suggested to my friend Mr Aleksov in argument, the implication which was drawn in SZMTA as to there being an obligation to disclose the existence of a section 438 certificate was really drawn from other procedural provisions, and the way in which the giving of the certificate altered what would normally be the procedural course under Part 7.

GAGELER J:   My question was a little different.  I am drawing a distinction between the implication of legal reasonableness and the implication of procedural fairness, and so what I was asking is whether you admit of the implication of legal reasonableness in the exercise of the power.

MR JOHNSON:   Yes.

GAGELER J:   Thank you.

MR JOHNSON:   We accept that the discretions in Part 7AA are subject to the implication of legal reasonableness.  We do not dispute the prior judgments of this Court in relation to that subject.

EDELMAN J:   What about 473DC(3)?

MR JOHNSON:   Section 473DC(3), in our submission, does not assist the applicant here.

EDELMAN J:   My question is one step before that.  Whether it assists the applicant here, does 473DC(3) in its terms first of all permit or give rise to an implied power for the Authority to provide a document to the applicant, where the document is a certificate?  Secondly, if so, if there is that implied power to do so, would that implied power be subject to a duty to be exercised in circumstances where procedural fairness required it?

MR JOHNSON:   In my submission, your Honour, both questions would be answered in the negative. 

EDELMAN J:   Is that consistent with what is said at paragraph [49] of M174?

MR JOHNSON:   Your Honour, M174 was not speaking of section 473GB.

EDELMAN J:   I am talking about DC.

MR JOHNSON:   No, I understand that, your Honour.  But what was said in M174 about DC was not in the context of section 473GB, and also the ‑ ‑ ‑

EDELMAN J:   Your submission, a moment ago, is that 473GB – at least GB(3) – is not concerned with the certificate; it is concerned with the information to which the certificate relates?

MR JOHNSON:   We say it is exhausted as to what is required of the Tribunal as a result of the notification.  So all that the Tribunal needs to do is what is expressly set out there, the Tribunal does not have an additional obligation to tell the applicant of the existence of the certificate.  In relation to section 473DC, it is about the power of the Authority to get new information.  That is, new information that was not before the Minister when the Minister made the decision, which the Authority considers may be relevant to the review.  The certificate itself is not new information.  The certificate itself is not relevant to the review and ‑ ‑ ‑

EDELMAN J:   Could it not be, in some circumstances?  This is the question of construction that I am asking.  I realise you say that, in these circumstances, the certificate is not relevant to the review but if the certificate, on its face, contained new information – the certificate was a matter that was not before the Minister when the Minister made his decision – or the delegate – could not the certificate then itself be new information?

MR JOHNSON:   In my submission, no, because when the provision speaks of material that the Authority considers may be relevant, it is speaking of relevance in a substantive sense.  So it might be that the material, which is the subject of the certificate, is relevant in that substantive sense but the certificate itself would not be.  The fact that the Minister gives the certificate does not go anywhere as to whether the decision under review should be affirmed or not. 

EDELMAN J:   So the last question:  and that would be so, even if on the face of the certificate there was information that could itself be used independently of the underlying content of the information that is protected by the certificate?

MR JOHNSON:   In my submission, yes, because the focus would be on that underlying information.  I accept, your Honour, that certificates might vary in the precision and the extensiveness with which they describe the material which is the subject of the certificate but it is not the fact that the Minister takes a view as to public interest or takes a view as to whether the material was supplied in confidence that would matter so much as whether the material was substantively relevant.

It might also be relevant, your Honour, in relation to section 473DC that subsection (2) provides that the:

Authority does not have a duty to get, request or accept, any new information –

It would be odd if it did not have a duty to get, request or accept new information which is referred to in a certificate but did have an obligation in relation to the certificate itself.  If the certificate was so detailed as to itself contain or repeat the information, well, then subsection (2) might suggest that the Authority has no duty to provide it. 

GAGELER J:   Mr Johnson, just so I understand your earlier submissions about section 473GB(3), if you look in SZMTA at paragraphs [23] and [24] is it your position that what is said in those paragraphs about section 438(3)(a) and (b) applies mutatis mutandis to the content of the discretions conferred by section 473GB(3)(a) and (b) or are you drawing a distinction?  It was not clear to me.

MR JOHNSON:   Could I just deal with both of them?

GAGELER J:   Yes.

MR JOHNSON:   In relation to paragraph [23], the first sentence simply describes the discretion which is expressly conferred by paragraph (3)(a) of section 438 and obviously the drafting is the same.  Then the balance of the paragraph makes the point that implicit in the conferral of that discretion is that the Tribunal has no power to have regard to the information, or to any matter contained in the document, for the purposes of making a decision on the review unless the discretion is affirmatively exercised.  We do not dispute that, your Honour.  Here, there was no dispute below that the discretion was exercised and we submit that the plain inference is that it was exercised, because the Tribunal did in fact have regard to the material.

