[2018] HCATrans 177
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S36 of 2018
B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
and
SZMTA
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Office of the Registry
Melbourne No M75 of 2018
B e t w e e n -
CQZ15
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Office of the Registry
Sydney No S135 of 2018
B e t w e e n -
BEG15
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON MONDAY, 10 SEPTEMBER 2018, AT 10.00 AM
Copyright in the High Court of Australia
____________________
MR G.R. KENNETT, SC: May it please the Court, in S36/2018 I appear for the appellant with MS R.S. FRANCOIS. In M75/2018 and S135/2018 I appear with MR B.D. KAPLAN, for the first respondent. (instructed by Clayton Utz Lawyers and Australian Government Solicitor)
MS L.G. DE FERRARI, SC: May it please the Court, in the matter of M75/2018, I appear with MS C.L. SYMONS, for the appellant. (instructed by Victoria Legal Aid)
MR S.E.J. PRINCE: May it please the Court, your Honours, I appear in S36/2018 with my learned friends, MR S. BLOUNT and MR P.W. BODISCO, for the first respondent. In the S135/2018 I appear for the appellant. (instructed by Shelly Legal and Michaela Byers, Solicitor)
BELL J: I see that the parties have agreed on an order. Might I raise one matter. In some respects, it seemed to us that there could be some sense to the matter of BEG15 going first, raising the issue raised by your notice of contention giving Ms de Ferrari an opportunity then to deal with the matters that are the subject of concern in relation to your foreshadowed cross‑appeal in CQZ15. Have the parties given any consideration to a proposal of that sort? Would it be more convenient, Ms de Ferrari? Perhaps I should ask you.
MS DE FERRARI: Your Honour, the short answer is I do not know because I have now been informed by the Minister that they are not moving on the summons. So I am not really sure where that leaves things.
BELL J: I see. That may well – yes.
MS DE FERRARI: But I would like to understand the basis upon which it is said that they are not moving on the summons because, as I apprehend, the contention might still be that if the Minister wins on his notice of contention he wants to be able to go back to the Full Federal Court and argue against my client that Singh was wrongly decided by this Court.
GORDON J: Just so I am clear, is it the position that the notice of contention is still in issue?
MS DE FERRARI: There is no notice of contention in ‑ ‑ ‑
GORDON J: No, in BEG15?
MS DE FERRARI: I do not know. What I do know is that the Minister is not moving on the summons for an extension of time in respect of his cross‑appeal in my matter.
GORDON J: I see.
MS DE FERRARI: That is all that I know.
BELL J: Yes.
MS DE FERRARI: Perhaps if the Minister would clarify what his position is it might all become clearer.
BELL J: Very well.
MR KENNETT: Your Honours, it has become apparent in relation to the proposed cross‑appeal that I have been overthinking the matter, for which I apologise. All that I really want to say is if the appellant is successful, the preferable order is to send the matter back to the Full Court. That is something I can say in the course of the appeal in a sentence and I think my learned friend will be able to deal with it.
Any questions as to how much of ground 2 remains viable, whether the Minister would be seeking to change his position, whether he should be allowed to do so, will be ventilated in that court. That is how I wish to put it.
BELL J: Yes.
GAGELER J: What about Singh? What do you say about Singh? Do not worry for the moment about what case you are going to say it in. What do you say about it?
MR KENNETT: In BEG15 we made a formal submission that it ought not be followed. In CQZ15 we made no such submission. We contended below, and contend here, for an understanding of the statutory scheme and of the materiality of error, if that position is inconsistent with the holding in Singh then that would have been a problem for us in the Full Court. We would say it is not a problem for us here because this Court of course is not bound by it.
We do not see a need formally to move for some kind of order that Singh was wrongly decided although we have sought to make it abundantly clear in the notice of contention in BEG15 that we say that if necessary. It
would have been apparent, we would say, that the position for which we have been contending as to the materiality of invalid certificates and non‑disclosure and so forth and now that we are in this Court we do not need to be detained for very long by whether or not the Full Court said something different in Singh. That is the basic position.
BELL J: In some respects it might still be useful to proceed with BEG15 first. That raises the construction issue for which the Minister contends. That, on one view, makes some of the difficulties that Ms De Ferrari was concerned about, albeit, many of those resolved by your indication with respect to the cross‑appeal - nonetheless, it might be an appropriate course. Does that cause the parties problems?
MR KENNETT: It does not cause us any problem, your Honour.
BELL J: What about for you, Ms De Ferrari?
MS DE FERRARI: I would wish to make it plain that my client’s position is that there was never an issue that arose with respect to the correctness of Singh. There is simply therefore nothing before this Court that puts that question and allows my client to make submissions about why Singh was rightly decided. It was never an issue below. It is not an issue on our appeal. It is not even an issue on the proposed cross‑appeal because that has not been moved on.
So the real difficulty is why should we be here facing a case that Singh was wrongly decided when the Minister below reserved his position in this case, reserved his position in BJN16, on the basis that Singh was rightly decided and then at the last minute – and in court – handed up a notice of contention in case they were brave enough to raise the issue again in this Court. That is the real difficulty.
BELL J: Accepting that, Ms de Ferrari, is there a difficulty with the parties departing from the proposed order? There seems to me, at least at this stage, to be some sense to the issues in BEG15 being ventilated first.
MS DE FERRARI: I understand, your Honour, and there is no problem with departing from the order. I just wish to make it plain that departing from the order does not allay the concerns of my client.
BELL J: Thank you. Mr Prince, does this place you in any difficulty?
MR PRINCE: A little, your Honours, but nothing that cannot be overcome. From the way in which your Honours have cast the suitability of dealing with BEG15 first, it sounds rather that it would be better if my
friend moved on his notice of contention first because that sounds like the issue that your Honours want to hear about.
BELL J: Yes.
MR PRINCE: For my own part, I do not entirely understand how it is said that the reasoning in Singh is wrong and it would certainly assist me in dealing with that, if that is to come forward as an important issue, to be able to hear what the Minister says about that issue first.
BELL J: Yes.
MR PRINCE: Thank you, your Honours.
BELL J: Well, in that case, if we can commence with BEG15 and, Mr Kennett, if we can hear first from you on your notice of contention.
MR KENNETT: If your Honours have seen our outline of oral argument, you will have noted that in paragraph 5 we suggest that the notice of contention issue may not be reached if we are otherwise correct about procedural fairness. Be that as it may, of course I have no difficulty with proceeding to explain it.
The proposition is that general law procedural fairness in respect of a certification under section 438 or a notification under section 438 is displaced by section 422B, a provision with which, no doubt, your Honours will be familiar.
But for that provision, we would have to accept that the Tribunal has decisions to make under section 438(3) – that is, the Tribunal has, on the face of it, a discretion as to whether to take certain material into account and a discretion as to whether to disclose certain material to the applicant. Those are decisions which affect an applicant’s interests and in the normal way of things they would be subject to an obligation of procedural fairness.
In that way, section 438 is different from the section considered in Singh. That was a section which conferred no discretions on the Tribunal. The Full Court nevertheless held that it was subject to obligations of procedural fairness, a conclusion which I argued unsuccessfully against. I do not need or want to rehash any of that because in the present case there is clearly a power vested in the Tribunal to do something, which, as I say, would ordinarily be subject to obligations of procedural fairness.
We say, however – and this where we depart from their Honours in Singh. Their Honours, of course, were considering section 357A, the parallel provision in Division 5 of the Act, rather than 422B. Nevertheless, we depart from their Honours and we say that section 422B, in either subsection (1) or subsection (2) or the combination of the two of them, displaces the obligations I have referred to that would normally arise.
We say that in relation to subsection (1) because it provides that the provisions of Division 4 of Part 7 of the Act are an exhaustive statement of the hearing rule in relation to the matters with which they deal and we have referred in the written submissions to authority to the effect that that goes beyond the nitty‑gritty subject matters of the particular provisions and looks in a broader way at the subjects to which they are directed.
If that provision was limited to what the provisions actually provide for, then of course it would add nothing to them. So in seeking to make those provisions of Division 4 exhaustive in relation to the subjects they deal with, it connotes a slightly broader conception of subject matters than the actual terms of the provisions.
The provisions of Division 4 of course include provisions in relation to the provision of an oral hearing. The purpose of that hearing is to canvass matters arising in relation to the decision under review, a piece of text which the Court had cause to look at in SZBEL in another context. We emphasise it here because it indicates the area of controversy or potential controversy which the Tribunal is required to canvass at an oral hearing.
Those provisions also include section 424A, of course, which confers a right, in closely and carefully defined circumstances, to be provided with the details of adverse material. There are exceptions for country information and so forth. We would say in the face of those and the exhaustiveness of those asserted by 422B(1), there is no room for the implication of further procedural fairness obligations arising in relation to other matters that crop up in the course of a Tribunal review.
We make a submission also in relation to 422B(2). That is a provision that refers to a grab bag of other sections and says that they are exhaustive statements of the hearing law in relation to matters with which they deal. One of the sections it refers to is section 438 itself. Reading that according to its terms, we would submit it means that there is no right to a hearing in connection with the matters that arise under 438 other than that for which the section itself provides.
The section itself does not so provide, but by being rendered exhaustive in relation to the hearing rule, that has the effect of excluding it, we would say, in relation to the issue of certificates, the issue of notifications under subsection (1) and, more importantly here, in relation to the decisions that the Tribunal has to make under subsection (3).
If we are right about that then one can exclude procedural fairness from the debates, certainly in BEG15, where we formally raised the matter, although, as I have indicated, we rather apprehended that the Court might not wish to grapple with that unless there was a need to, so we have put the argument first on the basis that there was no denial of procedural fairness.
GAGELER J: Mr Kennett, can I just ask a couple of questions about the statutory scheme. Under section 418(3) there is a general obligation for the Secretary to provide the registrar of the Tribunal with documents that the Secretary considers to be relevant to the review. Now, presumably, in practice, that is, a large part of the departmental file gets handed over to the Tribunal. Apart from section 424A, to which you have taken us – and I suppose section 424AA – is there any general requirement for material on that file to be made available to the applicant?
MR KENNETT: My understanding is no, which is a difference between this scheme and the Part 5 scheme. The Part 5 scheme, certainly as we dealt with it in Singh’s Case, included a capacity for the review applicant to ask for and be provided with everything the Tribunal has. There is no comparable provision in Part 7. So my understanding is that there is really only 424A and there is such disclosure or alerting to issues as the Tribunal needs to do under 425 to make it a proper hearing.
GAGELER J: So when you get to 424A, would you accept that the obligation to give clear particulars of information that the Tribunal considers to be a reason for affirming a decision extends in a case where that information is covered by a certificate under 438, the existence of the certificate?
MR KENNETT: Yes, but there is a tension between the provisions and, in the end, if that cannot be done without making disclosure of material which, under 438, the Tribunal thinks ought not be disclosed, then we would say 438 prevails. So it is an exception from what are otherwise duties.
GORDON J: Can I just test that? Is that the contention – I just want to make clear that I understand, Mr Kennett, the point of distinction you draw. I understood Justice Gageler to ask you about the existence of the certificate. There is no tension with 438, then, is there?
MR KENNETT: The existence of the certificate is not a piece of information that would come within 424A(1)(a), we would say.
GORDON J: Why?
MR KENNETT: It is not information that the Tribunal considers would be the reason for “affirming the decision under review”. That phrase has been construed by the Court in SZBYR ‑ which your Honours may have among the materials today – in quite a textual way as bearing upon information that was referring to information that has a bearing on the meeting of the statutory criterion. So, it is quite a narrow concept.
GORDON J: That is what we are asking for here, whether or not the fact that you have got a certificate from the Department is, itself, information the Tribunal considers would be the reason, or part of the reason. The thing that underpins the giving of the certificate is that it identifies that a decision has been made, that information is given to the Tribunal and subject to a particular claim.
MR KENNETT: The information, itself, to which the certificate relates, may or may not satisfy the description in 424A(1)(a). In the case to which I just referred, SZBYR, that phrase was regarded as not extending to, for example, a contradictory statement that went only to credit or to the Tribunal’s thought processes or appraisals. It has been read quite narrowly and, we would say, correctly.
So, if there is a piece of information that, for example, tends to deny that the review applicant is a refugee, that is something 424A would normally require to be disclosed. But, if it is subject to a certificate, then it might not be. The existence of the certificate itself we would say is not caught by section 424A. If there is an obligation to tell the review applicant about that, that has to be found in general law notions of procedural fairness.
GORDON J: Is that right? I just want to test that proposition. So, if you go to the other end, to the reasons for decision of the Tribunal, and look at the obligation under 430, one of it is to refer:
to the evidence or any other material on which the findings of fact were based –
MR KENNETT: Yes.
GORDON J: If the material that was in, and attached to the certificate –or the subject of the certificate – would that include disclosure of that fact?
MR KENNETT: It would be also within ‑ ‑ ‑
GORDON J: That is (1)(d) I was looking at.
MR KENNETT: Yes. That would be also potentially subject to 438B(3). So, if the Tribunal had reached the view that it was not appropriate to disclose this piece of information, then it would not disclose it, either in the course of the review or in the reasons. There may very well be an argument that 430(1)(d) requires at least reference to the existence of something that was not disclosed. That has not been explored, so far as I am aware, in any decision or in the submissions in these cases.
GORDON J: Well, that is why we are asking you these questions now, Mr Kennett.
MR KENNETT: Yes. I think it would require – 430(1)(d) requires a reference to evidence. That could extend to include a reference to the existence of evidence which the Tribunal either cannot or does not think it should disclose the substance of and it would be congruent with the purpose of a statement of reasons if the Tribunal were to say there is other material here which we are not allowed to disclose but which had a bearing on our decision. That would certainly assist in having those matters explored on judicial review if somebody wanted to take it up.
I have also ‑ I am not sure if this affects what I just said but it is part of the context of it ‑ there is a provision in section 440 for the Tribunal to restrict publication of certain matters in its decisions where those decisions are published and subsection (2) says that power does not:
excuse the Tribunal from its obligations under section 430 ‑
BELL J: The preclusion under 438 does not extend to the certificate so that the Tribunal has the power under sub (3) to disclose matters that are contained in the certificate in a circumstance in which the material the subject of the certificate impresses the Tribunal as material that might be part of the reason for affirming the decision under review. Is the Tribunal required in that circumstance to inform the applicant of the existence of the certificate so that the applicant can make such submissions as he or she may care, respecting the power under sub (3)?
MR KENNETT: But for the submissions I have made about section 422B, we would accept that that is so because it is a power whose exercise would affect the applicant’s interests.
GAGELER J: Mr Kennett, there is an aspect of the scheme that I touched on before which for the moment does not make sense to me. You have the general obligation of the Secretary to hand over the departmental file to the extent that the Secretary considers it may be relevant. Let us just consider all of those documents on the file that are not covered by any certificate under 438. Does the Tribunal have a general discretion to make material on the file available to the applicant and, if so, does that discretion have to be exercised in accordance with some overriding notion of procedural fairness, or do we go straight to 424AA?
MR KENNETT: We are not aware of an express power to disclose material generally nor of a prohibition on doing so and it can readily be envisaged, at least in the context of a hearing, that to make the hearing effective the Tribunal may need to raise the contents of some departmental document with the review applicant. But insofar as there might be an obligation to disclose contents of the departmental file, we would say that has to be found in 424A and perhaps in 425 in the way I have just mentioned. It does not exist generally, in part at least, because of 422B(1).
GORDON J: Pragmatically it is dealt with, though, by the interaction between – that is the provision of information on the departmental file either by disclosure of document or issues by 424A, 424AA and 425 and also by applications under the FOI Act, is it not?
MR KENNETT: Yes, your Honour, that is right.
GORDON J: That is, the Department file is delivered up under FOI.
MR KENNETT: Sometimes it is, yes, if people make the application.
BELL J: Coming back to the significance in terms of the statutory context of section 440, that arms the Tribunal with a mechanism, if it chooses, under 438(3) to disclose material to quarantine the disclosed material by appropriate non‑publication orders.
MR KENNETT: Yes.
BELL J: That again might lend some strength to the view that in a case in which the material, the subject of the certificate, might provide a reason or part of the reason for an adverse determination to inform the applicant of the certificate, since the scheme contemplates in circumstances the Tribunal may deal with information at a review, making it the subject of orders for non‑publication.
MR KENNETT: There is, at least ordinarily, not a difficulty from a confidentiality point of view with the disclosure of a certificate. There may be with the material to which it relates and one can see why that might need to be quarantined if it has been disclosed, but the existence of the certificate itself raises different considerations.
