EXT20 v Minister for Home Affairs

[2022] HCATrans 223

[2022] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M35 of 2022

B e t w e e n -

EXT20

Applicant

and

MINISTER FOR HOME AFFAIRS

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 15 DECEMBER 2022, AT 10.29 AM

Copyright in the High Court of Australia

KIEFEL CJ:   Ms De Ferrari, I understand there have been some technical difficulties but we have you on the telephone line.  I am sitting with Justice Gordon, but I think you have been advised of that.

MS L.G. DE FERRARI, SC appears with MR A. ALEKSOV and MS E.A.M. BRUMBY for the applicant.  (instructed by Carina Ford Immigration Lawyers)

MR G.A. HILL, SC appears in Canberra with MR C.E.A. HIBBARD for the respondent.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Ms De Ferrari.

MS DE FERRARI:   Thank you, your Honours.  Your Honours, what we say that this case highlights is a particular aspect of a statutory context that is quite different from how some of the statements that are relied upon by the various judges in terms of principles such as no duty to disclose their path of reasoning or other such statements have been – in the cases in which those statements have been made.

Here, it is a statutory framework where section 501CA, in particular the discretionary power in subsection (4), as your Honours would know, only is engaged after there has been a mandatory decision under section 501(3A) that disturbs the status quo and makes the non‑citizen an unlawful non‑citizen from being a lawful non‑citizen.

In this particular case – under section 501CA(4) as well, it is open to the Department, in effect, together with the Minister, to decide whether there will be a delegate that will exercise the power or the Minister personally, and the person who is making representations seeking to engage the discretionary power to revoke the cancellation does not know and cannot know whether the Minister might, at the last moment, decide to make the decision personally.

In that context, it is undoubted and undisputed by the Minister that procedural fairness is owed to the person in the position of the applicant in this case.  It is also an issue about how, in a two‑stage decision‑making process, that procedural fairness is going to be afforded to the applicant.

We say that it is an important feature of this case that the Department engages with the applicant, keeping the applicant in the dark – and I do not mean this in a disparaging sense – keeping the applicant in the dark as to whether it is going to be the Minister who will make a decision – not bound by any directions as to how that power has to be exercised or has to be considered – or the Department.

Nowhere does the Department say, while it is preparing a brief for the Minister and it is preparing draft reasons for the Minister, nowhere does the Department say, notwithstanding that you are making representations on this issue that might engage another reason for exercising the discretionary power, notwithstanding that they are doing this, it is – we consider that we can advise the Minister – it might be open to the Minister to say, it is not sufficiently detailed.

Now, as we say in our application, it is in that context that matters such as, in a sense, an issue that the applicant might not be aware of, in a standard merits review process – for example, SZBEL, where there has been a delegate decision – do not really apply.  One has to look at the particular statutory context, the undeniable fact that the procedural fairness is owed and then look at the particular facts of this case – and in particular the fact that this two‑stage decision‑making process is adopted – and decide, has procedural fairness been discharged in this case?

Ultimately, your Honours, if your Honours think that procedural fairness was discharged because the Department could stay absolutely silent for months – it could stay absolutely silent – that all the representations that were being put might be construed by them as saying, well, you have not provided sufficient detail of how you are saying that this gives rise to another reason.

KIEFEL CJ:   When you say that this came down to a requirement that the applicant be told that there was insufficient detail; that is to say that the information provided was not sufficiently particularised.  That is what you say amounts to the requirement referred to in Commissioner v Alphaone, that there should be identified for the person affected any issue critical to the decision?

MS DE FERRARI:   Correct, your Honour.  I mean ‑ ‑ ‑

KIEFEL CJ:   Is there a distinction between identifying an issue to which information and material needs to be directed and pointing out that there is an insufficiency of detail in what has been provided?  Is there a distinction that can be drawn between the two?

MS DE FERRARI:   Your Honours, it is here that the statutory context is particularly unusual, and your Honours have considered this in Plaintiff M1, of course, we say, in effect, that the process here – and this is why it started, there is a disturbance of the status quo – it is almost like an applicant for mercy putting forward all the reasons that the person can think of as to why a discretion might be exercised favourably to them, to restore the status quo.

The applicant for mercy is approaching – as the Court has said – by making the representation and putting all the representation that the person can put forward.  It is at that level that – in the context, as well, that the person is in detention, unrepresented – that, in a sense, the issue that everything I have said – and I have struggled to say without any engagement from you telling me otherwise – I have struggled to tell you all my stories.  It is at that level that the issue arises of telling the petitioner for mercy,  it might be that we advise the Minister that you have not given him sufficient details.  You have not told us which part of the country this has occurred.

