LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor
[2024] HCATrans 2
[2024] HCATrans 002
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M70 of 2023
B e t w e e n -
LPDT
Appellant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 6 FEBRUARY 2024, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR N.M. WOOD, SC: May it please the Court, I appear with MS K.R. McINNES for the appellant. (instructed by Clothier Anderson Immigration Lawyers)
MR R.C. KNOWLES, KC: Your Honours, if it pleases the Court I appear with my learned friend MR C.E.A. HIBBARD for the first respondent. (instructed by Clayton Utz)
GAGELER CJ: There is a submitting appearance for the second respondent. Mr Wood.
MR WOOD: Your Honours, this appeal raises a number of issues of principle, both identification and application, regarding the assessment of materiality in circumstances where an administrative decision-maker has failed to comply with a condition bearing on the formation of an evaluative assessment. In summary, the three issues we have identified of principle are set out at paragraph 2 of our principal submissions, and I will touch on those issues in the course of my oral submissions.
Before doing so, however, we think it is important to outline what we have identified in the three‑page outline as three critically important aspects of the legislative framework that bear on the application of the materiality test in this case. Now, one starts obviously with section 501CA(4), paragraph (b). The first question for the Tribunal is obviously whether it satisfied that the person passes the character test. The Tribunal answered that question in the negative; there is obviously no controversy about that question.
The second question is whether the Tribunal is satisfied that there is “another reason why the cancellation should be revoked”. “Another” in the sense that a reason other than the Tribunal’s satisfaction that the person passes the character test. Answering that second evaluative question, in light of the very broad object of the Act to regulate the coming into the country of non‑citizens by reference to the national interest, is self‑evidently a very broad evaluative question. As this Court held in Viane, at paragraph 15 – that authority is not in the joint book. The breadth of the power:
renders it impossible . . . to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.
It follows from that – and I think so far, so uncontroversial, I expect – is that a court could rarely, if ever – and certainly not in this case – approach with any certainty a view as to how the decision‑maker in the Executive would form an overall evaluative conclusion prior to the Executive lawfully considering the matters that it is required to, and that are relevant in the case.
In effect, therefore, there would be no basis for the Minister to submit – I do not understand it is submitted – that in circumstances where a person has committed serious offences but where there are countervailing considerations, such as that the family unit would be split up, connections to Australia and the like, there would be no basis to submit that revocation is not an outcome that falls within the range of possible acceptable outcomes that are defensible in respect of the facts of the law. That is the first point, the broad evaluation required in 501CA(4)(b)(ii).
The second feature and the third feature flow from Direction 90. Direction 90 constrains the Tribunal’s decisional freedom by requiring it to adopt a structured approach to the exercise of its discretion or the formation of its evaluative judgment. The Direction is set out in Part A of the bundle of authorities at item 4. Section 6 of the Direction requires the Tribunal to take into account certain considerations as set out in sections 8 and 9 where relevant. Section 8, at the top of the tree structure that I will outline, identifies four so‑called “primary considerations”, one of which is set out in subsection (1):
protection of the Australian community –
Underneath that, section 8.1 sets out mandatory sub‑considerations, or sub‑factors, which include, in subparagraph (2)(a):
the nature and seriousness of the non‑citizen’s conduct to date –
Underneath that – at the third level of the tree structure – 8.1.1(1) sets out a number of mandatory sub‑sub‑considerations bearing on the assessment of:
the nature and seriousness –
including the ones in focus here, which are in paragraphs (a), (b) and (g). Now, the complex tree of mandatory considerations bearing on the highly evaluative question entails that a court will – typically, at least – face difficulty in concluding that a failure to have regard to one or more considerations at the leaves could not realistically affect consideration of the branch, or therefore the trunk. At least, that is so where, as here, the decision‑maker does not set up, in their historic reasons in fact, alternative lines of reasoning to the same outcome.
GORDON J: Or no reasoning?
MR WOOD: Sorry?
GORDON J: Or no reasoning? Which is what the findings here, below, were?
MR WOOD: Yes. I am going to come to the characterisation of the nature of the error in a moment, but to give your Honour a prelude, we say that the effect of the three errors identified by the Full Court was that there was no logical path identified in the reasons given by the Tribunal for the conclusion that each of (a), (b) and (g) tended, or militated, towards the conclusion that the offending was very serious.
Functionally, we say, that has to involve, in its nature, non‑compliance with Direction 90 because the Tribunal was required by the Direction to comply with the Direction – that is 499(2A) of the Act – and that required it to consider each of those matters. So, if it did not – and the reasons that it gave manifested that it did not lawfully consider (a), (b) and (g) – then we have non‑compliance with the Direction. I will come to that in due course.
The third feature of the statutory framework that is significant, and it may be particularly significant, is this: that the difficulty that the Court faces in concluding that one or more non‑compliances by the Tribunal with the Direction, which require the Tribunal to weigh in the balance different considerations, is that the weight to be accorded to one consideration or factor at the same level in the tree structure, cannot be determined in isolation from another. The point about the necessary relativity of the task of weighing considerations – in fact, the very word “weighing” connotes this, it is familiar, obviously, in administrative law – is very well made in the recent decision of the Full Court of the Federal Court in a case called CRNL. I would ask the Court to turn up that judgment. It is at tab 16, part D of the joint book of authorities.
Sorry, I think it is tab 13, I miscited that. This was another case where the Tribunal failed to comply with Direction 90. The particular consideration that was not lawfully considered by the Tribunal was different, but that is of no particular import. The Tribunal failed to lawfully consider, as it was required, certain “other considerations” described in section 9 of Direction 90.
Before I get into some of the paragraphs that bear on the present appeal, can I hasten to add it is not our argument that the Tribunal in this case made the same error as the Tribunal in CRNL. The Full Court in CRNL says that the Tribunal failed ultimately to synthesise and weigh up the various top‑level considerations in order to form the requisite overall evaluative judgment. That is not our argument, but the reasons of the Full Court in reaching the conclusion in that case are of significance to the present.