As we have indicated, we submit on our notice of contention - and to the extent that disclosure of the certificate might be required, we would
submit it is required under the general law of procedural fairness, not under any express statutory provision. As we have said, if the general law applies, we accept that it needs to be disclosed because the Tribunal is going to make a decision about what to do with it, subject to the arguments we make in these cases about materiality, which are important in these cases. In BEG we say in our notice of contention that another way home, as it were, is that 422B has the effect that we have sought to outline.
BELL J: Yes.
NETTLE J: That is to say, in the end, exclude any obligation to disclose the existence of a certificate?
MR KENNETT: Yes, your Honour.
NETTLE J: Because 422B is exhaustive.
MR KENNETT: Yes.
NETTLE J: Notwithstanding subsection (3).
MR KENNETT: Notwithstanding subsection (3). Subsection (3) is about powers and discretions rather than obligations.
NETTLE J: Thank you.
MR KENNETT: Those are the submissions on the notice of contention.
BELL J: Yes, thank you.
MR PRINCE: Your Honours, section 422B does not exclude procedural fairness per se. What it does is it codifies procedural fairness by reference to provisions of the division, which are then extended by reference expressly to section 438. That is because section 422B and subsection (3), importantly, of that subsection is concerned with creating a statutory process and regime which accords procedural fairness by the operation of those terms in a procedurally fair way.
This is not a case where the disclosure of the existence of the certificate under section 438 is something that exists in a different realm than the Code to which the Act refers. And, indeed, there is a serious tension between my friend’s acceptance that, because of the existence of a discretion under 438(3), procedural fairness would require disclosure of the certificate but that is excluded because of section 422B.
The disclosure of the certificate, when the Tribunal is undertaking a review which it believes to be affected by the operation of section 438, is an inherent part of section 438 operating in a procedurally fair way. It is an easy thing to do. It does not, either – disclosing the existence of the certificate certainly cannot reveal any secrets. And, indeed, in this case when regard is had to the terms of the certificate, even disclosing the certificate does not reveal any secrets, the face of the certificate itself. But, plainly, the certificate does have a bearing – and there is an overlap here between the procedural fairness point and the invalidity point – but, clearly, the certificate and its existence and the invocation of section 438 has a material impact on the conduct of the review, which ultimately leads to a decision adverse to the interests of the applicant.
And my friend is right to accept that the operation of 438 and the discretion in 438 can operate adversely to the interests of an applicant. But 422B does nothing to exclude that. And your Honours can test that proposition by reference to how section 425 works. Section 425, as your Honours know from SZBEL, has more to it than the brevity of the words which are contained in it. The Court would not read section 425, which is part of a scheme – an exhaustive scheme – of procedural fairness in a narrow way so that if a particular event or circumstance is not expressly mentioned or foreshadowed in the legislation that therefore section 425 would not have to operate in a way which encompasses that event.
And so in relation to section 425 a good example is where the Tribunal wants to raise an issue, about which the applicant would not be aware because it is a matter which was not canvassed or part of the reasons of the delegate, so that by definition it is an issue that arises in relation to the decision under review.
Now here ‑ and reading those words or reading that extension of the fair and just operation of section 425 is analogous with reading section 438 as including a requirement to disclose to the applicant that section 438 is going to be engaged and that the review is going to be conducted under section 438 which materially affects the applicant’s rights because it changes, in a statutory way, the character and conduct of the review.
BELL J: When you say that 438 is engaged, do we understand that to be that the Tribunal has before it a 438 certificate and has formed the view that the material might form part of the reason for an adverse determination?
MR PRINCE: It is certainly the first part. The second part may or may not be necessary – that is, it is an issue in and of itself that a certificate exists. It is an issue which is relevant to the conduct of a review because it changes the statutory process that is going to be applied to the applicant in the review.
BELL J: How does it change that process if the material in the view of the Tribunal has no bearing on its determination of the review?
MR PRINCE: First of all because the applicant will never know that. Because the material then proceeds in terms of secrecy and is then not amenable to disclosure under section 430 of the Act, the applicant is now engaged in a review process which does not have the same transparency and obligations which would apply where 438 did not apply.
GORDON J: Is your argument in a sense that, because the Department has identified material by reference to a certificate which it considers relevant, therefore the requirement advising the existence of the certificate arises per se?
MR PRINCE: Yes, and so that the applicant knows what is the nature of the review process in which he or she is engaged ‑ are they engaged in a process which is free of section 438 and its limitations and the change that it gives.
Can I at that point come back to your Honour Justice Gageler’s questions to my learned friend about the discretion to disclose documents provided under 418(3). The answer to that may lie in section 427(1)(c), which gives the Tribunal a discretion to disclose material that it considers – I will turn up the section , your Honours:
subject to sections 438 and 440 –
which is a clue:
give information to the applicant and to the Secretary ‑
GAGELER J: Section 427(1)(c) – a provision that, in your submission, itself attracts a requirement of procedural fairness, does the Tribunal have to say, “I have got a lot of information here, I allow you an opportunity to be heard as to whether I hand it over or not”?
MR PRINCE: It is difficult to read it in isolation because it has to be read in the context of the scheme of a division which creates the code of procedural fairness.
GORDON J: Which must include 424A.
MR PRINCE: Yes – and 425. Your Honour’s point about 425 is important because it is not just the information that may be adverse – it is the issues in the review that require ventilation. The issues in review must include the ground rules for the review itself. In my submission, one of the key ground rules for the review is the infection of the process by 438 - either 438 applies or it does not validly. If it does validly apply, it changes the fundamental character of the review in a number of ways.
But, as your Honours will have seen replete in our written outline of submissions, it sends the Tribunal down a different statutory path. What is a general discretion to have regard to information in the Secretary’s material becomes a discretion that must be exercised in accordance with 438(3). There is no real other way of reading section 438 except to suggest that the exercise of that discretion is a higher hurdle and a higher burden on the Tribunal than simply providing information under 427(1)(c). That is why the words at the beginning of section 427(1)(c) are there.
NETTLE J: Just so I understand it, 427(1)(c) is where the power exists to disclose the existence of the certificate?
MR PRINCE: Yes. Subject to my argument about – no, on one view of it, it does rest there, your Honour, because they may also be affected by section 424A – and I will come back to that in a moment.
NETTLE J: Yes.
MR PRINCE: It may also be affected by section 425. But 424A and 425 are obligations and 427 is a discretion – a power.
NETTLE J: Yes. The obligation to exercise it fairly and justly, that is to say to exercise that power fairly and justly in order to disclose the existence of the certificate comes from 422B(3)?
MR PRINCE: Yes. So, it does hang together and that is really because it would be so – it is so easy to be procedurally fair in this case because the existence of a certificate can be disclosed which could cause the advisor to say, hang on, we want to go a bit further down this path, maybe issue an FOI request, seek an adjournment of a review, seek to challenge it – that is if the existence by itself is disclosed.
If a certificate itself is disclosed, and your Honours will see that at page 4 of the appellant’s further material in BEG15, that is where the certificate is. Do your Honours have that?
BELL J: Did you say it is page 4?
MR PRINCE: Bottom right‑hand corner, your Honour, of the appellant’s further material in BEG15, not the core appeal book.
BELL J: Not the appellant’s additional further material.
MR PRINCE: No, your Honour. If that document was revealed to any competent advisor, the instant response would be, there is a serious problem with this certificate and we want you to consider whether the certificate is in fact valid under the Act and whether you are about to pursue, incorrectly, a statutory path that is not properly engaged. That is ‑ ‑ ‑
GORDON J: Is that because of the phrase relating to “internal working document and business affairs”?
MR PRINCE: Yes, that is the reason given and that just does not match up to the terms upon which the certificate can be issued under 438(1)(a) or (b).
GAGELER J: This is a slightly different point, is it not, from the one you were making before?
MR PRINCE: Yes. There are two levels of gradation. The first is the disclosure about the existence of a certificate. This is about disclosure of the face of the certificate. The point that I making is that it is easy to be procedurally fair, first of all by disclosing the existence of the certificate but you could probably take that one step further and say that it is likely, it is certainly in this case it would have been easy to be procedurally fair by disclosing the terms of the certificate because that certificate tells you nothing about the underlying material that is secret. What it does do is arm the applicant with an ability to seek the Tribunal to inquire as to whether or not the certificate is in fact valid or it is about to go down a wrong path.
GAGELER J: If you leave aside this argument about validity or invalidity ‑ ‑ ‑
MR PRINCE: Yes, your Honour.
GAGELER J: ‑ ‑ ‑ and assume for the moment a valid certificate, what meaningful submissions would be available to an applicant who simply has a certificate.
MR PRINCE: Well, there is an element of Schrödinger’s cat in that question, your Honour, because one does not know whether the certificate is valid or not valid at the time that it is before the Tribunal, as an applicant. First of all, if one does not know it exists and, secondly, even if one does know it exists and a copy is provided, it may be that if a copy of the certificate is provided, the face of the certificate will be so obviously clear that it properly engages section 438, that everybody can move on from that issue and just happily accept that section 438 applies to the material and at that point the obligation to accord procedural fairness in relation the conduct of the review will have been discharged.
So there might be a different question down the track as to whether or not the Tribunal has then had regard to documents which it should not have had regard to or the like. But at least at the point of time of working out whether or not the Tribunal was about to go down a statutory path that it is not authorised to go down, the provision of the certificate (a) provides procedural fairness but (b) does not necessarily mean that the certificate is invalid.
If it is a valid certificate, so be it; no issue arises really because 438 is then going to be properly engaged and properly applied and the constriction on section 430 and the statutory scheme will be validly applied. There has been no practical injustice in that case because, if a certificate is completely valid, at least in terms of the provision of the certificate – again, that does not necessarily answer the question of the documents underlying it and what use is made of them.
GORDON J: That is when you come back to 424A, 425, 427(1)(c).
MR PRINCE: Yes.
GORDON J: Read with 430 given the obligation to produce reasons.
MR PRINCE: Precisely. And then the Tribunal takes its chances as to whether or not the certificate validly covers all the documents in there. If the certificate does not validly cover all of the documents in there – one sneaks in but in truth is not of the character identified in 438 and is used adversely but the Tribunal has not then disclosed it under 424A then that might be a different ground of review. But we are not concerned with that here.
Here we are concerned with a threshold question about the existence of a certificate and the reasons for the issue of the certificate, whereas the Full Court in BEG15 has only seen the issue through the prism of what do the underlying documents do to the ultimate outcome, whether the applicant wins or loses. But there is a very important anterior question to that: is the certificate important to the statutory process that is adopted in the review? Clearly it is. My friend accepts that the certificate has an effect on the rights and interests of the applicant and, but for 422B, procedural fairness would require disclosure.
So 422B in its terms does nothing to take a procedurally fair application of one of the sections within the Code and to turn it into something that does not need to be performed in a procedurally fair way. What it does is to put a fence around those provisions to say that they are the code of procedural fairness and to keep out any other notions of procedural fairness unrelated to those provisions. In my submission, that is not what is in issue here, because we are in the heartland of 422B because 438 is plainly a part of it, and so too are all the other sections which the wrong application of 438 affects.
Your Honours, I believe that deals with my submissions on the notice of contention. Perhaps I can move to my submissions on the substantive appeal, if that is convenient to your Honours.
BELL J: Yes, thank you.
MR PRINCE: Will your Honours give me a moment?
BELL J: Yes.
MR PRINCE: Your Honours, can I deal with the issue of invalidity and can I start by taking your Honours to the terms – the issue of invalidity really was not, in my submission, addressed by the Full Court, except to say that they rejected any notion of a rigid and inflexible approach to the application of section 438, which your Honours will see at page 75 of the core appeal book, line 20, paragraph 30.
As we have said in the written submissions, the last sentence before the quote, at about line 25, that the Tribunal would invariably deny procedural fairness to an applicant, in my submission conflated the question of validity and procedural fairness. They are separate grounds.
Indeed, if invalidity is correct, we are right about the effect of a misapplication of section 438 within the context of the statutory scheme, one does not need to inquire at all about whether there has been a denial of procedural fairness, although the matters become interlinked because of the operation of section 422B.
So, in a sense, what section 422B does is to supply the answer to the question: is section 438 – I will not say “mandatory” – sufficiently important and does it set down the type of rule that the Parliament would expect a decision‑maker to comply with? Its absorption into the statutory codification of procedural fairness, in my submission, is a very strong indicator that proper compliance with section 438 in its application is the type of compliance in the conduct of a review that is material so that an error in relation to the application of section 438, whether or not it is intentional, is material to the conduct of the review and the statutory scheme.
It is also material to the decision. Because of the way it interacts with section 430, it will plainly impact on the decision of the Tribunal because matters which may otherwise have been included in the reasons may not be included. And the transparency of the decision obviously is of critical importance because of the existence of section 75(v) of the Constitution is interfered by a breach or a failure to properly engage or comply with section 438.
So the question of materiality by itself is really only the start of the inquiry. The issue of materiality must be materiality as to what? What does the error need to materially affect.
KEANE J: And the answer is the decision.
MR PRINCE: Not just the decision or the conduct of a review, but whether it is the conduct of a review because it is concerned with the limits of the statutory authority of the reviewer. In essence, the issue of jurisdictional error just comes down to whether the decision‑maker has exceeded the jurisdiction provided to it by Parliament.
That is why the central question in Project Blue Sky was: is this the type of provision that the Parliament was serious about compliance with or was it just a statement of policy or principle that should have been looked at? Is it a rule or is it an aspiration?
In my submission, it is a rule and it is a rule that affects the statutory tracks down which the Tribunal travels. The Tribunal cannot go outside of those tracks that have been laid down by the Parliament and, if it does, that is a jurisdictional error. To my mind, that seems to be the only way of differentiating between jurisdictional and non–jurisdictional.
One type of error concerns the authority and the way in which the Tribunal exercises its authority and whether it goes outside the tracks laid down by Parliament or whether it is simply an error that it makes along the way. And, in my submission, this type of error must go to the tracks that have been set down by Parliament. Because of the very prescriptive nature of this legislation, which is the source of so much grief, the proposal by the Parliament is that the Tribunal has to conduct its review in a very directed way. The Parliament has told the Tribunal how to do it.
The consequence of that is if the Tribunal does not obey Parliament’s framework that it has minutely laid out, then it has gone beyond the bounds of its authority. And so there is no way that one could say that section 438 is not about the infrastructure or the framework of the power that is exercised by the Tribunal. In terms of the decision, the impact on the decision needs to be on the decision, not just on whether he wins or loses but on the actual decision of the Tribunal. And here the wrong invocation of section 438 must, as a legal consequence, necessarily have an effect on the decision because it has an effect on what will be contained in the decision or exposed in the decision under section 438. Decision is not outcome; decision is, in my submission, the decision of the Tribunal on the issues in the case. It cannot just be the ultimate order.
NETTLE J: But you would accept if it could not have made a difference you would still lose?
MR PRINCE: A difference to ‑ ‑ ‑
NETTLE J: To the outcome, to the result. Put aside the reasoning and all the rest of it – win or lose.
MR PRINCE: Your Honour, in my submission, Justice Beach got the answer to that question right, which is: how would you know whether it would have changed the outcome?
NETTLE J: Just assume that you could in a particular case, would you agree that you would have to refuse relief or could refuse relief on that basis?
MR PRINCE: In the discretion. But you would need to find that there was jurisdictional error. But in the discretion you could refuse relief, in the same way as in Hossain, I believe it is – a recent decision – found that there was a separate and independent basis to support the decision. So there is a – I do not want to labour the analogy – spurway that has not been hit by the rocks that the Tribunal can go down and has gone down, more importantly. But that is not the case here because this decision is based on issues of credit and there is a melange of factors leading to a result. And you could not disaggregate, in my submission, even the contents of the materials from – will your Honours just give me a moment – in this case, and the Full Court spent some time on this.
In my submission, one does not go to this part but I will do it because I have to deal with what my friend says. But the material which was behind the certificate, your Honours will see at pages 6 through to 8 of the ‑ ‑ ‑
GORDON J: Where are we, sorry, Mr Prince?
MR PRINCE: This is the appellant’s further material, your Honour.
GORDON J: Thank you.
MR PRINCE: This is the material that the Full Court deals with at paragraph 34 of the court’s reasons on page 76 of the core appeal book. The submission that I made below was that this material which reports back on the outcome of an earlier decision of the court which set aside an earlier decision of the Tribunal is something that could have affected the ultimate outcome of the case.