In relation to paragraph [24], again, the first sentence really just repeats the text of paragraph (b), and the next sentence makes the point that:

Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised.

Now, in relation to that, we would say once again that the Authority has no power to disclose the information or any matter contained in the document, unless it positively exercises the discretion.  It does not have to give the applicant that material so that it can exercise the discretion.

With respect to those important procedural provisions in Part 7 which are mentioned in that sentence, 427(1)(c), 424AA, 424A and 425, they do not have equivalents in Part 7AA.  And there is no equivalent to 423 either; I was going to come to that just shortly.  So there is a fundamental difference between the normal operation of the procedural provisions which would have been disturbed by the existence of the certificate in SZMTA and this case.

GAGELER J:   That really leads into the main question I wanted to ask you.  There has been reference I think by Mr Aleksov to the existence of a practice direction, but I do not think it is before us in this case.

MR JOHNSON:   No, it is not.

GAGELER J:   The practice direction, I understand, provides for the review applicant to have some ability to make submissions to the Authority.  Is that correct?

MR JOHNSON:   Could I take that on board, your Honour?

GAGELER J:   Yes.

MR JOHNSON:   I will definitely come back to it but I would like, if possible, to have the particular wording before answering your Honour.  Your Honour, could I say that the practice direction was in the appeal book before the Full Court.  So, there would be no difficulty with your Honours having regard to the practice direction if your Honours wished.  It is paragraph 20 of the practice direction and it says:  (do not have)

For the purposes of the review, you may provide a written submission on the following:

·why you disagree with the decision of the Department

·any claim or matter that you presented to the Department that was overlooked. 

So that seems to envisage substantive submissions cavilling with the decision of the Department.  What I will do, your Honour, is I will just pass this back to Mr Swan so that he can double‑check that there is nothing else in the practice direction about giving submissions.  But that is different ‑ ‑ ‑

GAGELER J:   That practice direction is given under section 473FB?

MR JOHNSON:   Yes.

GAGELER J:   And the Authority actually has an obligation, albeit one that does not result in jurisdictional error if not followed, but it is still an obligation to comply with the practice direction.  Is that right?

MR JOHNSON:   There is a provision, your Honour, in section 473FB(3), that:

The Immigration Assessment Authority must, as far as practicable, comply with the directions.  However, non‑compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.

So I think your Honour’s summary is correct. 

GAGELER J:   So where I am getting to, Mr Johnson – and it is really to get your reaction to it – is that, although there is no right to a hearing and no right to present new information in the absence of an invitation to do so, there is, by virtue of that practice direction, what could be called a right - and there is certainly a corresponding obligation on the part of the Authority - but a right on the part of the review applicant to make submissions relevant to the substance of the decision to be made on the review.

MR JOHNSON:   Yes, subject to that qualification that your Honour noted, and that I just read.

GAGELER J:   So leaving aside the effect of section 473DA for a moment, is there a material distinction between the operation of section 473GB within the scheme of Part 7AA, and 438 within the scheme of Part 7, for the purpose of implication of procedural fairness in the – where there is a certificate in existence?

MR JOHNSON:   I have made the submission, of course, that the practice direction is not envisaging submissions in relation to the certificate, as opposed to the correctness or otherwise of a decision under review.  And at that level, it is the same both under Part 7 and under Part 7AA but we do stress that distinction.

So we do not see the practice direction as envisaging submissions merely as to section 473GB, or issues under section 473GB, but rather only as to the substantive merits and ultimately whether the decision under review should be affirmed or not and then we also rely on that second sentence of subsection (3) as to the consequences of any non‑compliance with the practice direction.  I will read these aloud.  If your Honours want copies of this, we can have them delivered this afternoon.

KIEFEL CJ:   Yes, thank you, Mr Johnson.

MR JOHNSON:   Paragraphs 21 and 23 should also be read for context.  21:

Any submission must be concise.  It should identify and address the issues you want us to consider in our review.  Your submission should:

·be no longer than 5 A4 size pages,

and should:

·be provided to us within 21 days of your case being referred to us by the Department.

We may return longer submissions . . . If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction.  If you do not comply with that deadline we will make our decision without the benefit of your submissions.

Then 22 makes reference to section 477DD, limitations on receiving new information.  And paragraph 23 says:

If you want to give us new information ‑

. . . 

You must also provide an explanation in writing as to why:

·the information could not have been given to the Department before the decision was made, or

·the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

Then 24 has a page limit in relation to the explanation.  So all of that still leads the points that I made earlier as to the facts envisaging – the practice direction envisaging substantive submissions as to the merits or otherwise of the decision under review.