Can I ask the Court to go to paragraph 25. So 25 through 27 I will not read, but the Court there identifies relevant provisions of the Direction – section 6 and most particularly section 7 – that lead it to the conclusion at paragraph 27 in the third sentence – sorry, lead it to the conclusion that it really draws in paragraph 28, which I wish to read to your Honours or encourage your Honours to read. The Full Court identified, in light of the provisions of the Direction referred to above, that:
compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation. The real burden . . . is to bring together the consideration as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating –
as a calculus at the end. I would encourage the Court to read paragraphs 34 and 35, which are in a similar vein, but also paragraph 38, which we have not noted in the three‑page outline. At paragraph 38, the final sentence, again, is of significance to the present case. The Full Court there say:
The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” . . . to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
Now, your Honours may appreciate where we take this, but in substance, one of the key flaws of the Full Court’s approach, which the Minister urges this Court to adopt itself, is to find that consideration, such as primary consideration for expectations of the community, which is given supposedly strong weight by the Tribunal, whereas the Tribunal has allocated only moderate – I cannot quite remember the adjective – weight to other considerations therefore leaves the Minister to say, well, there is no problem, because as soon as one appreciates that there has been an error just with Primary Consideration 1, it is apparent that the weight that the Tribunal accorded to other considerations, which are not specifically in the crosshairs in this appeal, entails there is no realistic possibility of a different result.
EDELMAN J: Is this a submission that you accumulate the various errors when assessing whether or not materiality arises, or is it a submission that the various different errors, when combined, are all examples of a larger umbrella‑type error?
MR WOOD: We make, certainly, the first of those points, although it was not the point I was seeking to make just then. The point we are trying to make is that you cannot surgically excise the flawed parts of the reasons, but treat the balance of the reasons as – they are historical fact, the balance of the reasons, but what the Minister does and what the Full Court does is to say, we will look at the balance of the reasons, where weight X or Y has been ascribed to other considerations, therefore there cannot be a realistic possibility, because the driving logic of CRNL – which we say is correct and which the Minister does not dispute – means that you cannot identify in advance, abstractly, the weight that would be given to any consideration without doing the relative weighing‑up of all of them.
So, if you have had one that is infected, or, if one is affected by error, and if there is a realistic possibility – as we say there is – the outcome of Primary Consideration 1 could have been different – I will address that in a moment – then that infects the others.
GORDON J: That is an approach that has been adopted by some of the judges of this Court, and that is to say that if you can identify error which has infected the whole of the reasoning process – is that the proposition you seek to make?
MR WOOD: Yes. We endorse, in particular, if your Honour is referring to Thornton – obviously the facts were different, but at a level of simplicity, the error here was relevant to the reasoning and it cannot be disentangled, is another short way of putting the point. CRNL provides the logic for why that is so, because it explains that individual considerations cannot be allocated weight in isolation from each other.
GLEESON J: I wonder, how – is another way of dealing with what is said at paragraph 38 to appreciate that, really, that evaluative task is going to the merits?
MR WOOD: It absolutely is. So, when the Court then is asked to say, all right, there has been a non‑compliance with the Direction, or some other kind of legal error, and the Court is asked to say, well, in light of the historical facts of the reason as given, is there a realistic possibility – and the key flaw with the Full Court’s approach was using bits and pieces of the Tribunal’s reasons given in fact to say, well, because of what is said in paragraph 10, or because of what is said in paragraph whatever, where a particular weight was accorded to a particular consideration, it said, well, it is therefore not realistic. But that is to treat the historical facts of the Tribunal’s weighting of other considerations as they stand, which cannot be done, because the weight cannot be attributed to those considerations without being done in the balance.
GLEESON J: One of the problems, though, is that often when you read these kinds of decisions, it very much looks like that the decision‑maker is absolutely assigning very strong, 4; strong, 3; moderate, 2 ‑ ‑ ‑
MR WOOD: No doubt. I mean, a couple of things to say about that is that we live in a real world, that the Tribunal will make its decision and then draft reasons to reflect that. Now, the reasons will often, then, in the running, say I gave weight to X, Y, Z and so forth, but once realise there has been error made, we have to go back and say, effectively, are all those findings safe? Can we say that they could not realistically have been different if, reaching back in time, the Tribunal does not make the error that it did make?
EDELMAN J: Why are you assuming that on this counterfactual approach the relevant decision‑maker is that Tribunal, rather than a reasonable Tribunal?
MR WOOD: Yes, I understand your Honour’s question. I do not think one should assume it is this particular member, for example. I think that is right. But we do not quarrel with the proposition that the exercise is conducted with regard to and set by the parameters of the historical facts. That does not depend on the identity of the particular member.
To take, for example, the counterpoint I raised earlier, let us say the Tribunal in this case, whoever was the member said, even if I am wrong about the assessment of the seriousness of this offending, and even if it is only “serious” but not “very serious”, let us say, the Tribunal might say at the end of its decision, I would still find that the factors balance out in favour of non‑revocation. That would be difficult for me to persuade a court of materiality, because the historical facts of the reasons given by the Tribunal – whoever was the member – might entail that there is no realistic possibility.
Another example might be Mackie. Mackie is identified by the Minister in support of their case, but just dealt with a very different set of circumstances, where there was a surplus example – surplus apparent from the historical facts of the reasons given. Mackie resonates with this Court’s decision in SZMTA. The particular case of SZMTA, where I think at paragraph 71, the tenor of this Court’s judgment was that what was not considered – a piece of evidence, not a consideration – that might have been considered counterfactually was merely one further single paragraph letter, to the same effect as many other letters that the Tribunal had received, and this Court said, in the real world, merely one additional letter to the same effect from a member of the community saying that the individual in question should have their visa could not have realistically made a difference in light of the framework of the reasons given.
Here you are dealing with a radically different circumstance, because what the Full Court did, and what the Minister is urging, is for this Court to look at paragraphs of the Tribunal’s reasons that are infected. You cannot take a conclusion as it stands as to the weight that is given to expectations of the community, or the weight given to the considerations that favoured revocation – that is, attachment to the community and impediments on return – and say, well, they would have stayed the same, and therefore by some sort of mathematical process wherefore closing the possibility that the result could have been different, that cannot be done.
BEECH‑JONES J: Mr Wood, can I ask you this: is there conceptually a difference between applying this Court’s consideration of materiality to where there is, effectively, a procedural error, compared to an error I think of the kind here which, one way or another is, I think, said to be the jurisdictional error in the content of the reasons?