Now, what these documents do is to set out, for example, on page 8, the background, including – and this, incidentally, is coming to a decision‑maker under cover of a document issued by the Minister’s delegate saying - first of all, it is obviously implying that the material is relevant to the review, the Minister’s review otherwise it would not have been provided – but, indicating that it is in a special class of material that the Tribunal will have before it, although I accept that there is a discretion whether to have regard to it or not.
But it is given a flavour by coming under that certificate. As anybody who receives secret material, or, purportedly secret material, knows, it is usually the first thing that people look at. Here there is a document where the ministerial litigation section is explaining the background – including in the third sentence under the heading “Background”:
In light of inconsistent evidence the Tribunal did not accept the applicant’s claims, and relied on independent country information to find that he would not be harmed upon return as a failed asylum seeker. It also took into account PAM3 Guidelines in accordance with Ministerial Direction . . . to the extent that they were relevant to the decision.
Then, under the heading, “Reasons for withdrawal”:
We have withdrawn from this matter on the basis that the Tribunal failed to apply the correct test for complementary protection (the real chance test) . . . failed to consider the most recent DFAT Country Information Report on Sri Lanka and therefore failed to comply with Direction 56, though we did not withdraw on this basis. The matter was therefore affected by jurisdictional error.
What that says to the reader is the Tribunal found against him because of inconsistent evidence and obviously a lack of credibility. We have agreed to set aside the decision on the basis of very technical grounds which do not touch on that question.
The Full Court said obviously the Tribunal knew that the earlier decision had been quashed and it had the reasons, but of course it is impermissible for the second Tribunal to have regard to quashed reasons because they are a nullity. It is just impossible to say that this document could not have poisoned the well against the applicant in terms of credit, because it is a statement from the Minister that notwithstanding a quashing of an earlier decision that was on a very limited basis.
So, just as a matter of pure speculation as to what effect it might have had ‑ although BHP Coal tells us we should not engage in speculation about the subjective intentions of decision‑makers by reference to the subconscious ‑ clearly the material had a bearing on the central question, which is the credibility of the applicant. To say that that could be somehow disaggregated as some independent, unimpeachable or that there could be extracted some independent, unimpeachable ground of review of dismissing the application for review, upholding the decision, just does not apply in this case.
BELL J: It only had a bearing upon the assumption that the Tribunal improperly took it into account. One is not here concerned with how one reconciles 438 and the obligation under 430 or 424A.
MR PRINCE: Precisely.
BELL J: Your contention is that the Full Court was wrong not to consider the possibility that the Tribunal was influenced wrongly on a central issue.
MR PRINCE: Whilst applying a statutory provision it was not authorised to apply and having regard to material which was provided under a statutory provision which it was not authorised to have in this way in this context. Your Honour is entirely right. The invalidity of the certificate or the wrong application of section 438 really is what sends the whole process off the rails and it has a series of consequences, and procedural fairness is one of them.
But if the Tribunal were acting within the proper metes and bounds of the limitation in 438 from the usual transparency of review, so be it; that is what Parliament says is the scheme.
BELL J: Putting to one side the particular facts on which you rely, turning to your power argument, where the Tribunal is engaged in a review and it has material supplied ‑ the departmental file containing a deal of material which, in the event, it does not disclose under 127(1)(c) because the material in the Tribunal’s estimate has no bearing on any issue before it ‑ and amongst that material is a 138 certificate, which, like the other material, has no bearing on the issues as the Tribunal perceives them to be, you contend nonetheless that the mere fact of the certificate has, in the case of an invalid certificate, taken the Tribunal down a different and wrong statutory path depriving it of the restriction?
MR PRINCE: Yes. Your Honour, the key difference might be that, in my submission, the issue of a certificate to the Tribunal under section 438 must have a bearing on the conduct of the review. The underlying documents may or may not ultimately have a bearing on the issues ultimately decided as to whether or not he is a refugee, but at the very least the certificate must statutorily have a bearing on the review that is to be undertaken by the Tribunal.
GAGELER J: Why is that?
MR PRINCE: Because the certificate under 438, as I say ‑ and this is why they are interconnected, the issue of validity and procedural fairness – must condition the way in which the review is conducted because the certificate characterises certain information as being in a different statutory context and subject to a range of different statutory rules than material that is not covered by a certificate.
GORDON J: But the principle, it seems to me, which underpins both that argument – that is, the need to provide the certificate as well as, on an invalid certificate ‑ the prior reason is because someone in the Department thinks it is relevant.
MR PRINCE: Yes.
GORDON J: Is that right? Is that the point of infection that you sought to make earlier at both points?
MR PRINCE: That is the start of the infection because it feeds into the process. It must feed into the process because the Tribunal has to have regard to the certificate, unless and until it comes to the view – which it is entitled to come to, incidentally, contrary to the submissions of the Minister in this case – that the certificate is invalid.
If it comes to the view that the certificate does not actually correspond with the basis in 438, it would be able, in my submission, to take the view that it should not proceed on the certificate as if it is engaging 438 because ultimately the decisions about what statutory process to follow in the review are left to the Tribunal.
It is not binding ultimately. They may get it right, they may get it wrong but they are entitled to form the view that they are not obliged to apply section 438 because on its face the certificate does not engage the section. In the same way they are entitled to make judgments about whether or not a particular document falls within the terms of 424A or not. They are making these judgments all the time about how what is before them shapes the statutory pathway they have been told to follow.
GAGELER J: They do not receive submissions from the applicant before they exercise the power or perform the duty required by 424A. I mean, procedural fairness cuts in, in a different way.
MR PRINCE: Yes. Once they have engaged that process but again, they are ultimately caught by the correctness or otherwise of that judgment call that they make because if they make a judgment call that section 424A does not actually apply to a piece of information and they do not accord the process contained in that section to the applicant ‑ ‑ ‑
GAGELER J: Then they are wrong.
MR PRINCE: Then they are wrong and in the same way that if they were to, in my submission, form the judgment that 438 is applicable when it is not applicable, then they are wrong.
GAGELER J: Then they are wrong. I just do not, for the moment, see why an element of the need to make submissions creeps in at all. The Tribunal is either right or wrong about the validity of the certificate and either acts on it or does not.
MR PRINCE: In my validity argument, it does not. That is why, in my submission, the validity argument is the purer argument because if the 438 notification is wrong and the Tribunal does not call that out or wake up to it being wrong, then they have made a mistake and that mistake necessarily infects the conduct of the review and, for the reasons I have given, the decision and there you go, constitutional writs issue.
GAGELER J: It just does not seem to be a procedural fairness problem.
MR PRINCE: It does not, not on that argument, but procedural fairness, in my submission, in disclosing that 438 is to be taken, at the very least is also a valid way of looking at the consequences of what has gone wrong here because had procedural fairness been accorded about the Tribunal following the 438 process, and it would be very easy to have disclosed the existence of the certificate or the terms of the certificate in certain circumstances, then that error could have been corrected.
Obviously procedural fairness is ultimately concerned with giving an applicant an opportunity to try to stop the Tribunal from doing something which is wrong. Here, it is exquisitely easy for the Tribunal to invite the applicant to participate in a procedurally fair process that will ensure that
the Tribunal does not get it wrong and that is what should have happened here and, in my submission that does not compromise secrecy of information.
There is another option open to the Tribunal as well. My friends say that, ultimately, this construction would lead to a stasis in the Tribunal’s decision‑making process as an inevitable endless loop where nothing would happen. But, there is a range of options open to the Tribunal. They could have – exercising their powers under 424, more generally – asked the Minister to explain or to clarify why a certificate which is apparently, on its face, not compliant with the terms of section 438, was given. There are plenty of ways the Tribunal could have avoided making the error it made but it did not. If the Court pleases.
BELL J: Yes, thank you, Mr Prince.
MR KENNETT: Your Honours, I have a couple of very short points related to the subject of the notice of contention. First, in relation to section 425 and, to the extent that it is relevant as part of the statutory scheme, what it says there needs to be a hearing about is the issues arising in relation to the decision under review.
The matter that came to attention in SZBEL, an issue that had not been canvassed in the delegate’s decision but arose in the Tribunal, was, in the view of the court, an issue arising in relation to the decision under review because it bore upon whether that was the right or wrong decision. That is what we seek to emphasise as the field of operation of section 425 and it says nothing about the process or the conduct of the review. That is a distinction that is rather obscured by our learned friends’ submissions but important to the issues on the notice of contention.
Another short point about the statutory scheme is that section 418 has been mentioned a couple of times. It requires provision to the Tribunal of the material which the Secretary – yes, it is the Secretary – considered by the Secretary to be relevant. Of course, one imagines that the Secretary will take a broad approach to that question and the Secretary’s view at that stage of the inquiry as to relevance is, of course, not in any way determinative of what the Tribunal thinks in the end about relevance.
Another point that should be emphasised while you have the statute open is that the effect of section 438 is to confer rather than limit discretions. This is subsection (3). I think my learned friend referred to a general discretion to have regard to material that was qualified by section 438. We would not put it that way. We would say that the Tribunal is required to have regard to material that is relevant and before it. This is not a matter of discretion, it is a matter of making evaluative judgments about relevance and giving weight to material that is relevant.
Rather, a discretion does arise under 438(3)(a). For example, the Tribunal might take the view that if there is something which is prejudicial to the review applicant and cannot be canvassed with him or her, that ought not be taken into account. That might be a reason why the discretion is there, but that introduces an element of discretion that is not generally present in relation to relevant material. Again, under paragraph (b) there is a power or a discretion as to whether to disclose a matter, and that interacts with elements of the scheme under which, in other circumstances, disclosure might be required.
NETTLE J: Just before you go from those three sections, is the effect of what you are submitting about 425 that there is really no provision for the Tribunal to receive submissions from the applicant as to the validity of a certificate?
MR KENNETT: We do not go that far, your Honour. I am on the notice of contention, which is in the procedural fairness space, so I am only speaking at this stage about obligations to canvass issues with an applicant, not powers to do so.
NETTLE J: Then I do not follow why you have mentioned the limitations of 425 at this stage.
MR KENNETT: It was one of the provisions I started with in relation to the effect of 422B. It is part of the regime which is said by 422B to be exhaustive. In order to understand the effect of 422B one has to see what it is that is being made exhaustive by it.
NETTLE J: Pardon my obtuseness, but where does it lead in the result then?
MR KENNETT: It supports the submission I made at the outset about the exclusive effect of section 422B(1) in cases such as this.
GAGELER J: Are you going to say anything about 427(1)(c)?
MR KENNETT: Only that it is a facility which, plainly, allows the canvassing of information that is not within, for example, 422, 424A. But, it does not follow from that that there is an obligation arising from procedural fairness, or otherwise, to do so.
NETTLE J: That is said to derive from 422B(3).
MR KENNETT: Yes. That section – or at least the equivalent of that section – was the subject of some submissions in Minister v Li which I do not think your Honours have and I do not have with me – 249 CLR 332. From memory, the Court in that case – that case was decided on unreasonableness grounds so I do not think the Court needed to say anything of a final kind about the analogue of 422B(3). But, we would resist the proposition that it is a source of distinct obligations to exercise statutory powers.
NETTLE J: That is what it says – must exercise the powers “in a way that is fair and just”.
MR KENNETT: If it is read literally, that entails an inquiry by a court in any judicial review case about whether the Tribunal has acted in a way that is fair and just, whatever those things might mean.
NETTLE J: That is an alarming consideration but, surely, it is some sort of obligation, is it not?
MR KENNETT: It does have some effect and, unfortunately, having not looked at Li prior to this case, I think the Full Court in Li might say more about it. But, I just wanted to give your Honours that reference and, perhaps, counsel some caution about giving a great deal of operation to subsection (3).
As to the substantive case, the way our friend puts it, as I understand it, is that the invalid certificate is the start of all the problems and consequences flow from that, including problems with procedural fairness. I remain a little unclear as to whether the denial of procedural fairness is pressed as a separate ground of error. Be that as it may, I am able to deal, I think, with the issues ‑ ‑ ‑
BELL J: Perhaps, before you commence, Mr Kennett, the Court might take a 15 minute adjournment.
MR KENNETT: Yes, your Honour.
AT 11.29 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.44 AM:
MR KENNETT: Your Honours, I should move to the appeal. Our friends emphasise very much the proposition that the certificate was invalid and I think they would go so far as to say necessarily sent the Tribunal down a wrong track. I will try not to labour the metaphor of the track too much. But there seem to be two ways in which that submission might be understood. The first is that the invalid certificate wrecks everything. That is obviously a difficult submission to accept, because it has the effect that a wrong action by somebody else stultifies the Tribunal’s review and the Tribunal cannot do anything about it. Presumably, the applicant is then stuck with the decision of the delegate, which is not a result which is likely to have been intended.
The other way in which it might be understood is to say that the error of the Tribunal lies in reliance on the invalid certificate. If that is the way it is approached, then reliance needs to be shown to have occurred. If one says one is going to assume that the Tribunal acted on the certificate, then one is back in the realm of the invalid certificate wrecking everything. Conventionally, and in line with the way courts in this country have always operated, there needs to be some evidence on which one can make an inference that the Tribunal places some reliance on the certificate. And we would go further and say “places some reliance on the certificate by doing something or refraining from doing something inconsistently with its obligations”.
Just in terms of reliance and showing reliance or even advertence to the certificate, in this case is there a document that the Tribunal was required to disclose and did not? No, there is not. It has not been suggested that there was. Is there any evidence in the Tribunal’s reasons or elsewhere that it handled a document differently to the way it would otherwise have done on the strength of having a certificate? No, there is not. And when one goes to the documents that were subject to the certificate and sees how inconsequential they were in the review, it becomes vanishingly unlikely that the Tribunal altered in any way the course of its review by reason of having this certificate.
My friend attempted to suggest that the summary of the first Tribunal’s reasons poisoned the well and had some impact on the decision making. It could have had no greater impact than the reasons of the former Tribunal itself which, so far as we know, the Tribunal had. Contrary to ‑ ‑ ‑
BELL J: Would you expect the Tribunal conducting the second review to inform itself of the reasons of the Tribunal whose decision had been set aside?
MR KENNETT: There was a veiled suggestion that that would be improper. It is not part of the case. There is a Full Court decision that my junior found during the break called MZZZW [2015] FCAFC 133, particularly at paragraphs 84 and 88, which says that there is no error in the Tribunal informing itself by looking at what the earlier Tribunal said in reasons for a decision that has been set aside. We would certainly contend that that is right.
The decision may be a nullity but that does not mean the reasons for it cease to exist or place any prohibition on anybody reading them, as long as the second Tribunal forms its own view about the matters. It is certainly not alleged here that anything untoward of that kind happened.
BELL J: Here the appellant suggests that, particularly by the mechanism of the certificate, which acts, if you like, as a flag, the Minister with a nod and a wink conveyed the approach to the desired outcome. That is the force of the appellant’s argument.
MR KENNETT: It is entirely speculative of course. It should be borne in mind that section 438 is not a provision by which further material gets to the Tribunal. It is a means by which the Secretary can tell the Tribunal something about that which has already been provided under section 418.
BELL J: Yes.
MR KENNETT: So these documents presumably have arrived in a large departmental file and the Department has given a certificate to say, “We think that certain folios in that file ought not be disclosed”. That would be a convoluted way of getting a nod and a wink to the Tribunal and to give that nod in relation to such an anodyne document is really quite implausible, we would say. The content of the document serves to confirm the impression, if need be, that whether the Tribunal treated it as valid or not, the certificate did not deter the Tribunal or derail it from the proper statutory course.
So, to complete the point, we would say - in the oral outline we have given your Honours some reference to some paragraphs in Hossain. I probably do not need to read those to you because it is a very recent decision but they emphasise the materiality to the exercise of power, which here means the outcome, not the reasons, is an element of jurisdictional error and so the analogy of going off the right track is not quite right because if the Tribunal ends on the right track, that will be enough.
To put that in slightly more conventional terms, the Tribunal might make all sorts of errors about whether a certificate that it has been given is valid or not, or other matters for that matter, but if those errors do not influence its conduct of the review; for example, by causing it to withhold something that would otherwise be required to disclose, then from a jurisdictional error point of view, they are of no moment.
We gave, your Honours, in the bundle of authorities at tab 6, the old case of Elias and Gordon and on the last page of the report in the judgment of Justice Williams, the point is made – it was a case about a court martial and his Honour made the point that even if the officer conducting the court martial was mistaken as to the source of his power to conduct it, it turned out that he had power to do everything that he did and so that the error he made was inconsequential.