A related point, and still specifically focusing upon section 473GB, is that whereas there is an obligation in 473GB(3)(b) to have regard to the advice from the Secretary, one does not see any obligation to hear from the referred applicant in relation to the discretions in section 473GB(3).  We say that is a powerful factor in support of an inference that the Authority need not hear from a referred applicant in the exercise of a discretion under that provision.

We also would wish to refer the Court to what was said by the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS 16 (2017) 257 FCR 111. There are only a couple of paragraphs of that that I was going to take your Honours to. It is in tab 12 of your Honours’ bundle. At paragraph 97 the Full Court in BBS16 said:

The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review.  The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b).

Similarly, in paragraph 100, taking up from the second line, the Full Court said that the:

referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3).  For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision.

And the Full Court, in this case, was aware of BBS16 and took a similar view at paragraph 30.  Any procedural fairness entitlement to be found or implied into section 473GB(3) itself is simply limited to that possibility that the discretion may be exercised in favour of the applicant but there is no entitlement for the applicant to be a participant in the process.

I will not go to it, but we note in passing there is another Full Court judgment, AYF16 v Minister for Immigration and Border Protection at tab 6, at paragraph 40, found that BBS16 was correctly decided. 

Returning to the differences between Part 7 and Part 7AA, a first important difference is the way in which section 473DA differs from section 422B, and there are three matters to be noted in that respect.  Firstly, the way in which section 473DA uses the words:

in relation to reviews conducted by the Immigration Assessment Authority.

As opposed to the narrower words in 422B:

in relation to the matters it deals with.

So these words are purposed to overcome the restriction that was found in section 422B(2).  Those words, we say, that are used in section 473DA(1) supply the words of necessary intendment that would be required to exclude an obligation to afford a referred applicant natural justice being implied into the terms of section 473GB(3) if that could otherwise be done.

We also note in that respect that in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs, which is at tab 26 of your Honours’ volumes, in paragraph 57 about two‑thirds of the way down, speaking of the phrase “in relation to the matters it deals with”, in section 422B(2), Justice French, as his Honour then was, said:

This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the tribunal.

It is that global reference which is found here in section 473DA(1).

EDELMAN J:   Would the effect of that submission, if natural justice is excluded entirely from 473GB(3), mean that the Authority could act with actual bias in having regard to information given by the Secretary in deciding whether to disclose that information to the referred applicant? 

MR JOHNSON:   No, your Honour, we do not submit that this reaches bias.  This is concerned with the natural justice hearing rule.

EDELMAN J:   It is confined to the hearing rule then, but it purports to exclude the hearing rule in its entirety, but only the hearing rule then?

MR JOHNSON:   We are not saying that it stretches to exclude bias.  A second difference between section 473DA and section 422B has already been noted by the Court this morning; namely, the presence of section 473DA(2), which provides:

To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

It was common ground in the Full Court that the summary of claims was before the Minister.  There was not a contest about that and, as the Court has already observed during the course of argument, there might be a tension between the existence of that provision in relation to the summary of claims itself and any suggestion that the certificate needed to be disclosed.

GAGELER J:   Do you accept that section 473DC(3) is to be exercised reasonably?

MR JOHNSON:   Yes.

GAGELER J:   What is the relationship then between that provision and 473DA(2) if a reasonable exercise of 473DC(3) would require the giving of the information that had been before the Minister in order to obtain a meaningful response?

MR JOHNSON:   Section 473DA(1) is concerned with the exclusion of natural justice, broadly, and subsection (2) is a very broad provision making it plain according to its terms that:

nothing in this Part –

which of course includes section 473DC:

requires the Immigration Assessment Authority to give a referred applicant any material that was before the Minister when the Minister made the decision –

So that in itself would be a reason not to read section 473DC(3) as leading to some obligation to inform the applicant of the certificate.  I have also made submissions before that the focus of 473DC seems to be upon the provision of new information substantively relevant to the decision, rather than cavilling with the certificate.

GAGELER J:   I am sorry, Mr Johnson, again.  My question was certainly unclear.  I was not referring there to the certificate but rather to some material that was before the Minister.

MR JOHNSON:   The material which is subject to the certificate?

GAGELER J:   Leave the certificate out of it for a moment.  I was just trying to understand your submission about the scope and operation of subsection (2) ‑ ‑ ‑

MR JOHNSON:   I understand.

GAGELER J:    ‑ ‑ ‑of section 473DA. 

MR JOHNSON:   Yes.

GAGELER J:   And the question is, if the reasonable exercise of a power elsewhere – and I am focusing here particularly on the power conferred by 473DC(3) – would require the disclosure of the material, is the disclosure nevertheless precluded by subsection (2)?