GORDON J:   Ms De Ferrari, can I ask one question?  Here, Justice O’Bryan records that the Minister was unable to make a finding.  Does that feed and express some unease about that?  Is that, in a sense, another way of putting your argument?  That is, because the Minister was unable to make a finding, in a sense, the Minister was required, in order to be able to make the finding, to accord procedural fairness and ask for further details?

MS DE FERRARI:   Well, yes, your Honour.  Ultimately, what the Minister had to do is to exercise a discretion, that is, in CA(4) in a reasonable manner and to form a satisfaction about those matters.  So, if the Minister gets to the point of saying these are credible representations you have made that have engaged my consideration and they might be giving me another reason why the cancellation decision should be revoked.  They are not at that point saying, well I am unable to make a finding.  That is where it crystallises.  That is where we say it crystallises, as your Honour Justice Gordon has put it.

That is where the issue – why is it at that point, when you have gone that far down the track of actually engaging with the representation, which is all that the petitioner for mercy can do, why do you stop there and sort of say, I am looking at this as if I was a tribunal reviewing a section 36 and section 75 decision and you have not provided me information.  I am unable to make a finding, whatever that might mean, which is a difficult language in any event, your Honours, because your Honours will know that the judges below, we disagree with that, but the judges below actually interpret it as actually making a finding.

We dispute that that is the case.  We say that in fact, the Minister wrongly took the approach that he could stop the inquiry there in circumstances where that had not been an issue at all that had been put to the applicant.

KIEFEL CJ:   Ms De Ferrari, I think Justice Snaden referred to the authorities which hold that there is no general duty on the part of the Minister or those advising to make inquiries.  Where is the line here between making inquiries and pointing out that further information is required?

MS DE FERRARI:   Well, it fits into, your Honour, in a sense, the way Justice Gordon put it, it is not about, in a sense, further information.  It is about the fact that a way of dealing with the representation is being developed by which the Minister is going to be advised of, this is one way in which you can deal with it.

Now, we know that another way in which the Minister can deal with it after M1 is to sort of say, those are matters that I am just going to defer.  But this is not what the Minister does here.  And so, that is why we say it is important to move away from generalised statements about no duties to make inquiries.  It is important to look at the specific statutory context and the specific cases in which the obligation of procedural fairness arises and give it content.  And in this case, there was absolutely nothing that could have put the person in a position to know that all that he had said might be adjudged to lack some matters of detail.

GORDON J:   Ms De Ferrari, can I ask a question which follows on from something the Chief Justice asked you?  If you go to application book page 69, to Alphaone – which is the passage cited by Justice Mortimer, and you take the passages that her Honour has identified in bold, what is the “issue critical to the decision which is not apparent from its nature or the terms of statute under which it is made” here?  Second, what is it that they were required to advise in terms of what was the “adverse conclusion” which had been arrived at which was not obviously open on the material?

MS DE FERRARI:   The issue, we say, is to say, you have – your representations, your invocations of mercy – yes, it raises a particular matter but it has not given us this particular bit of information which we think we need.  In terms of – I am sorry, your Honour – and this is why I say it is a two‑way process – the applicant could not know that that was a basis upon which – in terms of Alphaone and, more generally, the principles of procedural fairness – could not know that that might be exactly what the Minister will fasten on in terms of rejecting his claim.  There was not any way of knowing that.

This is where the particular statutory context is so different because, generally, in the Alphaone context, there is always an opportunity for the applicant to go to the Minister and know what the issues are.  Here, it is not.  It is at large.  It is completely at large – the discretion of the Minister – and it is only engaged if representations are made and those representations can be about anything.  Persons such as the applicant in this case would have looked at what had occurred and said, I have made the representations that engage the duty of the Minister to consider them in a Li rational manner as to why this is sufficient.

GORDON J:   If you go to paragraph 53, on application book, 66 – which is, I think, the point at which you say the letter to the appellant should have identified this negative being insufficient particulars being provided about his lived experience.

MS DE FERRARI:   Yes.

GORDON J:   Is that the point?

MS DE FERRARI:   That was one point, but it is clear, on the facts, that the Department was engaging in a process over many months where they were interested in putting all the adverse information that they could think of in terms of the way in which that reasoning process is structured for a delegate.  I stress here because, for the Minister, that processing of reasoning about what is another reason is completely at large.

But, yes, we say that that, in particular, obviously at that point we do not have the drafts of the reasons that the Department might have been drafting for possible adoption by the Minister but, at least at that time, it must have been clear by the Department that they were looking at how they might advise the Minister in terms of whether this case could be a refusal to make a revocation decision and on what basis.  So, it must have been apparent to them – it must have been reading at that point, all the representations that he had been making and I stress – unrepresented, in prison, with English not as a first language.