That passage was cited later in Brown v West although I do not have the exact reference at my fingertips but a similar principle applies here, we would say, if the Tribunal might be mistaken about the validity of the certificate but that is of no moment unless it leads the Tribunal to do something or not do something and that just has not been shown here.
Finally, as to procedural fairness, and I am assuming that I lose the notice of contention and procedural fairness obligations apply, to find a breach of procedural fairness one would need to find, we would say, firstly, some exercise of a power adversely to the applicant’s interests. So, for example, if the Tribunal had the certificate and thought very carefully about it and decided to give the applicant the material after all, then the applicant could hardly complain that he or she had not been consulted on the matter.
So, one needs to find an exercise of power adversely to someone’s interests in order for procedural fairness to even become an issue and, as I have rather laboured by now, one cannot see that here and one also cannot see in light of the very peripheral and anodyne nature of the documents, any way in which the failure to raise the certificate with the applicant could have deprived him or her of a successful outcome or the possibility of a successful outcome.
I am alluding there of course, to the way your Honours Justice Gageler and Gordon put the matter in WZARH; a reference is in the written submissions and I am sure I do not need to remind your Honours of that.
GAGELER J: So what would be the power that could potentially be exercised adversely to the interests of the applicant? Is it anything other than the power under section 438(3)?
MR KENNETT: I cannot see anything other than those powers, your Honour. That is what I had in mind. What the Tribunal may or may not do, having received a certificate, is decide under subsection (3) to deal with those documents in a manner different to the way in which it would otherwise be constrained to deal with them. That is what the section does. If one can see that those powers have been exercised or purportedly exercised based on a wrong understanding of the law, then one might get somewhere; or that they had been exercised without reference to the applicant, one might get somewhere in terms of procedural fairness, but this case has not got past that hurdle.
NETTLE J: How would an applicant go about demonstrating on judicial review application that the second Tribunal might have been influenced to the extent of being confirmed in its view that the man was a liar by having its attention drawn to the first Tribunal’s decision?
MR KENNETT: By comparing the decisions principally, perhaps by reference to the hearing transcript. Of course, if that were the concern, the first thing to do would be to, by compulsory processes or otherwise, find out whether the second Tribunal had the first Tribunal reasons. Rather than going through the medium of arguing about a certificate, one would just find out whether it had the earlier reasons and seek to demonstrate by comparing them that there had been an improper influence.
NETTLE J: We know here that they did have the first Tribunal’s reasons and we know that they decided the matter in part, significantly, upon the lack of credibility of the applicant, which accorded with the reasons of the first Tribunal.
MR KENNETT: Yes.
NETTLE J: Post hoc, propter hoc, you might think there is something in the first decision that informed the second.
MR KENNETT: One might and we would say there is nothing – a second Tribunal member of course has to bring an independent judgment to the matter but there is nothing necessarily wrong with reading what the first Tribunal said and using that to get a head start with understanding where the issues are, for example.
GORDON J: So if you add the existence of the first Tribunal’s reasons together with the second and then add in the summary, the red‑flag argument, the flag that you have point on notice because it is pointed out to you, does that change the result?
MR KENNETT: No, your Honour. It does not add anything to the ‑ ‑ ‑
GORDON J: It adds nothing to the analysis?
MR KENNETT: It adds nothing to the legal analysis certainly, we would say. If it were to show factually that the certificate had had an impact on the conduct of the review that potentially found its way into the result, if it operated at that factual level then that would be relevant but we say it is drawing a very long bow to say that making this anodyne document secret had any effect on how the Tribunal dealt with that document or anything else in the review. If the Court pleases, those are the Minister’s submissions in that matter.
BELL J: Thank you, Mr Kennett. Mr Prince.
MR PRINCE: My learned friend, in answer to your Honour Justice Gordon’s question, switched from the practical speculation about what might have happened in the Tribunal’s mind back to the legal consequence of adopting a 438 certificate. But one must consistently either look at it on a practical basis as to whether or not it has made any difference to whether he wins or loses or look at the impact it has on the legal framework that is being applied by the Tribunal.
In my submission here, section 438 clearly has an effect on the statutory framework that is applied by the Tribunal, and that can be seen from the statutory framework itself. One does not need to try to understand or get evidence of what might or might not have been in the mind of the Tribunal to understand that.
If one is looking at what might have been in the thought processes of the Tribunal, which we are always told we should not look at or speculate about, here one could not safely say that my client has had a fair hearing and that the letter itself has not influenced the way in which the decision‑maker has approached the key issue in the case as it turns out, which was credit.
The way that your Honour Justice Bell put my submission to my learned friend is precisely the way I make the submission. That is, if we are looking at a practical world and looking at whether or not this has had a practical or could possibly have had a practical impact then that is the way we must look at it, because this has drawn attention to the earlier review Tribunal’s decision.
At the very least, one could not exclude the possibility that that has sent the second Tribunal down the path of looking into the credit findings of the first Tribunal. One can never know, and the reason one can never know is because, as Justice Beach said correctly in MZAFZ, the very wrongful application of section 438 precludes that level of scrutiny and transparency because he who hath the secret should keep it secret that he hath the secret to keep. Here, that is what the Tribunal has done.
How on earth could anybody know what the Tribunal has or has not done with that material or what effect it may have had because the very wrongful application of section 438 precludes the reference to that material in the reasons under section 430.
It is true that had all the documents been disclosed, had the Tribunal exercised its discretion under section 438(3) to give my client access to all of the documents which were covered by the certificate and make inquiries of my client about the terms of those documents, we would be in a very, very different position, but they did not do that. Ultimately, the discretion in 438(3) is a binary proposition. It is either exercised or it is not exercised. We would know if it had been exercised in favour of my client because we would have received the material.
The fact that we never received the material rather suggests that it was not exercised in favour of my client and that, at the very least, even on my learned friend’s construction, the provisions of 438(3), which my friend accepts is a discretion that could be exercised adversely to my client’s interests, has been exercised adversely to my client’s interests because it has not been engaged to allow my client to see the documents.
Now again, the absurdity of the wrongful application of 438 really means that notions of evidence not being provided, an onus and shifting onuses and the like, really have nothing to do with this. It is almost like the old case of GMH v Bowling. What the Tribunal knows about the material is entirely within its knowledge, not with our knowledge. We cannot know. In fact, because 438 has been wrongly applied we could never know. Now, the process of subpoenaing or asking for copies of whether the Tribunal file had a copy of the earlier Tribunal’s decisions in it and so forth, in my submission, that is really just an invitation down a path of even further speculation which is of even less utility because, ultimately, it comes back to trying to gaze into the mind of a Tribunal who has not exposed, at least in this respect, the things to which its mind has been directed.
My friend accepts that in Hossain that the exercise of power in the conduct of the review is an issue and that is right. There is an exercise of power by the Tribunal in conducting the review. The Tribunal does not have a general corporeal existence that allows it to go and inquire into decisions of the Migration Department. All of its powers to conduct a review are prescribed by the statute. Section 438 is an important part of that suite of powers. If it exercises it incorrectly, then it has made a mistake in relation to the exercise of its powers in the conduct of the review.
GAGELER J: Is the consequence of your submission, as Mr Kennett puts it, that when the Minister issues an invalid certificate the Tribunal review is, in his words, stultified? The Tribunal cannot make a valid decision in the face of an invalid certificate.
MR PRINCE: No, my submission is that your Honours would not accept that proposition, for a couple of reasons. First of all, if an invalid certificate is issued to the Tribunal it is always possible that the Tribunal could work that out and come to a view, correctly, that the certificate is invalid and 438 is not to apply. In fact, if a Tribunal did that, then there would be no invalidity because the invalid certificate would not infect what the Tribunal has done because the Tribunal would have immunised itself from that by putting the 438 certificate to one side.
GAGELER J: So, to that extent, you look to what the Tribunal has done in fact in light of the certificate?
MR PRINCE: Yes. And, what is clear here is that the Tribunal has not put to one side the certificate. And, had it done so, it would have expressed in its reasons that it had done that because once you put 438 to one side, there is no longer any constriction on the reasons that can be given in 430. So, 438 either applies or does not. If the Tribunal comes to the view that it does not apply in this case because this certificate is invalid, then it would give a set of reasons which would expose that because there is no longer a reason to keep it secret. But, the fact that it does not refer to the certificate and it does not refer to the material in its reasons, is not a basis for finding that it did not have regard to it, quite the opposite. It is a basis for finding that it did have regard to it.
BELL J: Mr Prince, if, among a number of anodyne documents that do not bear on any issue as perceived by the Tribunal, the Tribunal takes no regard to the material under a 438 certificate, what is it, under the requirements of 430, that would dictate it should state that it had had no regard to that material?
MR PRINCE: Could your Honour just give me a moment?
BELL J: Yes.
MR PRINCE: Under 430(1) – I am just trying to remember your Honour’s proposition ‑ ‑ ‑
BELL J: The thing I am asking ‑ you assume that if the Tribunal had no regard to the material, it would not refer to that fact in its decision. That was part of an earlier submission you made. So, you ask us to draw an inference from the absence of reference in the 430 decision record. And, I am raising with you, what is it, in the statutory task, that 430 sets the
Tribunal that would require it to refer to material that it did not regard as material to its decision?
MR PRINCE: In a world where it takes the 438 certificate as being invalid but then is not otherwise interested in the material underlying that 438 certificate, one would expect that the fact that it found the certificate to be invalid would be relevant to the reasons for the decision because the decision is not just about the win or the loss. The decision is about also explaining the processes that were undertaken by the Tribunal, and one sees this in Tribunal decisions all the time, that the decisions set out, well I asked this question and then he responded that way and then I issued this notice under 424A and then I did that and I did this.
So, one would expect that disregarding an invalid certificate under 438 would be a material aspect of the decision under review and would be recorded in the reasons at the very least. But again, it would also lead to that transparency that 430 has but for the application of 438 which your Honour sees in 440.
Can I just in relation to the submission that if a body or a tribunal entrusted by Parliament with prescribed powers, happens to come across the right outcome but that means that flaws in following the statutory processes are thereby not material, that proposition cannot be right because the conduct of a review is equally as important as the ultimate result because the rule of law is concerned with people getting fair hearings and decision‑makers not going beyond the powers conferred on them by Parliament and it is that to which 75(v) is directed which is, of course, why the merits of the outcome of a decision of a statutory decision‑maker are really of little or no consequence to the exercise of judicial review under 75(v) of the Constitution. If the Court pleases.
BELL J: Thank you, Mr Prince. I think that brings us to SZMTA.
MR KENNETT: Your Honours, in this matter, some difficulty arises from the way in which the learned judge in the Federal Court expressed his reasons. I wanted to start there, if I may. Perhaps, one step before that which is to note at page 51 of the core appeal book the way in which what was then the proposed ground 5 of the appeal was framed. It was framed in rather general terms about deficiency in the legality of the procedure. One might have some things to say about that if that language found its way into reasoning. But that is the way in which it was put.
His Honour commenced his consideration of that new ground, which of course had not been raised in the Federal Circuit Court – page 65, paragraph 37. I just wanted to note some elements of his Honour’s treatment of the ground. At paragraph 41 on page 66 his Honour sets out the terms of the notification and your Honours will note that this notified the Tribunal that certain documents had been given to the Minister:
[or to] an officer of the Department . . . in confidence.
Then, the writer then goes on to set out her view, that is to say, advice under section 438(2), I think it is, that the:
information should not be disclosed –
His Honour then notes at paragraph 42 that in giving that notification:
the delegate overlooked that the whole of the Department’s file –
had already been disclosed:
to the appellant’s solicitors –
by another process. If I could then come to – his Honour then sets out the provision – discusses some of the authority at Federal Court level. Can I then come to paragraph 52, where his Honours says that he did not receive detailed submissions about:
whether the documents contained information given in confidence . . . That being so, I consider it inappropriate to make other than a generalised assessment –
of them. Paragraphs 52 and 53 – his Honour makes some observations to the effect that it might not be easy to accept, in some cases, that the writer of the certificate was right. But then his Honour says in paragraph 54 –and, of course – just interrupting there – there was not any other evidence, of course, before his Honour about the circumstances in which the documents had been provided. At 54, his Honour says:
It is not necessary to decide presently whether the mistaken claim –
I am not sure why his Honour says it is a mistaken claim:
that a document or documents had been provided in confidence has the effect of invaliding the notification. At the least, it made the notification misleading.
We are unsure what is the significance of that description of the matter.
GORDON J: Is it not the last sentence that led to the invalidity?
MR KENNETT: I have to accept that possibility, your Honour.
GORDON J: This is defective.
MR KENNETT: Yes. At the beginning of the paragraph his Honour has said that it is not necessary to decide whether this makes the notification invalid and then at the end of the paragraph his Honour describes it as defective.
GORDON J: Then he goes on to talk about “invalid notification” in 56.
MR KENNETT: He does, your Honour, and says that following MZAFZ:
the Court is entitled to infer that the Tribunal did act in some unspecified way on the invalid notification -
but then goes on to another issue at 57 and following which is not an issue that needs to be canvassed. If 56 is enough to decide the case, then the rest of what his Honour says does not need to be canvassed. His Honour goes on to note that the Minister had argued that:
the defect in the certificate had had no practical consequence –
because the then appellant had the documents anyway. His Honour acknowledges some force in that in 58 but then does not accept it because his Honour says:
the presence of the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision.
BELL J: As I understand it, what his Honour has in mind is that the Tribunal might have decided to avoid consideration of whether it should exercise the powers under subsection (3) by simply choosing to have no regard to the material and in that respect overlook or have no regard to material favourable to the applicant. That is the effect of paragraph 59, is it not?
MR KENNETT: We understand that to be suggesting that the Tribunal might have exercised its power in 438(3)(a) and decided to exclude those documents in purported exercise of that power, material that could have been considered to be favourable to the appellant and, if the Tribunal had done that, either on the strength of the invalid certificate or without providing procedural fairness, one could see why it might be said that there was an error. His Honour, just to complete the point, says at paragraph 60 that:
the effect of the jurisdictional error in the present case is not to be determined by reference only to whether the appellant had the opportunity to make submissions -
So we understand his Honour is now talking about procedural fairness. He said:
Account should also be taken of the prospect that, by reason of the presence of the delegate’s notification, the Tribunal did not have regard to information in the identified documents which may have assisted the appellant.
The particular letter that his Honour refers to at 59 is at page 25 of the appellant’s further materials in this case. It is a letter of support sent by email to the Minister in the course of a ‑ ‑ ‑
BELL J: Did you say page 29 of your book of further materials?
MR KENNETT: Page 25.
BELL J: I am sorry.
MR KENNETT: It was a letter in support of the applicant, sent to the Minister in the course of a consideration of the Minister’s discretionary power. It says:
I am writing in support of [the applicant’s] application for refugee status in Australia. I strongly support [his] claim to be a refugee –
It then makes some points at quite a high level of generality about what are said to be conditions in Bangladesh. That was what his Honour instanced as an example of something that might have been possibly put to one side in reliance on the notification, potentially as a - without procedural fairness having been afforded.
We would submit that although it is not exactly clear, his Honour’s determinative reasoning is to be found in paragraphs 57 and following. We say that principally because of what his Honour said at 54, to the effect that it was not necessary to decide whether the notification was invalid.
If his Honour’s reasons are understood in that way then we make these criticisms of it. Firstly, it does not identify any error by the Tribunal because it does not involve any finding that the Tribunal exercised its discretion in the manner suggested. It suggests no more than a possibility that that might have occurred. Possibilities do not establish error, in our submission. One needs to be able to find that the decision‑maker acted in a certain way and that that way was either a denial of procedural fairness or otherwise beyond power.
If that finding was to be made, that is, if there was to be a finding that the Tribunal had put to one side supportive documents in the exercise of power under section 438 – then in technical terms the appellant below bore the onus of showing that, but there needed to be some basis in the evidence for the finding.
We say there is none. Our friends, in their written submissions, sought to suggest that that particular document, the page 25 document, had not been referred to and other documents had. We have gone into this in some detail in paragraph 11 of our reply submissions and it would be rather tedious to rehearse all of that here. But the short point is that the Tribunal in paragraph 84 of its reasons, pages 19 to 20 of the core appeal book, says that it:
has considered the documents and letters in support provided to the Department and Tribunal in relation to the first and second visa applications and his application for Ministerial Intervention –
Just pausing there, the page 25 document is within that description. The Tribunal then goes on and says “including” a number of things. If one turns the page there is quite a long list of supportive material that is instanced. The page 25 document is not part of that list but nor are some of the other documents that were before the Minister in that process.