MR JOHNSON:   Yes, but I put it a little bit differently, your Honour.  I would say that what is legally reasonable – that when one comes to reviewing action or non‑action under section 473DC for reasonableness – is obviously driven by the statute, and the statute includes section 473DA(2).  So section 473DA(2) would have the consequence that nothing in this Part – and that includes section 473DC – would require the Authority to give the referred applicant any material that was before the Minister.

EDELMAN J:   There is a requirement of reasonableness, but it is empty. 

MR JOHNSON:   It does not include giving the applicant material which was before the Minister.  It might still have some work to do in that more prospective sense of getting new information.  A third important difference between section 473DA and section 422B is that there is no equivalent in Part 7AA to section 422B(3) which provided some support for the Court in SZMTA.  Section 422B(3) was commented upon in SZMOK.  That is in volume 2 of the cases that have been provided to your Honours.  It is under tab 23.

I note that in paragraph 9 of that judgment there is an application of what Justice French said in WAJR, which I took the Court to before, but the reason I am visiting SZMOK at this point is simply – I will not read it aloud, your Honours – just to refer to what the Full Court said at 16 through to 18. 

In particular, the idea which emerges there is that 422B(3) may do the work, not of in effect overruling 422B(2), but rather providing the particular procedural requirements which are there in Part 7 and are themselves to be exercised fairly.  That feature is not to be found in section 473DA, which simply does not repeat that provision.

Also, just to complete this section of the submissions, I might repeat what I said before about there being no equivalent in Part 7AA to sections 423, 424A, 427(1)(c) or section 425, which provided the procedural context that was found to have been altered by the giving of the certificate in SZMTA.  There is a near equivalent to section 424A in Part 7AA and that is section 473DE, but it is limited to new information, and new information would not include the material which was before the delegate, so it would not include the summary of the brother’s claims.

We also say in relation to ground 1 that there is a materiality issue that arises.  The bare fact that there existed a certificate, if that were revealed, would not have alerted the applicant to the prospect that his brother’s silence on a particular subject, as set out by the authority at 18, could be taken into account.  It would not have alerted him to the silence.  So that could not have led to a different outcome.

EDELMAN J:   That is not really materiality, though; that is just no unfairness.

MR JOHNSON:   That is true too.  I accept that, your Honour.  It is both, actually.  It is both, might I say, with respect.  It goes both to the lack of practical unfairness and therefore lack of procedural fairness, but if one assumes that there was nonetheless bound to be a breach of procedural fairness, then at least on the majority reasoning in SZMTA, it would go to materiality. 

It might also be noted in this respect that, if it be relevant – I am not sure that it is, ultimately – but the fact that the brother’s claims have been taken into account by the delegate, would have been apparent from a reading of the delegate’s decision.  But of course the delegate was not making anything of the particular failure to mention that the Authority referred to at paragraph 18. 

GAGELER J:   Are you saying that the decision made by the Authority would inevitably have been the same even if procedural fairness had been afforded, or is the materiality ‑ ‑ ‑

MR JOHNSON:   That is a different and harder road.  The point that I have made so far is simply that if you told him – if you simply told him that there exists a certificate and you did not do anything else, that would not leave him better placed to deal with what the Authority said in paragraph 18 of its reasons, which was based upon the failure of the brother to mention something.  If he was merely told that the certificate existed, that would give him no clue as to what the material was, let alone what its significance might be.

If, on the other hand – sorry, we have also made the submission that one cannot reveal the – the Tribunal has no power to review – sorry, not to review – to reveal to the applicant the particular information which is the subject of the certificate without positively exercising that discretion in paragraph (b).  It would be odd if the applicant first had to be told the nature of the material, or informed of the material, simply so that the Authority could decide whether to exercise the discretion or not.

GAGELER J:   Is that in any way different from SZMTA, from a certificate that is issued for the purpose of section 438?

MR JOHNSON:   I see your Honour’s point but this is a harder case, if I can put it that way, for the applicant because here what we are talking about is the fact that a document does not say something.  And the mere fact that the brother has made claims may itself be relevant, but also confidential.  So, generally speaking, the fact that one person comes along and makes refugee claims is something which is taken confidentially by the Department, and presumably by the Authority, in relation to somebody else’s application.

Your Honour’s earlier question I think was, do we say in relation to materiality that the documents themselves – or knowledge of the documents themselves or knowledge of the fact that the brother had not said something – whether that could have affected the decision.  The fact that the brother did not say something was certainly one of the matters that the Authority took into account in rejecting the applicant’s claim to have been abducted by the Karuna Group and it subsequently gave it some weight.

As we have said in the submissions, when one looks at the Authority’s reasons, there were other things which were taken into account as well.  And, it may very well – it is a hard call to say that there is a realistic prospect of a decision being different had that fact been known.  But, in our submission, your Honour, we do not get to that point. 

