MIAC v SZLFX & Anor; MIAC v SZKTI & Anor

[2009] HCATrans 102

[2009] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S503 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

and

SZLFX

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S515 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

and

SZKTI

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

FRENCH CJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 19 MAY 2009, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR S.B. LLOYD, SC:   May it please the Court, I appear in this matter with my learned friend, MS L.A. CLEGG, for the appellant in both appeals.  (instructed by Sparke Helmore Lawyers)

MR G.C. LINDSAY, SC:   May it please the Court, in the first of those two matters I appear for the first respondent with MR L.J. KARP.  (instructed by Christopher Levingston & Associates)

MR R.P.L. LANCASTER:   May it please the Court, I appear with MR S.J. FREE for the first respondent in the second matter in the list.  (instructed by Gilbert & Tobin Lawyers)

FRENCH CJ:   Yes, thank you.

MR LANCASTER:   Your Honours, is it a convenient point now to mention my summons for leave to rely on a notice of contention, or should I deal with that when my turn comes?

FRENCH CJ:   It might be convenient to deal with that in the course of argument.  Do you have any difficulty with that, Mr Lloyd, since submissions have been filed in any event?

MR LANCASTER:   May it please the Court.

FRENCH CJ:   Yes, all right.  Yes, Mr Lloyd.

MR LLOYD:   I propose to address the three questions of statutory construction that arise in these appeals in the following manner.  First section 424 which arises in both appeals, then section 424A which arises only in the SZLFX appeal and then section 425 which arises only in the SZKTI appeal on the assumption that leave is granted on the notice of contention.

Turning then to section 424.  The central question in relation to this construction issue is whether the section confers upon the Tribunal only one power broad enough to obtain information from persons or, two, the Minister contends that the section confers two separate powers, albeit that there is some overlap and subject matter.  The powers have a different scope and they have different consequences under the legislative regime.  If I ask the Court to turn to section 424, the relevant form of it can be found in the appellant’s bundle or folder under tab 3.

HEYDON J:   This is in reprint 10 also.

MR LLOYD:   It is also in reprint 10, yes.  Starting with the first subsection:

In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. 

The first proposition is that this provision confers a power.  I do not think that that is controversial, but perhaps if I just give the Court some references.  That was said by various members of this Court in the decision in SAAP by the then Chief Justice at paragraph 4, by Justice McHugh at paragraphs 45 and 55, by Justice Kirby at paragraph 165 and by Justice Hayne at 199.

FRENCH CJ:   Can you please give the case references when you refer to a case?

MR LLOYD:   Sorry, your Honour.  SAAP is in 228 CLR 294. Now, it is a power to get any information that the Tribunal considers to be relevant. Now “get” in this context we say just has its ordinary meaning, which the Macquarie suggests means to “obtain, gain or acquire by any means”, but I accept that it is not a compulsive power so that would mean any non‑compulsive means. The Tribunal separately has power to compel people to give information, and section 427, but that is a separate matter.

FRENCH CJ:   There is a wide range of sources of information which the Tribunal might access under subsection (1) such as DFAT country information and Internet searches which has been a custom to do and so forth.

MR LLOYD:   We say, just looking at subsection (1), the terms of it would be broad enough certainly to include going to a library or getting information off an Internet, but would also be broad enough to include making inquiries of persons or organisations where the Tribunal considers that the person or organisation either has the information or would be willing and able to obtain the information.

CRENNAN J:   Is it your argument that 424(1) puts into statutory form some common law power of the Executive to ask questions?  You seem, in your written submissions, to have a bet each way in relation to that.  I do not say that disrespectfully.  It just seemed to me unclear which side you came down on ultimately.

MR LLOYD:   I am saying it is a statutory power whether one considers putting the sort of common law power into statutory form.  I do not rely upon that sort of a common law power in particular.  In essence, really the case comes down to whether or not the power in subsection (2) limits the power in subsection (1).

CRENNAN J:   That is the Anthony Hordern question.

MR LLOYD:   The Anthony Hordern point.  If it does, then it would obviously limit any common law power as well.  So, in a sense, there may in fact be a common law power but it is not going to help me in this case to succeed.  If (2) limits (1), then it would limit the common law power.

FRENCH CJ:   I suppose the core question is, what is the purpose of subsection (2) and is that purpose supportive of an exhaustive statement of the power to get information from persons?

MR LLOYD:   Yes.  I will come to that in more detail, but to pre‑empt ‑ ‑ ‑

FRENCH CJ:   I am not sure that I understood from your written submissions clearly how you identify the purpose of subsection (2).

MR LLOYD:   What we say the purpose of subsection (2) is – it has differences to subsection (1) in two respects.  Subsection (1) is in terms of consequences, but subsection (2) is capable of invoking the processes – and I will come to these under section 424C and section 425(2)(c).  So when the formal invitation process is resorted to in respect of an applicant it carries with it a potential consequence that someone will lose a right to a hearing if they do not comply with the invitation.  That is one consequence which is different to a request under subsection (1).

In terms of scope, obviously we say that there is considerable overlap.  I accept what has been said in the recent Full Federal Court decision in SZLPO that subsection (2) is broader than subsection (1) in one respect; narrower in other respects but broader in one respect, which is that subsection (2) would empower the Tribunal to simply ask someone to give any information which, in effect, they consider to be relevant to the issue, whereas subsection (1) is a power to get any information the Tribunal considers to be relevant.  So to that extent subsection (2) is a bit broader in scope as well.

The other point to make about subsection (1) is that, although conferring this fairly general power, it also carries with it an obligation, which is an obligation to have regard to the information that is obtained as a result of that power.  We say that that obligation requires the Tribunal to consider the information to determine whether it is probative or useful but, in effect, if it ends up being not useful, then nothing more really flows from it.  Then moving to section 424(2) we say that that also confers a power.  The power is to “invite a person to give additional information.”  Therefore, it is not limited like section 424(1) to a power to get information the Tribunal considers to be relevant.

FRENCH CJ:   Additional to what?

MR LLOYD:   The recent decision in SZLPO says it is additional to the information that that person has previously given.  So it applies only to persons who have previously given information and this is a power to get additional information from those persons.  I will be taking the Court to SZLPO in due course.  There are sort of cogent reasons for that conclusion if the analysis in SZKTI is correct, which is the assumption on which the SZLPO Case was argued on. 

So the Minister accepted for the purposes of that argument that SZKTI was correct only making a formal submission to the contrary and then said, well, if it is correct, then additional information would be simply additional to information that the invitee has given.  That seems to be, at least arguably, what the Court in SZKTI said.  Certainly they did not have to decide what “additional” meant, but that is what SZLOP says.  I should say that Chief Justice Gleeson had posited a broader meaning where it just meant additional to what the Tribunal already had.  While, on our preferred view of the provision that is what “additional” would mean, we do say that SZLPO is correct; that if SZKTI’s construction of 424 is correct, then it must have a more limited meaning for reasons which the Court in that case said, which I will come to in due course.

CRENNAN J:   What is the citation?

MR LLOYD:   Of SZLPO?

CRENNAN J:   Yes, please.

MR LLOYD: It is [2009] FCAFC 51 decided on 1 May 2009. In order for the power to invite additional information to be used the invitation must be given to the invitee by one of the methods specified in 424(3), or specified by reference. If the Tribunal asks the person to provide additional information, say, orally or by a method that does not comply with 424(3), we contend that the power in section 424(2) will not have been engaged. So that is what we say is the consequences of not using the procedure specified. That consequence is important, as I will come to, when one has regard to the function of 424(2) or an invitation under 424(2) which I have foreshadowed.

A matter of critical importance in the construction of section 424 is the work done by the opening phrase “without limiting subsection (1)” appearing in the beginning of subsection (2).  We contend that absent that phrase, the conferral of the power in section 424(2) being a power subject to form requirements in 424(3) might be seen as impliedly limiting the power in 424(1) which does not have form requirements.  So we contend that the purpose of those opening words of 424(2) is to displace the Anthony Hordern implication that that is what it is there for, that is what it does and as a result, we say, that is why there are two powers and not one, and we say that that accords with the natural meaning of the words. 

As I have indicated, section 424(2) has a significance beyond simply being a method of collecting information and that significance can be seen by turning first to 424C(1).  It provides that:

If a person:

(a)is invited under section 424 –

perhaps I should say that we construe “invited” in that context as being a reference to an invitation under 424(2), so one that complies with 424(2) –

to give additional information; and

(b)does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action –

So if one of these invitations is given, there is an express power to press on if there is not a response in the timeframe.  Perhaps even more importantly, section 425(1), of course, provides that the Tribunal must invite a person to appear before it in substance of a hearing.  Subsection (1), however, does not apply if section 424C(1) applies to the applicant.  If an applicant has been invited to give additional information and does not do so in accordance with that invitation, then the person loses their entitlement to a hearing.  We say that is the importance and consequence of an invitation, or at least one of them, under section 424(2).

KIEFEL J:   Why do you think there is a reference to the person in section 424C(1) in relation to closing off the receipt of additional information and the Tribunal being able to proceed towards a decision?  I notice under the similar provision relating to the Minister’s powers the direction is only in relation to the applicant under section 62.  Why are the consequences of the division you are dealing with directed both to a person and the applicant?  I say this for the reason that if it was just the applicant, your submissions about consequence I would have thought were on much stronger ground.

MR LLOYD:   I suppose one thing is that section 56 appears in the context where, because of section 54(3), the applicant has no right to a hearing in fact and so it is a mechanism there to provide something by way of a hearing.  It is very flexible as to what it could be.  It could be as simple as ringing somebody up, asking them if they can answer some questions more or less immediately and do it over the phone.  That is something that the Minister can do under section 56(2).  Or the Minister can ask for the information to be provided in writing.  But that power in respect of section 56(2) is limited only to the applicant. 

So the Minister has power under section 56(1), as it were, to get any information from any other person without any of those constraints – well, if you perceive them as constraints.  They are not particularly constraining in that context as compared to the other ones.  One thing I will be coming to is that the Act also expressly gives the Tribunal that same power under section 56(1).  So the Tribunal also has the power under section 56(1) to ask non‑applicants for information, because under section 415 the Tribunal has all the same powers as the person who made the decision and that includes the power under section 56(1).  I will come back to that, but this Court has held that that power is available to the Tribunal as well.

The other thing which section 424(2) does which section 56(1) does not do, is it allows the Tribunal to ask these open‑ended invitations for information to third persons which the Minister does not have the power to.  The Minister under section 56(1) does not have the power to just ask someone to give anything they consider to be relevant in relation to the issue and section 424(2) confers some power in that respect but that power has an ability to be constrained in time under the provisions in section 424B and section 424C(1). 

So that is why we say there is the additional application to non applicants, although obviously if a non‑applicant fails to respond within time, the person does not lose a hearing – the applicant does not lose a hearing, but it does mean that any assistance that that person might have given the Tribunal does not have to wait for and can continue to proceed with the processes. 

HEYDON J:   The submission that section 424(2) in containing the words “additional information” means information which the invited person considers relevant but the Tribunal may not.  Is that central to your argument?  It does not seem a strong submission to me.

MR LLOYD:   It is not essential.  I mean, that is an observation made by the Court in SZLPO and we do not dispute that that does have that as well.

HEYDON J:   It seems bizarre though that the Tribunal would say, “Look, I do not think this is relevant, but you tell me anything you think is relevant”. 

MR LLOYD:   The Tribunal might say, say, to a spouse of an applicant, “We have a review from your husband in relation to a visa, is there anything you want to proffer in relation to that review?”  So it is not confined to specific items.  It allows them to say whatever they want to say on the point.  It might all end up irrelevant, it might not.

BELL J:   Looking under the more confined power, that is, for the Tribunal to get any information that it considers relevant, the Tribunal could say to a person, “I understand you know applicant X, can you tell me anything you know about that person?”  That would be material that the Tribunal considered relevant.  It is hard to see the distinction in real terms that you draw between the confined nature of the Tribunal determining relevance and the broader invitation. 

MR LLOYD:   I am not saying that there is necessarily a broad point of distinction which is why I am not saying it is essential to my case, but one can at least conceive of a situation where the Tribunal decides that they should or they want to give somebody a completely open‑ended opportunity to say what they want to say in relation to their spouse or a sponsored person or some such thing.

BELL J:   That would be because the Tribunal considered it relevant to its review to give the person that opportunity, would it not?

MR LLOYD:   It could be, but it could be because I just thought it was a fair thing to do and just to give the person a chance to be involved or to have a say.  The Tribunal is entitled to do that we say if it wants to. 

FRENCH CJ:   You say incidentally that, apart from 56(1) informing the powers of the Tribunal via 415, that the words of 424(1) being in material respects the same as those at 56(1) are to be construed with its generality?

MR LLOYD:   That 424(1) should be construed as the same as 56(1), yes.

FRENCH CJ:   Yes, in terms of the breadth of the power.

MR LLOYD:   We say that, in effect, the same power because we say in both cases that the (2) does not limit the (1). 

FRENCH CJ:   You do not need to get that through 415?  I mean, I understand it is not a – yes.

MR LLOYD:   No.  So we say the reason why in 424 there are two powers is because there is, as it were, the general power in 424(1) which we accept is unconstrained, but 424(2) has this sort of different significance, especially in relation to applicants, but in relation to everyone in the sense that it allows a cut off in a very clear way.

FRENCH CJ:   That is not a reason for there being two powers, is it?  That is a statement of how they differ.  It comes back to the question I put to you first.

MR LLOYD:   The reason, we say, one of the critical reasons is that it allows the hearing to be lost if the person does not comply.  But for that there would not be a mechanism whereby that would happen.  Section 425(2)(c) links in specifically to the invitation power. 

FRENCH CJ:   Section 424C(1) can cut one way or the other.  It might be in favour of the applicant, it might be against the applicant. 

MR LLOYD:   Where the applicant is the invitee, it would only be against the applicant.

FRENCH CJ:   Where the applicant is the invitee, that is more likely – yes, that is 424C(2).  I am looking at 424C(1).  It is really neutral in terms of its possible consequence, is it not?

MR LLOYD:   The extrinsic materials, which I will take the Court to, indicates that these mechanisms, an important part of them was to prevent delays and Parliament seemed to consider that having this mechanism, the specific time limits or for requests or invitations to be provided within a time limit rather than not before a time limit, was a way of speeding things up.  That is clearly what Parliament had in mind and that is another aspect of the purpose of the provision.

KIEFEL J:   The purpose of the provision, you say, is to close off information gathering towards a final determination?

MR LLOYD:   Or to allow the Tribunal to have a mechanism to close it off.

KIEFEL J:   To close it off, that is what I meant.

FRENCH CJ:   So the Tribunal has the discretion to invoke the mechanism under subsection (2) with its associated finality provisions, but that does not, on your argument, detract from its power under subsection (1)?

MR LLOYD:   That is so.

KIEFEL J:   In that context is the reference in 424(2) to additional information suggest a circumstance where the Tribunal can see the need not for the clarification that was more expressly dealt with under 424A, but the possibility of there being some further information relevant to a topic which ought to be gone into, that natural justice might otherwise require to be gone into.  Is that the reason for the reference to additional information?

MR LLOYD:   That is certainly one of them.  The other historical point is that prior to these amendments there was no capacity – or so we say, I think this is in dispute – but we say there was no capacity for the Tribunal to have regard to any information other than the information it received under sections 418 and 423 prior to deciding whether or not to have a hearing.  So what 424 – and I will take the Court to this shortly as well – said was, after considering the information provided under 418 and 423, the Tribunal may either grant the visa or must give a hearing and what we say these reforms were designed to do was allow more fact finding to be brought before the hearing process and so it allows under 424(2) the Tribunal to say, “Look, you have said whatever you have wanted to say, but now here is another opportunity to you, or maybe to somebody else, but I do not want to delay the hearing too long, so this is it.  You have got this length of time before the hearing comes and that is it.”  So it is a sort of a clear mechanism to sort of prevent delay of hearings, is all we say.

CRENNAN J:   Getting back to Justice Kiefel’s distinction between a person or an applicant, what could be the policy reason for depriving an applicant of a hearing if a person does not give information within a particular timeframe?

MR LLOYD:   We say that does not happen.

CRENNAN J:   Section 424C(1).

MR LLOYD:   Section 424C(1) would be activated in respect of the applicant or a person, an invitation to anyone, it cuts off the time within which they can respond, but 425(2)(c) only picks up 424C(1) when it applies to an applicant.  So you do not lose a hearing just because somebody else did not respond. 

CRENNAN J:   I see.

MR LLOYD:   Perhaps I should note that Justice McHugh in SAAP said the opposite.  None of the other Justices in that Court did and we, with respect, say that is wrong and that you would not construe it that applying to the applicant would only mean for an invitation to the applicant and not to a third person.