In our book of further material, at page 20, as part of the ministerial intervention process, there is a list of letters of support that the Department has received. I am not proposing to go through them all, but some of them are mentioned by the Tribunal in paragraph 84 and some of them are not. The point of that is that the Tribunal is not here making an exhaustive list of every document it has referred to, every document it has had before it or had regard to. So the fact that our page 25 document is not referred to by the Tribunal really does not tell us anything about whether the Tribunal read it or had regard to it or gave it any weight. The proposition that the Tribunal might have put that document and possibly other unspecified documents to one side because of a view that it had about its power under section 438(3)(b) just is not supported by the evidence in the case.
So we say if we are right in regarding paragraphs 57 to 61 of his Honour’s reasons as the critical paragraphs, we say that his Honour needed to make a finding that the Tribunal had acted in the manner that is being suggested there. He did not and, in any event, it was not the basis for such a finding and procedural fairness arguments really cannot go anywhere without having identified some sort of exercise of power adversely to somebody. The other way in which his Honour’s reasons might be understood, and this is paragraph 5 of our outline ‑ ‑ ‑
GORDON J: Can I just raise, let us go back a section, this document that you have taken us to on page 20, this list is not a comprehensive list.
MR KENNETT: Well, this is from the ‑ ‑ ‑
GORDON J: Well, it does not include the letter at page 25, for example.
MR KENNETT: No, it does not, it does not, your Honour, but the point is that that was material that was before the Minister in that process. That is material ‑ ‑ ‑
GORDON J: But is this document prepared before the letter? It is, is it not?
MR KENNETT: I think it is, your Honour, because there was more than one.
GORDON J: Time wise, it is, in a sense, before the subsequent letter on page 25.
MR KENNETT: That is so and I ‑ ‑ ‑
GORDON J: I just want to make sure I understood the facts.
MR KENNETT: Yes. Well, I am just seeking to indicate that the Tribunal is not purporting to make an exhaustive list of all of the documents in that paragraph of its reasons. Now, if we understood his Honour to have held that the Tribunal fell into error because the notification was invalid, then that seems to involve what his Honour said at paragraph 56 about assuming that the Tribunal acted in some unspecified way on the notification.
That reasoning, we say, is flawed essentially for the reasons that I have sought to outline in BEG15. I do not want to be repetitive but if the proposition is that the invalid certificate undoes everything because it is assumed to have been relied on, no matter what the evidence might be, or because it just does undoes everything as a matter of statutory construction, then that has the extremely unlikely consequences I referred to in the earlier case.
If the way it works is that reliance on the certificate is what leads to invalidity then we would submit that there needs to be some basis in the evidence for inferring that reliance. It does not exist here, we would say ‑ reliance, not only in the sense of thinking, “Here is a certificate I have to look at,” but reliance in the sense of doing something on the strength of the certificate. There is nothing here that suggests that the Tribunal excluded evidence in reliance on 438(3)(a) or withheld anything in reliance on 438(3)(b).
This is in response to our friend’s notice of contention. The notice of contention raises squarely the question of the so‑called invalidity of the notification. We would resist the proposition that it is to be taken to be invalid in the sense of statutorily ineffective. What the officer was required or empowered under 438(1)(b) to do was to notify the Minister that a state of affairs existed; that is, documents had been given in confidence. The officer might have been right or wrong about that in relation to one document or more than one or all of them, but that does not mean that the notification becomes, for that reason, not a notification, we would say.
GAGELER J: Do you accept what appears to be a finding in the last sentence at paragraph 54 that the notification purported to apply to at least some documents which could not reasonably be regarded as having been given to the Minister or an officer in confidence? One, do you accept it as a finding and, two, do you challenge it if it is?
MR KENNETT: It looks like a finding. We do not accept it; we challenge it.
GAGELER J: In your appeal?
MR KENNETT: We have not specified it in our notice of appeal. We have made the point in writing that whether or not documents were given to the Department or the Minister in confidence was a question involving factual inquiry and the only evidence about it was the certificate and the documents themselves. One might query how much weight to give the certificate but there was some evidence that they were given in confidence and there was nobody to say they were not. And that is the state of affairs ‑ ‑ ‑
GORDON J: The Tribunal could look at the certificate and look at the documents and form the view they could not be given in confidence. Is that not what the judge is saying: “I have looked at them and I do not think they could be”? If you want to challenge them, you are going to have to challenge the underlying premise, are you not? Trial judges do it all the time. They look at the documents and they say, you might assert they are provided “under confidence” or you made a claim but I have looked at them and I say, no. And, it should be, we do that, ordinarily, in determining the validity of the certificate.
MR KENNETT: Provided “in‑confidence” – the language, provided “in‑confidence”, asks questions about the circumstances of the provision. If the contents of the document are public knowledge, for example, that might have a bearing on it and invite inferences one way or the other. But, if you have documents – some of them are stamped “in‑confidence”. We have an officer of the Department telling the Tribunal that they were provided in confidence.
BELL J: But, his Honour instances email communications between departmental officers relating to the response to the applicant’s FOI request. It is difficult to see that that could answer the description being given to the Minister in confidence.
MR KENNETT: Maybe so, your Honour, maybe so. But, the other – at least some of those, I am reminded, are marked “in‑confidence”.
GORDON J: A label does not, of itself, provide the answer.
MR KENNETT: It suggests that the people sending them thought that they were going to be treated confidentially. It is, perhaps, a Pandora’s box because we do not have the direct evidence of these matters, except the documents themselves. We also do not know which of the documents his Honour is referring to in that observation at paragraph 54.
GAGELER J: It means you are stuck with it, Mr Kennett.
MR KENNETT: Section 438 applies at the level of documents and at the level of pieces of information. So if the certificate is partly right and partly wrong and the notification is partly right and partly wrong, we need to know in relation to which documents is it wrong and is there any suggestion that those documents were treated in an unlawful way as a consequence of the certificate. It is all problematic but ‑ ‑ ‑
GAGELER J: But if we just look at the document that you took us to, the example, the document at page 25, is there any basis for an inference on the face of the document that it was provided in confidence?
MR KENNETT: No.
GAGELER J: So it is only what can objectively be drawn from the fact of the certificate having been given that would lead to the inference that it was provided in confidence? Is that right?
MR KENNETT: One might say that this was provided to a Minister in respect of an application being made by an individual and there is a likelihood that the expectation of the writer would be that it would not be broadcast to the world. That is not something on the face of the document.
NETTLE J: But it is endorsed “unclassified”.
GORDON J: It has got “unclassified”.
MR KENNETT: It has an “unclassified” stamp on it, yes. Your Honour is right, the only thing that one could say is evidence, one way or another, about this document is the assertion in that certificate.
GAGELER J: And then if you read the certificate against the background that there are other documents, for example about the FOI request, that plainly show that the person who issued the certificate did not get everything right, it is a very, very weak basis for inferring that this document was right.
MR KENNETT: Maybe so.
NETTLE J: Well, it is, as it were, in your favour, Mr Kennett, at page 17 this “in‑confidence” endorsement, which seems to relate to the letter at 15, rather suggesting that the whole chain of correspondence is in‑confidence.
MR KENNETT: It is asserted to be – when one gets to departmental documents under which all of this stuff is given to the Minister, paragraph 18 for example, it is certainly asserted to be confidential at that stage. So it becomes bound up in a departmental process in which the Department asserts confidentiality.
It is a complicated matter and it is not able to be resolved by a general assertion that some of the documents, without saying which ones, plainly were not confidential. As I have said, the section operates at the level of documents, not bunches of documents. If one needs to be able find a document or a piece of information that has been treated inconsistently with a statute as a consequence of a wrong understanding of the effectiveness of the certificate ‑ His Honour’s reasoning does not get there.
The other responses to the notice of contention – these are the last two subparagraphs of the last paragraph of my written outline – are really in line with what I have said in relation to both the last case and the appeal, so I will not repeat those.
GAGELER J: Mr Kennett, I am sorry to go back to this, but looking at the operation of section 438(1)(b) ‑ this may be the point that his Honour is expressly not deciding in paragraph 54 – but does the provision work by reference to whether the document is in fact in‑confidence, or does it work by reference to the opinion of the Minister or the Delegate as to whether the document was given in confidence? In other words, is it a jurisdictional fact or not? Is the fact of being given in confidence a jurisdictional fact?
MR KENNETT: Yes, I understand the question, your Honour, and the answer is, you will be surprised to hear, not simple because subsection (1) says:
This section applies . . . if –
and paragraph (a) seems to be objective. But then subsection (3) says:
If the Tribunal is given a document or information and is notified that this section applies –
then consequences follow. So, the consequence of (3), which is the operative provision, seems to be that it is the notice that triggers the discretions and that would be consistent with – that would mean that the Tribunal is not, for example, required to decide for itself whether every document that is covered by a notification is confidential or not.
GAGELER J: I am not talking about the Tribunal; I am just talking about the objective validity of the – I am sorry, you say – I see, yes, there is no certification that applies to 438. I see. Section 438(1)(b) is not a matter of certification. It is not a matter of validity or invalidity, you say.
MR KENNETT: That is so, yes.
GAGELER J: I follow.
MR KENNETT: But when one gets to (3), it is notification that triggers things, at least expressly, rather than the underlying fact.
NETTLE J: So, Mr Kennett, for the benefit of those who are not quite as advanced as some, is that to say once a certificate goes, then the Tribunal is bound by it, come what may and must proceed accordingly, until and unless it is challenged in a court of appropriate jurisdiction.
MR KENNETT: Well, I would not say bound, your Honour, because it is a facultative section in the end. It gives the Tribunal options. Also in relation to a certificate under (1)(b), that is something that can be meaningfully described as invalid and in some of these cases, where there have been concessions made that certificates were invalid, but as to under (1)(a), the officer is not given a power to certify something and make it so. The officer just ‑ I am sorry, I had them the wrong way around ‑ ‑ ‑
GORDON J: You do not get certification under (b) do you?
MR KENNETT: No, you do not, your Honour. I had them the wrong way around. So, under (a), there is the power of the Minister to certify something and essentially make it so, and one could say the Minister has done so invalidly if the issue has been misunderstood. Under (a), there is a state of affairs referred to and then ‑ ‑ ‑
GAGELER J: I think it is the other way around, Mr Kennett, is it not?
MR KENNETT: Under (b), a state of affairs is referred to, but then when one gets to (3), what triggers the discretions is that the Tribunal is notified that the section applies so it is a notice about a state of affairs and the notion ‑ ‑ ‑
GORDON J: But the Tribunal at that point can still determine whether or not a certificate given under (1)(a) is valid or invalid.
MR KENNETT: The Tribunal can certainly have its view about that and act in accordance with that view which might be right or wrong. That is not, yes ‑ ‑ ‑
BELL J: That might be a convenient time.
MR KENNETT: Yes, your Honour.
AT 12.46 PM LUNCEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
BELL J: Mr Kennett.
MR KENNETT: Your Honours, in SZMTA, I only had one thing left to say which was those are the submissions of the Minister.
BELL J: Thank you, Mr Kennett. Yes, Mr Prince.
MR PRINCE: Your Honours, if I could just deal with one of the last points made by my learned friend first and that is the idea that section 438, so far as the Tribunal is concerned, it is the furnishing of the written notification by the Secretary that is the jurisdictional fact. In my submission, that would not be accepted. The jurisdictional facts are set out at 438(1). Section 438(1) says that:
This section applies to a document or information if -
and then (a) and (b) are set out. The obverse of that is that the section does not apply if the information or document – leave aside (a) for a moment – is not such information or document that is identified in (b). Also, in section 438(3), the discretion that would otherwise be applied by the Tribunal if section 438 is properly engaged is conditional upon the Tribunal being given:
a document or information –
That must mean to which the section applies – echoing the formulation in the chapeau to subsection (1).
NETTLE J: Is that submission limited to paragraph (b) of subsection (1), Mr Prince?
MR PRINCE: Yes, your Honour, because that is what it picks up is (b) because the certification itself is the operative part in (a). If that certification is invalid then, in my submission, it is no certification at all and so the jurisdictional precondition in 438(1)(a) would not be met in the case of a certificate.
NETTLE J: Would the Tribunal have jurisdiction to determine that a certificate given under (1)(a) was not a certificate?
MR PRINCE: It would have jurisdiction to form its own view that that was the case.
NETTLE J: And to proceed accordingly?
MR PRINCE: And to proceed accordingly. It could not finally determine the matter because that is only something that a Chapter III court could do, but it could certainly form a view about a matter which was relevant to the exercise of its jurisdiction.
NETTLE J: It is just that (1)(a) looks as though the jurisdictional fact is the fact of the certificate.
MR PRINCE: It goes on – the additional words in (a) are:
that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed ‑ ‑ ‑
NETTLE J: Yes.
MR PRINCE: So it is not like one sees in some security legislation, a conclusive certificate that one cannot necessarily go behind. There is more to subsection (a) than the issue of the piece of paper, in my submission. There is a process of analysis which is left to the decision‑maker to undertake.
NETTLE J: Thank you.
MR PRINCE: I will not traverse the matters about validity or invalidity because I have dealt with those in BEG15 and I make the same submissions in this matter. If I could quickly take your Honours to some of the documents to deal with my learned friend’s submission that there was no proof that the purported notice under section 438 would have had any effect on what the Tribunal did or did not do with the documents which were underlying them.
My learned friend took your Honours to that part of the reasons of the Tribunal where there was reference made to a range of support documents which were put forward in support of a section 48B, 417 process ‑ or apprehended or potential or possible or whatever it is process – that the applicant may or may not have been engaged in with the Minister.
The reference to the letters, which your Honours will see from paragraph 84 of a decision of the Tribunal, at page 20 of the core appeal book - my friend accepted that they did not include the letter at page 25 of the further materials, which is the Mr Riemer email, but that they did include some of the letters or some of the references which we will refer to in other parts of the material which was under cover of the certificate.
Your Honours were taken to a document which contained a list of references which coincided with some of the references mentioned in the decision. But what is referred to in that document is that certain letters in support of the 417, 48B exercise of power or potential exercise of power were referenced in a document but those letters do not appear as part of the 15 folios of material which sat under the notification that was provided to the Tribunal. The Tribunal has had regard to those underlying references which were not covered by the certificate but has not said anything in its reasons about a letter by reference but which itself was covered by the certificate.
So, in my submission, what one can draw from that is that the Tribunal has, consistently with section 438, had regard to a whole range of material that was relevant to a ministerial intervention request except the material, the actual document which was covered by the certificate and that could be consistent with them not having any interest in that document I suppose, but it is equally and more likely to be consistent with the Tribunal believing that section 438 applied to that document and so it was not permitted absent the exercise of the discretion ‑ ‑ ‑
BELL J: I thought the purpose of taking us to the Tribunal’s reasons at paragraph 84 and then to page 20 of the appellant’s book of further materials was simply to show that the Tribunal was selective at paragraph 84 in relation to the documents there referenced, so that one could not draw an inference one way or the other in relation to Mr Riemer’s email.
MR PRINCE: The point of difference, your Honour, between what appears at page 20, which is a list of letters behind the certificate, and what appears at 25, which is a letter which appears behind the certificate, is that the Tribunal does not have to keep letters themselves secret just because they are referenced in this minute, but it would have to keep the letter from Mr Riemer secret because it is directly covered by the certificate.
What one can take from that, your Honour, is that the ministerial intervention requests and its failures were something that the Tribunal had some regard to and the various material which is behind the certificate, which is related to and interconnected with that process, those failed processes under 48B and 417.
So to suggest that there is no basis to believe that the Tribunal put these documents in a different category so that it could not refer to them, because of the 438 certificate, in my submission ignores the fact that the Tribunal was actively engaged with what happened in the 48B, 417 process and that is what a lot of these documents relate to. Obviously, this is traversing beyond my primary submission which is one does not get down into the bushes on these sorts of issues and try to speculate ‑ ‑ ‑
BELL J: I understand that, Mr Prince. I am just trying to understand the point that you are making in contrast to my understanding of the point the Minister made, a limited point in relation to paragraph 84 and the material that appears on page 20.
MR PRINCE: I suppose my point is, your Honour, that the material in the Tribunal decision act supports the proposition, if one is getting into this level of consideration, that the material covered by the invalid certificate was at least on the cards to have been relevant to the Tribunal’s exercise of its decision‑making function and the issues of credit.
Can I just give your Honours a quick reference to page 14 of the further materials? This is one of the documents which is covered by the certificate. I do not know where this highlighting has come from, your Honours, but if your Honours go to the last sentence of the first dot point on page 14 which says – this is an internal departmental minute:
The lack of details provided, combined with the previous adverse credibility findings ‑ ‑ ‑
BELL J: Mr Prince, is this page 14 of the appellant’s book of further materials?