GAGELER J:   I am just trying to understand your submission.  That is not your submission.

MR JOHNSON:   No, no.  We are focusing upon the fact that he could not be given the information itself without the discretion actually being exercised in his favour.

GAGELER J:   That is exactly the same under section 438. 

MR JOHNSON:   That is right – true, true.  But, also, we focus upon the fact that because paragraph 18 is talking about the negative – because of the content of paragraph 18 – because paragraph 18 is talking about the brother not having said something, the mere fact that there existed a certificate, just could not have assisted the applicant.  Any applicant who comes to the Tribunal will know – the Act itself makes clear that the Secretary is under an obligation to send review material but that that review material may – or things sent by the Secretary – may be the subject of a section 473GB certificate.  His knowledge would not be advanced beyond that.  I have used a lot of words, your Honour, but I hope I have made myself, at least, tolerably clear as to what we say the materiality point is.

NETTLE J:   May I just ask you, do I understand you to say that because of the absence from Part 7AA of all of those procedural requirements which are identified in 7 the obligation to disclose the existence of a certificate which was found to exist in SZMTA does not arise under Part 7AA?

MR JOHNSON:   Yes, your Honour.

NETTLE J:   That is the difference ‑ ‑ ‑

MR JOHNSON:   That is the difference.

NETTLE J:   ‑ ‑ ‑ even though the sections themselves are identical.

MR JOHNSON:   That is the difference because, if I might say with respect – and Justice Gageler raised this issue before with my friend – that the implication that was drawn in SZMTA did not depend upon the terms of section 473GB(3) itself.

NETTLE J:   It was the disruption of the procedural ‑ ‑ ‑

MR JOHNSON:   Exactly.

GORDON J:   There were three bases for it, were there not?  There was the section, there was a concession by the Minister, there was an implication drawn from the section, and then the critical analysis was the fact that the procedural scheme under Part 7 contained these additional provisions which are absent here, being the additional procedural provisions which are absent here.

MR JOHNSON:   Yes.  The procedural provisions, the operation of which was disrupted ‑ ‑ ‑

GORDON J:   Are not here.

MR JOHNSON:   ‑ ‑ ‑ are not here, and the concession is not here.

GORDON J:   Correct.

MR JOHNSON:   Your Honours, can we give your Honours nine copies of the practice direction.

KIEFEL CJ:   Thank you.  Are you moving to ground 2?

MR JOHNSON:   I was going to move to ground 2.  Ground 2 asserts that the Full Court erred in failing to infer that the Authority had not considered the exercise of its discretion under section 473GB(3).  We say that it was open to the Full Court to find as it did on that issue and that there is a difference between that question of fact and the matter which was under discussion in SZVFW.  What was found in SZVFW to ultimately be a matter for this Court to decide for itself was the ultimate question of legal unreasonableness but what we are talking about here in this first part of ground 3 is whether or not it was open to the Federal Court to not infer that the Authority had not considered the exercise of the discretion.

Now, there are a number of good reasons why the Full Court was able to so find and, indeed, why we would submit this Court would agree it came to decide the point itself.  The first is that the applicant carried the onus of proof to show that no consideration was given to the exercise of the discretion.  The Full Court found that that was not discharged.  The ultimate findings in that respect are at 49 and 56 of the judgment.

Secondly, the only provision in the Act which imposes upon the Authority any obligation to give reasons at all is section 473EA.  And we say that that section, both read alone and also read with section 25D of the Acts Interpretation Act – we accept that section 25D applies ‑ but that section, whether read alone or whether read with section 25D only obliged the Authority to give reasons for its decision on a review under this Part.  Those words “decision on a review under this Part” are to be found in section 473EA(1), in the chapeau of that provision.  That is the final and operative decision of the Authority, which is described back in section 473CC(2); that is, a decision to:

(a)      affirm the fast track reviewable decision; or

(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

The provision does not oblige the authority to give reasons as to procedural steps or decisions that are taken in the course of the review, such as the exercise of discretion under section 473GB(3),  and we say that the Full Court was correct to so conclude.  We also draw support from what was said by this Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 597. I will take your Honour shortly to the paragraphs, but your Honours will be familiar with them. That is a provision on section 430 of the Act, a Part 7 provision, not section 473EA. But the principles which are derived from SZGUR are equally applicable here and the Full Court was, we say, correct to apply it as it did.

It is a provision which has been applied by this Court, for example, in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 25, by way of a caution against finding that something has not been considered, when there is no relevant obligation to deal with the matter by way of reasons.