So, yes, your Honour.  That would have been one point, but, ultimately, it is at any point before the Department decides that they have a sufficiently structured brief, a sufficiently structured set of draft reasons that the Minister can adopt, and they put that brief before the Minister.

Your Honours asked, where is the line in this case to be drawn?  That, with respect, makes this case a perfect case for special leave, particularly because, given the statutory context, it is the case, as a matter of experience, that if the Department develops a particular way in which it would structure a brief and structure possible reasons for the Minister for not making a – for not revoking a cancellation decision – the Department will continue to follow this approach in this particular statutory context.  As well, your Honours, it is an important case because it is clear that even though they were trying to fight them on different principles or strands of reasoning from other statutory contexts, three of the four justices below – three very experienced justices of the Federal Court, very experienced in administrative law – had clear misgivings about how this process occurred

and whether procedural fairness was actually owed – was actually discharged in this context, and in the particular facts of this case.

So, that is why we say, in a sense, it is both a case that requires a grant of special leave because of the particular importance to our client, but is also, clearly and particularly following M1, an important case for this Court to clarify that the principles of procedural fairness really are quite dependent on the statutory context and the particular circumstances of the case, and they cannot be dealt in this particular manner.

Unless your Honours have any further questions, we otherwise rely on what we said in our written submissions.

KIEFEL CJ:   Yes, thank you, Ms De Ferrari.  Yes, Mr Hill.

MR HILL:   Thank you, your Honours.  Could I start with two particular matters that have come out of questions just to emphasise some of the main points the Minister makes in response, and then attempt to be a bit more systematic.

GORDON J:   Do you mind speaking up, Mr Hill?

MR HILL:   I am so sorry.  Is that better for your Honours?

GORDON J:   Thank you.

MR HILL:   One of the key points the Minister makes in response picks up on an observation from the Chief Justice, which is, we say, the relevant principles have been determined by Alphaone, and this is a case merely about the application of those principles, and relevantly the issue is a matter to which information or representations might be put, not the decision‑maker’s satisfaction as to whether a representation or claim has been made out.

We say that can be seen, if your Honours have it, from SZBEL at paragraph 42, but I do not, of course, need to take your Honours to any authorities.  So that is why we say – and your Honour the Chief Justice in a related point said, well, where is the line between saying it is incumbent on the Department to inform a person that the information is insufficient and the well‑known case is that there is no duty to inquire.

We say there is no line that this procedural fairness argument, we say, runs counter to that well‑known obligation and – or that well‑known principle, and so that is why we say Justice Snaden particularly was correct to say the procedural fairness obligation contended for in this case runs counter to well‑known principles rather than being an application of them.

The second point is to respond to something from Justice Gordon.  I think your Honour said, is one way of putting the argument that if procedural fairness requires the Minister to seek out more information before making a finding, if you are unable to make a finding, the argument might be, does that not suggest you need to get more information?  We would say that sort of approach cannot be accepted either, and we have picked up this point in the first aspect of the claim, which is the alleged failure to consider – it is always necessary to consider what the statutory task is, and we say the task as described by M1 at paragraph 22 is to assess whether there is another reason to revoke the cancellation by reference to the case made by the former visa holder by their representations.

So, we draw from that that it is not the case – this is not a statutory context where a decision‑maker is required to resolve claims, the decision‑maker is required to consider representations and decide whether the matters raised in those representations gives rise to another reason to revoke mandatory cancellation.

So, they are the main points we would seek to develop in response.  Could I be forgiven for just making a few more points, more in the order of my speaking notes, just to make sure I have not overlooked anything?

KIEFEL CJ:   Yes, of course.

MR HILL:   Thank you, your Honours.  What we say is there are two strands of the applicant’s reasons and it is important to separate them out because we say quite different considerations apply to each.

So, we have made some submissions at paragraphs 5 to 12 of our response about any argument about “failure to engage” with representations and what your Honours see is we say, well, that is not any point of principle.  To the extent there is any point of principle, it could only be at something at the level of generality of a decision‑maker is not always required to resolve a claim, but it is required only to consider.

We say this case is required to determine that level of principle because it has been determined by this Court already in M1 and Viane.  Then, we say, other than that, this would just be a case about whether particular representations have or have not been considered.  We say that raises no point of principle and we say the courts below – at first instance and then the Full Court – were correct to say the Minister – whatever he had done – had considered the relevant representations.

On procedural fairness – I may be repeating myself a little here when I say, we also say there is no dispute of principle here.  We say that all the court below – every member – accepted that the relevant principles had been set out in Alphaone.  So, the difference between Justice Mortimer on the one hand and Justices Wigney and Snaden on the other was in whether the particular conclusion was or was not obviously open on the materials.  We say the approach of the majority judge is supported by both the statutory context and the general principle.