MR PRINCE: Supplementary appeal book which may be ‑ ‑ ‑
NETTLE J: The same thing.
MR PRINCE: The same thing, yes, the appellant’s book of further materials, your Honour. Page 14 is in the top left‑hand corner.
BELL J: Yes.
MR PRINCE: Does your Honour have that, under the heading “New claims”?
BELL J: Is the heading “New claims”?
MR PRINCE: Yes, it is, your Honour. Page 14, last sentence of the first dot point:
The lack of details provided, combined with previous adverse credibility findings by the RRT, and the fact that document fraud in Bangladesh is well documented, raises doubts regarding the authenticity of the document provided, the reason of the attack or whether the person who was attacked is in fact –
the respondent’s mother. There was an active issue in the proceedings before the Tribunal which resulted in one of the key credibility findings in the Tribunal’s reasons under the heading “Credibility”, which start at page 13 of the core appeal book. If your Honours see, next to the bold word “Fifth”, at paragraph 68, on page 16 – I will not trouble your Honours with all of it, but there was an issue here about fear of returning, due to a land dispute, that:
Muslim fundamentalists had captured his mother’s property –
There were issues – if your Honours go to paragraph 69, page 17 – about the terms in which the land dispute had been raised in letters that had been previously sent to the Department and what letters and statements did at paragraph 70. To be fair, at the end of paragraph 71, the Tribunal says it:
makes no adverse credibility findings because the applicant has not consistently raised this claim.
But over the page, at page 18, around line 20:
the Tribunal does not accept that the documents provided by the applicant –
this is relating to the land claim and the ownership of the land:
overcome this credibility concern –
which is set out above.
The Tribunal finds the applicant’s evidence about the purchase and ownership of land has changed considerably over time. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his claims.
All of which were the subject of – sorry, things which were the subject of commentary and iterations and some of the documents sitting below the certificate. So, one could not say that the matters contained in the certificate, or below the certificate, if one gets into that level of detail, were unrelated to the claims or could not materially have impacted on the result.
The decision of his Honour below, Justice White, if I can just take your Honours to that, really starting at page 69 of the core appeal book? Might I say, your Honours, if this is a question of case‑by‑case basis analysis of the particular documents involved under the certificate, try to ascertain whether or not they would have made a practical impact on the result of the case, in the long run, which we say it is not, but if that were the test it would be a matter really for the judge below, who dealt with this at first instance effectively, because it was not raised below that – to make a judgment about looking at the material, looking at the Tribunal decision and to ascertain whether it could have had an impact on the outcome. That is what his Honour did.
So, even if we are wrong about that, even if we are wrong about the correct approach to the analysis of these decisions and one does get into the detail of the documents, his Honour Justice White did precisely that and there is nothing to suggest that his Honour got it wrong. There would be no reason in this Court to overturn that type of analysis undertaken by his Honour.
At paragraph 52 on page 69, his Honour deals with validity and the analysis of why his Honour came to the ultimate conclusion that the notification was invalid, or that the documents were not subject to 438(1)(b), is that, his Honour says at the last sentence, dealing with the mark of “In‑Confidence”:
That of course could be so without the documents containing information which had been “given” to the Minister or to an officer of the Department in confidence.
Then his Honour explains why it is not easy to see that some of the documents could answer that statutory description, including that they are really internal. Then, the last sentence of paragraph 53, his Honour noted that:
Counsel for the Minister accepted, quite fairly, that the last of these documents may cause the Court “some concern” and “may invalidate” the certificate.
That, in my submission, was a correct position to take by the Minister. In paragraph 54, his Honour says:
At the least, it made the notification misleading. I propose to act on that view of the matter. The notification was defective because it purported to apply to at least some documents and information which could not reasonably be regarded as having been given to the Minister or to an officer of the Department “in confidence”.
There is no basis in the notification for disaggregating the documents, in my submission. His Honour then goes on to naturally find it, at paragraph 56, adopting the reasoning of Justice Beach in MZAFZ that:
the Court is entitled to infer that the Tribunal did act in some unspecified way on the invalid notification and that this constituted jurisdictional error.
My learned friend and I are in furious agreement that the decision could have stopped there because that is the point of our notice of contention and we say that is sufficient to issue the grant of writs. His Honour though went on to, because there is jurisdictional error ‑ ‑ ‑
BELL J: I raise with you the suggestion of concurrence between you and the Minister on this point. As I rather understood it, the Minister places significance on paragraphs 57 and following and takes issue with your characterisation of the analysis in the earlier paragraphs.
MR PRINCE: He does. I may have been overly ambitious by suggesting concurrence, your Honours, but my friend did at some point say, as I recall, my note recalls, that the analysis could have stopped there but it did not and true it is that my friend relies heavily on what then occurs in 57, 58 and 59 but, in my submission, on the notice of contention we would say that he could have stopped there but in 57 and 58 his Honour quite rightly dealt with an argument that had been put forward by the Minister almost as a defence to the invalidity, that the defect had no practical consequence, obviously proceeding on what his Honour had recorded as the Minister’s quite fair position, last sentence of paragraph 53 and dealt with whether or not there had been a denial of procedural fairness in a practical sense.
There is no error, in my submission, with the way that his Honour dealt with that practical question. His Honour dealt with it by reference to the underlying documents. We say that it could be dealt with at an anterior stage, that is, the practical injustice is the applicant not knowing that the Tribunal was to apply the provisions of section 438 to the review and did not know that that what was going to be undertaken and the consequence that the applicant did not know ultimately what the reasons were as would be required by section 430.
But, it cannot avail the Minister to suggest that section 438 allows effectively some form of abrogation of procedural fairness in circumstances where section 438 has not been properly engaged in its own terms because the notification and the document or information does not answer the description in subsection (1)(a) or (b) and so, 438 does not validly apply at all. Unless there is anything further I can assist your Honours with, those are my submissions.
BELL J: Thank you, Mr Prince. Mr Kennett.
MR KENNETT: Your Honours, the point about paragraph 84 of the Tribunal reasons and page 20 of the further materials does not turn on that page 20 being part of the certificate material. It is just that page 20 happens to be a list of the material that was before the Minister in the discretionary process and it gives an account of what that material consisted of and we can see that the Tribunal was selective in its references in paragraph 84 and that the criterion for deciding whether to mention something, whatever it might have been, was not whether the particular document was covered by the certificate or not.
Your Honours, this case is heavily factual in the end because we are at issue over whether it can be inferred that the Tribunal relied in some material way on the certificate. As to the document at page 14 of the further materials, that was a document dated 2011 – February 2011 – summarising the claims that had been advanced to that point – in particular, as you will see from page 12, about line 20, an RRT process that was going on in 2008.
By the time this Tribunal comes, in a response to a fresh visa refusal decision, to decide the matter in 2015, several further steps have gone through in terms of the advancing of submissions and the Tribunal, in its decision, has to analyse those. It notes at paragraph 71 on page 17 of the core appeal book that it:
is prepared to accept that the applicant’s mother’s leg was injured in 2010 –
and then goes on to reach some conclusions about the plausibility of the appellant’s claims based on the material to that point. That is a long way from showing, we would submit, that this document dated 2011 had some sort of particular impact on the Tribunal’s decision and even further from showing that the Tribunal concealed that document or decided not to disclose it because of its understanding that it was subject to a certificate or a notification. Those are the submissions in reply, if the Court pleases.
BELL J: Thank you, Mr Kennett. That brings us, I think, to you, Ms De Ferrari.
MS DE FERRARI: Thank you, your Honour. Your Honours should have an outline of oral submissions. I propose to follow it quite closely except for the first part given that the summons is now not being moved on. As I have indicated earlier this morning, what happened in this case is that the Minister accepted that section 422B did not operate to displace an obligation to disclose the existence of the certificate. In other words, the Minister below accepted that Singh was correctly decided and that MZAFZ was correctly decided on this point.
Until this morning, there was a proposed notice of cross‑appeal. That notice of cross‑appeal is not competent for the reasons that we have set out at paragraph 5 because it is a conditional notice of cross‑appeal.
BELL J: Well, it is not pressed.
MS DE FERRARI: I understand but it does not want to do it that way because it wants to do exactly the same thing. I am just coming to that, your Honour. It does not identify any error and suffers from all the defects there. So, what counsel for the Minister now says is, well, I may have overlaboured the point and I do not need the notice of cross‑appeal that has all these problems. What I want to do is just make a submission as part of my response to the appeal that if the appellant wins, the matter should nevertheless go back to the Full Court.
So, it is exactly the same thing and he says it should go back to the Full Court to deal with any remaining issues but the fact of the matter is, if the appellant wins, there are no remaining issues. If the appellant wins, the Full Court was wrong in finding error in the decision of the judge at first instance; namely, that the documents could not possibly be relevant either to establishing jurisdictional error by denial of procedural fairness or as a basis for construing refusal of relief on a discretionary basis. They could not possibly be relevant. That would be the effect of the appellant winning in this Court. There is nothing left for the Full Court to do.
So, really what the Minister wants to do is reagitate the same point, now that he understands that conditional notice of cross‑appeal is not competent, by saying, well, just send it back in a new bent. The position in fact was openly and correctly conceded by a different counsel for the Minister in the Full Court and if your Honours go to the appellant’s book of materials in reply at page 34 ‑ ‑ ‑
GORDON J: What was the page number, sorry, Ms de Ferrari?
MS DE FERRARI: Page 34.
GORDON J: Thank you.
MS DE FERRARI: Mr Horan, who appeared for the Minister, said two things. Your Honours will see that starting from about line 11, that:
the main, issue of principle –
was relevance of the documents and then he goes on to say at line 25:
Now, there are secondary issues which weren’t reached below as to whether, on the assumption that the documents should have been admitted into evidence, the court should find that there was no denial of procedural fairness . . . And if the court doesn’t accept what is essentially ground 1 of the Minister’s appeal relating to the admissibility of the evidence, then I think it’s correct to say that those secondary issues won’t arise on this appeal.
He was correct. He also goes on to say later on that if the Minister was to win on ground 1 then it would be a possible course for the Full Court to not deal with the evidence and just send it back to the judge at first instance. Your Honour will see that at line 40, on page 34, and then again at lines 16 and 17 on the next page, page 35. So that was the position and it was the correct position. So that is why we say notice of cross‑appeal or not, really, what the Minister is trying to do is argue for an absolutely inconsistent position in this case on remitter to the one for which he argued in the Full Court and it should not be permitted.
Dealing with 422B, given the way that the matters have proceeded this morning, can I make some short submissions about its operation. As an amicus, so to speak, given that we say it does not arise in this case, the first point I wish to make is a point that really I think should frame the debate and that is one should not assume that documents behind a certificate or information behind a certificate are ones which the Tribunal would correctly assess as either being adverse or potentially adverse, favourable, neutral or even entirely irrelevant.
The debate sometimes is framed, especially by the Minister, “You’ve lost nothing because there’s nothing disadvantageous to you behind a document” but how do you know, how do you know? I can say that there was at least one case where the Tribunal assessed the documents – in this case, it was a “dob‑in” letter, in a foreign language, with a translation done at an Australian embassy – that suggested documents are being adverse to the person but said, “Don’t worry, it’s an anonymous “dob‑in” letter, so I’m not going to give it any weight”. The problem was that, properly translated, the documents were actually favourable to the applicant. So this assumption that the certificates are all kind of protecting adverse or potentially adverse information is not correct.
Now, that case, your Honours, is CCM15 v Minister for Immigration & Anor [2017] FCCA 304. Unfortunately, to protect the safety of the applicant and remaining members of the family the version that is available on is highly redacted, so it is difficult to see the point. But that was the point in that case; the materials were actually favourable.
In that case – the reason why that case ran the way it did, that is, by going to the documents, is because the Minister made the decision in that case to file an application book that also included the documents. So, generally, in all of these cases the Minister, who is ordered to file the application book, files it by just putting in the certificates or the notification but not the documents.
In that case, the Minister put in the application book the documents as well, so the applicant could see what it was that the Tribunal had said: “It’s an anonymous dob‑in letter; I’m not giving it any weight,” and could get a proper translation and say, “No, no; the translation is wrong and, when you get a proper translation, I say this, and I say this supports my case.”
BELL J: Ms de Ferrari, does this take us further than a view that it is appropriate to look at these challenges in the context of the circumstances thrown up by the individual case? The notion that one can never say, of information or documents under a notification, that they do not bear materially or did not bear materially lightly on the Tribunal’s decision must depend on the documents. A person within the Department may stamp “In confidence” a series of exchanges between junior departmental officers responding to an FOI request that has no conceivable bearing on the review.
MS DE FERRARI: It does, your Honour, for this reason. It does because the way in which the certificate operates and the non‑disclosure of the certificate makes this all completely non‑transparent. This is why – I will come to what the Full Court said in Singh – but this is why, in our submission, the Full Court in Singh was entirely correct to focus on the process – on the process of what went wrong in the process – and not on the diminution – the particularities of each case behind the certificate.
The particularities of each case are going to be incredibly varied and are going to be impossible to determine unless one puts itself in the mind of both the decision‑maker but also of what the person would have said if they had got the documents. I will come to this shortly. But this is why we say this is exactly on all fours with what this Court had said in WZARH – namely, that it is the process itself that causes the unfairness.
You do not get to spend enormous energy into trying to work out whether the Tribunal was or was not right about classifying the information as potentially adverse or neutral or irrelevant. It is the process. Your Honours, the process – the procedures – that is exactly what the common law requires as its focus in the hearing rule, not the ultimate outcome, the process.
The second point I wish to make on section 422B is that we do not agree with the characterisation of the relevant scheme as a “code”. That was a submission that was made by the Minister in Saeed in this Court, that it was a code, and it was not accepted by this Court. Saeed, in our submission, makes clear that the common law, in the hearing rule, continues to exist and, in fact, evolve but that the nature of any obligation at common law will depend on the statutory context which is obviously critically informed by section 422B.
So, coming to the actual terms of 422B, the first point I wish to make regards subsection (1). There is plainly nothing there to exclude the fair application of the power in section 427(1)(c) to disclose the information that there exists a certificate. Section 427(1)(c) must obviously be read subject to sections 438 and 440. But, again, one goes there and there is nothing there to exclude the fair – under section 422B(3) - application of that power.
Here, in my submission, “information” has its ordinary meaning. One does not get into the problems about what “information” means under section 424A. The fourth point – and this regards section 422B(2) ‑ ‑ ‑
NETTLE J: You missed one. You said the last was the second.
MS DE FERRARI: I apologise, your Honour.
NETTLE J: Not at all.
MS DE FERRARI: This the second point on the section. The second point on this section is about subsection (2), so I am following the numbering of the subsections. It makes reference, as your Honours will see, to three specific provisions – 416, 437 and 438, plus Division 7A. Division 7A is a detailed division setting out how to give and receive documents when the Tribunal is involved, but it is important to have a look at those other three provisions and in particular the requirement, which is in subsection (2) that they are taken to be an exhaustive statement insofar as they relate to this division.
One of those sections, 437, your Honours will see if your Honours go to it, does not relate to this division, that is, Division 4, the conduct of the review, at all. It is a blanket prohibition on the Secretary to giving any document to the Tribunal.
What that shows, in my submission, is that there are some very close analysis that is required by working out the extent to which any of those provisions, in particular 438, relates to this division and do so before one goes to work out what are the matters that that provision deals with. So there are two requirements there as opposed to subsection (1).
This close analysis, in my submission, shows that the blanket submission made by the Minister that because section 438 does not provide for any “hearing rule” therefore you read subsection (2) to deny the obligation to disclose the existence of the certificate as part of any hearing rule, by which he means the hearing under section 425 ‑ that is not the case.
The third point, still with subsection (2), is to say that its proper effect was actually correctly identified by Justice Beach in MZAFZ. Can I go to that decision. It is behind tab 14 and at page 370 your Honours will see, at paragraph 62, starting from the fifth line:
What s 422B(2) then does is to say that, in essence, the applicant cannot get the documents covered by a . . . certificate any other way from the Tribunal than through a favourable exercise of discretion under s 438(3)(b). In other words, there is no otherwise entitlement, notwithstanding that the Tribunal is permitted to take them into account -
That is the limited effect of section 422B(2). That was approved by the Full Court in Singh. If your Honours would go to that decision, which is behind tab 11, your Honours will see that the reasoning about the construction of subsection (2) approved – at paragraphs 38 and 39, page 274.