Let me go to SZGUR.  It is in volume 2 at tab 20.  There were two judgments in SZGUR. One was by Chief Justice French and your Honour Chief Justice Kiefel, and the other was by Justice Gummow, and Justice Heydon and Justice Crennan each agreed with both judgments. Justice Heydon’s agreement is at paragraph 91, and Justice Crennan’s agreement is at 92. In the joint judgment of Chief Justice French and Justice Kiefel at paragraphs 31 and 32, their Honours noted in 31, particularly down at the bottom of page 605, the prior judgment of Yusuf in which it had been held that:

s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”.

Their Honours made the point that:

That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered. 

I will not read paragraph 32, but it makes the point that the exercise of procedural discretion under section 427(1)(d) is just not one of the matters that section 430 requires to be stated.  Then in the judgment of Justice Gummow at page 616 of the report in paragraph 67, his Honour first makes the point that:

The moving party, bears the onus of establishing jurisdictional error . . . There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.

Then in paragraph 69, about halfway through the paragraph, the second sentence of the paragraph commencing with the words “Contrary to the reasoning”, his Honour says:

Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” –

Then in paragraph 70, at the beginning, his Honour says:

An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, should not be drawn lightly.

Those principles, we say, are relevant here and they clearly support the judgment reached by the Full Court.  The other submissions that are made by the appellant in writing and, indeed, orally raise a number of propositions seeking to persuade from a factual point of view that the consideration of whether to exercise the discretion under section 473GB(3)(b) was not engaged in.  There are just a number of very short propositions that we make in relation to all of that.

Firstly, given the focus of section 473EA upon the ultimate and operative decision on the merits rather than procedural decisions along the way, the non‑mention of section 473GB(3)(b) in the reasons does not itself mean that it was not considered.  Also, the fact that the Tribunal chooses to address one or two additional matters to what section 473EA requires it to state, does not mean that it somehow assumes an obligation or it should be inferred that it was going on to record everything it did.  Certainly, the fact that the Authority chooses, as it did, to set out at the beginning of its reasons that it was taking into account certain country information that was not amongst the review material, is not something which we say would establish on the balance of probabilities against the factors to which we point, that the Authority did not consider its discretion under section 473GB(3)(b).

Also, we know here that the Authority did affirmatively exercise its discretion under section 473GB(3)(a) and it did not give reasons for the exercise of that discretion.  That itself is perhaps another indicator that it did not consider itself obliged – and, reasonably, did not consider itself obliged – to set out in its reasons under section 473EA what it did and why in the context of section 473GB(3).

Nor could it be said that the importance of paragraph 18 in the Tribunal’s reasons was something which itself might support the contention that the Authority did not consider the exercise of the discretion.  The Authority gave some weight to the matters mentioned at 18 but, as we have pointed out in paragraph 3.3 of the - or the paragraphs mentioned in paragraph 3.3 of the outline handed to your Honours this morning, and in the various paragraphs of our submissions and of the judgment of the Full Court there mentioned, that was just one matter that the Authority took into account, amongst many others, including some specific difficulties with the applicant’s own evidence.

GAGELER J:   Mr Johnson, I know the argument to which you are responding is couched in terms of unreasonableness, but the substance of it really is that if the Authority exercises the power under section 473GB(3)(a), then the Authority has a duty to consider exercising the power under 473GB(3)(b), and then there is a factual argument made about inferences to be drawn.  But would you accept that duty to consider (b) flowing from the exercise of power under (a)?

MR JOHNSON:   No, your Honour.  But, even if there were a duty, that does not mean that – even if there were a duty to consider the exercise of discretion under paragraph (b) of section 473GB(3), that would not mean that the reasons of the Authority under section 473EA had to deal with that matter.

GAGELER J:   I understand that part of your submission.  I just wanted your reaction to the anterior legal proposition.

MR JOHNSON:   Yes.  We say it does not need to be decided here.  But there is certainly no duty in terms cast by the section, we say.  It would be unusual, I would have thought, for anyone to approach section 473GB and exercise the discretion to take account of the material without thinking about paragraph (b).  But that is not to say that there is a duty there.

NETTLE J:   Is that to say that there is not or just that you are not going to deal with it?

MR JOHNSON:   I am saying both, your Honour.  Firstly, the Act does not impose a duty but then also we do not think it arises.

NETTLE J:   So you reject the proposition which Justice Gageler put to you that it is really implicit in the fact that the discretion exists that one has to consider it.

MR JOHNSON:   No, we do not accept that proposition, your Honour.

NETTLE J:   You reject that?

MR JOHNSON:   Yes. 

NETTLE J:   Can I just ask you why?  Why would it not be implicit in the existence of discretion that one would be obligated to consider it?

MR JOHNSON:   For one reason:  there may very well be situations where it is just so clear to the Authority, reasonably clear to the Authority, that it is just not going to aid it, that this does not seriously canvass the matter any further, but maybe that is considering it, your Honour.