MR WOOD: I think my answer would be that the test is the same, but the application of the test will typically differ.
BEECH-JONES J: And is that because you say, perhaps in the former, there might be more you can get out of the reasons, as opposed to you say, what, a case like this, where the reason themselves contain the error?
MR WOOD: Exactly. That is right, because you cannot isolate the error. That is right. So, we think that the most critical historical fact is not the findings or the conclusions of the Tribunal, it is the weight that gave various considerations, which is the Full Court’s approach and the Minister’s urging, but is, in fact, its final synthesis at paragraph 164. So, at paragraph 164 of the Tribunal’s reasons, under the heading “Conclusion”, it says:
In considering whether there is another reason . . . the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows –
And (a), (b), (c), (d), it uses terms “weighs strongly”, “neutral”, “neutral”, “weighs strongly”. Then, at (e), it is critical – it says:
The Tribunal has outlined the weight attributable to the Other Considerations.
So, that is impediments and connections:
The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations –
In other words, favouring revocation:
outweigh the strong, combined and determinative weight it has attributed to Primary Considerations 1 and 4 –
So, in other words, boiled down, all the Tribunal has said, is that X outweighed Y. We do not know by how much, and we certainly do not know how the balance would have been struck but for the error that affected Primary Consideration 1 ‑ ‑ ‑
GORDON J: Or why.
MR WOOD: Or why.
GORDON J: Sorry. So, it is not just the how, it is the why, is not it?
MR WOOD: Yes, we do not know why. What we do not know – we have tried to do it in two steps. We have said we simply do not know and cannot foreclose the possibility that the Tribunal might have come to a different view of the seriousness of the offending if it had complied – and I will come to the detail of that in a moment. If it is a reasonable conjecture, it might, for example, have found it to be “serious” but not “very serious”. It plainly, then, is a reasonable conjecture that the whole balance is potentially affected by that. We do not need to prove that it would have changed – probably. It simply needs to be a reasonable conjecture. We say that it is. Now, 164(f), again, coheres with 164(e), because here the Tribunal says:
A complete view of the considerations in the Direction therefore favours the non-revocation –
Well, again, that is the critical historical fact, because it shows that what the Tribunal did is to say, all added up together, this was the result. We do not know that – what the Tribunal has not done is to say, even if I am wrong about this, or even if I am wrong about that, which would present the much more challenging case for us if it had.
So, we say that the three elements of the statutory framework entail that when conducting the requisite counterfactual inquiry, one cannot take, as they stand, the weight that the Tribunal, in fact, gave to the nature and seriousness of the conduct – 8.1(2)(a) – or, therefore, at the next level of the tree structure, the protection of the Australian community – section 8(1) – or, in light of CRNL, in particular, the relative weight to be accorded to other considerations that tended to weigh in favour of revocation. That is the first point of principle in paragraph 2(a) of our written submissions. I will come back to that to some extent when dealing directly with the Full Court’s erroneous approach.
The next topic I wanted to address is the nature of the errors made by the Tribunal, and I have touched on this to some extent already. It is obviously no longer in dispute that the Tribunal erred in three ways, as the Full Court held. It is necessary, however, to have regard to the nature of those errors, or it at least assists to have regard to the nature of those errors to set up the appropriate counterfactual framework. Indeed, as we read it, Justices Gordon and Edelman in Thornton – which is, I think, 16 of the joint book of authorities – at paragraph 76 indicated that identifying the nature of the error as critical to the assessment of materiality.
As I have foreshadowed a moment ago to Justice Gordon, although these are not the words used by the Full Court, the functional effect of the errors that the Full Court identified, we say, is that the Tribunal did not comply as required with the Direction. That is because if the Full Court found there was no logical connection in the Tribunal’s reasoning when it purported to consider those matters, that means that it has not lawfully considered those matters, and therefore it has not complied as required by 499(2A). But, of course, it was required to. In particular, it was required to have regard to each of those matters at the bottom level of the tree structure – at the leaves – in order to assess the seriousness of the conduct, which in turn affected the high-level matters in the tree structure of the Direction. The counterfactual task requires the Court to hypothesise a world, looking back, where the Tribunal did comply with the Direction.
BEECH‑JONES J: Mr Wood, can I just stop you there. It may be my ignorance. As I read the Full Court, one way of reading their reasons is the actual jurisdictional error was the failure to give reasons.
MR WOOD: No. I would quarrel with that, your Honour. I think the case is Palm – this Court has held that ‑ ‑ ‑
BEECH‑JONES J: It is not. It is not.
MR WOOD: ‑ ‑ ‑ the giving of adequate reasons under 501G is not a jurisdictional error, the logic of our analysis – I do not think this is an issue, but Mr Knowles will tell me if I am wrong – is that you start with a premise that the Tribunal has given its reasons in fact. We have never alleged that it did not give its actual reasons, that its reasons were inadequate. These are its reasons. Its reasons, however, disclose no logical connection in its movement from premises to conclusions. It follows from that – those being its actual reasons – it has not lawfully considered each of the directions.
In a sense, I think what your Honour is asking me calls up an argument that the Minister made below, perhaps in a slightly different guise, which was squarely rejected by the Full Court, where the Minister argued below – inspired, perhaps, by the primary judge – that one is to read in things into the Tribunal’s reasons that are not stated, and the Full Court squarely rejected that, and said that a whole line of authority recognising the significance of the statement of reasons means that a court cannot hypothesise reasoning that is not expressed.
GORDON J: You cannot fill the gaps.
MR WOOD: You cannot fill the gaps. It is not there. So, those are the reasons. We have never suggested otherwise.
EDELMAN J: But that is all in relation to the primary judge’s drawing of inferences.
MR WOOD: That is right – which the Minister embraced in the Full Court and the Full Court said no.
BEECH-JONES J: What I am just wondering about is paragraph 71 of the Tribunal’s reasons at page 25.
MR WOOD: Of the Tribunal?
BEECH-JONES J: Yes, of the core appeal book, page 25. Just one way of reading that paragraph is a misconstruction of 8.1.1.
MR WOOD: Sorry, that is 71 of the Full Court?
BEECH-JONES J: No, 71 of the Tribunal.