HEYDON J:   We must have the reference of what Justice McHugh said if we are to use it.  It will take us half an hour to find out what it is unless you tell us now.

MR LLOYD: It is in 228 CLR 294 and the relevant reference is in paragraph 53 at page 313. At the end he said:

But the Tribunal is not required to invite the applicant to appear before it even if a third person has been invited to give additional information –

That, with respect, we say is not correct.  I then move to section 424(3).  This specifies how an invitation is to be given.  It should be noted that it does not actually refer to the Tribunal, so it does not say the Tribunal must do something, and so I distinguish that from, say, 424A(1) where it says the Tribunal must give information, ensure certain things and “invite the applicant to comment” as something the Tribunal must do.  It can also be distinguished from 425(1) which is “The Tribunal must invite the applicant” in substance to a hearing.  Section 424(3) talks about the invitation must be given to a person by a method.  When one looks at 441A, it is to be noted that ‑ ‑ ‑

FRENCH CJ:   The heading is “Methods by which Tribunal gives documents”.

MR LLOYD:   That is so.  That is the heading, but when your Honour looks at the actual section, we find that it can be given by a member, a registrar, an officer or a person authorised.  Obviously it is still broadly within the penumbra of the Tribunal, but my point is there is a material distinction between a mandatory provision that says the Tribunal must do X and something about how an invitation can be provided by any of those people must be given. 

BELL J:   It is a person authorised in writing by the registrar, is it not?

MR LLOYD:   Yes, authorised in writing by the registrar, that is so.

BELL J:   So that any of the methods require a member, registrar, officer or person authorised in writing by the registrar of the Tribunal.  Your point is that ‑ ‑ ‑

MR LLOYD:   My point is that the form of it is different – there is a difference between an obligation which in effect says the Tribunal must do something and one which in effect is descriptive of the way an invitation needs to be given.  I accept that it is an obligation to give it ‑ ‑ ‑

BELL J:   By whom?

MR LLOYD:   By various Tribunal officers but this is not so much relevant to the construction of “without limiting” but relevant perhaps later to whether or not there is a jurisdictional error if there is a breach.  I suppose I am noting that difference when looking at it for the first time, but it becomes more relevant later.

KIEFEL J:   I take it you are reading section 424(2) as a truly discretionary power which the Tribunal can utilise to set in train certain consequences towards a final determination.

MR LLOYD:   That is so.  Indeed.  So if we say the consequence of failing to comply with 424(3) is not – and I will come back to this in more detail – a jurisdictional error but it just means that what you have not done is you have not done an invitation, because an invitation must be given in a particular way.  If you do not give it in that way it is not an invitation.  That means you have not invoked – even if you wanted to do – you have not invoked 424(2) and so therefore the time limits do not apply and critically perhaps you cannot lose a right to a hearing.

If, for example, you have not complied because you sent it to the wrong address, you sent it to the applicant and not the authorised recipient or something along those lines, there is some technical breach, we say that that does not go to jurisdictional error but what it would mean is that the Tribunal could not remove a hearing.  We entirely accept there would be a jurisdictional error if the Tribunal failed to comply with 424(3), did not appreciate that, did not give somebody a hearing, then there would be a jurisdictional error but we say that what that jurisdictional error is is the failure to give the person the hearing, not the breach of 424(3).

FRENCH CJ:   I am not quite sure how the hearing issue connects with that.  Section 424C(1) simply authorises the Tribunal to make a decision on the review without taking further action to obtain additional information, that is on the basis that the person invited has not given the information before the time limit has passed.  Now, if there is a non‑compliance with the requirements of 424(3) it simply means that - and the person does not give the information, then the facultative provision, 424C(1), does not apply.

MR LLOYD:   That is right.

FRENCH CJ:   It does not mean anything more than that, does it?  The question of whether there is an outstanding obligation to provide the applicant with a hearing is a separate issue, is it not?

MR LLOYD:   I suppose what I am saying is if the Tribunal thought it had complied with 424(3), thought the person had not responded within time and then, because of 425(2)(c) said, “I am not going to give you a hearing”, in the context of the RRT there is still discretion to give a hearing even if there is a breach – in the context of the MRT, which has materially similar provisions except in this respect - in the MRT if you do not respond within time you lose the right even to have a hearing.  So if you do not respond it just crystallises that you have no right to a hearing.

What I am saying is if the Tribunal thought all of those things, but incorrectly, and did not give somebody a hearing there would then be a jurisdictional error because the Tribunal would have failed to comply with 425(1) in those circumstances.

FRENCH CJ:   How does 424C(1) apply to an applicant?

MR LLOYD:   I do not have these cases but the case law is to the effect that it applies not upon the exercise of any discretion in the – whatever the reverse of a chapeau is, the bit that follows the paragraphs, but rather it applies if (a) and (b) are met.  So if (a) and (b) are met it then applies.  If an invitation has been given and the person does not give information within time, it applies.

I wanted to refer the Court to two authorities that pre‑date SZKTI that support this structure that I have advocated.  The first is a decision of which I understand copies have been provided of Minister for Immigration v Sun 146 FCR 498. This case deals with the analogous provisions pertaining to the MRT. It will be seen at paragraph 8 that there had in this case been a letter which attempted to both invite invitation to comment – that is the equivalent of 424A. It is a 359A letter – and also an invitation to provide information under 359. That is, as it were, how it commenced. Then if the Court turns to paragraph 28:

The Federal Magistrate analysed the contents of the letter.  He accepted that it purported to be an invitation to the first respondent to comment –

as it were, under 359A and under 359.

The Federal Magistrate was not satisfied that the invitation to provide additional information was an effective invitation under s 359 of the Act as it did not specify the prescribed period within which the first respondent was to provide ‑

So the federal magistrate said it was not effective under 359 but was under 359A.  Going to paragraph 30:

The Federal Magistrate found that s 359C(1)(b) of the Act did not apply to the first respondent –

but nonetheless, because section 359C(2)(b), the invitation to comment, did apply the Tribunal was entitled, indeed required in this provision, not to give a hearing.  So at paragraph 42 the Court says:

The failure of the Tribunal to afford the first respondent the opportunity to attend a hearing to give evidence and make submissions, as required by s 360(1) of the Act, will amount to jurisdictional error . . . The issue on this appeal is whether s 360(1) applied in the circumstances.  That in turn depended on whether s 359C(2) applied to the first respondent -

By the time it got to the appeal, it was, as it were, accepted that it did not matter that the attempt to invite someone to give information under 359(2) was non‑compliant because the 359A(1) was compliant.  But on the logic of SZKTI, the mere fact that the invitation under 359(2) was not compliant would be a jurisdictional error and it would not matter.  I mean, it would not matter that the person lost a hearing, nothing else would matter.  It would be you invited somebody in the wrong way, full stop.  So this case, therefore, is not consistent.  The next case, there is a decision in Elrifai which is reported in 225 ALR 307.

FRENCH CJ:   The Federal Magistrates Court.

MR LLOYD:   Federal Magistrates Court, but, in my submission, his Honour’s analysis is correct and reflects what we say is the correct approach and it is useful to at least identify what we say is the way it works, which his Honour also found.  In paragraph [27] and [28] once again one sees a situation where there is an invitation possibly capable of being under both 359 and 359A.

FRENCH CJ:   These are both cases involving invitations to the applicant?

MR LLOYD:   That is so.  Then in paragraph [29] various criticisms of the notices are posited and, in particular, on page 315, paragraphs (viii) and (ix) posit criticisms of the 359(1) aspect of the notice.  His Honour here says in paragraph [30]:

that the s 359A invitation was made without compliance with the requirements of s 359A(1)(b) for reasons broadly raised by the contentions made in paras (i) ‑ (iii) above.  The tribunal, therefore, was not authorised by ss 359C(2) and 360(2)(c) to dispense with inviting the applicant to a hearing. 

He turns to explain that momentarily.  Then in [31]:

For reasons which I shall give, I have also accepted the contentions identified in (viii) and (ix) above, so that the tribunal was not so authorised by reference to s 359C(1).  It follows that the tribunal affirmed the delegate’s decision without complying with its s 360(1) duty to invite the applicant to a hearing and that this amounted to a jurisdictional error –

So we say that is the correct approach.  It is not simply that you did not comply with 359(3), but the fact that you did not comply with it and did not give a hearing. 

CRENNAN J:   It is the consequence that a hearing was not given.

MR LLOYD:   Indeed.  I mean, that is perhaps the point, but perhaps I just note there is further and more detailed discussion found in paragraphs [53] to [56].

FRENCH CJ:   Sorry, can I just go back for a moment, I may have misunderstood something, it is in relation to a question I asked you earlier.  Section 425(2)(c), the exclusion of a right to a hearing where section 424C(1) applies to the applicant, that is in the circumstance where the applicant is the person invited under section 424 to give the additional information, is that right?

MR LLOYD:   That is right.

FRENCH CJ:   That is the only circumstance.  So this simply does not apply where you have a third party who is invited to give additional information, which is the situation we are talking about in each of these cases.

MR LLOYD:   Yes, that is so.  Although we still say in terms of the Anthony Hordern question, is there a reason for having a separate additional power and we say 424(2) is the same section and there is a reason for it to be having a separate additional power, that being one of them.  So then turning perhaps now to the Anthony Hordern line of cases.  It is obviously no part of the Minister’s case that there cannot be such an implication in theory, the question is whether or not the construction of this Act is the correct approach. 

If I could take the Court to the decision of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom 228 CLR 566. You will note at page 571 the Chief Justice agreed with the reasons of Justices Heydon and Crennan. Then I will skip to paragraph 52. We then have a discussion of Anthony Hordern in the judgment of Justices Gummow and Hayne.  The critical principle is noted in paragraph 54:

Underlying Anthony Hordern and later cases is the notion “that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise”. 

Turning over to paragraph 57, there is a reference there to Leon Fink.  I will actually take the Court to that case, but note the end of paragraph 57 is consistent with what I will be saying when I get to that case.  In paragraph 59 is their Honours perhaps overall summary of the approach.  We say that while there is an overlap between subsection 424(1) and (2), (2) is not wholly within (1), as I have already submitted.  Also, under (2) there are different consequences which apply. 

BELL J:   On the first aspect, that is your point, that the power is broader because it is not confined to information that the Tribunal considers relevant?

MR LLOYD:   Then the second aspect is the different consequences.

BELL J:   Yes.  When one looks at the question of whether the ambit of the restricted power is wholly within the ambit of the general power, is a consideration of consequences apt, at that point?

MR LLOYD:   Not at that point.  There are separate and additional reasons for thinking that they might be two separate powers.  I mean the implication, in fact, arises most clearly where one is wholly within the other and does not have any, as it were, different consequences.  Then the next page is ‑ ‑ ‑

HEYDON J:   The first part of your answer to Justice Bell, does that not bring into centrality the proposition that subsection (2) entails the possibility that the information is not relevant, whereas subsection (1) requires it to be seen as relevant by the Tribunal?  I took that answer to Justice Bell to be a way of making your submission, based on Anthony Hordern’s work?

MR LLOYD:   Perhaps I am not understanding, your Honour, but ‑ ‑ ‑

HEYDON J:   About 20 minutes ago you said it was not central to your submission whether the Full Federal Court had said it was the case, that while under subsection (1) the Tribunal must consider the information to be relevant, under subsection (2) that condition did not apply and subsection (2) was wider.

MR LLOYD:   That is so. 

HEYDON J:   I thought you repeated that in answer to Justice Bell.

MR LLOYD:   And that is why I said there are two reasons, either of which is sufficient for us.  One is different scope and the other is different consequences. 

HEYDON J:   I see.  In that sense it is not essential, but if it worked it would be sufficient, yes.

MR LLOYD:   In that sense it is not essential.  It supports it, but even without it – if I turn to page 611 of this report ‑ ‑ ‑

FRENCH CJ:   One could see the additional information as additional to information obtained by the Tribunal under (1) and thus within the class of information that the Tribunal considers relevant.  It comes back to additional to what?

MR LLOYD:   Indeed, although that would mean that you would have to do a – in a sense that would mean we would win on a different approach because that means you must under (1) be able to make a request, without having to rely upon (2).  It is just a different reason for there being a separate power.

FRENCH CJ:   Well, you might solicit a letter from somebody, or a letter might come in from somebody and you ring them up and say you would like some more information about this.

CRENNAN J:   Which is the Mr Cheah situation.

FRENCH CJ:   Or invite them, depending.

MR LLOYD:   And invite them, quite so.  Page 611 in the judgment of Justices Heydon and Crennan at paragraph 148 there is the analysis also of the Nystrom argument up to about paragraph 160, which I do not propose to read, but just refer to.  Then in paragraph 162 their Honours state:

Mr Nystrom’s argument that the power to deport and the power to cancel a visa, which will result in removal, deal with the same subject matter is wrong. 

That is a sort of a scope kind of argument.  In paragraph 163:

Not only do the powers have different purposes, different criteria apply for their exercise.

Then paragraph 164 “different consequences”.  Then in paragraph 165 the rejection of the idea that it is the one power.

That is, as it were, the general principles so it is a matter of statutory construction.  We say that the words “without limiting subsection (1)” are self‑evidently clear.  There are some authorities on that issue as well.  In a case called Leon Fink Holdings Pty Ltd v Australian Film Commission 141 CLR 672, I note at 674 the Chief Justice agreed with Justice Mason. Then going to 677 Justice Mason sets out the relevant legislation. The functions of the film corporation are noted in section 20. Section 21 infers a general power to do all things necessary or convenient. Then without limiting it, it specifies a number of matters, (a) of which is to make loans to, in effect, producers of Australian films.

So the issue arose whether you could make loans to people who were not producers of Australian films but still fell within the broader function of that matter.  The approach their Honours suggest at the bottom of page 677 is that you first look at whether the power said to be limited is broad enough, and we say in this case it certainly is.  Over the page at 678, in a paragraph beginning “However” one then looks at the specific power.  Then at the bottom of page 678 his Honour says:

However, the presence of the words “without limiting the generality of the foregoing” is an important distinguishing feature of s 21.  The critical question is whether there is any implied restriction upon the general power to be derived from the presence of par. (a) ‑

Then over to the bottom of page 679 there is a paragraph:

There are strong grounds for thinking that the specific power given by par. (a) of s. 21 was conferred in order to dispel any doubt . . . In this case the words “without limiting the generality of the foregoing” evince an intention that the general power should be given a construction that accords with the width of the language . . . 

I do not wish to be taken as suggesting that a clause of this kind will always be effective to prevent the making of a restrictive implication derived from the presence of a specific power ‑

Perhaps while I am on page 680, Justice Aickin, who also agreed with Justice Mason, in the paragraph beginning “The formula” is to effectively the same effect.

Now, where you have a general power and then lots of examples of things which are said to not limit the generality, one can conceive of a situation where perhaps one of them would necessarily limit the generality, notwithstanding a phrase like this.  But we say we are, a fortiori, Leon Fink because we have one power in (2) and it refers back to one power in (1).  There is no other example where the “without limiting” could work for some of the examples but not all of the examples.  There is only one power in (2) and it has to not limit the one power in (1).  So we say our case is much stronger than Leon Fink.

FRENCH CJ:   You can see, though, can you not, an argument that you can have a particular example of the application of a general power coupled to a mandated procedure for the exercise of a general power in that particular specified way.  In other words, the general power is not limited, but this particular exercise of it is to be done in a particular way.  That could be read quite consistently with words “without limiting subsection (1)” or the generality of, et cetera. 

MR LLOYD:   But the words themselves do not limit the breadth of it.  I think I understand what your Honour says, but if one imagines the provision without those words ‑ ‑ ‑

FRENCH CJ:   What I am saying is that there is a procedural requirement, if you like, for this particular class of exercise of that power, that general power. 

MR LLOYD:   Then it is limiting it, and then what you are saying is the general power cannot be used and only for this class of power you have to do it this way, then you do want it to be unlimited. 

FRENCH CJ:   It is a question of whether you see that as limiting the power or just saying it is to be exercised in a particular way.

MR LLOYD:   Indeed, but if the words “without limiting subsection (1) was not meant to have the operation which we contend, then it seems to do nothing really because if you took them out, the same construction would flow.  You had to do (2) by reference to (3), but in respect of anything that did not fall within (2), you could do it under (1).  Now, that, we say, does not give any work to do.  The Judges in SZKTI said that it identified the means of doing it and we say, well, that is not what it does and their Honours, with respect, were wrong for saying it identifies means.  It stops (2) from limiting (1), that is what we say it does. 