GORDON J:   Do you wish to say anything in response to Ms De Ferrari’s submissions about the altered statutory context here, where – as Justice Mortimer points out – you have the two stages open and alive, and not resolved at the outset?

MR HILL:   We say the only relevant difference in the statutory context of 501CA might be that you have the mandatory cancellation, and then it is a question of whether you can persuade someone that that cancellation should be revoked.  But, we say, when it comes to procedural fairness, there is no relevant difference.  This, with reference to two‑stage process, we say we have understood the applicant to be talking about, somehow, the initial engagement of the Department and then the Minister – if the Minister chooses to make the decision – making the final decision; those being the two stages.

We say there is no difference between a decision made by the Minister under 501CA and the Minister making any cancellation decision, so we reject any notion there is anything particular about the statutory scheme that would move against the usual principle that there is no obligation to inform a person of a decision‑maker’s thought processes.  In fact, we rely on the statutory scheme of 501CA being that a person has a chance to put representations as to why the mandatory cancellation should be revoked.  They can say whatever they like, the Minister is obliged to consider it – to give it active intellectual consideration – and then make a decision.  We say that that is all the scheme requires, and so the attempt to use procedural fairness to add an extra stage of, well, you must inform a person that their representations might not be enough, we say that that is inconsistent with – it certainly not required by the statutory scheme – and we say is inconsistent with it, and is certainly inconsistent with general principle.

In this context, we can only place very general reliance on this, but we do note that this case is a case about protection claims, or representations about protection claims, and we do note that the effect of this Court’s decision in M1 is that it is a lawful way of considering a person’s claims on that particular topic to say that this matter will be deferred because the person can apply for a protection visa.  We say, certainly as far as these particular types of representations go, that part of the feature of the statutory scheme tends against there being an obligation to

actively seek out further information such that the Minister can resolve that type of claim at the 501CA stage.

My learned friends seek to say that SZBEL reduces any reliance that can be drawn from principles from Alphaone about it is not necessary to disclose thought processes subject to disclosing the critical issues and disclosing conclusions that might not obviously be open.  What we say about that is that a case such as SZGUR, which we have referred to in our response, shows that that distinction is still very much alive, and we say the critical point in SZBEL – the problem in that case – was that the decision‑maker had not identified the critical issues, which brings us back to what are the critical issues.

We say that there is nothing in SZBEL that casts any doubt on the continuing utility of saying there is an obligation to identify for a person the critical issues, there is an obligation to disclose any adverse conclusions that would not obviously be open, but other than that – certainly, as a general proposition that applies here – there is no obligation to provide a person with running commentary or provisional views.

One last point is that it is certainly true – so what this comes down to is what are the critical issues.  We say that what an issue is not is a decision‑maker’s views as to the adequacy of material.  But what we do say is here, the applicant was provided with a relevant ministerial direction.  Now, my learned friends correctly say, well, if the Minister makes a decision personally, the Minister is not bound by that direction.  But we say that is a point without any significance if the Minister, as he has done here, chooses to make a decision applying those considerations.

This is not a case where it could be said that by giving a personal ministerial direction, that somehow there was some new issue the Minister chose to consider lawfully, that the person was taken by surprise.  Here, the Minister acted and made a decision entirely in accordance with a ministerial direction.  So, we say the applicant has been put entirely on notice as to what the critical issues were.

Unless your Honours have any further questions, that is the Minister’s response.

KIEFEL CJ:   Yes, thank you, Mr Hill.  Do you have anything in reply, Ms De Ferrari?

MS DE FERRARI:   Just one point, your Honour.  My learned friend said that there is no duty to put an applicant on notice that the representation might not be enough.  What we say is that that is pitching it at the wrong level of abstraction in this particular case.  Here, the issue is about

engagement with the representation.  The Minister and the Department before it knew that it was going to engage in that, with the representations that were made, and they are representations – they are not claims in a section 65‑type sense – knew it was going to do because it was drafting the reasons for the Minister, and knew that it was going to deal with it by saying that it is not enough detail, therefore, I am unable to make a finding on something that you have properly represented, properly put to me as something that I have engage with in Li sense and having regard to M1.

KIEFEL CJ:   Yes, thank you.

In our view, this application raises no new question of principle.  It involves the application of settled principles to the facts.  Further, it has insufficient prospects of success to warrant the grant of special leave.  Special leave is refused with costs.

The Court will now adjourn until 11.30 am.

AT 11.00 AM THE MATTER WAS CONCLUDED