MR WOOD: I see. Absolutely. You may be able to explain, if it be necessary, how it is that the Tribunal has erred. So, one pregnant possibility is that the Tribunal erred because it misread the Direction. Another possibility is that it engaged in profoundly irrational reasoning. We do not need to – and this is part of the debate that happened below, but I do not think it is a debate at this level – we do not need to say, well, the Tribunal misread the Direction or engaged in irrational – we do not need to prove which it was, we just need to demonstrate that one way or another an error has occurred. We do that on the premise of the reasons that were in fact given, which we do not say were inadequate; we just say they reveal error.
GAGELER CJ: So, the error that occurred was a failure to comply with the Direction, was it not?
MR WOOD: Correct.
GAGELER CJ: Which is a statutory non‑compliance with section 499(2A). And that error can be seen as being particularised in three ways.
MR WOOD: Yes.
GAGELER CJ: I am not sure it is particularly helpful to think of there being three errors. There was non‑compliance, and non‑compliance in three particulars.
MR WOOD: I agree with that, your Honour. So, in terms, then, of the next step in the argument – assessing materiality – what one does then is one hypothesises compliance. So, one therefore says, all right, what if the Tribunal had lawfully complied with (a), (b) and (g)? In that event, could the result have been different, is the ultimate question. Now, can I deal briefly with this notion of ‑ ‑ ‑
EDELMAN J: Just so I understand, then, your answer, then, is that the failure to comply with (a), (b) and (g) are treated as though – effectively it is the umbrella error of failure to comply with 499? It is one error from a jurisdictional point of view, rather than three?
MR WOOD: It is. The non‑compliance is manifested in three ways but, yes, I am not sure anything turns on it. But this may be relevant to the point I was about to address, which is this idea of cumulative assessment. Now, once one sets up the right counterfactual, it is, we say, self‑evidently absurd to say that one asks the counterfactual inquiry, focusing only on (a) and then produce an answer, and then only on (b) and produce an answer, then only on (g).
The reason for that is this: one cannot say, well, if the Tribunal had counterfactually considered (a) lawfully, it cannot be an answer to say, well, the balance of the reasons, which include the errors in (b) and (g), can be used to say that the error in (a) is immaterial, because (b) and (g) are erroneous too. In a simplified version, it cannot be right to say that when reasoning (a) is errant and reasoning (b) is errant, that we say, well, reasoning (a) is immaterial because reasoning (b), which is an alternative strand of reasoning, means the result could not have been different, or reasoning (b) was errant too.
So, you have to hypothesise compliance as a whole with the Direction when you look back. You cannot segment it because it leads to self‑evidently perverse results. There is nothing remotely adventurous about that proposition; it may just not have arisen in the cases before this Court that have looked at materiality.
GORDON J: The reason being is because this idea of actually stopping and breaking up the counterfactual is something that, itself, might create a difficulty.
MR WOOD: Yes.
GORDON J: One of the ways to say is I have identified error. That error is a failure to comply with Direction 90, which is a failure to comply with the statutory requirement of 499(2). In a sense, that is, at least on one view, an end of the inquiry in terms of having identified error of this kind.
MR WOOD: Yes, that is right – certainly in Uelese, where the Court considered this, the conclusion was, albeit that the party had not raised as an issue or advanced submissions about best interests of the children, that the central reasoning of the Court was, well, the Direction required the Tribunal to make a determination. There was no determination made. That was the end. Now, that case took place before the fulsome articulation of principles and materiality in recent years by this Court, but it is easy to see why the same logic would prevail, that the error is material, because a court cannot be placed in a position of guesswork so as to exclude a possibility that when you are dealing with evaluative matters with multiple factors, that the result could not have been different.
GLEESON J: But this is a conceptual point. Your case, really, would not be any different if it turned out that there had only been one failure.
MR WOOD: Yes, I agree with that. Although, we think that the erroneous approach which the Tribunal took to paragraph (b) is particularly powerful. The reason for that is, essentially, this: we know that the Tribunal weighed, in fact, (a), (b) and (g) against my client – (a) was given “strongly militated”; (b), “militated”; and (g) just somehow weighed against. I am really looking at step 1 in this part of the argument. Counterfactually, assuming compliance, it is eminently realistic to conclude that none of (a), (b) or (g) would have weighed against. It is quite possible that none of them would have weighed against – (a), because it really could not because all of the kinds of crimes there are not the kinds of crimes my client committed – not violent, not sexual offending – perfectly possible even if analogical reasoning, which was touched on by the Full Court as a possibility by not resolved ‑ ‑ ‑
GORDON J: These are the matters raised with you by Justice Beech‑Jones.
MR WOOD: Yes. So, (a) might not have weighed; (b), plainly, might not have weighed in terms of “very serious”; and (g) was not applicable. Subsection (b) is a particularly powerful point, though, because (b) is a consideration that, in its terms, requires the Tribunal to have regard to the proposition that the Australian Government and the Australian community regards certain kinds of offending as “serious” as distinct from “very serious”, and notably – as the Full Court found at paragraph 118, and we do not dispute on this appeal – the offending that my client committed falls readily within (b)(ii):
crimes committed against vulnerable members of the community –
So, it is not just a matter of the possibility that the weight in (a), (b) and (g) might come off, but it is the proposition that the weight in (b) might come on to a conclusion of “serious” rather than “very serious”. It is not just a matter of subtracting; there is a possibility of something going on the scales ‑ ‑ ‑
GORDON J: But that just reinforces your infection point.
MR WOOD: Absolutely – which is one we think (b) is a particularly powerful consideration. But if fundamentally – to answer your question, Justice Gleeson, yes, it could have been just one. We would still be here if there was just one error made.
Can I just say briefly about (b) – I will not dwell on it – the Full Court in its reasons at paragraph 69 refer to a Full Court decision called CKL21 (2022) 293 FCR 634. It is not in the joint book of authorities. Suffice to say that that is a useful distillation – that case, CKL21 – of a long line of cases in the Federal Court recognising that the question of Australian community views is not a question of credible fact, but that the Minister as an elected representative, and consistent with principles of responsible government, is able effectively to declare and deem views of the community about certain matters.