In SZKCQ Justice Buchanan appears – and there is only a very brief reference to the words “without limiting subsection (1)”, but he seems to say that the operation is that under subsection (2) you do not have to have regard to the matters that you get as opposed to subsection (1).  We say that that would only make sense if the “without limiting” was in subsection (1).  I mean, he sort of has turned it on its head and that only makes sense if the obligation to have regard to things in (1) did not apply to (2).  That is just not what we say it says.  So, with respect, neither Court, we say, deals correctly with the function and effect of those words.

FRENCH CJ:   The power in subsection (1) is to get any information that it considers relevant, is that right?

MR LLOYD:   That is so.  Now, my friends, Mr Lancaster and Mr Free, have mentioned the case of Dainford Limited 155 CLR 342 in their submissions as an answer to our reliance upon Leon Fink.  This is a fairly unusual kind of provision.  In it, Justice Brennan, who was dissenting, although perhaps not on this point – I am not suggesting that the other Justices took a different point here.  At the very bottom of page 361 it says that the words, “without limiting the generality of” in relation to the “specific power” did not have the consequence that the broader power could be used.  So that is a case where, notwithstanding that expression, the implication, the Anthony Hordern implication, was drawn.  What we would ask the Court to look at is page 354.  This sets out the legislation and at the bottom of the page you can see subsection (7) says:

Without limiting the generality of any other provision of this section, a body corporate may –

then exercise a particular power, the substance of which is not particularly critical to my point.  Then if your Honours go to subsection (2), that is the general power.  It actually says it is “Subject to subsections (7)”.  So it is somewhat internally consistent to say (7) does not limit anything, but (2) is subject to (7).  Anyway, the Court in that context said (7) did limit (2) which we say is perhaps not surprising given that (2) was subject to (7).  But we say that there is no analogy to that in the present case.

I suppose if I stop there and say, in my submission, the words “without limiting subsection (1)” is enough to mean that approaching SZKTI is wrong and enough for my client to succeed.  Further support can be gained –I am just starting to worry already about the time given that there are still two other sections I need to address – but in relation to that, I note that another reason for that view is that by operation of section 415, which I noted earlier, the Tribunal also has the power in section 56(1) to just ring up people and ask third persons and ask them for information.  I think that I have substantially made that point. 

I can give the Court references.  In a decision of this Court in Applicant NAFF of 2002 221 CLR 1, at paragraph 25 and 33 this Court said that the 415 brought in the powers in section 56. So they are additional powers to get information in addition to the other powers.

HEYDON J:   It would be a slightly strange result, though.  You have this elaborate structure in Division 4, section 424 and following, and yet you have this much more open introduction of power through the section 415 route.  Would not 424 have ‑ ‑ ‑

MR LLOYD:   With respect, your Honour, in our submission, on our approach, you have a very broad power in 424(1) and the same power in 56(1), and so there is no reason to have limited the other powers.

HEYDON J:   Would that not make the 415(1) power, if section 422(2) circumstances existed, subject to the operation of that subsection?  In other words, if it could be said that the Tribunal were inviting someone to give information, you would have to comply with 424(2) and succeeding subsections.

MR LLOYD:   Certainly if you read 424(2) as being the sole power, you could extend the Anthony Hordern implication to every other power, I mean, I accept that.  But conversely, if you do not read it that way – and one reason why you might not read it that way is to say that – and read that 424(2) as being a special power used to engage the time limits in 424C and the implications for the hearing 425(2)(c) is that no care was taken to exclude section 56(1) as a sort of source of apparently contradictory power, and that is consistent with the idea that there are just two separate powers and 424(2) is a separate power with a separate purpose. 

The other reference is in SAAP 228 CLR 294. At paragraph 126 Justice Gummow also notes the same observation that 415 picks up section 56. Perhaps while the Court has that SAAP reference, I note that paragraphs 127 and 128, Justice Gummow rose in dissent in that case, posited the history or discussed the legislative history of the post 1 June 1999 provisions 424 through to 425 and observed that one of the purposes was to bring forward the ability to get information prior to the hearing – or prior to deciding to have a hearing might be a better way of putting it – as an efficiency and we say that that is borne out in the extrinsic materials.

If I take the Court to the extrinsic materials and the Minister’s bundle under tab 7, there is the explanatory memorandum and on page 52 of that bundle there is an overview.  Paragraph 3 indicates what the amendments do and the second and third dot point refer to efficiencies and the fifth dot point, perhaps more pertinent, is to:

·    prevent MRT and RRT hearings from being unnecessarily delayed where:

-prescribed notice of a personal hearing has been provided and no change has been sought; or

-an applicant fails to respond to an invitation to give additional information within the prescribed period (or a further prescribed period) -

So that is one of the objects.  A couple of dot points further down there is a reference also to some sort of flexibility in the use of telephones.  Then the last dot point on page 53 is a reference to “apply a code of procedure”.  Then going through to page 56 of the bundle there is then the discussion pertaining to the particular reforms.  Paragraph 116 talks about repealing 424 which provided for the decision to be made “on the papers” and then inserts new subsections:

-new section 424 will allow the Tribunal to obtain any information it considers relevant, and, having obtained that information, the Tribunal must have regard to it –

There is a reference to 424A then:

-new sections 424 and 424A also ensure that invitations to an applicant to:

.provide further information -

and then are sent to a relevant address.

FRENCH CJ:   We are looking at a third party invitation, are we not?

MR LLOYD:   We are yes, your Honour.  There is not, I think, any mention of third party ‑ ‑ ‑

FRENCH CJ:   Is it of any help to us?

MR LLOYD:   Well, it still shows the mischief to which the legislation was aimed and the mischief is we say to avoid delay and it was picked up a bit at the bottom of page 57 in the last dash point.

FRENCH CJ:   The applicant does not lose a right to a hearing where a third party does not respond to an invitation within a given time.

MR LLOYD:   That is so, but the third party has a limited amount of time to do it under the scheme ‑ ‑ ‑

FRENCH CJ:   We appreciate that.

MR LLOYD:   ‑ ‑ ‑ and then the hearing would follow that.  And so the delay of the hearing will be minimised.  So you send out an invitation, you give someone whatever it is, 14 days, and that is it.

FRENCH CJ:   We can glean that from the legislation.  I am not sure this is adding anything to it, is it?

MR LLOYD:   Well, only to emphasise that delay was a significant factor, and also at least one set of my friends on the opposite side suggest that cold calling was the mischief of which the provision was aimed at, and we say there is nothing in here to support the view that it was directed towards cold calling.  The emphasis on the delay is just the last point, towards the bottom of page 57, the last dash point, there is a reference there to:

The purpose of the new section is to allow the Tribunal to make a decision without any delay if the applicant fails to respond to a request for further information ‑ ‑ ‑

FRENCH CJ:   Well, but that all begs the question as to whether the power to invite under 424(2) is discretionary or not as a way of getting information, additional information from a third party.

MR LLOYD:   Well, I suppose that is so, your Honour.  It is certainly posited as a discretion in the sense that you may – you do not have to invite them.  Then in relation to the second reading speech, which is under tab 6, on the left‑hand column on the first page about halfway down the page in the paragraph beginning, “On 20 March,” it says that:

These changes will improve the efficiency, credibility and accountability of immigration decision‑making.

On the other side of the page, a little bit up a bit:

This will be achieved through the introduction of more streamlined and flexible review decision‑making processes.

So they are meant to be streamlined and flexible, which they are on our construction; not so flexible on the SZKTI construction.  Towards the bottom of that page is the paragraph beginning:

Members will be –

that is Tribunal members –

accountable, on matters of procedure, to the Parliament through the Principal Member for ensuring that they conduct reviews, fairly and expeditiously.

Over the page, at the bottom of page 49 on the left‑hand column there is a reference to “safeguards”:

The bill also includes certain safeguards for applicants by introducing a code of procedure . . . which is similar to that already applying to decisions made by the Department.  This code includes such matters as the giving of a prescribed notice of the timing for a hearing –

That is 425 –

and a requirement that applicants be given access, and time to comment, on adverse material –

That is 424A.  So 424 is not mentioned as being a safeguard in itself.

FRENCH CJ:   Well, there is a lot of motherhood in here which does not help us get down to the wire, does it?

MR LLOYD:   Well, I accept that, your Honour, but it says:

In addition –

so in addition to the safeguards, we would say –

the bill contains a number of measures to allow for more flexible processes in both Tribunals.  These include . . . 

allowing Tribunals to proceed to a decision without delay, if an applicant does not respond to a notice to attend a hearing or provide comment.

Well, that is also true if a non‑applicant does not respond, so it can go to a hearing without delay; in those circumstances too.  That is equally applicable.  The next paragraph again is focused upon avoidance of delay.  So we say that when a court is making choices in the construction of a legislation one should have regard to whether or not it posits a construction which is flexible, streamlined, avoiding delay, while providing safeguards.  We say our construction of 424(1) is flexible, 424 is an additional power to avoid delays, 424(3) is a safeguard to ensure that someone only loses a hearing if that is met.

Then in relation to our written submissions, we have made various submissions of considerations of structure and policy which we advocate have supported our view.  We have to accept that in light of the decision in SZLPO at least two aspects of that have now diminished.  One was that if additional information were given, as it were, a broad view which meaning additional to anything that the Tribunal previously had, which was the approach which I think Chief Justice Gleeson took in SAAP, then it would be basically – in effect any invitation to any person and that would be extremely broad.

In SZLPO at paragraphs 88 to 102 but especially at 99 and 100 the Court gives reasons why – on the basis of SZKTI’s rationale being correct, additional information does not have that broad view and is actually just additional to what that person previously gave, and the essence of the reasoning is that what you have to do under 424(3) is invite a person by one of the means. 

Now, those means are defined by reference to you have to invite the person by reference to the address that the recipient gave in the review, and so the logic of it was that if you look at the construction through the SZKTI lens, then additional information, given that you have to send it to someone at an address they have, in effect, given you, the implication is you have got the address, you the Tribunal have the address because they have already given you information in the course of the review.  The second aspect in which we advanced a policy argument which has been diminished by the decision in SZLPO ‑ ‑ ‑

FRENCH CJ:   Which is [2009] FCAFC 51.

MR LLOYD:   Sorry, your Honour - is noted at 103 to 108 of that decision where the Court said that person should be construed as only being referable to a natural person and not to organisations, so that, for example, a request to DFAT or to the Department would not require the process suggested in SZKTI.  While we obviously do not have all of those things and accept that that diminishes that aspect of the policy argument, there is a further policy argument that was relied upon which is it was advanced by the respondent in SZKTI at least that section 424(3) a breach of it only crystallises if information is obtained from the invitee, in fact in response to an improperly or non‑compliant invitation. 

This we assume, perhaps wrongly, is to give kind of an air of natural justice to it, but we say that on no view or no construction of the act can you say that the breach of 424(3) only occurs when someone responds to the invitation.  The obligation is to – if it be an obligation – to give an invitation in a particular way.  It is breached when it is not given in that way, and so we say that that is wrong.

The reason why that has a broader significance is one then says well, once a breach of that kind is made, even that you do not have to even make the invitation at all, because it is on any view discretionary at that level, what would be the consequence of that.  We say the only consequence is that you cannot lose a hearing but the logic of SZKTI is that the consequence is that there is a jurisdictional error.

The Tribunal at that point, having invited someone in the wrong way, just has to stop and say “Well, we have invited them in the wrong way; we got this information”.  What are they to do with it then?  Are they to say, “Can we cure it by inviting them in the right way?  Do we have to disregard the information?  Are we bound to not have regard to the information?”  But what if the information was corroborative?  Are they still bound to not have regard to it?

We say all of that reasoning suggests that the SZKTI approach should be rejected or, alternatively, the analogous reasoning suggests that any breach of 424(3) would not be a jurisdictional error, looking at it from a Project Blue Sky point of view, that the intention of Parliament is that if you do not comply with 424(3) then you cannot activate the time limits and the 425 consequence, and that the consequence is not that it be a jurisdictional error in itself.

To give an analogy, if one assumes – and I think there are many cases of this happening between the decision of the Full Federal Court in SZEEU and of this Court in SZBYR, the Tribunal sent out ‑ ‑ ‑

FRENCH CJ:   Those mean nothing to us without citations.  They are just letters.

MR LLOYD:   I am sorry, your Honour.

HEYDON J:   We are going to be seeing a lot of you, Mr Lloyd, over the next 15 or 20 years.  We have to get this reference thing drilled into you ruthlessly.

MR LLOYD:   Certainly, I accept that, your Honour.  I will withdraw my references because I do not have them.  SZBYR I can provide.

FRENCH CJ:   It was only an argument by analogy anyway.

MR LLOYD:   Indeed.  The point perhaps is that the Full Federal Court took a view on what was required by 424A.  This Court took a different view, which meant that in many cases a 424A notice was not required.  We would say if one imagines a situation where some Tribunal sent out a 424 invitation in a non‑compliant way – they sent it to the wrong address, say, or they did not put in the right length of time to respond – but in fact there was no obligation to send it at all, we would say there would be no jurisdictional error because there is no mandatory obligation to send the 424A notice, so any non‑compliance in sending something you did not have to do is not a jurisdictional error.  We say exactly the same thing in respect of 424.

FRENCH CJ:   I think we have that point.

MR LLOYD:   Thank you, your Honour.

FRENCH CJ:   You did not really need the analogy to make it.

MR LLOYD:   If I give, then, another reference.  In SAAP 228 CLR 294, Justice Hayne at paragraph 206 draws a distinction between 424 and 424A, one being permissive and the other being requirement. We say that that supports the view that there would not be a jurisdictional error.

Before leaving 424, one consequence of the decision in SZLPO [2009] FCAFC 51, because their Honours construed “additional information” in a particular way and also at least opined that it only applied to requests to, as it were, specific persons and not just to organisations, is that the respondent in the SZLFX case – where the request was to the Falun Dafa group to get information and they had not previously provided information in respect of the review – would not be engaged, so that on the reasoning of SZLPO there would not be a breach in that case.  That is a submission made, as it were, upon the assumption that the Court otherwise accepts SZKTI as being correct.  The appeal on that ground in SZLFX should still be successful.

BELL J:   Just before you do move from 424, I may have missed this, but what is the Minister’s submission concerning the omission from the more general power, as you put it, under subsection (2) of the requirement for the Tribunal to have regard to the information?

MR LLOYD:   What do we make of that?

BELL J:   Yes?

MR LLOYD:   Because we say it allows a very general request to be made, there is no necessary obligation to have regard to all of it.  You would expect a tribunal to have regard to it, but that might be one reason why that is not said to be bound to have regard to it.

BELL J:   It seems very odd.  I mean, the general power that you posit to get information that the Tribunal has identified as relevant, difficult to think that one can always know in advance that information that you consider may be relevant to an inquiry will have that character.

MR LLOYD:   I accept that and, as I said earlier, your Honour, our submission only is that that obligation to have regard to is only to sort of see if what you thought would be relevant ultimately was relevant, then to treat it according to its probative value.  It may well be, and we would say in SZLFX it was a case where it turned out not to be important and so you have regard to it – you meet your obligation to have regard to it but then you do not have to do anything with it if it does not go anywhere.

KIEFEL J:   Is a purpose of section 424(1) to record the information obtained because there is no record of the request, unlike the process which follows the invitation in subsection (2) which, on the other hand, records the request for information.  The information requested under (1) or got under (1) may not have any record of it unless it were referred to by the Tribunal in its reasons.

MR LLOYD:   I am hesitant to adopt that because even under 424(2) the invitation could be, “Please come before me for an interview”.  So you do not have any sense of what was asked.

KIEFEL J:   No, really what I am saying is – you mean they do not have to identify the information, the additional information?

MR LLOYD:   That is being sought.  What I am saying is that even under 424(2) that it does not necessarily end up being a record of the information that is obtained pursuant to the process if it is provided orally.

KIEFEL J:   Would not the information under 424(2), the additional information, usually be described in some general way?  It would also usually have a nexus with information previously obtained, would it not, from the same person?

MR LLOYD:   Certainly I would expect that in most cases it would.

KIEFEL J:   There would be some general identification of what it was that the Tribunal was seeking?

MR LLOYD:   Yes, although I am not saying that it would have to.  I mean, it might be that the Tribunal does want to, as it were, spring something on someone and they are allowed to.  They are not required to say, “I want to ask you these questions in an interview”.  They could just say, “You are invited to come along to an interview and give additional information” and at that interview they can then be asked whatever questions the Tribunal wants to ask. 

