CEF15 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] HCATrans 76

[2020] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C1 of 2020

B e t w e e n -

CEF15

First Applicant

CEG15

Second Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO CONNECTION TO ADELAIDE

ON FRIDAY, 5 JUNE 2020, AT 12.30 PM

Copyright in the High Court of Australia

____________________

MR P.C. CHARMAN:   May it please the Court, I appear for the applicants.  (instructed by Kikkert Law)

MR G.J. JOHNSON:   If the Court please, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

BELL J:   Yes, Mr Charman.

MR CHARMAN:   Thank you.  Your Honours, we say that this matter is a suitable vehicle to clarify whether, in light of the majority of reasoning in SZMTA, materiality is required to establish jurisdictional error in circumstances where the jurisdictional error is said to be founded on the unreasonable exercise of discretion.  SZMTA, as your Honours would be aware, was a matter concerning procedural fairness and we say that either a majority did not intend materiality to be a requirement in relation to unreasonable exercise of a discretion or, alternatively, it did not need to make a decision in relation to that particular aspect, given the matter that was before it.

We say that one of the other cases referred to in our application, SZVFW, which was decided a few months prior to that, was a matter of the exercise of a discretion unreasonably and there is no discussion there about the need for any error to be a material error or any suggestion of materiality in light of the requirement to make out a jurisdictional error.

Your Honours, these matters are central to the manner in which these matters will be argued in the courts below to establish whether in fact materiality is required to establish jurisdictional error or whether the minority view in SZMTA is the correct view, particularly in relation to the unreasonableness of the exercise of discretion, i.e., that it should be left to the discretion to grant the relief.

BELL J:   Mr Charman, here the challenge that was mounted was to the legal reasonableness of the decision respecting disclosure.  Is that the case?

MR CHARMAN:   It is, your Honour.  It is the section 424A letter of 9 July.

BELL J:   Yes.  The contention was that the Tribunal’s determination respecting the disclosure of the information was unreasonable.  In that respect, among other things, Justice Perram concluded, having read the information, that the revelation of the three integers of information might tend to reveal the identity of the person who had brought it to the attention of the Department and his Honour went on to say one could well understand why the Tribunal would think it inappropriate to reveal the information and chose to summarise it as best it could.  That is his Honour’s reasons at application book 77, paragraph 30.  That, in itself, seemed to be a rejection of the challenge that the decision was legally unreasonable.

MR CHARMAN:   Well, it is, your Honour, and his Honour then went on at page 78, 10, and confirmed that he accepted:

the Minister’s submission that there was an evident and intelligible basis for the decision ‑ ‑ ‑

BELL J:   Yes.

MR CHARMAN:   We say that that is incorrect and we must say that is incorrect.  We say not only is that incorrect but that it was not a legally intelligible decision to release the information in the manner in which it was released.

BELL J:   But, Mr Charman, to go back to the way you commenced your submissions, it was the suggestion that this Court might revisit the principles articulated in SZMTA and presumably in Hossain v The Minister but, in truth, it may be that it turns on the question of the correctness or otherwise of the conclusion that his Honour reached that the decision had an evident and intelligible basis, in which case the question of the Court revisiting its earlier decisions would not arise.

MR CHARMAN:   Well, I accept, your Honour, that the first issue is to show that that decision was not a legally reasonable decision, to show that the manner in which the Tribunal released the information, which we say amounted to not releasing any information at all, was legally unreasonable.  In relation to revisiting SZMTA, we are asking not necessarily to revisit it in terms of the entirety of materiality in relation to jurisdictional error, but whether in fact it was meant to apply to jurisdictional error founded upon the unreasonable exercise of discretion, as contrasted with what SZMTA was about, a procedural fairness argument. 