Now, that issue went to this Court on a special leave application which was refused. Of course refusal of a special leave application does not decide anything but that is the proper construction – the one given by Justice Beach, the one approved by the Full Court, not challenged by the Minister in this case below and clearly right.
The final point does involve subsection (3) and that is – my learned friend made reference to Minister v Li about having said something about the words “fair and just”. It is true that this Court did say something about the words “fair and just”. It did so at paragraphs 55, 58, 61 and 62 of the reasons of Justices, Hayne, Kiefel and Bell. The effect of that is anything but a limiting reading of those words. Your Honours will see that, perhaps, most clearly at paragraph 58.
Your Honour Justice Gageler also said something about “fair and just” at paragraph 124. So in the case of the exercise of a discretion, a discretionary power in Division 4, which section 427(1)(c) plainly is, those words are not words of limitation.
If I can now move to the next issue and that is the ratio decidendi of Singh and the principle of stare decisis. It is said against the appellant that stare decisis is just a matter of practice of procedure or of judicial comity and we have not identified any errors. That is not so. Stare decisis, we say – I am on paragraph 10 of the outline – is a principle of law and it reflects some very important other principles, namely, that there is only one common law of Australia and that there is an integrated system of courts.
We give a reference there to treatment of this issue by the only book that I am aware of that deals with appeals in Australia, appeals in appellate courts. But, also, in our submission, the Court of Appeal in New South Wales in Gett v Tabet [2009] NSWCA 76 made it clear that it is a duty of any intermediate court to find that its previous decision was wrong before departing from it.
We say that in this system of integrated courts that must look at decisions of other intermediate courts and must also look at principles in terms of whether they would depart from their own decisions, if there is a decision on point, that is, where the point has been fully argued – and, especially, if there is a unanimous decision of an intermediate court of appeal, then the way in which the law develops, if one was to argue that that intermediate court of appeal decision is wrong, is by special leave to this Court, which the Minister did.
BELL J: Ms de Ferrari, before we go much further into considerations of stare decisis, can you take us to the treatment of Singh of which you complain?
MS DE FERRARI: Yes. The treatment of Singh, your Honour, is this. To find a ratio, one has to look first and foremost for the material facts and the material facts in Singh were two and only two: first, that the Secretary had given a certificate to the Tribunal; second, that the Tribunal had not disclosed its existence to the applicant. They were the only material facts.
On the basis of that, this is what happened below. I am looking now at the written submissions, paragraph 41. First, the case before the Full Court in Singh was an appeal by the Minister against the decision of Judge Jarrett, who followed MZAFZ, although Singh and the decision of Judge Jarrett obviously involve section 375A, which is different in the sense that it does not contain the discretion to disclose information and documents.
NETTLE J: No discretion.
MS DE FERRARI: Before Judge Jarrett, there was no attempt whatsoever by the Minister to put into evidence the documents. There is nothing in the decision of Judge Jarrett other than complete following of the reasoning of Justice Beach in MZAFZ. So there was no question that Justice Jarrett had decided on those two material facts which I have identified: first, the Secretary had given a certificate; second, the Tribunal had failed to disclose its existence. Judge Jarrett had identified jurisdictional error and had set aside the AAT’s decision.
In the Minister’s ground of appeal – your Honours will see it set out at 41, point 2 – the first one, a general one that there was no denial of procedural fairness by failing to disclose that, that is, a submission that common law procedural fairness could never have required the disclosure of that certificate, this was a submission specific to section 375A and I will come to it in a moment.
I think the Minister now accepts both for 438 and I think also for 375A, that but for section 422B there would be an obligation to disclose the existence, but that was ground 1 in Singh. The second one was the ground about section 422B, operated so to exclude that procedural fairness obligation, if it existed, that is, if the Minister was wrong on ground 1.
Your Honours will see why I say that the first ground depended on section 375A at 41, point 3 – that is, the Minister tried to say Judge Jarrett was wrong to follow Justice Beach in MZAFZ because that case was about section 438. There there is a discretion to provide the information; here there is nothing. So what possible right or interest could be adversely affected by not disclosing a certificate where you could never get the documents in any event?
Now, so what did the Full Court decide? Well, the Full Court decided that Judge Jarrett was correct. On those two material facts, Judge Jarrett was correct in holding that the non‑disclosure was a breach of common law procedural fairness; that is, he did not accept the argument about section 422B ‑ I have taken your Honour to that passage – and he did not accept the argument that there was not otherwise an obligation at common law, and your Honours will see at the subparagraph 42 the steps in the reasoning of the Full Court and we have given reference to every paragraph where that aspect of the reasoning appears. So, that was what Singh decided, that is the ratio. The failure to disclose the existence of a certificate is, without more, jurisdictional error.
BELL J: At paragraph 16 in Singh, the court noted that no submission had been made that the material subject to the certificate was irrelevant to the issues under review.
MS DE FERRARI: Yes.
BELL J: It was that aspect of the conduct of Singh and of the analysis that the Full Court took in Singh that was relevant to the analysis adopted in this case.
MS DE FERRARI: Wrongly so, and I will show your Honour exactly why. What happened in respect of the attempt to put into evidence documents in Singh ‑ there was an attempt by the Minister ‑ was in relation to a ground that was abandoned. There was a ground that dealt with section 359A and when that ground was abandoned – 359A is a provision, sort of equivalent to section 424A – when that ground was abandoned the Minister did not press for the admission of that affidavit with the documents behind it. That was recognised again and frankly admitted, in the court below. If your Honours go again to the appellant’s book of materials in reply, and I am now on page 61, your Honours will see, starting at about line 17, this is counsel for the Minister:
But those two paragraphs, paragraphs 16 and 67 –
He is referring to the paragraphs of the decision of the Full Court in Singh:
show that the Full Court in Singh contemplated that in some cases the evidence of the subject documents can be relevant and admissible.
And Justice Griffiths:
But they seem to be saying – I don’t quite follow it. They seem to say that it might have been potentially relevant to a ground which, as I understand it, was not pressed ‑
And Mr Horan:
That’s correct.
Then, Mr Horan gives another bit of an explanation at line 42:
GRIFFITHS J: But that’s my point. The observations of the Full Court in paragraph 16 seem to be directed to a different issue ‑ ‑ ‑
GAGELER J: What are we to make of this exchange in argument in another court?
MS DE FERRARI: Your Honour, at a level of analysis, one goes back to what is the ratio? One looks for the material facts and looks for the ratio. So, what the Full Court said in paragraph 16 is, obviously, obiter.
GAGELER J: We are not in this Court bound by the ratio or the obiter in Singh.
MS DE FERRARI: That is true.
GAGELER J: Can we not just go to the merits?
MS DE FERRARI: The merits of?
GORDON J: This case.
GAGELER J: This case in this Court.
MS DE FERRARI: The merits of the case in this Court, your Honour, is that there is nothing wrong with the conclusion of the Full Court in Singh that the failure to provide the certificate in and of itself is jurisdictional error.
GAGELER J: So, what was the basis of that holding in Singh? Why is it jurisdictional error not to provide the certificate, according to Singh?
MS DE FERRARI: Yes. Because the non‑provision of the certificate in and of itself – and it was a different certificate – in and of itself had the capacity to affect adversely the interests of the person in the hearing. It did not matter ‑ ‑ ‑
GAGELER J: In what way?
MS DE FERRARI: In what way? Your Honours will see that at paragraphs 41 and following. That is page 274 of the first volume, behind tab 11. Your Honours will see at paragraph 42:
The effect of the certificate, if valid, is to require the Tribunal to conduct the review without disclosing the documents or information the subject of the certificate to an applicant.
GAGELER J: So the holding – going back to the earlier of those paragraphs you referred us to – is that the provision of the certificate is required as a matter of procedural fairness?
MS DE FERRARI: Yes.
GAGELER J: Because the certificate might be invalid and procedural fairness requires the applicant to be given a chance to argue that the certificate is invalid.
MS DE FERRARI: In the case of 375A, yes.
GAGELER J: Was there anything else to the Full Court’s reasoning in Singh? Is there another strand, or is that it?
MS DE FERRARI: Not in the case of 375A, no, your Honour, because ‑ ‑ ‑
GAGELER J: The alternative which, no doubt, Mr Kennett put in Singh, was the certificate is either valid or it is not.
MS DE FERRARI: Yes, but if it is not valid it cannot possibly operate to have the effect of the section. The effect of the section is that the person does not get to know anything. There is not even the ability to the Tribunal to consider the exercise of a discretion to make that information available. The person just simply does not get to know.
GORDON J: Ms de Ferrari, can I ask something? This morning we had submissions from Mr Prince about the proper construction and the circumstances in which, as I understood it and Mr Kennett seemed to accept - about the identification of the existence of the certificate. Are your submissions any different to what Mr Prince put to us this morning? Or, put differently, do you adopt what he put to us this morning?
MS DE FERRARI: Well, no, I do not entirely. My point is that one has to look at the effect of – one has to look at the provisions in Part 7. Singh was concerned with Part 5.
GORDON J: But let us just put Singh aside for one moment, can we, because I am a bit lost. Can you just tell me what bits you do not accept and why – of Mr Prince’s ‑ ‑ ‑
MS DE FERRARI: Because Mr Singh just focuses on validity ‑ ‑ ‑
GORDON J: Not Mr Singh; Mr Prince.
MS DE FERRARI: Because Mr Prince only focuses on validity or invalidity, whereas with section 438 there is another aspect which was not considered in Singh, and that is with section 438 the Tribunal has a discretion as to whether it would take those materials into account and a discretion as to whether it would allow the person to know of those documents.
So in this case, validity or not validity, you have also a denial of the ability to at least say, “I think you should consider exercising the discretion in this way. I think you should consider the basis on which it is said that the documents are not to be provided. For example, you might not even want to give me a copy of the certificate, but if the certificate says that it is in confidence because it is a dob‑in letter, I think you, Tribunal, should consider what the High Court has said in Applicant VEAL as to whether you can really ever put that information out of your mind. I think in that case, if that is what the certificate says, procedural fairness requires that you exercise a discretion to give me those documents so that I can make submissions about it”.
GORDON J: Can we just break this down into bits so that I can understand it? As I understood, you were talking about the provision of the certificate to start with.
MS DE FERRARI: No, the first thing ‑ ‑ ‑
GORDON J: That is the first question, that is whether or not the certificate should be disclosed and as I understood ‑ ‑ ‑
MS DE FERRARI: Existence of the certificate, your Honour.
GORDON J: Correct, that is, questions about ‑ the way Mr Prince put it ‑ was the infection starts in terms of the whole process – i.e. you do not know it exists, you disclose the existence of the certificate. Do you have a different point of that in relation to what Mr Prince put this morning?
MS DE FERRARI: Not in relation to that but I want to move the focus away from just invalidity, your Honour.
GORDON J: It is not about invalidity; it is about the existence of the certificate.
MS DE FERRARI: Yes.
GORDON J: It is nothing to do with validity or invalidity; just the existence of the certificate. Do you adopt Mr Prince’s submissions about that?
MS DE FERRARI: Yes. That is what the Full Court in Singh said.
GORDON J: Forget about Singh for the moment. I just want to work out where the divide is between you.
MS DE FERRARI: The divide is Mr Prince then puts that in the context of invalidity of the certificate is what affects the result.
GORDON J: No. That is not how I understood the submissions this morning. Maybe I am wrong.
MS DE FERRARI: In that case, I stand to be corrected, your Honour.
NETTLE J: He says that failure to provide the certificate or at least notify the applicant of its existence is a jurisdictional error which invalidates the proceedings that follow. That is his first argument.
MS DE FERRARI: Invalidates the decision because the process is one that is not fair in and of itself for the same reason that this Court has indicated in WZARH.
NETTLE J: And his second argument was about procedural fairness, assuming against himself that he was wrong about invalidity necessarily following from the failure to disclose the existence of the certificate he said, “Nonetheless, there is reason to think, if not to conclude, that the documents which were provided under cover of the certificate influenced the Tribunal in the decision which it made. Therefore, it cannot be said that there was no difference resulting from the failure to disclose. Therefore there a breach of the requirements of natural justice or procedural fairness and the decision is vitiated”. Do you decide?
MS DE FERRARI: Well, I wish to just expose why it is that the non‑disclosure of the existence of the certificate is where the jurisdictional error arises.
NETTLE J: Of course. That is back on the first argument, as it were.
MS DE FERRARI: It is on the first argument, yes, and I have said a number of times that that is consistent with what this Court has said in WZARH and I wish to very briefly indicate the paragraphs that expose that, and those are 38 and 45 to 46 in the reasons of Justice Kiefel, your Honour Justice Bell and your Honour Justice Keane, and paragraphs 60, 62, 64 and 67 in the reasons of your Honours Justice Gageler and Justice Gordon.
GAGELER J: That was a procedural fairness case.
MS DE FERRARI: And this is a procedural fairness case.
GAGELER J: The first limb of your argument is a procedural fairness limb, is it?
MS DE FERRARI: My only case is procedural fairness.
NETTLE J: So you do depart from Mr Prince’s submission that failure to notify of the existence is itself a jurisdictional error?
MS DE FERRARI: No. Failure to notify is the breach of the obligation at common law to afford procedural fairness. That is what – and I am repeating myself and, of course, what the Full Court said in Singh is not relevant – but that is the analysis of the Full Court in Singh. Common law, procedural fairness, not displaced by section 422B, requires in every case, irrespective of any documents behind the certificate, that the fact of existence of the certificate be disclosed to an applicant.
GAGELER J: That is for the reason given in Singh, which is that the applicant must be allowed to form the applicant’s own view and to make submissions as to the validity of the certificate, is that right?
MS DE FERRARI: That is one reason. The other reason is be able to make submissions about what should happen in terms of the exercise of discretion under section 438B. That aspect did not arise in Singh because, when your Honours look at the provision, that is just a blanket prohibition in disclosing the documents. So all that could happen in Singh was a challenge to validity. If that succeeded, then obviously the documents would not be protected.
Under Part 5, in fact, I think there is a provision where every document that is requested has to be provided. So if the certificate did not operate, under Part 5 the applicant could say, “I am now relying on section” – I will have to find it but there is a section that says any document that is requested must be provided and so would be able to have them provided.
GAGELER J: I am sorry, can you give us that section number please.
MS DE FERRARI: Yes, I will do so in a moment, your Honour. It is section 362A, and your Honours will see in subsection (1), it says:
Subject to subsections (2) and (3) of this section and sections 375A –
which is exactly the provision at issue in Singh:
the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal –
and so ‑ ‑ ‑
GAGELER J: There is no equivalent of that in Part 7?
MS DE FERRARI: There is not, no. So, Part 7 operates differently in a lot of ways, some quite fundamental, but not in issue in this Court. For example, Part 5, the review does not happen in private, Part 7 it happens in private, but in Part 7 the relevant provisions are the fact that there is an exercise of discretion under subsection (3) and also the effect of section 427(1)(c).
GAGELER J: So, what happens, in your submission, to what we might assume to be the bulk of the material that is given by the Secretary to the registrar of the Tribunal under section 418(2) that is not the subject of certification under section 438? What happens to the bulk of that material? Does the Tribunal have any obligation to provide any of that material to the applicant?
MS DE FERRARI: Well, it would in terms of when the exercise of the discretion in 427(1)(c) is such that non‑disclosure would be unreasonable. That is one way in which the duty would arise. It obviously also would under section 424A and 424AA but they are specific to information that would form the reason for affirming the decision so that is adverse or potentially adverse information. But it would also, in my submission, arise when there is a new issue in the review. So, under section 425, your Honours know that that says:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Now, that means, as this Court has said in SZBL, that it is not open for the Tribunal to find a new issue and decide it adversely without having afforded an opportunity to deal with it because that is not how the section operations.
But the hearing under section 425(1) is not limited to the issues arising in relation to the decision of review. SZBL is a case in point. In that case, to properly deal with the new issue that arose, the Tribunal may well have been under an obligation to disclose any material that was before it that was relevant to that new issue that the Tribunal had come up with.
BELL J: Accepting that, does it follow in relation to material that the Secretary furnishes to the Tribunal in respect of a Part 7 review, that the Tribunal makes determinations relevantly, whether under 424A, it should disclose information that it has before it in the material furnished by the Secretary because that might be the basis for an adverse decision, or perhaps as the hearing progresses an issue emerges and the Tribunal considers, well, perhaps it is necessary now to disclose material because something that was not perceived to be an issue has become one. The Tribunal is, on that analysis, making assessments about the necessity to disclose as a matter of fairness material from a larger bulk that has been furnished to it. Is that fair?