KIEFEL J:   I am just wondering if in practical terms a distinction is that under the 424(2) process there may be – if the information is to be provided in the way that the Tribunal thinks appropriate, that could be by a phone call, in the same way as a Minister’s powers is to be able to specify by a phone call.  It may be under that process that there is no recording of the additional information provided, but there might be in most cases a general description of what was sought by way of additional information.  Whereas under 424(1), if it is required to be in the reasons, you get some record of the information by the requirement, it has to be referred to in the reasons.  So in both cases you are likely to get some reference in the process. 

MR LLOYD:   Yes, your Honour.  I would not go so far as his Honour to be understood as saying that 424(1) means that you have to refer to things in the reasons.  If having made an inquiry or – and you might look at something on the Internet and you end up thinking – so you make an inquiry but you do not think it is useful, you do not have to, we would say, refer to it in the reasons.  You only have to refer to it in the reasons under 430(1)(d) ‑ ‑ ‑

KIEFEL J:   So it is only in your subjective process, as you are saying?

MR LLOYD:   If you rely upon it, then you have to refer to it, but not if you do not have to.

KIEFEL J:   I see, yes.

MR LLOYD:   So turning to section 424A, which arises only in SZLFX, there is a ground of appeal and a notice of contention and I think the issues are the same.  There are basically two issues.  One deals with the construction of 424A(1)(a).  The second deals with whether or not the learned federal magistrate correctly applied the correct construction.  I deal first of all with the construction issues.  If I turn to 424A, and the correct version again is in the reprint 10.  Nothing turns on this but just so to avoid any error.  In the appeal book in the federal magistrate’s reasons the incorrect form of 424A is set out by his Honour.

CRENNAN J:   What page number is that?

MR LLOYD:   In the appeal book it is page 153.  So his Honour set out the version that applied for applications made after 29 June 2007.  The Tribunal decision was made on 1 July 2007 but that form did not actually apply to that proceeding.  I say that with no criticism of his Honour because it was my client’s submissions who led him to the wrong form. 

We do not say that that affects anything to do with this, we are not saying that that is the error, but just so the Court is aware that that is not the correct form, that was all.  So 424A(1)(a):

the Tribunal must:

(a)give the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason -

and one of the issues here, and perhaps the central issue, is the Tribunal considers would be the reason, and we say that “considers” in this context has the same meaning as in, as it were, the Tribunal forms a satisfaction or has an opinion.  That is what “considers” means, so in the Tribunal’s opinion would be the reason or part of the reason.

Now, there are four cases which deal with this point in different ways.  I will just take the Court through each.  The first one is a decision of this Court in SZBYR 235 ALR 609. Now, if I start by noting at paragraph [8] inconsistencies - at the bottom of paragraph [8] on page 612, it says:

the tribunal explicitly drew the male appellant’s attention to discrepancies between his oral evidence and his -

as it were, original claims, so that was raised at the hearing, and then over to paragraph [9], after the quote:

The tribunal did not consider the male appellant to be a reliable witness, and the “modifications and refinements between his written claims and his oral evidence” within his oral evidence and between his and his wife’s evidence led -

to that.  So you have a situation where original claims are different to ultimate claims and those differences are used to make an adverse credibility finding and central to the reason for rejecting his claim.  The question is to the extent to which 424A is engaged in that circumstance, which I go to paragraph [15], the Court says:

This then requires close attention to the circumstances in which s 424 is engaged.  Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review.  Rather, the tribunal’s obligation is limited to -

and then quotes from the passage.  At the end of that paragraph:

In their written submissions, the appellants appeared to focus on the requisite “information” as being the “inconsistencies” . . . However, in oral argument they -

in effect, shifted ground to say that the information was the statutory declaration itself.  The Court makes four points, one in [16] I do not need to take the Court to and in [17], and this is, as it were, on the assumption that the information is the statutory declaration, the Court says:

Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason” . . . The statutory criterion does not, for example, turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”.

If I stop there.  This is of course a case where the information was, in fact, used adversely.  So it is not a case like SZLFX where there is no mention of the information whatsoever in the statement of reasons.  This is one where it was mentioned and is the key reason for the adverse decision.  The Court says, in effect, the reasoning of the Tribunal does not necessitate a view on that.  They continue on:

The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.  The tribunal does not operate in a statutory vacuum –

Perhaps to speed up, I just note the balance of that paragraph and what the Court says at the end of the paragraph is:

When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason –

and that is because if they were positive things which if you believed them – as the Court goes on to note in the last sentence they would have supported a claim to be a refugee.  The only reason why they did not was because he kept changing his claims.  But that was enough, the Court found, to not invoke 424A.

Now, the next case is SZKLG 164 FCR 578, a decision of the Full Federal Court. If I start at paragraph 33, I just note paragraph 33. This is a decision after the decision SZBYR and the thrust of it is that their Honours say that ‑ ‑ ‑

FRENCH CJ:   I think you have your file over the microphones.  Your voice is disappearing.

MR LLOYD:   Sorry.  This was a case where, in effect, the appellant had said that SZBYR was a revolutionary change and that the Tribunal’s consideration was, in effect, no longer relevant on the reading of SZBYR.  What the Full Federal Court says in SZKLG is that this Court had not sort of ruled out the importance of the Tribunal’s consideration, but just was telling, in effect, the Tribunal what it should be looking at when it does its consideration.  That is what we get out of paragraph 33.  The next case is MZXBQ 166 FCR 483. In paragraph 6 his Honour Justice Heerey notes:

The transcript of the hearing shows that the Tribunal questioned the appellant about –

in effect, information that was the subject of the matter.  I note that only because in this case, SZLFX, there is no equivalent evidence of the Tribunal ever giving any significance to the file note information from Falun Dafa at all.  Then at paragraph 10 in MZXBQ, at the end of that, his Honour notes that the reasons do not mention the relevant issue, which is the same as the present case.

Then at paragraph 14 there is a reference there to what the Minister’s argument was and the sort of first point in particular as the relevant point and I accept that the argument now advanced by the Minister is a bit different to that argument.  The next critical passage is in paragraph 22 where his Honour Justice Heerey considers that SZBYR did overrule a substantial body of Federal Court jurisprudence.

Then in paragraph 27 his Honour posits an objective test, so his Honour is saying the court should “assess the ‘information’” on judicial review, and we say that that is incorrect, so this is one point in which we – we do not disagree with everything his Honour says, but we say that SZBYR does not suggest that the words “Tribunal considers” is irrelevant, and that we say it still turns on the Tribunal’s opinion as to the material.

HEYDON J:   Which specific sentence is the one you are disagreeing with in paragraph 27?

MR LLOYD:   In the first one he says:

SZBYR . . . essentially says that the Tribunal must assess the “information” in question in terms of its dispositive relevance -

Then in the last sentence of the same paragraph his Honour says:

This assessment would not depend on the use the Tribunal subsequently made –

I am sorry, the previous sentence –

the reviewing court would have to characterise the statements . . . and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention.

Now, his Honour seems to be saying in that example that the court just looks at it and forms its own opinion.  We say, no, this is an example of the sort of Melbourne Stevedoring class where the satisfaction of the decision‑maker – and a court has to look at it but only for the purposes of satisfying itself whether the Tribunal asked itself the right question, not for the court to substitute its view about the information.

Paragraph 28 his Honour says that the correct approach is to say that “would” means would, if true, so the question is whether the Tribunal considers that the information would, if true, be the reason.  That has certainly some similarity to what the High Court says about, would, if believed, in that paragraph 17.  His Honour says at the end of paragraph 28 that the reasons are:

no guide to whether the Tribunal at the earlier point in time should or should not have applied s 242A.

We would say that his Honour erred in saying it is “no guide”.  We think that the reasons could provide evidence as to what the Tribunal’s view was, so it is too strong to say “no guide”, or perhaps it would be more accurate to say, not necessarily a guide.

Paragraph 29 we certainly embrace that there is significance to be attached to “would” rather than – you know, if it had have said “could” if true, or “might” if true – it is “would’ if true.  We say that paragraph 29 is inconsistent with the approach by the learned federal magistrate who basically looked at, you know, it could undermine, and that was sufficient.  In paragraph 30 there is a passage which we say is the correct approach, which is to say:

Post‑SZBYR . . . the correct approach would have been for the Tribunal to consider whether the . . . information, if true, would be the reason -

So there is some ambiguity as to whether or not there is an objective test.  We say that there is not an objective test, and that has the consequence that what the learned federal magistrate should have done in this case was attempt to identify whether or not the Tribunal considered that the information from the Falun Dafa person, Michael, was – sorry, whether it would, if true, be the reason.  I should say that we do not say that “if true” is the only way the Tribunal could think it would not be the reason if it is not true.  I mean, even if true it may well be that it is information which because of its provenance – you can just look at the information itself and the Tribunal can know that it will never be the reason, or part of the reason, and if the Tribunal forms that view it is entitled to not give a notice.

The last decision I want to take the Court to is SZMPT [2009] FCA 99, a decision of his Honour Justice Jacobson. In paragraph 8 the case involved an issue where the delegate had referred in an adverse way to a bunch of other protection visa applicants making very similar claims, and in paragraph 11 the federal magistrate had distinguished MZXBQ on the basis that in that case there was evidence that the Tribunal had given some significance to the information because it had been raised specifically at the hearing.

Then the passages from 12 through to 18, the Minister would embrace as being wholly the correct approach to how one deals with a case where there is no or insufficient evidence that the Tribunal ever formed the view that the information would be the reason, such as it is not mentioned in the reasons, it is not mentioned at the hearing.  Here in this case the information appears to be treated as being of no significance.

FRENCH CJ:   If the Tribunal has the information pursuant to 424(1) then the inference can be drawn – absent anything to the contrary – that it has had regard to it as required, is that right?

MR LLOYD:   Indeed.

FRENCH CJ:   That does not go so far as to say it regards it as a reason for not affirming the decision.

MR LLOYD:   That is precisely the point of discretion, we would say.  It had regard to it that the learned federal magistrate at one point asked whether or not it had considered it, and seemed to think that if it had not considered it that would have meant there was not a 424A problem.  We say it is allowed to have considered it, but if it considered it and did not think it would be the reason for affirming the decision, there is no obligation to give 424A notice, and we say that that is the position in this case.

Now, perhaps I should just briefly go to the information.  It is in page 96 of the appeal book.  Things to note are that the inquiry was made on the morning of the hearing, so certainly we accept that the Tribunal obviously thought that it might have got some useful information that would either corroborate or not corroborate the claims.  The first sentence was corroborative; the idea that there was Falun Gong being done in Belmore Park.  The second sentence:

He is not aware of a Mr Li being the leader, he said that they do not have leaders, they have co‑ordinators for various sites, and there are a few of them.

It raises, in substance, a point of nomenclature between leaders and co‑ordinators, and there is no affirmation or negativing of whether or not Mr Li is a co‑ordinator, but some issue seems to be taken about the expression “leaders”.

We say, in the context of an applicant whose material is being interpreted or translated, nothing really could turn on the nomenclature point and nothing did turn on the nomenclature point.  If I go to the Tribunal’s reasons, they begin at page 118.  Perhaps just noting the significant bits, page 121, line 38 there is a simple reciting of the applicant’s evidence where he said that the leader of the group was called Mr Li.  Over the page a summary of the evidence of the Tribunal is given under various subheadings.  The next point of any substance is at the bottom of page 124.  The applicant gave evidence and he refers to here as his mentor rather than the leader.

The applicant told the Tribunal that his mentor told him that Falun Gong was not a religion because it does not have an organisation or any religious rituals.

That is the applicant’s case.  The applicant seemed to be on top of the idea that there is not an organisation which, once again, would suggest that the nomenclature point was of no consequence because he was aware of there being no leaders.  There is overall, we submit, no indication that this nomenclature issue was ever paid any significance by the Tribunal.  There are various mentions of mentor, such as on page 125 at about lines 24, 26 and 29.

FRENCH CJ:   This is all factual material in your submissions, is it not?

MR LLOYD:   It is.  I am just, I suppose, trying to make the point that the Tribunal never attaches significance to it.

FRENCH CJ:   Justice Heydon has a question to put.

HEYDON J:   I am sorry.  I interrupted your answer to the Chief Justice’s question.  If you finish that, I will ask you another one.

MR LLOYD:   I was just going to say that on page 129 at line 24 the Tribunal itself uses the word “leaders” in reference to Falun Gong, which would make it pretty surprising if any point was taken about the nomenclature.

HEYDON J:   What about page 125, line 38?  He said that his leader’s name was Da Li.  That is his evidence.

MR LLOYD:   I accept that there is a reference there to “leader” and there is a reference earlier to “leader” and the Tribunal itself refers to people in Falun Gong as being leaders.  My point is the Tribunal does not say, “You said ‘leader’ and everyone knows they are not called ‘leaders’, therefore you are a liar”.  There is no mention of that and, in fact, the Tribunal itself refers to people as being leaders of Falun Gong, which would make it unlikely the Tribunal would ever have made such a point.  The Tribunal, one can only assume, set out what were its reasons at pages 130 and 131.  They all turn on other things.

I think my friend in his reply to our reply tries to make something on 130 at about lines 40 to 45, the word “mentor” is mentioned in that, but we say nothing there turns upon the question of nomenclature.  The issue there is the nature of the applicant’s response to another matter.  We simply say the Tribunal attached no significance to it in its reasons, there is no evidence that it was raised or mentioned at the hearing and therefore what the learned federal magistrate should have done was say, “You the applicant need to satisfy me the court that the tribunal has made a legal error here, has not reached the state of satisfaction” and that is the correct way to go.  It is not enough to say – perhaps I should go to his Honour’s reasons and just show how his Honour approached the question. 

His Honour’s reasons start at 149, perhaps relevantly at 152 there is a setting out of the file note, at 153 at about point 13 there is the observation about the purpose or what the purpose might have been to get the information which we say is neither here nor there.  At page 154 there is an observation at line 10 to the effect that the first line could not possibly be seen as being negative because it was only confirmatory, so 424A is not set out.  There are then some comments on the Minister’s submissions and comments about it which perhaps I am not hugely critical, we would not actually embrace that as an accurate description of the Minister’s submissions, but nothing turns on that.  Then over the page at 155 there is a passage from this Court’s decision in VEAL, a similar case to this case except that the Tribunal in its reasons had expressly said, “In relation to this adverse material I have put it out of my mind” and this Court said, well, that was enough to mean that 424A was not engaged.  Then at the bottom of 155 you will see that his Honour says he is not so sure that it is neutral, as the Minister had said, and he believed that it was “capable of being seen as undermining the applicant’s claims.” 

His Honour then makes some references to subconscious effect, but at about line 20 on page 156 says that that is not really what the case is about.  He then refers to another case, SZHXK [2007] FCA 759 at line 24 where again some adverse material was specifically abjured. So what we say his Honour is doing is looking to see whether he can infer in the Minister’s favour that the Tribunal abjured this information because it could have been, it could conceivably have undermined and can he infer it, and that becomes pretty clear at the bottom of page 156 halfway through paragraph 7:

Having found that the second sentence of the report constitutes information which could undermine the applicant’s claims, where there is no specific denial of the use of that information I would be reluctant to infer that from the failure to mention the report that it was not considered –

That is the point we say it is not about being not considered, but whether or not – and what the applicant we say had to show was that it was considered to be the reason or part of the reason and still the notice was not sent.  At paragraph 8 on page 158 his Honour says he is not required to draw inferences.  Again, this shows his Honour saying, in effect, he needed to draw one in the Minister’s favour, but we say the reverse is true.  What he should have been looking at is whether or not he could draw an inference in the applicant’s favour that the Tribunal had formed the view that it would be the reason and not sent the notice.  So he then says he does not have to draw that inference and then at the bottom of that page 158 over to 159 he in substance says he is not satisfied that it was not considered and or that it had been rejected by the Tribunal and we just say that is not the test.

Now, in my friend’s reply to our reply they then say that they did not have an onus of establishing that at all.  As I understand the submission, they say that this kind of judicial review is different to all other adversarial litigation in courts.  It should be treated similarly to how administrative proceedings are done where there is no onus on either party and we say that is wrong and, given the time, I might just give some references.  In R v Alley; Ex Parte NSW Plumbers and Gasfitters Employees’ Union 153 CLR 376 in the judgments of Chief Justice Gibbs at 382 and also in the judgment of Justice Murphy at 395 over to 396 and Justice Aickin at 397 at about point 4, all show that the principle is that in order to get a prohibition the prosecutor has the onus.

In a case called Templeton v Leviathan Pty Ltd (1921) 30 CLR 34. Justice Higgins at 664.6 says the same thing in relation to a writ of mandamus in a case called Australian Education Union v Lawler (2008) 169 FCR 327. Justice Jessup at 219 says the same thing in relation to certiorari. We say that this is a case which is akin to a satisfaction kind of case and so the nature of the review is the nature of the review discussed by this Court in R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co (1953) 88 CLR 101 and the relevant ‑ ‑ ‑

FRENCH CJ:   That is 100, I think.