What we say in response to Justice Perram’s finding is that if one looks at the process of exercising a discretion by the Tribunal firstly to have regard to the information provided to it by the Secretary, then to exercise a discretion to provide that information to the applicant, that discretion must be exercised in a reasonable manner.  I do not think there is any dispute about the law in relation to that.  But the manner in which the Tribunal provided that evidence - or that information, I am sorry – to the applicant we say was so vague as to be meaningless, as to not be a reasonable exercise of its discretion. 

What Justice Perram did, we say with respect, was to look at that, then in his reasons consider – and this is where the question of materiality comes in – looked at the reasons and said well, the Tribunal at paragraph 79 of the Tribunal’s reasons appears to have regard to that information, at paragraph 89 of the Tribunal reasons says well, it only confirmed a view.  We say in relation to that the mere fact that a section 424A letter was sent - both letters were only sent in circumstances where the information is going to be part of or the reason for affirming an adverse decision. 

It flows from that that given the exercise of discretion under 438(3)(b) and the sending of the letter it cannot, we say, be argued that the Tribunal was not going to take into account the information it received, and flowing from that it needed ‑ ‑ ‑

BELL J:   Mr Charman, the Tribunal sent the letter and did disclose a part of the information which it might be thought evidently bore on the issue before it, namely, the existence or otherwise of the blood feud in Albania.

MR CHARMAN:   It did, your Honour, but, with respect, it did it in a manner which - that was always part of the issue before the Tribunal.  But, with respect, at application book page 72, the bottom paragraph, the entirety of the disclosure in the exercise of the discretion by the Tribunal is that:

The Department of Immigration had received an allegation to the effect your claim that you are subject to a blood feud is not true.

Now, with respect, that is of absolutely no use to an applicant in determining how the applicant is meant to answer that.  That is part and parcel of what was before the Tribunal at the Tribunal hearing, and having, as I say, exercised the discretion under 438 to have regard to this information, then exercised the discretion to provide, under 424A, a letter to the applicant, we say that it simply cannot be said that that is a reasonable exercise of the discretion of the Tribunal, to provide information in that nature where there is simply no information contained in that paragraph at all. 

It is clear from the response to that, at Court book 73 at 10 that the response in writing was as vague, we say, as the information provided by the Tribunal, because there is simply nothing more that could be said.  So we say that was a legally unreasonable manner in which the Tribunal exercised its discretion in accordance with Li and all those cases.

GAGELER J:   What should have been done to fulfil the obligation reasonably?

MR CHARMAN:   Well, firstly, if it was not possible to provide more information than that, the Tribunal could have exercised its discretion as a matter of fairness and reasonableness not to have regard to the information provided.  Alternatively, it did choose to have regard to the information, to provide it in more detail than a simple bland statement.

GAGELER J:   What do you suggest?

MR CHARMAN:   I suggest that it would have been permissible – bearing in mind the concern was that, in confidence, to refer to – I am in difficulty here, your Honour, because, clearly, I am not sure whether your Honours have seen all of the information – but to refer to some more substance that, in fact, he had a criminal record in Italy.  Some of those are matters which could then have been investigated by the migration agent to rebut some of those suggestions – not suggesting that the whole chapter and verse of the information needed to be put but it would have been possible to put sufficient – to actually point out what the information was and, with respect, the letter does not assist at all in knowing what the information was or any detail. 

That is why we say it is a legally unreasonable exercise of discretion when it was possible to provide enough detail to say that referring to your past criminal record, your past involvement in criminality and those could have been the subject of a response by way of investigations to say there is no record, there is no criminality and it would have been, frankly, a relatively straightforward process from the Tribunal to extract from the information it had sufficient detail to provide the applicant with sufficient information so he could actually respond to that information.

What the Tribunal has done is to provide the applicant with nothing.  We say it is barely, if at all, an exercise of the discretion under section 438(3)(b) in the circumstances where the sole purpose of the 424A letter must be read in light of 424A that it is going to be part of the reasons why a decision may be affirmed.  In my submission, the amount of detail in that letter is so insignificant that it does not amount to a legally reasonable exercise of the discretion to send information under 438(3)(b).

