CHZ19 v Minister for Home Affairs & Anor

[2020] HCATrans 14

[2020] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P42 of 2019

B e t w e e n -

CHZ19

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 14 FEBRUARY 2020, AT 11.31 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   May it please the Court, I appear with my learned friend MR B.L. NUGAWELA, for the applicant.  (instructed by Soul Legal)

MR G.T. JOHNSON, SC:   May it please your Honours, I appear with MS S.J. OLIVER for the first respondent.  (instructed by Sparke Helmore)

KIEFEL CJ:   Yes, Mr McIntyre.

MR McINTYRE:   Your Honours, the point which we say is of public importance has some general application and is apparently arguably at least the subject of a difference of opinion within this Court is the question of whether there may be a shifting onus of proof in relation to the question of materiality. 

KIEFEL CJ:   Is that by way of conceding – when you say “a shifting onus” – that SZMTA stands somewhat in your way in relation to onus of proof?  You have to distinguish it.

MR McINTYRE:   What we rely on is the difference between a majority view and a minority view.  That is right, your Honour.  So we would say that there is something to be – your Honour Justice Edelman in the more recent case of BVD17, in paragraph 67, started that paragraph by saying:

Subject to issues concerning the substantive or evidentiary onus of proof –

and then at footnote [59], the footnote of SZMTA, and referred to what the majority said at paragraph 46, which was:

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof.  Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

His Honour Justice Edelman then also references what Justices Nettle and Gordon said, at paragraphs 92 to 93, saying that:

Making materiality of error a criterion of jurisdictional error should be rejected for two further reasons. 

First, it would impose the onus of establishing “materiality” on the applicant.  That is reason in itself to reject it . . . Thereafter, it is for the decision‑maker, if seeking to have the court exercise its discretion to refuse to grant ‑ ‑ ‑

EDELMAN J:   Mr McIntyre, you do not seek to reopen SZMTA?  As I understand it, you just seek to distinguish it somehow.

MR McINTYRE:   Yes.  We say that it is distinguishable because in this case we did not know what the document was.  We did not have the document in front of us.  That is how it is distinguishable from SZMTA.  But we say ‑ ‑ ‑

EDELMAN J:   Is not the difficulty for your argument then, using this case as a vehicle, that you did not press or you withdrew your application for disclosure of the document?

MR McINTYRE:   We did not press it for a number of reasons.  One is that his Honour below came to the view that the proper place to deal with this issue was back in the Administrative Appeals Tribunal.  We say that we had established the denial of procedural fairness on the basis of what was known in the place where we were pressing that argument. 

If there were other issues concerning public interest immunity questions of whether or not that document could have been the subject of a certificate, those were matters which his Honour did not deal with and, in fact, suggested they should have been dealt with in the Administrative Appeals Tribunal, effectively saying the matter of whether there was denial of procedural fairness to this applicant was established by the existence of the allegation which was known to be adverse and those other matters were matters which should be the subject of the review of the matter once the review had been established to be something which they were entitled to.

Where his Honour then, we say, fell into error was to rely on the statutory context to conclude that the information would have been notified if it was material.  We say that he somewhat contradicts himself from that analysis which is between paragraphs 43 to 48 and, particularly, in 47 when at 39 he has already said it was not possible to evaluate whether the document was material because it was just not possible to know what was in it, other than that it was said to be adverse. 

We say that that was enough to establish its materiality – its adversity to us – and enough to merit the referral of the matter back for rehearing on the basis ‑ ‑ ‑

EDELMAN J:   But, Mr McIntyre, you are relying upon materiality in the sense of whether a matter could have made or might have made a difference to the ultimate outcome.

MR McINTYRE:   That is right, your Honour.  We say that his Honour presumed that there was a decision made not to refer to it and that there is no reference to it because the Tribunal must have made a decision that it was not material.  We say that that is a presumption which is a presumption too far.  There are many reasons why it may not have been referred to.  They may have just failed in their statutory obligation to refer to it.  We cannot know that.  They may have overlooked it.

EDELMAN J:   We might have been assisted if the application had been pressed for disclosure of the document.

MR McINTYRE:   We say that that was not the time to do that because of the countervailing arguments about public interest immunity and the issue of whether or not they were entitled to have issued a certificate of non‑disclosure in any event and that those matters were appropriate as his Honour found dealt with in the Administrative Appeals Tribunal.

EDELMAN J:   Where did his Honour say that those matters are appropriately dealt with in the Administrative Appeals Tribunal?

MR McINTYRE:   We refer to that at paragraph 12 of our application.  His Honour said – and it was at 17 and 27, he referred to that in his reasons for decision. 

KIEFEL CJ:   I am sorry, what was that reference to his Honour’s reasons?

MR McINTYRE:   His Honour’s reasons for decision at 17 and 27.  At 17:

I granted leave to the appellant to raise a claim that there had been a denial of procedural fairness by reason of the circumstances pertaining to the Allegation document even though the point had not been raised before the primary judge . . . The issue whether the Allegation should be disclosed for the purposes of the appeal and the related claim to public interest immunity were matters that I expressly reserved ‑

and then at paragraph 27, he said - starting at paragraph 26, he talked about section 362A being an important protection, and he refers to the majority in SZMTA, and then at 27:

In those circumstances, there was a breach of procedural fairness in not providing the Allegation document to the appellant.  It was not

argued that the failure by the Tribunal to provide the Allegation document to the appellant was justified because it was the subject of public interest immunity.

So he said that was not argued at that time:

Such an argument would have met with the difficulty that no such claim was raised by the Tribunal at the time and therefore it was not a claim that the appellant had an opportunity to object to and test before the Tribunal.  Rather, counsel for the Minister quite properly conceded that the appeal ground turns upon materiality.

So we say that what ‑ dealing with the questions of public interest immunity and the potential issue of the certificate merely would serve to obscure the issue of materiality which we say is fully exposed in what we did know and what his Honour decided the matter upon.

EDELMAN J:   Well, there is difficulty with its “exposure”, to use your term, in circumstances where, before the Tribunal, there is no public interest immunity opposition raised and so your client does not seek disclosure of the document before the Tribunal.  The application on appeal is not pressed for disclosure of the document.  Usually, when one assesses either onus or materiality itself, you would look to the document to determine whether the breach of procedural fairness could have made a difference.

MR McINTYRE:   Yes.  We have never seen the document.  It has been disclosed to nobody.  His Honour Justice Colvin did not see the document either.  It was in a sealed envelope and the matter proceeded on the basis of whether there was an issue of materiality.  We say that we discharged at least an evidentiary onus of materiality on the basis of the fact that it was said to be an adverse allegation.  That, we say, was enough.  We say that there is a question whether that onus ought then to have shifted to the respondent to those proceedings and we say that that is a matter which is of some public importance and a matter which is properly for consideration by this Court. 

I am informed by my junior who was in the matters below that when asked for the documents in order to argue the matter of public importance – the public interest immunity issue – we were not provided with the documents.  We were not really in a position to make that argument.  I do not think there is anything further I can assist your Honours with. 

KIEFEL CJ:   Yes.  Thank you, Mr McIntyre.  We need not trouble you, Mr Johnson.

It is our view that this matter does not provide the appropriate vehicle to consider the issues sought to be ventilated.  Special leave is refused. 

Do you seek costs?

MR JOHNSON:   Costs are sought, your Honour.

KIEFEL CJ:   Yes.  With costs.

AT 11.44 AM THE MATTER WAS CONCLUDED