So, we say that (a) and (b) are the expression of that. We have “deemed” community views – certain kinds of offending “very serious”, not including ours; (b), certain kinds of offending “serious”, including ours. Not only was it erroneous, the approach the Full Court took, but we say quite clearly on the counterfactual, had there been compliance with Direction 90, and therefore lawful consideration of each of (a), (b) and (g) – (a), (b) and (g) all come off potentially, (b) comes on “serious”. That is the heart of our argument about step 1.
Briefly – although I do not think it is critical to the resolution of the appeal – we say the Full Court did not assess the errors cumulatively. I say it is not critical because, in a sense, this Court overtakes the function. So, if the Full Court did not do it – we are not asking for remitter – this Court can do it itself, we say that is the approach that would have to be taken. But briefly to explain why the Full Court did not, if you follow the structure of the Full Court’s reasons, it dealt with each error in turn. In isolation, it did not have the conclusion section at the end where it dealt with them together.
Taking the error with respect to (a) – that is factor (a) – as an example as to the approach the Full Court, if we go to paragraph 96 of the Full Court’s reasons, where the Full Court starts to identify why our argument below was not accepted, and in the final sentence in responding to submissions were made about a case called Chamoun – which we will come to in a moment – the Full Court says:
The only aspect relevantly impugned is the way in which the Tribunal approached sub‑paragraph (a).
Which gives you an indication of the segmented way the Full Court was assessing the question of materiality. At 97, the Full Court says:
Secondly, the Tribunal plainly considered that the Appellant’s offending was very serious. On a fair reading of the whole of the Tribunal’s reasons –
which therefore picks up all of the rest of it. Now, it is said against us by the Minister that paragraph 100 suggests that the Full Court has engaged in a cumulative assessment. The Minister seizes on the fact that in the final paragraph of 100, the Full Court says that:
The Tribunal reached its view on the seriousness of the Appellant’s offending by an analysis that clearly gave significant weight to the matters stated in sub‑paragraphs (c) to (e) –
So, the Minister says, well, the Full Court there does not mention (b) or (g). But again, that is part of the problem, because on the appropriate counterfactual, the Tribunal would be considering, for example, (b), lawfully. And as I have sought to explain, lawful consideration of (b) might have led to a factor in favour of the conclusion of “serious” rather than “very serious”. So, it is a further illustration of how you cannot approach this task in a segmented way and how we say the Full Court did, so far as that matters to the determination of the appeal.
GORDON J: Before you leave that page, could I ask you about the last sentence of paragraph 97?
MR WOOD: Paragraph 97?
GORDON J: So, you took us to 97 abut the Tribunal considering the “offending was very serious” in the context of (a):
On a fair reading . . . that conclusion was not dependent –
And that brings into it all – and then it says the conclusion that is set out in the last sentence. On what basis is that concluded?
MR WOOD: Well, I think, in substance – I think you would have to read the Full Court’s reasons as a whole, where the Full Court seize on other statements in the Tribunal’s reasons to suggest that there is no realistic possibility that if (a) comes off, the conclusion about “very serious” could have been different. We would say it is just wrong, because you cannot treat – I will step through this in a bit more detail in a moment, but you cannot treat – even setting aside the question of weighing up different considerations against each other, even if you are just looking within nature and seriousness, you cannot take off (a), treat the rest of the reasoning about seriousness as though they stand unaffected, and then say that the conclusion could have been different. It is just, with respect, an unprincipled approach to the exercise.
GORDON J: Thank you.
GLEESON J: Is there any way in which that conclusion could not be treated as a conclusion as to the merits?
MR WOOD: No. We say, respectfully, that the Full Court has – its judgment is affected by either one or both of two things: one is a drift into merits review; two is impermissible guesswork not as to what it thinks should be the decision – which is a true merits review, the Court saying, this is what should happen – but just impermissible guesswork into what the Tribunal, whose function it is to form the evaluation in the structured way required by the Direction, would inevitably form.
I think the Minister tries to set up a straw man that our argument means that every error about evaluative decision‑making has to be bad. We do not have to go that far, but we do say that it is going to be challenging when you have decision‑making in this context, and this case was a clear one where that conclusion of immateriality simply could not be formed.
JAGOT J: Well, I mean, it just will depend on the reasons.
MR WOOD: It would.
JAGOT J: You can imagine reasons that are worded in a way that, as you have said, would defeat your argument.
MR WOOD: Alternative strands of reasoning being a clear example, yes.
GAGELER CJ: Mr Wood, could I ask you a question really at the level of principle about the application of the counterfactual analysis. You made the point very clearly at the beginning of your reply that this is a case where the historical facts are just not in dispute. It is clear what decision was made and it is clear enough why the Tribunal made the decision, because it has set out is reasons.
In performing the counterfactual analysis, there are some statements of principle in the Court that are to the effect that the error that is found in reasoning is jurisdictional if the result could have been different had the error not been made, and sometimes it is put in terms of the error being jurisdictional unless the result could not have been different had the error not been made. Is there any practical difference, or even conceptual difference, between the “could” and the “could not”, or are they just flipsides of the one conjecture?
MR WOOD: I think they are flipsides, your Honour. One reaches back in time, that is clearly established; one counterfactually assumes compliance, here that is compliance with Direction 90. I think whichever angle one approaches it from, the question is, as a matter of reasonable conjecture, could the Tribunal have made a different decision?
GAGELER CJ: A negative answer to that is the same as saying it could not have reached a different decision.
MR WOOD: I think so, and I think this may affect, perhaps, parts of the Full Court’s reasoning, but I think that an important point of principle, which we have tried to make in writing, is that this notion of onus or proof – all that we needed to prove was the historical facts. That was challenging in cases like the notice cases, like SZMTA, because the reasons were not required to be given.
It is not remotely challenging here, the reason during evidence – that is done. The rest is a matter for legal argument, but sometimes you find a suggestion, I think including in these reasons but I do not have the paragraph at mind – I might review it for this purpose – you have this sense that the appellant has not discharged their burden of proving. We have proven the reasons; the rest is submission by way of reasonable conjecture.
GAGELER CJ: A persuasive onus, if anything.
MR WOOD: Yes.
GORDON J: That does not mean though, does it, consistent with at least some of the ways in which it has been looked, that it is open to the decision‑maker to seek to rebut that?
MR WOOD: Sorry, can your Honour put that to me again?