MR LLOYD:   Sorry, 100, thank you, your Honour.  That it turns on satisfaction is at 111 and then the relevant discussion about the nature of the review is at 117 and through to 119, which I note that twice on page 119 the Court refers to the prosecutor having to show satisfactorily that the things are made out.  So that also supports the onus point, but the onus point in the context of a satisfaction of this kind.

There is also a similar discussion by his Honour Justice Gummow in Eshetu 197 CLR 611. As I recall the paragraphs are about 130 through to 145, all to the effect that in this kind of litigation the onus is on the person seeking the relief to establish that the satisfaction was not made out. It can be done in various ways. One is because the Tribunal asked itself the wrong question. Another is at least if a positive satisfaction is required, then there was not enough evidence. It just was not open on the evidence. In this case we say it was eminently open to think that that final note went nowhere and the Tribunal appears to have taken that view and that really is or should have been ‑ ‑ ‑

FRENCH CJ:   The factum the subject of the onus is whether the Tribunal considered that the information would be the reason or part of the reason for affirming the decision.

MR LLOYD:   Yes.

FRENCH CJ:   You talk about satisfaction.  I just wanted to get the language right.

MR LLOYD:   Yes, exactly.  So the satisfaction is whether the Tribunal considered it would be the reason or part of the reason for affirming the decision.  Yes.  Finally, I turn to the section 425 notice of contention point.  Last Friday we put in written submissions on that point.  I propose to rely upon them and deal essentially with everything in reply if need be.  But we do say the present case is really miles from SZBEL – 228 CLR 152.

In that case the delegate had decided adversely to the visa applicant on a very narrow ground.  On review various questions were asked before the Tribunal and the Tribunal decided the case on the basis of three fairly precise issues which the Tribunal thought were implausible.  The Tribunal’s view that they were issues was not aired at the hearing.  That is what SZBEL said and what this Court said – that the applicant was entitled to assume that the issues under review were the matters that were dispositive in the delegate’s reasons.

In this case the delegate disbelieved everything – not only disbelieved them, but positively thought that Mr SZKTI had fabricated it to support his claim.  So when he got to the Tribunal’s hearing he had to know everything was in issue, not just in the broader sense but also that his motivations for his claims were in issue, whether or not he was a committed Shouter was in issue.  It was all in issue.

We say the notice of contention can only succeed if this Court says, in effect, it is not enough.  The broad issues are raised, but here is this piece of information from Mr Cheah which is used for various purposes.  The purposes essentially are to think that he has just become involved in the Shouters in Australia, which certainly was an issue in those broad terms dealt with.  But the uses of the information, we say, were clearly in issue at the time of the hearing, but this is new evidence, we say, pertaining to existing issues.

CRENNAN J:   New evidence in relation to an extant issue is your point, is it not, on this aspect of the argument?

MR LLOYD:   Precisely, and we say that what the Act says is that when you get new adverse evidence you get a notice under 424A, and that is what they got.  There is no dispute about that.  They got the notice under 424A.  What they say is yes, but that new evidence you could see each bit of reasoning or each additional matter as kind of a sub‑issue.  They thought this because Mr Cheah had said this thing, and that is a new issue. 

Now, if that is what is required, that basically means almost every micro issue was an issue and 424A basically invokes not only an opportunity to respond but also a need for another hearing, at least when a 424A letter is sent after a hearing.  We say that that is not required on a proper construction of 425, that it is not an issue, it is just evidence pertaining to an extant issue.

CRENNAN J:   Do you accept as a matter of principle that if a new issue is raised that there should be a further invitation to a hearing under section 425?  Is that part of what ‑ ‑ ‑

MR LLOYD:   Certainly, we do not dispute that if a new issue were raised – so say, for example – I mean, that is certainly what SZBEL says and we are not taking issue with SZBEL – but the cases, and there are I think at last count 585 cases that have considered SZBEL, they come out a few every day, but the general thing with the cases is that if something big is put in issue like credibility and he knew that credibility was at stake, then these additional reasons why credibility is an issue would not necessarily be a new issue.  But if the Tribunal said “I do not even believe you are who you are”, which was not ever in issue before a delegate then that would be a new issue and we do not take issue with that.  May it please the Court, they are my submissions in relation to that 425 matter.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes.

MR LANCASTER:   May it please the Court.  If it is convenient, Mr Lindsay has invited me to address your Honours first.

FRENCH CJ:   Thank you, Mr Lancaster.

MR LANCASTER:   As your Honours would appreciate, my case is that when the Tribunal exercises the power referred to in section 424(2) to invite a person to give additional information, it must comply with subsection (3), namely, given that invitation by one of the means specified in 441A, and that if it does not, it commits a jurisdictional error. 

I propose to deal with three topics orally in relation to section 424, and the first is the effect of the words “Without limiting subsection (1)” in subsection (2); secondly, the proposition that we advance that the call to Mr Cheah on his mobile telephone is fairly described as, and was, an exercise of the power in subsection (2); and thirdly, the failure to comply with subsection (3) is a jurisdictional error, or leads to jurisdictional error.

Can I address the first topic, namely, the effect of the words, “Without limiting subsection (1)”.  In our submission, they have a straightforward effect.  They indicate that the identification in subsection (2) of that power should not be taken to limit or confine the scope of operation of the more general power in subsection (1).  It is essential to our argument that inviting a person to give additional information is plainly one way of getting information, and I will develop that in a moment.  The words “Without limiting subsection (1)” simply remind the reader, remind the Tribunal, that there remain other ways to get information other than by invitation to a person.

FRENCH CJ:   That includes getting information from persons.

MR LANCASTER:   Yes.

FRENCH CJ:   How do you get information from persons other than by inviting them, given the breadth of the notion of invitation which you advance?

MR LANCASTER:   Your Honour, perhaps I was too quick to agree with your Honour.  It is not a necessary part of my argument that subsection (1) extends to – sorry, I withdraw that.  An exercise of power includes approaching persons to get information, and that is done by a mechanism in subsection (2).

FRENCH CJ:   So you cannot get information from persons under subsection (1), is that what you now say?

MR LANCASTER:   I am sorry, your Honour?

FRENCH CJ:   You cannot get information from persons under subsection (1)?

MR LANCASTER:   You may, and you may do so – the Tribunal may do so in the way described in subsection (2), namely, by issuing an invitation to that person.  If your Honour’s question was whether there are other ways of getting information from a person other than by inviting them to get information, my answer to that, I suspect, is, no.

HEYDON J:   You could receive it without asking for it; that would be getting it.

MR LANCASTER:   Yes, another person would be involved but they would not have been invited to give it.  Now, my learned friend, Mr Lloyd, made a couple of points that may I immediately reply to in relation to the effect of these words?  The appellant submits that “may get . . . information that” is considered “relevant” is far from being the broader or general power is a more limited power because there is a condition imposed upon the Tribunal to consider it relevant to get that information, whereas that does not appear in subsection (2).

In my submission, the general power in subsection (1) does comfortably describe what can be done specifically in subsection (2) because the Tribunal might consider relevant what it is that a particular identified person has to say on a particular identified topic and invite that person to give information.  It would involve an unnatural construction of the words “the Tribunal may get any information that it considers relevant” to say that there is a distinct different process involved when the Tribunal issues an invitation for additional information.  Presumably the Tribunal takes that step of issuing an invitation when it is interested in the response.  It is seeking additional information, so it has information in its possession that by some process of reasoning on the Tribunal’s part called for an invitation to give additional information.  It must be because the Tribunal considers it relevant in the way those words are used in subsection (1). 

FRENCH CJ:   What do you say the information is additional to?

MR LANCASTER:   For the purposes of my client’s case, it does not matter; in other words, the decision of the Full Federal Court recently in SZLPO [2009] FCAFC 51. We do not need to contend that that construction of “additional” is incorrect because my client’s circumstances were such that it was additional to a written reference that he had previously given.

Your Honours have been taken to the observation of Chief Justice Gleeson to the effect that it is additional to any information that the Tribunal then has and can I just develop that idea for one moment, if your Honours please, by reference to the structure of Division 4, Part 7 of the Act.  Section 423 refers to the basic documents that the Tribunal has at the commencement of its review process.  As my learned friend said to your Honours, they are the materials provided under section 418 and section ‑ ‑ ‑

CRENNAN J:   Section 423.

MR LANCASTER:   ‑ ‑ ‑ 423 itself.  Section 424 is headed “Tribunal may seek additional information” and putting the heading to one side its subject matter is evidently to permit the Tribunal a very broad discretionary power to go and obtain additional information that may be relevant to the disposition of the section 412 application.  My reference to that structure is perhaps supportive of the notion that additional information means simply information additional to the information held by the Tribunal at the start of its review process.  But as I indicated I do not need to contend and do not state or contend that the decision of the Full Federal Court recently is wrong on that aspect.

Your Honours, the second thing that my learned friend said about the words “without limiting subsection (1)” is that it displaces the Anthony Hordern principle and in developing that submission my learned friend fixed attention on the mandatory procedures set out in subsection (3) to indicate that these really are two different powers, although he conceded they overlapped to an extent.  Part of the argumentative support for that proposition referred to the mandatory nature of the procedure in subsection (3) and linked that to the effect of “without limiting subsection 1” as the answer to Anthony Hordern.  That cannot, in my submission, be the case by reference to the analogous power.  My learned friend said the same power in section 56(1), if your Honours would look at that, and (2).  Section 56(2) says, in now familiar language:

Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information –

There is no subsection (3) mandating a particular way that that invitation be given.  There is the discretion to do it either way referred to in subsection (2).  It cannot be the explanation for the words “without limiting subsection (1)” that it is acknowledging a different power with an attached mandatory element. 

As I submitted, we contend the effect of the words “Without limiting subsection (1)” is that it indicates that the identification of that specific power in subsection (2) is not to limit the more general power of which it can be regarded as a subset or a part.  I use the words “specific” and “general”.  As your Honours have seen from our written submissions, we expressly invoke the principle described in Anthony Hordern (1932) 47 CLR 1. I will not take your Honours to pages 7 to 8, but we rely on that expression of the principle. The explicitly given particular power in subsection (2) must be exercised by the prescribed mode of the exercise of that power in subsection (3). In our submission it excludes the use by the Tribunal or the operation of subsection (1) so as to permit that same act without complying with the prescribed mode of exercise of the more particular power.

Can I take your Honours briefly to the decision of this Court in Minister for Immigration, Multicultural and Indigenous Affairs v Nystrom 228 CLR 566 to draw attention to the way some of the members of this Court express the mode of application of the Anthony Hordern principle in the circumstances of that case.  Firstly, Chief Justice Gleeson at page 571, in paragraph 2 about seven lines from the – we rely on the paragraph, but in particular about seven lines from the bottom his Honour said:

If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent ‑

I invite your Honours to read the rest of that sentence.  I fix for present purposes on the words “apparent exhaustiveness” and make the submission that section 424 in its place in Division 4 of Part 7 of the Act is evidently intended to be an exhaustive statement of the way the Tribunal might get additional information to the information referred to in section 423 when it first commences a review application.  The structure of the division supports, in our submission, the exhaustiveness of section 424(1) as a way of getting information.

BELL J:   On any occasion when the Tribunal seeks to get information from a natural person, you say subsection (2) is engaged?

MR LANCASTER:   Whenever it makes a request of a person asking for information, subsection (2) is engaged, yes.

BELL J:   Do I take it it is confined to natural persons, in your submission?

MR LANCASTER:   Again, for the purposes of my argument, I do not need to embrace that conclusion from the recent Full Federal Court decision as well, but evidently my client is a natural person.  The Acts Interpretation Act would say it could be either in section 22 of that Act.  The Acts Interpretation Act draws a distinction between the statutory use of “person” and “individual”.  “Individual” is not used, which may say something about that argument, but as I have indicated, we do not need to and do not take a final position on that point, because in any natural reading of the word “person” it includes a natural person. 

I am reminded, your Honours, that the 424 power is a discretionary additional power to, for example, the power to summons a person to give evidence or provide documents.  Your Honours, still on Nystrom, may I take your Honours to page 589, paragraph 59, where their Honours, Justices Gummow and Hayne refer to the effect of Anthony Hordern, and in particular say:

what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.  In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

So it is, in my submission, a straightforward application of Anthony Hordern once one makes the constructional choice of asking whether subsection (2) is effectively a particular example of the power that may be exercised by subsection (1).  That in turn relies on the ambit of the words “may get any information that it considers relevant”.  In our submission, that phrase comfortably describes a situation in which a person is approached to give information, to give additional information, notwithstanding that the Tribunal may not have an active consideration that each of the matters that might be the content of the additional information will be relevant, but that subsection (1), in my submission, should not be construed so strictly. 

The relevance that the Tribunal sees, on my argument, is the relevance that this person is in a position to provide additional information that will go to the disposition of the review.  In that way subsection (2) is, as we would have it, plainly a particular example of the general power in subsection (1) and subsection (1) cannot continue to be relied upon to escape the mandatory procedure in subsection (3).

FRENCH CJ:   Why is this limitation imposed?

MR LANCASTER:   Your Honours, my learned friend has argued by reference to the consequences, for example, in respect of section 424C.  That is one of the effects and possible consequences of non‑compliance with the limitation, but it does not explain, in my submission, the whole area of operation of section 424(3).  My answer to your Honour’s question is that it really requires an attribution of legislative purpose as to why it would be necessary to write down – because it is all a documentary process in 441A – why it would be necessary to write down the invitation.

One can imagine legislative purposes along the lines of good decision‑making, if I can describe it broadly.  It allows there to be a record of the fact that the invitation has been issued.  It allows a record of the time at which it was issued and the content of the invitation.  It may be explained by the circumstance the legislature regarded it as important that when there is a specific aspect of the matter upon which further information, additional information, is to be sought, it is inherently likely to be valuable information or information that is to be taken into account.

FRENCH CJ:   Is there anything in the Act which says anything about the form in which the information must be given by the invitee, in that the invitee can just ring up and say, “Here’s your answer”.  Section 441A deals with a mode of invitation, does it not?

MR LANCASTER:   Can I take your Honours to 424B(1)(a):

If a person is:

(a)      invited under section 424 to give additional information . . . 

the invitation is to specify the way . . . the Tribunal considers –

it should be given.

FRENCH CJ:   That does not limit it to, for example, a written response.

MR LANCASTER:    No, certainly it does not limit the response to a response in writing.

KIEFEL J:   It could be by telephone.

MR LANCASTER:    It could be by telephone but the Full Court in my case below made the, in my submission, appropriate point that at least that oral information would have been given by a person who has had an opportunity to consider, reflect and make sure that when that phone call is made it is everything that that person wishes to say about the subject rather than being sprung upon, as it were.

FRENCH CJ:   Is that a matter which goes to construction or just an accident of the particular circumstances of the case?  In your case I think it was two months after the relevant letter had been sent into the Tribunal.

MR LANCASTER:   Yes.  It goes, I accept, more to the circumstances of the case, but your Honour asked me about the purpose of subsection (3).

FRENCH CJ:   Yes, certainly.  I appreciate that.

MR LANCASTER:   If one is attributing legislative purpose that may have been a consideration.  That is as high as I can put.

FRENCH CJ:   Nothing comes out of the extrinsic materials to help us in that regard.

MR LANCASTER:   No.  In my submission, the extrinsic materials are incomplete and of little utility in describing the whole ambit of 424(3).

FRENCH CJ:   Mr Lancaster, that might be a convenient time.

MR LANCASTER:   May it please the Court.

FRENCH CJ:   The Court will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17PM:

FRENCH CJ:   Yes, Mr Lancaster. 

MR LANCASTER:   May it please the Court.  One of my learned friend’s contentions this morning was that section 424(2) was broader in scope than subsection (1).  My first submission in support of the contention that that should be rejected I have already dealt with, namely that on the proper construction of the words “may get any information that it considers relevant” in subsection (1) that describes ways of getting information that naturally include what is referred to in subsection (2). 

CRENNAN J:   You are talking about a general followed by a specific?

MR LANCASTER:   A general followed by a specific.

CRENNAN J:   The latter being a subset of the former?

MR LANCASTER:   Yes.

CRENNAN J:   A classic Anthony Hordern application should follow.

MR LANCASTER:   Precisely, yes.  Can I, in support of that submission, also refer to the second sentence in subsection (1), namely that:

if the Tribunal gets such information, the Tribunal must have regard to that information -

Your Honour Justice Bell raised this with my learned friend.  In our submission, a second sentence to that effect naturally finds its home with the general power.  There is no repetition of that requirement in subsection (2) and that is not because that information received in answer to an invitation under subsection (2) may be set aside or ignored at the whim of the Tribunal but because the obligation under subsection (1) affixes to it because that is a specific exercise of the general power in (2).  So we rely upon the absence from subsection (2) of an equivalent sentence in support of what we say about the proper effect of the section. 