Of course, your Honours, if that hurdle is then jumped, we say that what his Honour Justice Perram did was to then look at the two uses of the information.  We say that given the manner in which the information was provided and the regard the Tribunal has had to that information, what Justice Perram, in effect, did was to say - well, only confirmed a previous view and, in effect, said it was not material to the Tribunal’s decision‑making. 

We say that is incorrect in light of the fact that, firstly, the decision made by the Tribunal is one decision only.  It is not a two‑stage process.  Clearly, in accordance with paragraphs 79 and 89 of the Tribunal’s reasons, it did take into account this information.  We say that the manner in which Justice Perram dealt with that reasoning by the Tribunal could only be consistent with a view that when one looks at the unreasonable exercise of discretion in sending that information to the applicant in the manner in which it did, that it was not a material factor in the Tribunal’s reasoning. 

We say that brings in the issue as to whether materiality is a requirement of jurisdictional error when it is attached to a complaint of the unreasonable exercise of discretion as compared to the complaint of a lack of procedural fairness.  That brings me back to the question of whether SZMTA and what it stands for and the issue as to whether it needs to be clarified as to whether it was intended to stand for the proposition that materiality is required to establish jurisdictional error for any jurisdictional error, or whether it was limited to the terms of the matter before it ‑ jurisdictional error in terms of procedural unfairness, as I say, in circumstances where SZVFW, some six months prior to that, did not discuss materiality in the context of a legally unreasonable decision.  Those matters ‑ ‑ ‑ 

BELL J:   Before we come to that, Mr Charman, you need to successfully challenge Justice Perram’s approach to the view that the further material in the information that came to the Department was, as the Tribunal said, merely confirmatory, as it were.  His Honour suggested that in a case where the conclusion is easily reached and the material is more in the nature of a footnote to the effect that the conclusion is consistent with the information, his Honour took the view that it was not material or relevant to the determination.  Now, that is a hurdle that one needs to get over before reaching the point of principle that you say lies at the heart of this. 

MR CHARMAN:   Well, we say that that issue is the issue, your Honour, with respect, because what your Honour has outlined there is that Justice Perram has said that it is not ‑ because it was confirmatory it is not material.  But we say that is not the question that should have been asked, because materiality is not a requirement for jurisdictional error when we are

discussing the issue of a discretion being exercised unreasonably, and the very ‑ ‑ ‑ 

BELL J:   Does this argument involve that the – this rather confines the discretion, does it not?  If the Tribunal receives information from the Department which is plainly irrelevant to any consideration raised by the application, you say there is still a requirement of disclosure?

MR CHARMAN:   No, your Honour, because in this case there is evidence at paragraphs 79 and 89 of the Tribunal’s reasons that it did in fact rely upon it, consistent to some extent ‑ ‑ ‑ 

BELL J:   That, Mr Charman is a particular view of what the Tribunal is saying in paragraph 89. 

MR CHARMAN:   Well, it is, your Honour, but the issue, with respect, in relation to Justice Perram, and we say which is incorrect, is that in effect he is saying that the Tribunal did not consider this information to be material.  We say it must have been material from the moment it sent the section 424A letter saying that this may be a reason or part of a reason for affirming the decision and as a result of that, the manner in which it was sent was legally unreasonable. 

The manner in which Justice Perram dealt with it, dealt with it as if it was not material and we say that the materiality should not have arisen at that point because that is the point we make, that SZMTA firstly was limited to procedural fairness; secondly, was not so limited as incorrect in relation to the exercise in relation to legal unreasonableness.

I think those were the second lot of buzzers, your Honour.

BELL J:   I think they were.  Thank you, Mr Charman.  We do not need to hear from you, Mr Johnson.

MR JOHNSON:   If the Court pleases.

BELL J:   In our view, there is no reason to doubt the correctness of the decision below.  Special leave is refused with costs.

AT 12.51 PM THE MATTER WAS CONCLUDED