GORDON J: That is not inconsistent with the proposition that it is open to the respondent, here the Minister, to seek to rebut that.
MR WOOD: By legal argument, absolutely not. In extreme cases, potentially with evidence about what the reasons were.
GORDON J: Correct. Yes.
MR WOOD: There would be a lot of principled restraint, you would expect, from a Minister turning up to a court saying those reasons were not the real reasons, but setting aside that scenario, yes.
GORDON J: Because here, when you look – with no disrespect to the Full Court – the way in which it is reasoned, it has taken this requirement that the applicant establish error and establish that it could realistically have made a difference and elevated it. Is that the way you put it? To something which was never intended to be elevated?
MR WOOD: Your Honour has put it better than I did. That is the point I was trying to make.
STEWARD J: Could I ask another question of principle. Do we have to get involved in or worry about the Full Court’s decision in CCU21, which said that the Full Court would not be bound to apply the formulation of the test in Nathanson, but instead only that in MZAPC?
MR WOOD: I do not think so, I might need to read that, but I think the answer is no.
STEWARD J: Paragraphs 85 to 87.
MR WOOD: I will have a look at that.
STEWARD J: It is reported at 297 FCR 503.
MR WOOD: I will have a look at those paragraphs, your Honour.
STEWARD J: Thank you, Mr Wood.
MR WOOD: I probably do not need to dwell on the points, but step one: we say that it is obvious, with respect, that assuming – counterfactually – compliance with Direction 90 – that is a lawful construction of (a), (b) and (g) with the rest – it is obviously possible, on a reasonable conjecture, that the Tribunal concludes that the offending is to be assessed as “serious”, not “very serious”. Possible, if not only because of the powerful point about paragraph (b), as well as the weight coming off of (a), (b) and (g) in terms of the “very serious” conclusion ‑ ‑ ‑
GLEESON J: But is it also because of the nature of the questions that are left outstanding, as opposed to the array of facts that are the historical facts?
MR WOOD: Yes, absolutely. It is the ‑ ‑ ‑
GLEESON J: If you can see that the questions are questions of merit then it would follow, would it not, that as a matter of reasonable conjecture the outcome could be different?
MR WOOD: Absolutely. The question of whether the – I mean, we might not have had a Direction, and a world where we did not have a Direction is a different case, but you do, and therefore the Tribunal is required by the Direction to assess the seriousness and it is required in doing so to consider certain things, and they include (b)‑deemed views, as distinct from (a) “very serious”, (b) “serious”. It is not an objective question that a court is able to say it is obvious it would have been “very serious” simply because it is drug offending.
GLEESON J: Because Mr Bloggs was an axe murderer.
MR WOOD: One might posit extreme cases perhaps. An axe murderer would fall within (a), but drug offending falls outside (a); it falls within (b). The fact that the sentence was six or seven years, or whatever, cannot supply the answer to the evaluative question about seriousness, in part because the Minister has required the Tribunal to take a structured approach to that, including having regard to the factors and so forth, and it just did not do it. It is readily possible – we do not need to prove probable – that at the end the process, counterfactually assuming compliance, the Tribunal could have said “serious”, not “very serious”. Now, can I deal with a number of errors in the approach of the Full Court, some of ‑ ‑ ‑
GORDON J: Before you get to that, can I ask one direct question. When I look at your outline of submissions ‑ ‑ ‑
MR WOOD: The three‑page?
GORDON J: Yes, and one looks to see the fact that there has been an error which is now admitted, do you not just go straight to 8? Does one not just say I have historical facts, those facts do not comply with the Direction in the way in which we need to, and that is the end of the inquiry?
MR WOOD: Possibly, it is just that we felt the need to deal with each of the links in the Full Court’s rejection of our case below. But no, we think it is pretty clear from looking at 8, which focuses on the endpoint of the Tribunal, which is on the overall balance, and to say that that could have been different.
EDELMAN J: Materiality is an area where it may be in need of a little simplicity.
MR WOOD: Yes. I certainly do not want to make things more complicated than they need to be, but I might just mention a few things to the extent they assist about the Full Court’s reasoning. So, we have no problem – so if we start – the Full Court starts at paragraph 73 with the recitation of principles. We have no problem with 73 through to 76, subject perhaps to Justice Steward’s question about CCU21 which I will look at. At paragraph 77 we get what I think is a hint of the veering into the problematic territory where, citing Justices Banks‑Smith and Jackson in a case called PQSM, their Honours say that:
Engaging in a reconstructive factual exercise . . . may be difficult.
We do not dispute that. It can be difficult sometimes. But then it said:
At a practical level, the exercise may challenge the conventional (and important) distinction between judicial review and merits review.
We just say it does not. That is a clear distinction, and it must be respected. If one feels like one is in challenging territory, it may well be because the court is. That distinction is clear and ‑ ‑ ‑
GORDON J: Well, to pick up what Justice Gleeson put to you, if you think you are in merits review then you have already passed the threshold, have you not?
MR WOOD: Yes.
GORDON J: Is that not the better way of looking at it?
MR WOOD: Yes, yes. We say nothing in this Court’s jurisprudence suggests there is any challenge to the vital distinction between judicial review and merits review. We have thought a bit about the word “realistic”. We say that because in PQSM, as it happens, the majority placed great emphasis on the chronological sequence of this Court’s judgments: in Hossain, the word “realistic” is not used; in SZMTA it comes in, and the majority in the Full Court say, well, that means something, and that what this Court was doing in SZMTA was defining more precisely the standard, and “realistic” is the prism through which, in our respectful submission, courts – including on this occasion – have slipped into merits review.
We say the adjective “realistic” cannot be used to open the door to guesswork as to how an evaluative decision might be made by the Executive, or let alone for the Court to be making those evaluations itself. We say that the word “realistic” as occasionally but not always used in formulations of principle by this Court since SZMTA recognises that the counterfactual inquiry as to objective possibility is moored by the historical facts. So, in Hossain, for example, what this Court did, which is – I do not need to take the Court to it, but it is number 6 in the authorities, in part C – in Hossain, what this Court did was to reject:
The suggestion of Mortimer J in dissent, that the Tribunal might have delayed making its decision –
on the review to “allow” the applicant more:
time to meet the public interest criterion –
about paying debts to the Commonwealth. The plurality said that that suggestion rose:
no higher than conjecture.