The final point in support of that contention that your Honour should reject the proposition that subsection (2) is broader is that these sections are not directed to different subject matters, they are both directed to a topic that is conveniently described by the heading – although I obviously do not invoke the heading for anything other than its consistency with what would otherwise follow from looking at 424 in all its provisions - it is directed to the very general subject matter of additional information, the procuring by the Tribunal of additional information and that is another matter to take into account which in our submission supports the proposition that subsection (1) is the general power and (2) is the specific. 

FRENCH CJ:   The (2) and (3) together were simply establishing a procedural option with the time closing consequence that follows from no response.  It might be said that that is a process still subject to the requirement that the information obtained from it is information which the Tribunal must have regard.  There is just a particular way of doing something, you would say not optional, they would say optional, which is contemplated by subsection (1).

MR LANCASTER:   Yes.  Your Honour, can I develop that a little by reference to the connection that my learned friend relies on between the written invitation in 424C.  If the only purpose of 424(3) was to effectively allow the Tribunal to set up the later operation of 424C, one would expect 424 to be framed in quite different language.  For example, it might have said in subsections (2) or (3) for the purposes of section 424C the Tribunal may invite a person and the mandatory obligation attachment to that.

In their ordinary meaning the words used in subsections (2) and (3) apply not only in circumstances in which the Tribunal is setting up the later operation of 424C, because we accept that is a possible consequence, but the ordinary meaning of the words used apply well beyond that circumstance, and the Minister’s submission, in our submission, do not explain that operation on their ordinary meaning, quite unattached to 424C.

Your Honours, could I move then to my second topic in respect of section 424 which is the proposition that a call to Mr Cheah on his mobile telephone is fairly described as, and was, an exercise of the power in section 424(2)?  I will not repeat what I have said before the adjournment to the effect that however one construes the words in section 424(2), the circumstances of my case make it a comfortable, fair and immediately available conclusion, in my submission, that what was done was an invitation by the Tribunal to Mr Cheah to give additional information.

One of the Minister’s submissions was that there is an overlap between the operation of subsection (1) and subsection (2).  There are two aspects of that that I wish to develop.  Does the Minister suggest that the call to Mr Cheah is within the area of the overlap because if your Honours accept my submission that the words in subsection (2) comfortably describe what actually happened with Mr Cheah one is then in this position, I ask rhetorically in the Minister’s case, in the area of overlap that has been posited. 

The consequence that seems to follow to us from the Minister’s submission is that then the Tribunal can escape the mandatory obligation in subsection (3) by saying this particular approach to this person for additional information is an exercise by the Tribunal of the power in subsection (1).  In other words, it provides for the optional escape from the mandatory obligation at the choice, as it were, of the Tribunal.  The Tribunal can decide which of those two powers in subsection (1) or (2) to exercise.

KIEFEL J:   But when you refer to mandatory obligation you really have to identify a purpose, do you not? 

MR LANCASTER:   I am sorry, the purpose of it?

KIEFEL J:   The purpose of it, otherwise it goes nowhere.  I mean the problem that I have with the notion that mere formalities that are expressed in the processes attach to an invitation under subsection (2), is it - it is not immediately clear to me what purpose is served by that, other than the purposes of being able to bring to an end the determination process upon which the Minister, of course, relies.  From your written submissions the most that I could really gain is that by giving an opportunity to the person invited to provide invitation the quality of what evidence they give might be a bit better and there might be something approaching fairness to them.  They might be, as I think the Chief Justice pointed out, effects.  But it is not apparent to me what statutory purpose is served by effects such as those.  Are you able to expand any further on your argument in that regard?

MR LANCASTER:   Yes, perhaps the first point of call, if I can respectfully submit, is what the Full Court said on this topic at appeal book pages 223 to 225.

At 223 at paragraph 46 at the foot of the page their Honours identify important consequences that might flow from a failure to follow the mandated procedure when inviting a person to give additional information, and, your Honours, I will not read out the next two pages of the reasons for judgment of the Full Court but submit that they provide a reasonable attribution of what the legislature might have had in mind in requiring invitations of this sort to be given in writing.

KIEFEL J:   That really addresses the quality of information point.  That is really it.

MR LANCASTER:   Yes, it goes to what I compendiously described before the adjournment as good decision‑making.

KIEFEL J:   As I recall, their Honours, particularly at paragraph 46, saying that it gives the person opportunity to prepare themselves in giving the information so that it might be more accurate and that an impromptu phone call might be regarded with suspicion.

MR LANCASTER:   Yes.

KIEFEL J:   They do not seem to be large statutory purposes in the scheme of things though, do they, in the Migration Act?

MR LANCASTER:   It would depend on the circumstances, in my submission, your Honour.  One can imagine that two months or more after somebody had written a reference for submission to the Tribunal to receive a telephone call asking for details or further information about those matters would come as a shock or occur at an inconvenient time and that would have a potentially significant effect on the applicant for review, because if, as in this case, information that is given is regarded as substantial and significant and is part of the reason for affirming the decision below, the circumstances in which that person provides the additional information might be vitally important and if the person is on a mobile phone in any of that person’s day to day activities, who is to say that of the four important facts that might have been imparted if there had been notice of the invitation in writing, only one or two are imparted in the circumstances of the mobile telephone call, one can see that there might be real significance.

KIEFEL J:   I follow what you are saying, but that really is by way of saying that the statutory purpose is to ensure that members of the Tribunal go about matters in a thoughtful way.  I mean, it is a very administrative function that you are referring to, is it not?

MR LANCASTER:   Only, in my submission, at the first point, it is potentially of great substantive effect as to what, if anything, is said in response to the invitation.  That may make or break an application depending on what ‑ ‑ ‑

KIEFEL J:   But that may that may raise another question.  If the additional information sought is potentially of such great importance, you would almost expect it to be itself the subject of a mandatory obligation to obtain it, but is it not an important missing element here that there is no obligation to obtain the additional information.  If I might explain that perhaps a little better.

Usually procedures or formality which allow information to be conveyed in a particular way are best understood if they are attached to an obligation to actually obtain that information.  On the other hand, where information may or may not be of any particular significance but the outstanding nature of the information may prevent a process of decision‑making being finalised, that may tell against the requirement of formality having to attend it, but rather a process just being put in train to bring it to an end.  Sorry, there are a couple of larger questions in that.

MR LANCASTER:   Your Honour, in my submission when an invitation is given to a person to provide additional information there must have been some prior process in the Tribunal’s way of thinking that means it is either relevant or significant or potentially relevant or significant to the disposition of the review.  It may be that the Tribunal only knows that there is a topic upon which this person can provide further information without knowing what the character of that information is.

It might come to nothing that the invitation is responded to and there is no material benefit or disbenefit to the applicant in the Tribunal.  But on the other hand, it may be vitally important, indeed dispositive of the application for review, the character of that information that is provided.  While I accept that we are going through a process, or I am going through a process, of attributing legislative purpose when the statute does not say so itself and the explanatory materials do not say so themselves, one can well imagine that the legislative purpose, as it emerges from the provisions of Division 4, are that additional information can be sought, had regard to, perhaps taken into account if significant, and may or may not form part of the reason for either affirming the decision under review or not.

In my respectful submission, it is far from the case that it would only be in circumstances that the Tribunal knows are merely administrative or procedural.  Depending on the response it may go to the heart of the application.  That would be a reason why the legislature would want that to be done in writing as a first stage, so that there is a record of what was said, when it was said and the content of the invitation.

KIEFEL J:   I suppose the distinction I was attempting rather inelegantly to draw was to processes as attending the quality and nature of the information which is I think the area that you are talking about, and processes which are intended to attend an outcome.  That appears to be where the Minister is speaking.  I do not know how to resolve those alternative purposes.  They seem to be truly alternative.

MR LANCASTER:   Without reference to particular circumstances, it is impossible to say.  But in this case the additional information was said by the Tribunal to be the reason, or part of the reason, for affirming the decision.  In this case it was important information that was obtained.  It was regarded as such by the Tribunal and said as such by the Tribunal in its 424A letter.  In this case it was significantly more than mere good procedure.  It was good decision‑making that required it to be taken into account.

I was addressing the proposition of the Minister’s that there is an overlap between the operation of subsections (1) and (2).  My submission is that it cannot be that 424 provides a choice to the Tribunal about the exercise of power within the area of overlap as to whether it follows what the legislature has chosen to say is mandatory in subsection (3).  It would subvert the legislative choice, which is where you exercise power in subsection (2) you will do it by invitation referred to in subsection (3) to say that in the Minister’s posited area of overlap, even if it falls within subsection (2) we need not do what subsection (3) says.

The other aspect of the Minister’s submissions about overlap, it is that the Minister invoked a purpose of more efficient determination or disposition of the application for review, but how does that purpose find expression in the area of overlap that the Minister also suggests?  On the Minister’s submissions the Tribunal can decide whether or not to exercise the subsection (1) power or the subsection (2) power.  On the hypothesis, the Minister may adopt the older or the subsection (1) less efficient mechanism for asking exactly the same question, and the answer to that conundrum, in my submission, is that there is no choice available.  If the circumstances are fairly described as falling within subsection (2) then the mandatory procedure in subsection (3) is required in every instance.  Your Honours, my third area on section 424 is the proposition that non‑compliance with section 424(3) amounts to jurisdictional error on the part of the Tribunal.

FRENCH CJ:   Now, you said at the beginning, leads to.  You say it constitutes or results in, in certain circumstances?

MR LANCASTER:   A breach is jurisdictional error.

FRENCH CJ:   So it deprives the Tribunal of power to do what?

MR LANCASTER:   To dispose of the section 412 application.

FRENCH CJ:   At all?  It is a full stop?

MR LANCASTER:   Yes.

FRENCH CJ:   Even if it totally disregards any information that has been obtained?

MR LANCASTER:   Yes, your Honour, because the legislature has said “must” and the imperative duty is an obligation that the Tribunal must comply with in accordance with it.  It is not fulfilling its statutory duty.  If it does otherwise, then what is set out in subsection (3)?  Non‑compliance is jurisdictional error, in my submission, for three main reasons.  The first and sufficient indicator, in my submission, is the use of the imperative “must” in subsection (3).  In other statutory contexts there may be room for debate about whether an obligation expressed with the word “must”, non‑compliance with that obligation leads to jurisdictional error, but in the context of Division 4, in my submission, there is a persistent differential use of the word “may” and “must” throughout the division, and that ‑ ‑ ‑

FRENCH CJ:   It depends what it plugs into, does it not?  I mean, this is an imperative, accepting your construction, in relation to the process by which the Tribunal obtains what is called additional information from a person, and if the Tribunal fails – the question is what is the consequence of the Tribunal failing to comply with that obligation?  What does that obligation condition?  What power does it condition?  I suppose the question I have is why should one see it as having been intended by the legislature that that obligation conditions the authority of the Tribunal to proceed at all with a review rather than conditions the authority of the Tribunal to rely upon information obtained pursuant to a non‑complying invitational getting?

MR LANCASTER:   Yes.  Well, your Honour, the first and perhaps clearest answer is that subsections (2) and (3) appear in consecutive sections of the one provision and (2) and (3), one may assume, in my submission, legislatively intended to be read together.  They are enumerated in separate subsections ‑ ‑ ‑

FRENCH CJ:   But they are all in a framework of getting additional information, are they not, getting information?

MR LANCASTER:   Yes, but, your Honour, in that context the submission I make is that the legislature must have attributed to it, in my submission, have made the conscious choice to use the imperative in subsection (3) and ‑ ‑ ‑

FRENCH CJ:   Yes, but that begs the question what were they conditioning upon that compliance with that imperative?  You have to look for some textual answer, do you not, rather than just invoking a global purpose?

MR LANCASTER:   Yes.  Your Honour, can I deal with it this way.  Your Honour, the statutory hints as to why non‑compliance should be regarded as affecting the quality of the disposition of the application for review rather than merely the quality of the information that is provided in response to the invitation, is firstly that Division 4 is – in the explanatory materials your Honour would have seen there is a reference to a code of procedure introduced by 424 and subsequent sections and, for what that is worth, if anything, I would invoke that.

The second matter of context I would invoke is section 422B and, in my submission, that provision either supports my contention about jurisdictional error or is neutral in respect of that question.  Can I develop that in answer to your Honour the Chief Justice’s question, I hope.  Addressing 422B there are two primary candidates, in my submission, for what that provision means.  Either it means that there is an exhaustive statement in Division 4 which constitutes a legislative direction to regard each procedural provision in the division as part of the natural justice hearing rule.  If that is the correct construction of 422B(1), it would mean that a breach of any of those provisions is a serious matter.  Having previously identified the significance of the principles of natural justice and if 422B(1) is approached on the basis that it is the legislature saying each of the obligations hereafter in Division 4 are to be regarded as components of that natural justice hearing rule, then breach of those stipulations will be a serious matter, which would sound in jurisdictional error.

BELL J:   One difficulty with that submission is that there are some provisions in Division 4 which patently have nothing to do with the natural justice hearing rule.  It is very difficult to think that the Parliament intended every obligation to have that quality bearing that circumstance in mind. 

MR LANCASTER:   Yes, with respect, your Honour, and the second candidate, if I could put it that way, for the construction of 422B is that to the extent that the division makes provision for matters that would under the general law be regarded as within the natural justice hearing rule, it is exhaustive.  In other words, one cannot make an allegation of breach of the natural justice hearing rule outside of the division but there are other provisions within Division 4 as well that cannot be so described.  Non‑compliance with those other category of provisions and the question of whether jurisdictional error follows is to be resolved by the application of ordinary Project Blue Sky reasoning rather than having, as it were, some assisted momentum towards the conclusion of jurisdictional error by reason of 422B(1). 

They are to be regarded as just falling within the usual Project Blue Sky analysis.  If the obligation in section 424(3) is regarded as a procedural provision which would be outside what the general law would understand as the ordinary ambit of the natural justice hearing rule, and it is, I frankly concede, difficult to place it within it, the question of whether and why it leads to jurisdictional error, the question the Chief Justice put to me, is answered by the Project Blue Sky analysis and the textual clue really, in my submission, starts and almost finishes with the differential use of “may” and “must”.  Throughout the division there is a reflection of the legislative choice about the conferral of discretions and the imposition of obligations. 

BELL J:   So the Tribunal may invite a person in to provide additional information and if they do that, the obligation to do so by one of the methods specified in section 441A results in any non‑compliance invalidating the process of review and the decision. 

MR LANCASTER:    Yes.

BELL J:   That would be productive of absurdity in a number of cases that one could imagine. 

MR LANCASTER:    In my submission, not, your Honour.  Once the choice is made by the Tribunal to follow a particular path, the path that must be followed must have the character that the legislature has required.

BELL J:   So if the Tribunal decides to invite a person’s nephew, that person having provided a reference or something of that character to provide additional information and they omit to make the request in accordance with one of the methods prescribed in section 441A and, in fact, receive no response, the entire process is invalidated. 

MR LANCASTER:   Yes, on the construction of the section that I advance, that would be the result of that case.  Now, it may be that that is regarded as inconvenient or productive of problematic consequences, but, in my submission, the words of the section require it.

KIEFEL J:   An ordinary approach to invalidity might be to consider what the invitation sets in train and what the final or the outcome is at the end of the process that it sets in train.  You have not commented much upon the effects that section 424C provide for.  Do I take it that you do not see the invitation as leading towards those potential effects in 424C and 425?  You see it as some sort of standalone provision?

MR LANCASTER:   No, I accept that Parliament may have attributed to it, that one of the purposes of requiring writing in respect of invitations, is that in the circumstances described in 424C that section might have its effect.  My submission is that it is not, on the face of section 424, necessarily tied to or limited to that purpose.

KIEFEL J:   Well, let us just test that for a moment.  It is not at least the substantial purpose, even if it not the only purpose, because it is the only express purpose that you can see on the face of Division 4, that that is where the invitation is leading to.  There is no other step which follows except those in 424C, or consequences which follow apart from those, and does that not put the invitation in the context of 424C and 425?  There is nothing else expressed.  All that you have mentioned before about the ability to get good quality information is some inference that you would seek to draw which might be no more than a by‑product of these steps, but it finds no expression in the division itself.