NETTLE J:   That is considering it

MR JOHNSON:   That is considering it.  The distinction between one and the other might be too fine.

GAGELER J:   You seem to implicitly accept that there is an obligation of reasonableness that attaches to the beginning of the consideration under (b).

MR JOHNSON:   We accept that there is an obligation of legal reasonableness in the exercise of the discretions involved, including section 473GB(3)(b), but that is not the same as duty.

GAGELER J:   Yes.

MR JOHNSON:   In fact, the test or standard of legal reasonableness which the Court accepted to apply to discretions under the Act and in M174 and in relation to section 438 in SZMTA is probably more useful, but there might be circumstances where it is simply not legally reasonable.

GAGELER J:   Mr Johnson, it is put against you – I am sorry to be so technical about this – but it is put against you that the Authority exercised the power under (a) and did not at all exercise the power under (b).  That is the way I understand it to be put.  You contest that as a matter of fact.

MR JOHNSON:   Yes.

GAGELER J:   If it were the case that the Authority exercised the power under (a) and did not exercise the power under (b), what is the consequence?

MR JOHNSON:   We would say the question would be whether or not it was legally reasonable for the Tribunal to take that course.

GAGELER J:   Not to consider?

MR JOHNSON:   That is right.

NETTLE J:   I thought we had got past that when you said that it might be so obvious that the Tribunal would say, “Plainly, we shall not exercise the discretion in favour of the applicant”.

MR JOHNSON:   That would be an example of there being no legal unreasonableness.

NETTLE J:   Quite, but you accept, do you not, there is an obligation there for at least the Authority to turn its minds to the question of whether or not it should exercise the discretion favourably?

MR JOHNSON:   Yes, your Honour.

NETTLE J:   That is the consequence of having to act reasonably in the exercise of the discretion which is granted.

MR JOHNSON:   And appreciating the law that it is administering.

NETTLE J:   Yes.

MR JOHNSON:   It has to understand that it has a discretion.

NETTLE J:   And turn its mind to which way it will exercise the discretion.

MR JOHNSON:   But not to record that it has so turned its mind, et cetera; yes, your Honour.  I will have to see if I have forgotten anything, your Honours.  I think the last point is that the circumstance that an applicant might not be able to deal with the proposition or answer a piece of certificated information if it is not disclosed is really going to be a feature of any case where this provision obtains.  It is plainly a section which expresses an intention of the legislature that there will be material which is the subject of a certificate which the Authority may take into account without disclosing to anyone.  If your Honours please, those are our submissions.

KIEFEL CJ:   Thank you, Mr Johnson.  Do you have anything in reply, Mr Aleksov?

MR ALEKSOV:   Yes, I do, your Honours.  In relation to the practice direction, very briefly, it is given to applicants as a matter of routine, and certainly in this case with the notification of referral to the IAA included in the package.  I am not sure whether or not it matters, your Honours, but that is how it comes to the applicant’s notice.

In relation to SZMTA, it is the case that there were four reasons why the implication of procedural fairness arose.  As I read them, they are these.  The first is the impediment to the Tribunal considering certificate material.  The second was the constraints the certificate imposed on the power under 427(1)(c) to give information to an applicant.  The third was the truncation of sections 424A and 425.  The fourth was the changing of the context for the right under 423, which had an (a) and (b) element to it, which was that 423 extended to contesting validity of the certificate and permitting a request for the exercise of the power under 438(3)(b).

In this case, reasons 1 and 3 are roughly on all‑fours under Part 7AA.  Sorry, before I say that, in my respectful submission, each one of those reasons on its own would have been sufficient to imply the obligation of procedural fairness. There is no suggestion in the reasons of your Honours Justices Bell, Gageler, Keane expressed in 29 to 31 that that was a necessary accumulation.  And I submit it would not be correct that any one of those matters is sufficient on its own to imply, as a matter of general law, an obligation of procedural fairness, put aside the question of content.

Points 1 and 3 are on all‑fours, relevantly.  I accept point 3, truncation of 424A, does not arise in this case but it might arise in other cases and the proper forum for that debate is materiality or the content of procedural fairness, not whether or not the obligation arises.

In relation to point 2, constraining of the power to give information to an applicant under 427(1)(c), it is true there is no express power in Part 7AA but it is accepted, I think by all, that there is an implied power to do so in the Authority and the certificate changes the nature of that implied power.  That is not exactly on all‑fours, it is different, but the concept is present and the affectation to the procedure is present.

In relation to the fourth point, this is an applicant’s right to make submissions, I just want to pause to mention to your Honours the practice direction that contemplates a right in an applicant to make submissions, and also mention to your Honours again the decision of the Full Court in CLV16 and particularly reference paragraphs 3 and 38 through 56.