Your Honour Justice Edelman made similar observations at paragraph 78. Now, we say, in a sense, the task of materiality does involve conjecture; the problem in Hossain, using the word “realistic” as the way to explain it, is that what Justice Mortimer’s conjecture – it was problematic, because it collided with the historical facts. The historical facts were that the applicant had not repaid his debt, he had made no arrangements to do so, and he had made no request for the Tribunal to delay its decision‑making function. So, on those historical facts, it is not realistic to merely hypothesise that the laws of physics would allow the Tribunal to delay – so “realistic” is a convenient word to remind us that we are conducting this exercise by reference to the historical facts.
MZAPC, item 10 in the bundle, at paragraph 38 there is a useful expression of principle, correctly stated. But here, the problem with the Full Court’s approach and the Minister’s submissions is what they are trying to use is the historical fact of evaluative conclusions that are infected. That is the problem. Now, that takes us to paragraph 78 of the Full Court’s reasons, where the Full Court correctly states that:
Caution is also required so that the reconstructive exercise is undertaken while being alive to the extent to which the Tribunal’s reasons are a product of the very error whose materiality is being addressed: Chamoun –
We say that is absolutely on point. The Full Court says, in the next sentence:
This means that a decision‑maker’s errors cannot be neatly excised, leaving the balance of the decision‑maker’s reasons intact –
Absolutely. But that proposition is then not observed by the High Court in the balance of the reasons, because what it does is to take the historical fact of statements by the Tribunal in other paragraphs of the reasons and say, well, elsewhere, at paragraph 10 for example, the Tribunal concluded that the offending was “very serious”, and therefore there is no realistic possibility it would have made a difference because that was what it found.
But that is to ignore the fact that 8.1.1(1) regulates how the Tribunal is to assess the seriousness of the conduct. It cannot come to a conclusion about the seriousness of the conduct without considering those factors. And so, if considering those factors – it might have said “serious” – one cannot take findings, like in paragraph 10, where the Tribunal says “very serious”, and say, well, therefore, it cannot have made a difference, because that is to make the very error which the Full Court correctly urged against in Chamoun.
Now, the Minister in submissions and the Full Court in its judgment says somehow Chamoun is different because Chamoun – the error was a misunderstanding of the very power being exercised. If that is a distinction it is not a relevant one; true, here, the error is noncompliance with the Direction. What is relevantly similar to both is that it is the legal error – the breach of a condition, being either a misdirection at law or a failure to comply with the Direction – has infected the process by which the reasons have been formulated, and therefore you cannot take the reasons given in fact and use them to defeat reasonable conjecture as to a different result.
So, to give your Honours some examples of the way that the Tribunal fails to observe the caution that it correctly cites at paragraph 78, if we have a look, for example, at paragraph 98 – so in the middle of that paragraph, inspired by a statement of the Tribunal at paragraph 10 of the Tribunal’s reasons, the Full Court says:
the content of the observation at TR [10], in conjunction with the description of the offending which followed, indicates that the Tribunal considered the actual offending to be very serious.
But yet, once again, that is a conclusion made in circumstances where the structured process that the Minister has directed the Tribunal to follow in assessing the seriousness, whether it is “serious” or “very serious”, has not been followed. So, we cannot take a statement by the Tribunal at 10, that was “very serious”, when the Tribunal has not even followed the instructions as to how it is to go about forming that very assessment. Similarly ‑ ‑ ‑
GORDON J: But the only statement at 10 of the Tribunal was that:
The Applicant has a history of very serious criminal offending.
It does not rise any higher than that.
MR WOOD: No, but it has been used against us to say, well, because you have not attacked ‑ ‑ ‑
GORDON J: It is a point in your favour, I think.
MR WOOD: Yes. Similarly, the Full Court says that, again, in paragraph 98, that:
It is also apparent from TR [92] that the Tribunal’s view of the seriousness of the Appellant’s offending – namely that it was very serious – was reached following consideration of “all the evidence and submissions made to the Tribunal”, and not just the matters identified in the relevant sub-paragraphs of paragraph 8.1.1 of the Direction.
To which the answer is so what? It was required to consider the matters in 8.1.1 of the Direction, including factors that might have led it to conclude that the offending was “serious”, not “very serious”.
I might just very briefly take the Court to Chamoun, and it will not be too much longer. It is in the joint book of authorities D, and it is tab 12. If I can just ask the Court to look at paragraph 70 of the reasons of Justices Mortimer and Bromwich. It is in the middle of paragraph 70 where we say their Honours make salient points. Their Honours say in the middle there:
That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding.
Pausing there for a moment, here, the Tribunal’s reasons are the product of a process where it did not comply with the directions to how it is supposed to go about its evaluation. Not relevantly different.
EDELMAN J: Not quite – this may be a difficulty that arises from the different senses in which historical facts are used, but some of the reasons have to survive on any counterfactual exercise, and those part of the reasons will have to be parts of the reasons that do not incorporate a misunderstanding. Those parts of the reasons are those so‑called historical facts, or just facts, that could be taken for the purposes of an evaluative exercise.
MR WOOD: I think the way I would put it is that all of the reasons were reasons that were given in fact. They are all historical facts. Some of those reasons cannot be taken as they stand where they are infected. They are infected where the breach of the statutory condition – here, the non‑compliance – where you cannot say that conclusion – so that it is “very serious” – was not infected. Where you have evaluative conclusions by the Tribunal that could have been different if the Direction had been followed, they cannot be taken as they stand. There might be other findings that can.
If you have a simple finding of fact, for example – not evaluative, just fact – there will be no difficulty. Chamoun would not stand in the way of saying, all right, but the Tribunal found fact X. If fact X is – in the particular statutory framework – dispositive, the error will be immaterial. Let us say you have your 501CA case where you have to make representations in time, and then there is the evaluative question about another reason, or if the person did not make representations in time that will be that, it will not matter.
EDELMAN J: I suppose that the question I am trying to ask you is why it is that you treat as a historical fact even those exercises of evaluation which might not be tainted by some error in the process of reasoning. Is that because you think that the appropriate process to go through for the question of materiality is to ask what this particular decision‑maker would have done if this particular decision‑maker had not made the particular evaluative errors.