MR LANCASTER:   Your Honour, if the Tribunal seeks additional information under 424 and receives it, then it must have regard to it, and the second sentence of subsection (1) provides for material provided in response to an invitation to be considered – provides for the Tribunal to be required to have regard to that information in making the decision under review.  So, so far as the statutory indications go, the primary, in my submission, point of inviting a person to give addition information is so that it can be had regard to and, if relevant, taken into account on the decision under review. 

That, in my submission, would be the, and is, the primary purpose of the power in 424.  It also has a consequence that has been mentioned in relation to 424C, but its purpose is the very general purpose of getting additional information so that it may be taken into account in the review.

KIEFEL J:   That assumes that it will be received, whereas 424C proceeds upon the basis it is not.

MR LANCASTER:   Yes, but those are the two options that an invitee will either fulfil or not fulfil the invitation, and if it is fulfilled then the Tribunal is required to have regard to it, and if it is not then in the circumstances set out in 424C that consequence will follow and the Tribunal can continue to make the decision.  So 424C is a collateral or consequence provision, and the second sentence of 424(1) is, in my submission, the primary purpose of the ability to issue an invitation to a person.

Your Honours, can I move then to section 425, and, your Honours, can I deal with the formal aspect of that first?  We have a summons filed 26 March 2009 for leave to file the notice of contention out of time, and I formally seek that leave.

MR LLOYD:   We do not object or consent, your Honour.

FRENCH CJ:   Yes, you have the leave.

MR LANCASTER:   If it please the Court.  Your Honours, can I deal with our contention on section 425 by starting with observations about the interaction between section 424A and section 425?  They are directed to quite different things.  Section 424A is concerned with information, 425 is concerned with issues.  I attempt to put our position clearly in answer to something the Minister said about our written submissions on 425 really requiring a conclusion by this Court that matters of mere evidence or of mere information cannot in every case be taken to raise issues requiring a new hearing.

Of course I accept, as flows naturally from Division 4, that there is a distinction between information and issues.  New information that comes to the attention of the Tribunal may, if it is significant, if the Tribunal considers that it may form part of or the reason for affirming the decision under review, activate section 424A.  Clearly there is no automatic effect on section 425 from the fact that section 424A has been activated – 425 dealing with issues.  New information might go to an existing issue and have no consequence whatsoever for section 425. 

On the other hand, new information might indicate or constitute a new issue arising from a decision under review.  In my respectful submission, that is what happened in relation to the information obtained from Mr Cheah and a second hearing was required by the terms of section 425.

CRENNAN J:   What was the new issue?

MR LANCASTER:   Can I go to the appeal book to answer that, your Honour, but at the end of what I propose to take you to I will be making the submission that the new issue of which the applicant was not previously on notice was that his account to Mr Cheah and Mr Cheah’s knowledge of his past activities in China became an issue after the Tribunal spoke to Mr Cheah.  There had not previously been an issue in the application that my client’s account to Mr Cheah and Mr Cheah’s knowledge of my client’s past activities in China was an issue arising in the decision under review.  In my submission, framing the issue in that way puts this case in an even stronger position than SZBEL (2006) 228 CLR 152, to which I will return.

Can I go to the record briefly in the appeal book?  At appeal book 130 is the letter of 11 April, which is the section 424A letter sent to the applicant.  The relevant parts are at line 20 where the Tribunal indicates that it has information that would be the reason or part of the reason for deciding that he is not entitled to a protection visa.  Thereafter, the Tribunal records that it spoke to Mr Cheah on 4 April and that certain information was forthcoming, including – just before line 40:

However, Mr Cheah said he did not know whether you were a member of any Local Church in China; where you had lived and worked in China; or whether you had experienced any problems there.

The first asserted relevance of that information and the only one I need to take you to in this letter is at the foot of that page 130:

It appears that Mr Cheah’s knowledge of you is superficial.  It is surprising that you have not had occasion to inform him of any association with the Local Church in China and your alleged experiences there.

Before that point the applicant had not been on notice that that was an issue arising.  To make that good, can I briefly go back to page 118 of the appeal book which is the second of two letters dated 24 January 2007.  The first is at page 114, but this one at page 118 is the relevant one.  The Tribunal says at line 21:

At your hearing, you gave some evidence about your religious practice in China.

That seems to be just a reference to what occurred, because the remainder of this letter is dealing with his connection with the local church in China.

HEYDON J:    The local church in Australia.

MR LANCASTER:    I am sorry, the local church in Australia.  The questions raised at lines 30 to 40 are in the context of saying, “Please provide us with this additional information in relation to your experiences, your connection with the local church in Australia”.  Then at page 123 is the second page of the letter in response from the applicant.  Pages 122 and 123 are, in a single piece of correspondence, replies to the two letters of 24 January.  There is a reference to first, second, third and fourth issues.  I think the way it works is that there were three bullet points in the first letter of 24 January which were taken to be the first three issues, two bullet points in the second letter of 24 January which were taken to be the fourth and final issue.  Relevantly, just after line 10 the letter says:

Regarding the final issue, please kindly refer to the letter signed by two Elders . . . kindly contact them should you have any questions about my religious activities in Sydney.

Mr Cheah’s reference is put forward to meet the issue of “my religious activities in Sydney”, not to meet any issue of which there was awareness of what Mr Cheah had to say about what the applicant had told him about his experiences in China.  Then over at page 124 Mr Cheah’s reference is solely concerned with the applicant’s conduct in connection with the local church in Australia.  Then at page 130 the, as we would put it, new issue is raised in the 424A letter.  To complete the reference to the record, at page 135 at line 20 is what the applicant said in response to that new issue in his submission.

It then remains just to give a quick reference to your Honours to the passages in the statement of reasons of the Tribunal to indicate that this was important in rejecting the applicant’s claims.  At page 163, just after line 40, the Tribunal records:

As noted in the Tribunal’s letter of 11 April 2007, Mr Cheah’s (and Mr Foley’s) written and oral ‑

I would emphasise –

advice to the Tribunal revealed only a superficial knowledge of the applicant’s profile in China, indicating an ‘understanding’ ‑

I interpose, that that appears to be some attempt to discount it –

that he had been a Christian there.

That is said to contrast markedly with the applicant’s reliance on the church in Australia.  Over at page 164 at line 38 the Tribunal says:

Taking into account the concerns set out above, and having regard to the applicant’s documentary evidence and witness statements, the Tribunal finds that he was not a practicing Christian at the time of his departure from China.

The matters referred to above, including Mr Cheah’s oral evidence, were taken into account in reaching that conclusion.  Then finally, over at page 165 at about line 44 the Tribunal says – and this I might note to your Honours – at line 32 there is a heading “Conduct in Australia”.  This is in that context.  At about line 43 or 44:

This, together with the content and tenor of the superficial comments from Mr Cheah (put to the applicant in post‑hearing correspondence) and the non‑specific nature of the petition, suggests that the applicant’s exposure to Christianity is recent, superficial and limited.

Although it is under the heading “Conduct in Australia” it is clearly part and parcel of the conclusion rejecting ‑ ‑ ‑

FRENCH CJ:   Up to that point the information from Mr Cheah has been treated as simply non‑supportive of his claims, but this goes a little further to an adverse inference.

MR LANCASTER:   Yes.  Taken together, in my submission, those references indicate that the Tribunal did use as part of the reason for rejecting the claim the content and tenor of what Mr Cheah had said on the mobile telephone.  That gave rise to an obligation under 424A because it was new information.  That obligation was complied with.  In my submission, it also gave rise to a new issue arising for the decision under review because previously the applicant had not had notice, as those references in my submission demonstrate, that his account to Mr Cheah in Australia of what had happened to him previously in China was something that was material or in issue at all.  In those circumstances, in my submission, the obligation under 425 was activated.

FRENCH CJ:   Was not the issue the question whether he had been a practising Christian in China?

MR LANCASTER:    That was a more general issue of which this issue was a distinct ‑ ‑ ‑

FRENCH CJ:   The problem is you keep drilling down through the issues, you get into a territory where an evidentiary question becomes an issue or this information becomes an issue.  There has to be some sort of line.  Presumably one can draw it at the level of at least – well, certainly the elements of what he needs to establish to gain a protection visa would all be issues to be determined by the Tribunal, would they not. 

MR LANCASTER:    Yes.

FRENCH CJ:   Then the question is how far you can subdivide those and still call those sub‑elements issues.

MR LANCASTER:    I entirely accept what your Honour says and there is a question of construction which really cannot be determined in the abstract.  In other words, it must have regard to the circumstances of each case at what level you would define the question of issues arising in relation to the decision.  This Court in SZBEL (2006) 228 CLR 152 addressed this very topic. Can I take your Honours briefly to that. The reasons for judgment were those of the Court.

FRENCH CJ:   Which paragraph are you taking us to?

MR LANCASTER:  At paragraph 34 which is on page 162, at the foot of that page their Honours made the very point your Honour the Chief Justice just made:

Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. 

Every issue arising is an issue of that character as well.  The statutory language is more particular.  So this Court has said, well, it is not just the general question because that would set at nought the use of the phrase. 

FRENCH CJ:   The elements of an entitlement to classification as a refugee would presumably be issues, well‑founded fear of persecution, et cetera.

MR LANCASTER:    Yes.  Then can I take your Honours to paragraph 41 on page 164 to identify the nature of the circumstances that the Court was addressing in that case and invite your Honours to read paragraph 41. 

I rely on then what appears next in paragraph 42.  In the second sentence, the Court said:

It is that he was not on notice that his account of how his ship’s captain came to know of his interest in Christianity, and his account of the captain’s reaction to that knowledge, were issues arising in relation to the decision under review.

In our submission, my client’s case in this matter is really more evidently an issue arising – a distinct and new issue arising in relation to the decision under review than the circumstances in SZBEL, namely, the question of what was said as between the applicant and Mr Cheah in Australia in respect to his previous conduct, and their Honours in SZBEL, of the Court in SZBEL at 42 admittedly identify the issues arising at a level of specificity, but if, in my submission, that specificity is replicated, and indeed we need not go so far in this case, then the 425 obligation is activated.

HEYDON J:   So there is no trace before page 131 of the appeal book or 130 of the appeal book of this question of practice of Christianity in China?

MR LANCASTER:   Practice of Christianity in China is an issue that appears before page 130 in the appeal book.  What does not appear is that there is a question or an issue in relation to what the applicant said to Mr Cheah in Sydney about his experiences in China, namely his attachment or otherwise to Christianity and his persecution or otherwise previously in China. 

HEYDON J:   I know the difference between material facts, particulars that have to appear in pleadings and particulars that have to be supplied in answer to appropriate letters and evidence.  Is not this sort of evidence going to a material fact?

MR LANCASTER:   No, it is more than that, in my submission.  It is a distinct question where Mr Cheah who had been thought, one may assume from the materials, to have been put forward by the applicant on the basis only of what he had to say about what the applicant did in Australia is suddenly used for a distinct question of what it is that he was told about previous experience in China. 

That is distinct from the issue of what actually happened previously in China, in my submission, and it is clear that the Tribunal regarded it as distinct because the Tribunal reasoned that from the superficial comments that were made by Mr Cheah, it is clear the Tribunal thought that the applicant had not discussed his Christianity or previous persecution, and for that reason disbelieved or took it into account as an adverse point on the credit of the applicant.

HEYDON J:   The new issue is what happened in Australian in relation to the Chinese conduct.

MR LANCASTER:   Yes, quite.

FRENCH CJ:   You formulated three issues, are they the issues you rely on at paragraph 42 of your written submissions?  You have stated them inclusively, but it is:

(i) the alleged failure of the first respondent to inform Mr Cheah –

et cetera.

MR LANCASTER:   I would prefer the formulation I have used in oral argument, if the Court pleases, namely, that the issue was that his account to Mr Cheah and Mr Cheah’s knowledge of his past activities in China.

FRENCH CJ:   Were antithetical, or were inconsistent?

MR LANCASTER:   Yes, that was a question ‑ ‑ ‑

FRENCH CJ:   Or question whether they were inconsistent?

MR LANCASTER:   That was a question to be examined at all.  Your Honours, if your Honours are with me on the identification of the issue it did require a second hearing, and the Minister does not contend that 425(1) just has a once‑and‑for‑all operation.

BELL J:   At the first hearing, am I right in understanding that it had been raised with the applicant that he had fabricated his account of his association with the Shouters in China?

MR LANCASTER:   Yes, that can fairly be regarded as having been an issue at the time of the first hearing.

BELL J:   He was on notice after he invited the Tribunal to contact Mr Cheah of the contents of what it was that Mr Cheah had to say and the significance of that to the Tribunal’s reasoning on the review.

MR LANCASTER:   Yes, but in my submission that does not go to the 425 power.

BELL J:   I understand that, but a little while ago you spoke in terms of almost, as it were, unfairness about Mr Cheah being put forward by the applicant for one purpose and the Tribunal using him for another, and that on a view is addressed by the mechanisms that were adopted.  I am just having difficulty identifying the issue.  The issue as to the applicant’s conduct in Australia in his discussions with Mr Cheah was that he did not disclose to him his history with the Shouters in China.

MR LANCASTER:   Yes, the Tribunal took the view that in ordinary circumstances if one had been a member of the local church in China and had been persecuted because of it, when one came to Sydney and joined the local church congregation in Sydney one would expect that there would have been communication by the applicant with those local church members of what had happened previously in China.  That was not an issue at the first hearing, which is the relevant question so far as 425 is concerned, a new issue arising that has not – in respect of which the applicant has not had the opportunity to produce evidence and make submissions.

BELL J:   But he did have that opportunity in response for a notice.

MR LANCASTER:   He had the opportunity to deal with it in writing, but he did not have the opportunity to – in the words of section 425 – present evidence and make submissions.  Your Honours, if there is nothing further.

FRENCH CJ:   Thank you, Mr Lancaster.  Yes, Mr Lindsay?

MR LINDSAY:   May I hand up to your Honours an outline of argument, which I hope addresses a number of the matters that I would need to deal with today? 

FRENCH CJ:   Yes, Mr Lindsay.

MR LINDSAY:   In paragraph 3 of that document I draw to attention what we submit are the principal evidentiary matters relating to the file note at appeal book page 96, which is critical in our case to both sections 424 and 424A.  Going to the argument about section 424 in paragraph 5 we advance what we submit is the purpose of section 424 and that has a direct relationship with section 427.  The Tribunal has powers to obtain information by a summons and a hearing on a summons.  In our submission, the purpose of section 424(2) was to permit a more informal procedure than that provided for by section 427.  But the price of that informality, in our submission, was that there was a mandatory procedure for an invitation in writing and, in our submission, that reflects the general policy that is to be found in section 420.

When we examine section 420 and the reference there to fairness, informality and in essence, also efficiency, in our submission it is important to bear in mind that considerations of fairness are relevant to the applicant.  It is fairness to the applicant that there be some formality in the decision‑making procedure.  It is important that there be some fairness to third party invitees so that they are not subjected to what was called in the Full Federal Court, I think, as “cold calling”.  In our submission, ultimately it is important that there be a degree of formality that underpins public confidence in the decision‑making process relating to what is potentially a very emotionally charged set of procedures.  So that in our submission that purpose underpins everything else that follows.

In the course of my friend, Mr Lancaster’s submissions, he was asked questions about the consequences of a conclusion that a breach of section 424(2) involved a jurisdictional error.  Can I draw to attention what may be considered to be two practical safeguards in relation to that.  One is that if there is a breach of section 424(2) which is regarded as the subject of jurisdictional error, we know that that is no decision at all and the decision of this Court in Bhardwaj (2002) 209 CLR 597 tells us that the Tribunal could undertake a fresh review disregarding information obtained in breach of the section. That is one practical safeguard against what might be thought a too theoretical approach to some of these things.

The second practical safeguard is that the grant of a constitutional writ is discretionary and so that if there was no utility in the grant of a writ, the Court might decline to do so and authority for that proposition is in SZBYR (2007) 235 ALR 609 at page 618 at paragraphs [28] and [29].

FRENCH CJ:   So it would not be sufficient that the Tribunal simply disregarded the information which it had acquired in non‑compliance with the mandated procedure and nevertheless continue with the review.  It would have to start all over again.

MR LINDSAY:   Effectively.  I mean, I suppose the core point is that if a purported decision is made, it is invalid, it is of no effect, and the Tribunal would then have to proceed but it could, if it ‑ ‑ ‑

FRENCH CJ:   That is an argument from the consequence of the conclusion that the mandate conditions, the validity, if you like, of the review process.

MR LINDSAY:   That is right.  We adopt my friend’s submissions about jurisdictional error but we say that if there are any rough edges, those rough edges are dealt with in a fairly practical way by those two decisions.  In paragraph 6 of the outline of argument, in subparagraph a, we refer to Clough v Leahy.  On one view of the Minister’s submissions, none of that is relevant because the Minister appears to disclaim any common law powers of inquiry, but he never quite does, even today and, in our submission, there is no common law power of inquiry and the Tribunal is neither an individual nor a Royal Commissioner representing the Crown so as to bring into play what might be described as the common law powers of inquiry discussed in Clough v Leahy.