The issue in that case was just submissions, not the presentation of new information and the analysis proceeds from an assumption, unstated, that there is an obligation to consider submissions and concludes, has not been excluded.  In my respectful submission, the assumption is correctly made.  The reason for that can hark back to Dranichnikov. I do not have a copy with me here, I am afraid, but I am sure your Honours know it very well, (2003) 77 ALJR 1088, in particular paragraphs 24 and 25 of Justices Gummow and Callinan, and 95 of Justice Hayne, where the obligation to consider submissions is put on two foundations. One is procedural fairness, the obligation to consider clearly articulated arguments. The second is the failure to do so amounting to a constructive failure to perform a review, as required there by what was then Part 7.

In this context, the function of performing the review is specified in two places.  The first is 473CC, which sits outside Division 3, it is in Division 2 – your Honours know that is important for 473DA.  But the second place, and the more particular place where the function of performing a review or the obligation of performing a review was found is in 473DB, which is within Division 3.

In my respectful submission, implied within that function of performing a review is the obligation to consider any submissions of substance that are in fact made and not just about new information and not just about the substantive criteria but extend to any procedural matter that might arise in the review, including an attempt to persuade the Authority to change the course of the review.  If that be accepted it follows that there is an implied right in favour of an applicant to make submissions, which is properly described as a right because there exists a corresponding obligation to consider any such submission.  It is different to the right under section 423, in Part 7, but it is a right, nonetheless.

With that in mind, returning to SZMTA and the fourth reason about the changing of the context for the 423 rights, a certificate under GB changes the context of the implied right to make submissions to the Authority.  Those reasons are explained in 29 to 31 to be the basis on which the Minister’s concession was correct.  I know Justice Gordon raised with my learned friend that there was also a concession.  I did not understand there to be an issue about some additional things within that concession.

And I have made a fifth submission about why procedural fairness arises which is that, under 473GB(3) itself the Authority is making decisions in applying Kioa v West, we have an obligation to afford procedural fairness unless otherwise excluded.

Briefly, your Honour Justice Gageler asked questions about what does section 473DA(2) do, if it is possible that principles of unreasonableness might require the Authority to give some information to an applicant – this is the provision which says:

To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister –

In our respectful submission, it cannot have an effect of – conceivably, it might have been put by the Minister that this is a statement that impliedly excludes the rule of interpretation that would impliedly attract the principles of reasonableness, that is, it excludes the rules of legal unreasonableness.

That submission has not been made; it could not be made, because, first, M174 at paragraph 21 seems to be inconsistent with any such submission.  And, in any event, the better construction of this provision, subsection (2), is that it is a kind of exaltation to the Authority itself, telling reviewers that, “To avoid any doubt that you may have, nothing in this part requires you to do those things”.

That does not cut down the application of the rules of unreasonableness, in our respectful submission.  Certainly, if it were to attempt to do so, much clearer language would be expected.  The question whether there is a duty to consider the exercise of the power under section GB(3)(b), if GB(3)(a) has been exercised, in our respectful submission, the answer must be yes because starting from the heading of GB itself, the entire gravamen of the provision is directed to the possible provision of information to an applicant by dint of (3)(b), but requiring the Authority to have regard to any advice given by the Secretary under subsection (2) and to oblige the Authority to make an appropriate order under GD, by dint of subsection (4).

That is the gravamen of the provision.  So if the Tribunal has entered through (3)(a), in our respectful submission, it is implied it has a duty to consider (3)(b), given that that is what this provision is here for, to tell the IAA, “This information that is sensitive.  If you need to give it to an applicant, you have to do so in this way”.

Your Honour Justice Edelman asked some questions about whether information on the face of the certificate might be new information.  The short answer to that is that it is possible but it depends on what the certificate says.  There is nothing in this case that does so, but particularly relevant might be any advice from the Secretary on the certificate or given to the – I beg your pardon, advice from the Secretary given to the Authority under GB(2).  It is very possible that may be new information or something else ‑ if not new information, just information that might attract some duty.

The final point, your Honours have in the bundle, but no one took you to it, in the supplementary book at page 21 an order made by the Principal Registrar, but that is made not by the reviewer and it is made after the date of the decision, so it is not relevant to any of the issues.  But in case your Honours come across it and have any questions about it, it is there in relation to prohibiting publication of certain passages of the reasons of the Authority. 

NETTLE J:   What is the relevance of this?

MR ALEKSOV:   It is not relevant, but it is in the book and I did not want your Honours to think we had just forgotten to mention it.

NETTLE J:   I see.  Thank you. 

MR ALEKSOV:   The Court pleases.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 18 June in Canberra.

AT 12.50 PM THE MATTER WAS ADJOURNED