MR WOOD: I do not think it depends on the actual identity of the decision‑maker.
BEECH-JONES J: But it does depend on the actual decision.
MR WOOD: But it does depend – I think my answer, right or wrong, is that all of the reasons are the historical fact. You pose the counterfactual in light of all of those historical facts. Some of those historical facts, though – so evaluative conclusions following non‑compliance – cannot be safely used to say, on a reasonable conjecture, the decision could not have been different. Others, potentially, might be depending on the statutory framework in the particular circumstances. But I feel like I have not answered your Honour’s ‑ ‑ ‑
EDELMAN J: I do not understand that answer. The reasons are a fact in the sense that their existence is a fact. But as soon as you descend the level of the reasons themselves, the detail of the reasons, they contain facts and they contain evaluations.
MR WOOD: Yes.
EDELMAN J: The evaluations are not historical facts, other than to the extent that they are part of the existence of reasons. The broader question I am trying to ask you is: what is the ultimate question that we are asking for the purpose of the materiality exercise? Is it a question of what would this decision‑maker have done if it were not for the errors in evaluation that we need to take out and anything that is tainted by those? Or do we say, taking out those errors, what would a reasonable Tribunal have decided?
MR WOOD: I think the answer is the latter, except it is “could”, not “would”.
BEECH-JONES J: But are you not asking, is this decision affected by jurisdictional error?
MR WOOD: Yes.
GLEESON J: I think that was the approach in Nathanson. So, you were considering whether the decision that was in fact made could have been different, had the relevant condition been complied with.
MR WOOD: I think the answer I venture is this: we are engaged in a counterfactual. So, this Tribunal made an error. It had those reasons and it is effected by error. We look back and we counterfactually assume compliance with the conditions. So, here, we counterfactually assume compliance with Direction 90. This Tribunal member did not comply with Direction 90. But you look back and you say, in light of the fact of the reasons given – all of them – could a reasonable decision‑maker come to a different decision?
BEECH-JONES J: Sorry, you are asking the question of materiality. Is this decision affected by jurisdictional error?
MR WOOD: Yes.
BEECH-JONES J: If you were asking a question about what was previously – or some, at least, understood the law to be discretion – will I remit this – you might then be asking, would it be open to a reasonable decision‑maker to come to a different view? But you are asking the question, is this decision – you are asking the question about the decision that was in fact made. If there is such a big hole in it, then it may be that your answer is to say, yes, it was. But you would not be asking, in this case, a hypothetical reasonable decision‑maker, would you?
MR WOOD: The difficulty, though – I think it is a complex answer ‑ ‑ ‑
GORDON J: This is the point I was putting to you before.
MR WOOD: Yes.
GORDON J: You do not need the counterfactual. You do not need to sit there and say – you need to ask yourself two questions: do I have error? I have error. Is there a reasonable prospect that the result could have been different? In this case, and as you said, depends upon the statutory framework; it depends upon the decision; Justice Jagot; it depends upon the reasons themselves as written.
MR WOOD: Yes.
GORDON J: Here, you cannot disentangle it. So, one does not have to sit there and work out whether or not there is some sort of – what the result would have been, or how you go through this counterfactual that you seek to put up.
MR WOOD: Except so far as it is put against you in argument, the result would not necessarily have been the same because of X, in which case you ‑ ‑ ‑
Primary considerations should generally be given greater weight –
Generally. In our written submissions and our principal oral submissions, we took the Court to see CRNL, can I take the Court back to that? It is tab 13 of book D, and can I ask the Court to go to paragraph 26, where the Full Court sets out section 7, and then discusses it in 27. At 27, it says:
Therefore, the Direction requires greater weight to be given to primary considerations unless there is some reason why that general approach should not be adopted.
It goes on to say, critically, in the third sentence:
It follows that part of the task for a decision‑maker in complying with the Direction is to evaluate whether it is appropriate for a consideration that is not a primary consideration to be given greater weight than one or more primary considerations.
That is why the need for the Tribunal to assess whether the weight to be given to another consideration – which here favoured revocation – should outweigh a primary consideration is itself part of the Tribunal’s ultimate function to perform its overall evaluative assessment. That is what it goes on to describe at paragraph 28 of the Full Court, where in the second sentence, it says:
The real burden . . . is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.
Let us assume, somehow, that we are wrong on Primary Consideration 4, that it stands alone, undisturbed. We move to 164, which is where the Tribunal does perform the ultimate evaluation. If we have persuaded the Court of step 1, we have persuaded the Court of the prospect that I think Mr Knowles came close to conceding, that it is possible that you might go from “very serious” to “serious”; it is therefore possible that in 164(a), what there was held in fact to weigh strongly, might be diminished, it might weigh less strongly. Although, obviously, it can only ever weigh in favour of non‑revocation, of its nature. One then goes to – and assume that (d) stands undisturbed. It remains the case that (a) is being diminished – it could be diminished. One comes to (e), the Tribunal says it:
does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the strong, combined and determinative weight –
There is simply no way without transcending into merits review or into unprincipled guesswork to say that, if the totality of the weight differs –
because it is possible that the weight to be given to one, let alone four, might be less, might be different – there is no principled way that the Court can say that there is no realistic possibility that (e) stands undisturbed. The error is not localised, and the very framing of (e) demonstrates that. The same is true of (f), which is, effectively, the expression of the same idea using slightly different language; again, saying:
A complete view of the considerations in the Direction therefore favours the non-revocation –
A “complete view” of the considerations picks up the very considerations where error was made. That is our substantive reply to what we have perceived to be the critical question, as things have panned out.
With respect to CCU21, your Honours, I think we take a similar position to Mr Knowles, having read paragraphs 85 to 87. It seems to us that the particular issue thrown up by that Full Court judgment is whether
there is a doctrinal difference that emerges in the judgments of this Court bearing on the status of the “assumption” that is made or might be made in a procedural fairness context, that an applicant will take the benefit of an opportunity to be heard. No occasion, we think, arises to resolve that here, necessarily, because no part of our case involves suppositions about opportunities of the applicant, the errors are internal to the Tribunal’s reasoning.
Those are our submissions.
GAGELER CJ: Thank you, Mr Wood. The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 3.07 PM THE MATTER WAS ADJOURNED
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