The decision of the Full Federal Court in SZLPO [2009] FCAFC 51 we do challenge and the reasons for that challenge are set out in paragraph 7 and we embrace those submissions and at the end of the day, in our submission, the Court would not follow the Full Court’s reasoning in that decision.

Moving to section 424A, this section we submit has important work to do because it is a sort of warning mechanism that make sure that if there is a series of administrative inquiries, nothing that is materially adverse escapes notice, and the Minister’s speech, second reading speech, in dealing with the legislation that addressed SZKTI involves an assurance of the importance of that section, in our submission correctly so.  A substantial part of the difference between the Minister and us in this part of the case really focuses on the approach that one adopts to the evidence that was adduced. 

We do not accept what the Minister says about there being, in effect, no reference to the file note.  Certainly there are no explicit and specific references, but we have drawn attention to a number of points at which there is an allusion to the second sentence of the file note, and in our submission the proximity in time between the creation of the file note and the hearing before the Tribunal is a starting point, but it is against the background that what the Tribunal officer was doing, under the supervision of the Tribunal member, was systematically checking the case that was advanced on behalf of the applicant, the present first respondent in his statutory declaration. 

When one sees that that was a process that both preceded and followed the hearing, and it related to a matter that was of critical importance, namely the credibility of the assertions of the first respondent that he was a genuine follower of Falun Gong, in our submission, there is plainly a factual basis or an evidentiary basis for a finding of fact that the Tribunal considered that the information contained in the second sentence of the file note was materially adverse.  So that our submissions generally are directed to a statement, a conclusion, that wherever the onus of proof might lie, it has been discharged in this case.

CRENNAN J:   Are you going to demonstrate to us what I think you described as allusion in the decision to the second sentence of the file note?

MR LINDSAY:   I am happy to do that, and the course that I would take in doing that would be to take the Court through the references that are in paragraph 3.

CRENNAN J:   In your document, yes.

MR LINDSAY:   So I am happy to do that or leave it to your Honours, but ‑ ‑ ‑

CRENNAN J:   To look at it, yes.

HEYDON J:   Is it paragraph 34 of your submissions in‑chief or your first round of submissions?  It is headed “Federal Magistrates Reasoning”.  I am sorry, yes, we have to – I am getting mixed up – we need to concentrate on the Tribunal for this purpose, do we not?

MR LINDSAY:   Yes.

HEYDON J:   What the magistrate said is a guide.

MR LINDSAY:   Yes.

HEYDON J:   In which paragraph then do we find the references to the Tribunal, in your submissions?

MR LINDSAY:   The references to the Tribunal are in the outline of argument, paragraph 3, and in the sentence that commences “A critical part of the Tribunal’s reasoning was criticism of the First Respondent’s evidence of practice of Falun Gong”.

FRENCH CJ:   Then what are you asking us to infer independently of the Tribunal’s reasons some sort of ongoing feedback between the officer and the member because there was a systematic testing evidenced?

MR LINDSAY:   Well, the evidence before the Federal Magistrates Court was not limited to the reasons.

FRENCH CJ:   Yes.

MR LINDSAY:   It contained the Tribunal record, which plainly identified the Tribunal officer as working under the supervision of the member, and indeed there is one particular letter in which that fact is explicit, and that is the letter of 18 June which is at page 106 of the appeal book.

FRENCH CJ:   This is a letter to the detention centre.

MR LINDSAY:   That is right, and I have given the references in paragraph 3 of the outline of argument to a series of inquiries that are made.  There is the file note at page 96 of the appeal book, which is the principal one that is by that officer.  If we are going through the appeal book we notice that at page 98 of the appeal book the same Tribunal officer is described as the case officer; that is at the top of page 98.  Then we find at page 103 there is another file note of 18 June 2007.  Then we have the letter dated 18 June 2007, which is at page 106.  At page 208 at the top of the page we see that the detention centre responded to the ‑ ‑ ‑

FRENCH CJ:   Sorry, what page was that?

MR LINDSAY:   Page 108.  At the top of that page we see that the detention centre responds to Vanessa, which by fair inference is the Tribunal officer providing a copy of the passport.

MR LINDSAY:   We see then there is another file note by the same Tribunal officer at page 113.  In the statement of decision and reasons of the Tribunal we can see not only what we have described as allusions to the second sentence of the file note which are set down by appeal book page, number and lines in paragraph 3, but we can also see that the information that was gathered by the Tribunal officer finds reflection in other parts of the decision, so that the involvement of the Tribunal officer in the process is, in our submission, manifest.  An example of that is in the appeal book at page 123 in the paragraph opposite line 10 where there is a reference to a book having been found in Lidcombe Library and, as a matter, if you like, of administrative checking, that ties in with the file note that that appears at page 103.

So the process that we have here is that the Tribunal officer is working under the supervision of the Tribunal member and the inquiries that the Tribunal officer are making find some reflection in the statement of reasons.  In our submission, what that does is enable the Court to see where the file note at page 96 fits into the equation and it fits into the equation with a starting point that says that at the outset of the process the first respondent provided a statutory declaration in which he grounded his claim for protection on a claim of fear of persecution as a Falun Gong practitioner. 

That was in paragraph 1 of his statutory declaration.  Then in paragraph 9 of his statutory declaration he relates that experience to what happened to him in Belmore Park and the experiences he had in Belmore Park.  It is plain from the references that are given that the Minister’s delegate was not satisfied as to the genuineness of the first respondent and effectively said that in the appeal book at page 66.  So that this is a part of the sequence, if you like. 

Then the critical reasoning of the Tribunal where the final decision is made builds on that and we would submit also the critical file note at page 131 of the appeal book where in the last couple of paragraphs, and in particular around line 30, the Tribunal says:

The Tribunal does not accept that the applicant is a genuine Falun Gong practitioner as claimed.  It follows that the Tribunal finds that the applicant is not a credible witness. 

That fundamental finding finds reflection also in the following paragraph where, in the middle of the paragraph, there is a sentence that commences “In view of the Tribunal’s finding”.

FRENCH CJ:   The Tribunal’s process of reasoning earlier on in that page, so far as Master Li is concerned, is that it did not accept that he would not be able to recall anything about the lectures.  That was one basis for rejecting that evidence, was it not?

MR LINDSAY:   That is right.  That is at page 130, I think.

FRENCH CJ:   Page 131 at line 10 and following.

MR LINDSAY:   Yes.

FRENCH CJ:   Then you go to 130 and then there is his failure to mention something as important as his practice with other practitioners.  Again, that links back into the work which would have involved his mentor, as he is otherwise referred to.  It is all to do with internal inconsistencies or difficulties with the appellant’s evidence.  Yet on the face of the reasons there is nothing to say that the Tribunal is invoking what is said about Li in the pages there.

MR LINDSAY:   I have to hesitate in embracing that to this extent.  It is not about internal inconsistencies, although there is no doubt that the Tribunal went looking for internal inconsistencies.  It is about the fact that the Tribunal had obtained from a third party material that it regarded as significant.

FRENCH CJ:   I am sorry, I was just looking at what was on the face of the reasons.  On the face of the reasons they were rejecting these aspects of his evidence because of the inadequacy of his testimony in relation to recollection of things they say they would expect him to have recalled, like the lectures or to actually mention or volunteer about the practice.  There is no reference anywhere in the reasons to the file note.

MR LINDSAY:   There is no express ‑ ‑ ‑

FRENCH CJ:   You are asking us to infer that because there was this systematic process of checking and there must have been communication between the Tribunal officer and the member.

MR LINDSAY:   That is right, and the subject matter of the file note, second sentence, goes critically to the question of credibility and that was a major factor.  I had omitted from my paragraph 3 references the reference that your Honours gave me to line 10 on page 131 but there are a number of these references.  The Tribunal approached his evidence with this fundamental scepticism we say related directly to the second sentence of the file note.  At the end of the day in this part of the case it is a matter of close attention being given to the evidence including the reasons but not only.

The only other point that I wish to make is this.  In paragraph 11 of the outline of submissions handed up we refer to the submissions made in our response document about the onus of proof and I fully acknowledge that in those paragraphs of the response document we draw attention to what might be described as the emphatic statements about onus of proof in other sorts of cases.  The question that arises, in our submission, is whether the same approach applies in a case like this where you are dealing not with what might be thought to be objectively verifiable or observable facts but you are looking at the internal decision‑making procedures of a legislative body.  In part – and the references that have been advanced, I think on both sides of the record, are in large measure the same references, with this exception.  In the course of my friend’s submissions on behalf of the Minister reference was made to the Melbourne Stevedoring Case and what might be described as the approach of opinions which are then reviewable.

The same point that we are seeking to make can be made in this context as well as in the more general one, because if one looks at the Melbourne Stevedoring Case (1953) 88 CLR 100 at page 111 and then pages 117 to 118 the opinion, an expression I use loosely, but the opinion, nevertheless, was about matters that might be thought to be objectively verifiable or susceptible to examination by members of the public, even if at the end of the day the reviewability or otherwise of the opinion is governed by the sorts of factors discussed by the Court at pages 117 to 118.

In this case we submit that transparency in the administration of justice requires that an application for a constitutional writ not be burdened with an onus of proof and as far as I am aware the cases that we are all referring to do not deal with this sort of situation.  They are mainly industrial cases where the focus for attention is whether or not there is or is not an industrial dispute or something of that nature, matters that are beyond the ambit of the internal decision‑making procedures.  Subject to questions, those are our submissions.  Thank you.

FRENCH CJ:   Yes, thank you, Mr Lindsay.  Yes, Mr Lloyd.

MR LLOYD:   I have eight short points.  The first was your Honour Justice Heydon asked my friend Mr Lancaster about whether section 424(1) would include getting information just by when it is sent to you.  Is that getting it if you just receive it? There is a line of cases in the Federal Court to the effect that 424(1) is a power and it is about the Tribunal taking initiative to get things and it is not about just receiving things.

I can give your Honour a reference to Win v the Minister (2001) 105 FCR 212 and the relevant paragraph. It is a judgment of Justices Whitlam, Tamberlin and Sackville and the relevant paragraph is paragraph 15. There are other cases to similar effect, but that is the thrust of it. That fits in. Their Honours do not say that the consequence of that is that you do not have to have regard to things that are just sent in and there is I think another line of cases which I have not tracked down but I have recalled this afternoon where people have sent information to the Tribunal after the decision is announced. There used to be a handing down process and they say “I am going to hand down your decision in two weeks” and then in the last two weeks they send information, and there is case law to the effect that you have to consider that as well. None of that depends upon 424(1) and the obligation to have regard to it under 424(1), at least that is not how the cases have gone.

The second point is my friend, Mr Lancaster, says that the reason why our approach to “Without limiting subsection (1)” in 424 should be rejected because it does not work equally in 56(1) and (2) because 56(2) does not have the same mandatory element.  I accept it is not the same mandatory element, but 56(2) does in fact pick up a similar kind of requirement in section 58, so there is a procedure specified in section 58 for making an invitation and we say “Without limiting subsection (1)” does do effectively the same work in both provisions.

FRENCH CJ:   Section 56(2) I think makes reference to a time specified by the Minister for response and 424 speaks of a prescribed time.  Is that prescribed time just what is specified by the Tribunal or is there some time prescribed under regulation?

MR LLOYD:   There are regulations.

FRENCH CJ:   It is in regulations?

MR LLOYD:   Yes, although the times are within times.  It has to be within 28 days because it shows the focus is on limiting delays.  You can invite someone to a hearing the next day, for example.  It does not have to be sort of a long period – but yes.

The third point from Mr Lancaster said that what was done in this case readily falls into a description of invitation.  Well, I can play the same game and say what was done in this case readily falls into a description of getting information, especially in a context where the Tribunal invited the applicant to put on any information it wanted on a particular subject.  The applicant then said, “Well, here is Mr Cheah” and both the applicant and Mr Cheah invited the Tribunal to contact Mr Cheah by mobile phone.  All the Tribunal was doing was responding to an invitation by them to get information and in so doing it was getting information.

The fourth point is that I think both of the respective first sets of respondents adopt the view that once there is a breach of 424(3) the Tribunal cannot proceed.  It is just sort of the end of the matter and it has to go back and start again.  We say that that is sort of such a far‑fetched proposition it is hard to imagine that Parliament would ever have had that in mind.  So if there has been a hearing you have to ignore the hearing, you have to ignore the evidence from the hearing.  The other information you just have to go back and start again.

I note that that is not the relief they sought.  All they have had done is had the decision set aside, that is all that has been set aside, not every step of the process, and so we say that is another reason to reject that view.  My friend, Mr Lancaster, made reference to section 422B.  There is a case, a recent decision, called Saeed [2009] FCAFC 41which largely adopts an earlier decision of the Full Court, which says that the effect of section 422B is to exclude, in effect, natural justice adding any additional obligations, apart from those that are expressly stated or perhaps stated also by implication in the wording in the division, and that is certainly consistent by the very compelling extrinsic materials which shows that the whole purpose of 422B and its analogue provisions elsewhere in the Act was to overcome a decision of this Court in Mia where an additional obligation was added to one of the sort of existing obligations.  So we say that it is not the effect of 422B to make everything in the division part of natural justice, but rather to exclude any implication of additional natural justice obligations beyond it.

Getting onto the section 425 point, as my friend Mr Lancaster has posited it, we take issue with it at two levels.  One is at page 130 of the book.  We say that the last dash point on page 130 really flows into the first dash point on page 131 which is to say the whole point of Mr Cheah’s view about the superficiality is relevant to the matter which was in issue which is that he had not started in China and he had just started in Australia, but even if your Honours are against me on that and I accept my friend’s approach to what the issue is, I ask the Court to look at page 158 of the book.  This is during the hearing before the Tribunal, at line 24:

The Tribunal asked if the applicant had spoken to Tony –

now “Tony” is Tony Cheah –

or anyone else in connection with his review application.  The applicant responded that he had told Tony about his application –

So it is not correct to say it was not an issue at the hearing as to what he had told Mr Cheah about the application.

The applicant here says he told Tony about the application.  Ultimately, Mr Cheah did not seem to know anything about what had been done in China, or much about the application, or if at all about the applications.  We say that even if the Court looks at it at this sort of level of specificity, it is still an issue that was raised at the hearing.

The seventh point is in relation to SZLFX and the submissions in relation to the idea that the Tribunal has supervised Ms Webster.  We do not dispute that there is some measure of supervision in the sense that I think it is a reasonable inference that the Tribunal asked Ms Webster to make the inquiries she made.

The first inquiry – which is, I note, the only one of which there is any claim that a 424A notice should have been put in respect of – was one which we say, and maybe this is the ultimate point between us, was not taken into account, certainly not expressly, and it is not enough to say the Tribunal continued to make these inquires which shows the Tribunal continued to have credibility concerns.  That is clearly the case, the Tribunal made an adverse credibility finding.  It gave its reasons for those adverse credibility findings.  Those reasons did not mention the file note or anything, we say, pertaining to the file note and the only way, we say, that my friend can succeed is if the Court can look at that file note and say “It was not open as a matter of law”.  It simply could not, the Tribunal could not - as a question of properly informing itself on the test - look at that file note and say this would not be the reason or part of the reason.

If it was impossible for it to form that view properly and lawfully, well, then my friend will succeed.  Any other case we say they fail.  The last point which may not be a point at all, but your Honour the Chief Justice mentioned in respect of, I think, the last page of the Tribunal’s reasons and reference to Master Li – there may be in fact no misunderstanding, but just to avoid any risk of that – there is a difference between Master Li and Mr Li is basically the point.  That is made clear at page 58 of the book.

HEYDON J:   This is SZKTI?

MR LLOYD:   This is SZLFX, your Honour.  At paragraph 9 you will recall a reference to the leader of the group was called Mr Li.  He is the leader of the Belmore group. 

FRENCH CJ:   The other one is the author of ‑ ‑ ‑

MR LLOYD:   Master Li is the creator of the non‑religion, but the belief system or whatever ‑ ‑ ‑

FRENCH CJ:   Yes, I did elide that in the reference I made earlier.

MR LINDSAY:   And I did not disabuse, your Honour, but I accept what ‑ ‑ ‑

FRENCH CJ:   That is all right.

MR LLOYD:   May it please the Court.

FRENCH CJ:   All right.  Thank you very much.  The Court will reserve its decision and adjourns until 10.15 tomorrow morning.

AT 3.54 PM THE MATTER WAS ADJOURNED