MS DE FERRARI: In that context, yes. So, there is no equivalent to the provision in Part 5 that requires everything to be provided.
BELL J: So, Ms de Ferrari, the applicant does not necessarily know everything that the Tribunal has before it. The Tribunal makes assessments and complies with the requirements of this statutory scheme for the review, including by disclosure.
MS DE FERRARI: True. But, what is different about 438 is that it empowers the Tribunal to make an adverse finding on the materials without disclosing the basis upon which it is making that adverse finding. So, this morning there was some debate about how section 438 stood with section 424A and which one was the dominant provision or not. But, that is the effect of section 438. The Tribunal is empowered to make adverse findings and, therefore, an adverse decision against a person without that person having any knowledge at all that that has happened. That is why you go back to a process and say, if that is going to happen, you have to, at least, have notice that that is going to happen.
You might not be able to do anything to stop it. You might make submissions to the Tribunal to say you should disclose that information to me so I can make some submissions and the Tribunal might – in a manner that is not legally unreasonable – make a decision not to do so, particularly because the decision has to be made having regard to any advice given by the Secretary. Your Honours will see that in subsection (3)(b). You have to have regard – if the advice is given – you have to have to regard to that.
So, the submission by the applicant says, now that you have told me there is a certificate, I think you should provide those materials to me, particularly because you have basically told me that it is a certificate about information given in confidence as a dob‑in letter and the Tribunal might say, no.
BELL J: Can we move away from the dob‑in letter for a moment ‑ ‑ ‑
MS DE FERRARI: Sure.
BELL J: ‑ ‑ ‑ and just contemplate the issue of a notification that contains material which those stamped “in‑confidence”, plainly enough, is not but which has no bearing on the Tribunal’s determination. Your submission is there is no question of the reviewing court being able to go to the documents – the fact of the matter that an undisclosed notification vitiates the proceeding.
MS DE FERRARI: That is correct because the hearing ‑ ‑ ‑
BELL J: Why should that be?
MS DE FERRARI: Because the hearing rule is concerned with the process that is to be followed, not with the outcome.
BELL J: Accepting that it is concerned with the process to be followed, what makes it necessarily unfair that the applicant is unaware that amongst, perhaps, quite a deal of material of which it has no notice some of it is under a 438 notification?
MS DE FERRARI: What makes it unfair is the fact that you have no notice and no way of knowing and no way of actually having any say at all about the fact that this process is being engaged on by the Tribunal. That is the unfairness.
GORDON J: So is this any different to Mr Prince’s point this morning that the process is infected – that is, that they are looking at it through a prism, which you have no notification of? In other words, he says he ends up on a set of train tracks which is different and which you do not know about and that therefore is an issue.
MS DE FERRARI: I do not know that it is about a different set of train tracks; it is really about, fundamentally, looking at whether – stepping back – it is basically about this Court saying whether or not it is fair at common law, assuming that the people on this side of the Bar table are right that section 422B does not cut into it, that a person would not know that the Tribunal might make findings against him or her on the basis of material which the Tribunal is empowered not to give any notice, not to give any indication to the person about those materials existing and about what it is proposing to do. That is the issue. If that is fair at common law, then the people on this side of the table lose.
GAGELER J: Well, procedural fairness is about having a fair opportunity to make submissions.
MS DE FERRARI: Yes.
GAGELER J: Either of law or a fact. So the generalised complaint about unfairness is not one that is recognisable by the common law. You have to relate it to being denied a fair opportunity to make meaningful submissions.
MS DE FERRARI: Yes, and that is what we say at paragraph 18 of the outline and that is probably where I am at, namely – and I think I have already touched on it – it is always the case that not knowing of the existence of the Tribunal - just existed - disempowers you from doing at least two things. One is make submissions about exercise of a discretion, the other one is to at least put the Tribunal on notice to say, “Are you sure; are you sure that certificate is valid?” It at least disempowers you from doing that and that is enough.
That is really we say no different from what happened in WZARH where effectively the Court said, “Yes, of course, there is no general rule at common law that you always get a hearing”. But when the process changed, and here we say effectively the statute effects a change in a process, the person has to at least know that the process has changed. He or she might have no ability whatsoever to persuade the second decision‑maker any different than what the first decision‑maker appeared to be inclined to – no hope whatsoever. But that does not matter. You have to at least be informed about the fact that the ground rules have changed. Can I move on briefly to the issue of invalid certificates?
BELL J: Yes. You are at paragraph 20 now.
MS DE FERRARI: I am at paragraph 20, yes, your Honour. It is not disputed in this case. In this case there was a certificate under paragraph (a) and a notification under paragraph (b) and it is not disputed that the certificate was invalid. What happened chronologically is that the certificate was given first and then after receiving the certificate the Tribunal extended an invitation under section 425.
If your Honours go to section 425, the fact that the Tribunal made that invitation after having received an invalid certificate means that subsection (2)(a) operated and that is the Tribunal had reached a view that it would not decide the review favourably to the appellant on the basis of the material before it. Now, that included the invalid certificate.
Having decided that there would not be a favourable decision, it then extended that invitation. So to the extent that there is an issue in this case – we say there is not in this Court – about the Tribunal having acted on the invalid certificate, it plainly did so.
In any event, we say that there is no issue in this Court about invalid certificate because the Minister’s appeal below was only against final orders and if her Honour Judge Riley was correct to say that the documents behind the certificate could have no relevance to breach of procedural fairness then the Full Court was wrong to set aside those orders and that is obviously the effect of this Court’s decision in Gerlach v Clifton Bricks.
Can I now move to discretionary refusal of relief? The appellant’s submission is that in the case of a denial of procedural fairness, possibly in all cases but certainly when it issues a decision under the Act in respect of a protection visa, the test is a forward‑looking one – that is, to refuse relief the Court would have to consider whether no possibly different decision could be made by the Tribunal if the matter went back to it.
NETTLE J: That is not the way that Justices Gageler and Gordon looked at it in WZARH.
MS DE FERRARI: I am not sure what paragraph your Honour is looking at.
BELL J: Paragraph 60.
MS DE FERRARI: Paragraph 60.
BELL J: I think the relevant portion is extracted at the core appeal book 86, paragraph 70 of the reasons of their Honours.
MS DE FERRARI: It says:
the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome.
That, in my submission, does not even of itself encapsulate either a forward‑looking or backward‑looking test. One has to see what is meant by “depriving”. When is “depriving” to be adjudged? The only decision – the only clear statement that I could find in this Court about a backward‑looking test in a case of denial of procedural fairness with a refugee application was Justice McHugh’s analysis in Aala.
There is also the case of SZBYR but that really involved a completely different scenario and it was really a case where on the facts as found there could not have been any other decision made. So, in a sense it was an example of when you say, well, there is two – it is not quite exactly the same but it was basically on the facts as found was an independent basis for why the decision had to be made irrespective of whether procedural fairness was owed. But, in any event, the Court said in SZBYR no procedural fairness was owed. The only case that I can find is, as I said, the judgment of Justice McHugh in Aala. What is noticeable about Aala is that six Judges went the other way. They did not think that you could do that analysis.
Now, if the test is a forward‑looking one then the Minister basically says, well, we do not have any answer because plainly what is to happen in the future in the case of a protection visa will depend on the circumstances as they exist at that time and it is impossible to determine – it is impossible to say that if you have a look at the documents, no different decision could be made.
To take an obvious example, the situation in a particular country might have catastrophically gone worse with a particular social group or something else might have happened. So, the documents might be irrelevant but then that is not going to be the issue when it goes back to the AAT.
NETTLE J: If one looks at it on a looking‑back test and says, well, it could not have made a difference why should that not be determinative? The man has had a fair hearing notwithstanding the things that might have gone wrong along the way with the procedure?
MS DE FERRARI: Well, your Honour, that is a question of whether a person has had a fair hearing and the question of whether you had a fair hearing requires to say, “Well, yes, it was wrong of the Tribunal not to disclose the existence of the certificate but I, the court, can say ‑ ‑ ‑
NETTLE J: With confidence it could not possibly have made a difference to the outcome.
MS DE FERRARI: Yes, and in our submission that cannot be done because the court cannot know what the applicant would say in this case.
NETTLE J: In that case you would win, but in those cases where it can be said, why should it not be the controlling test?
MS DE FERRARI: But, your Honours, how can it be said if the court does not know - the court cannot put itself in the mind of the person presented with the information from the Tribunal that it had received a certificate. The court cannot know how the person might have approached the Tribunal to ‑ ‑ ‑
BELL J: Ms de Ferrari, let us assume a notification that refers to three email communications between relatively junior members of the Department respecting the response to an FOI request and that has no bearing on any issue in the review. Why, in those circumstances, would one not apply what you characterise as the “backward‑looking test” and say the applicant had a fair hearing, the result could not have been different had he known?
MS DE FERRARI: Your Honour, that sounds simple, but it is not. The document may, to the court, read that way but to the applicant it might read a different way. For example, even just an email, the applicant might say, “No, wait, I know that person. I know why that person sent that email.
Hear me out. You should ask more information of that person. I know what has been behind that, what that email is about”. The court cannot know. That is the question. That is what his Honour Justice Brennan was so clear about. You only have to look at ‑ ‑ ‑
BELL J: We seem to be going around in circles somewhat, I think. I am conscious of the time.
MS DE FERRARI: Thank you, your Honour.
BELL J: Are there further matters?
MS DE FERRARI: No, your Honour.
BELL J: Yes, Mr Kennett.
MR KENNETT: Your Honours, it does not hurt to start with the issues that were in play in the Federal Circuit Court and if you go to pages 31 and 32 of the core appeal book you will see how the grounds were framed in the amended application. The first of those grounds was that the Tribunal’s decision was vitiated by reason of it having proceeded on an invalid certificate and the second and third grounds over the page alleged denials of procedural fairness.
The affidavit which the Minister sought to rely on in the Circuit Court, which is what this case is all about, exhibited the certificate – it was actually a certificate and a notification under section 438, those two documents and the primary documents to which they referred.
The question of invalid certificate and whether it was ipso facto erroneous in a jurisdictional sense for the Tribunal to have proceeded on an invalid certificate was thus a live issue before the Circuit Court. It was one upon which the Minister sought to lead evidence. The evidence was ruled out without looking at its contents. One can see that at paragraph 29 of the primary judge’s reasons on page 46.
Then when her Honour came to – that is her Honour’s decision on the evidence, and then when her Honour gave final judgment in the matter, starting at page 50, she noted the decision she had made on the preliminary issue at 9 and then she set out the grounds of review at paragraph 10, page 52 and then dealt with those in short order at paragraphs 11 and 12 and 13 of 53 and 54.
The point of going there is to say that the invalid certificate issue was a live issue in the Circuit Court. Whether my friend presses it now or not, it was a live issue there. It was an issue to which the certificates and the material behind them were at least potentially relevant and that is because, unless one takes the absolute view that the invalid certificate wrecks everything, the question of reliance is a question of fact that the court at first instance needs to resolve. One matter that may bear on that question of fact is what was in these documents and is it likely at all that the Tribunal handled them in a different way in reliance on the certificate?
My friend seeks in her submissions today to deal with that question of fact at a higher level by saying that the Tribunal issued the invitation to a hearing after receiving the certificate and therefore at that stage of its inquiry must have been not disposed to make a favourable decision on the documents alone.
Now, we would submit, of course, that that does not tell anyone anything very much about whether the certificate played any role in – there could be all sorts of reasons why the Tribunal was not disposed to make a favourable decision on the documents at that point. But the question of reliance needs to be addressed at somewhat closer level of detail than that, we would say. One needs to be able to find something that the Tribunal did or did not do on the strength of the certificate.
As to that, perhaps the course of the review is evidence one way, but the contents of the documents are at least capable of being evidence the other way or, indeed the same way; we do not know what they say. So the material that the Minister sought to adduce was capable of being relevant in the Circuit Court at least for that reason, we would say, and it was an error by her Honour the primary judge, rightly recognised by the Full Court, to exclude it on the a priori basis that her Honour did.
The next issue is that of procedural fairness and, assuming – because we have not formally opened up the 422B question in this case – assuming that principles of procedural fairness, as a general proposition, require disclosure of a certificate and a chance to make submissions before the Tribunal does something with the certificate, on that assumption we would submit that the material exhibited to the affidavit – and I have just noticed a typographical error in paragraph 4 of my outline – it should say “materials exhibited to the affidavit” – was at least potentially relevant to that procedural fairness question.
The first limb of a procedural fairness argument would have to be that the Tribunal exercised some power or made some decision adversely to the appellant’s interests without, first, hearing from him or her about that matter. Such an exercise of power is not apparent, we would say, on the existing material. Even if there were a hint of it, the Minister would be entitled, ordinarily, to adduce evidence to seek to rebut that inference. So, the material that the Minister sought to adduce was relevant for that purpose.
I have referred your Honours to something Justice McHugh said in Aala. I do not need you to go to the paragraph but it is where his Honour notes that there would not be any denial of procedural fairness if the power had been exercised in favour of the interested person.
The second aspect of procedural fairness, to which the evidence might have had some relationship, is the point that arises from what your Honours Justices Gageler and Gordon said in paragraph 60 of WZARH – that is, whether the appellant was denied the possibility of a successful outcome. On my reading of it, that is the only paragraph in the decision that really treats this is at the level of principle. The other paragraphs that my friend referred to apply that principle in the circumstances of the case.
But, in paragraph 60, of course, the language of “practical unfairness” harked back to what the Chief Justice had said in Lam’s Case at 37 which was often cited and, perhaps, some parties might have taken it a bit too far and your Honours, I think, were concerned to outline the proper scope of that principle. But the position that emerges, in our submission, is that as part of the procedural fairness analysis, that is, before you get to discretion, there is a question to be answered as part of the question about whether the process was unfair – whether the appellant here was actually denied anything in a practical way.
So that if he or she had not been given a hearing on issue (a) but the decision turned entirely on issue (b) as to which he or she was given a hearing, one might very well say that there had been no unfairness in the end and no denial of procedural fairness. And that aligns with what has recently been said in a more general way about jurisdictional error by members of the court in Hossain and we have given some references in the outline. I will not take your Honours to those at present.
And the final aspect of procedural fairness is the discretionary one. In Hossain at paragraph 74, Justice Edelman emphasised usefully, with respect, the value of seeking to distinguish carefully between the status of analysis, that is between the materiality issue which goes to whether there is jurisdictional error at all, and the questions that might bear on a discretion.
And what I have said, or what we say in writing, and what I have alluded to here about there being a live issue as to whether the appellant was denied any opportunity in a material way, our primary submission would be that one locates that as part of the procedural fairness question. But if we were wrong about that, we would say one can readily locate it as part of the discretionary analysis of refusal of relief on discretionary grounds. And the cases are not always completely particular in distinguishing between these modes of analysis.
Reference has been made today and reference was made in writing to SZBYR, a decision of this Court about section 424A of the Migration Act and one of the limbs of the majority reasoning was that even if there had a breach of section 424A in relation to particular material, there were various other reasons why – various other findings of the Tribunal that made the decision it made inevitable. And their Honours said that this was a case where no useful result would flow from the grant of relief.
Now, it may possibly have been better described as a materiality question rather than a discretionary question, but the underlying idea is the same and the outcome that their Honours reached was right on either view. If we are not right about what WZARH, paragraph 60 says on materiality and procedural fairness, then we would rely very much on the same notions in connection with discretion.
Discretion is often put in terms of futility, futility of relief. The notion of futility invokes probably a forward‑looking question, that is, if the case went back, might there be any different outcome. The answer in these proceedings is clearly there could be because there could be different evidence. But discretion is not limited – discretion does not only arise in cases of futility. I do not think it is fair to say the categories in which the discretion might be exercised are not closed.
And your Honour Justice Nettle noted in Hossain, at paragraph 43, that it was possible for a discretionary question to have a backward‑looking aspect to it. And we have elaborated on – we made this point in writing and we would say that there are cases where one might say in a backward‑looking way relief is not justified in the exercise of discretion because, even if there was an error, the result was inevitable and the applicant got a fair hearing overall and a fair outcome.
There is a suggestion in the written submissions of our learned friends that to do that in a backward‑looking way would have Chapter III difficulties. It has not been developed in writing but in oral submissions. Can I just observe that the passages cited in footnote 41 of our submissions, could I add those paragraphs of Pasini v Mexico, tab 16 of the bundle that I have noted in subparagraph 4.iii of my outline.
This was a passage where the majority noted a long history of cases where an appeal, so‑called, from an administrator to a court, trademarks and things of that kind, had been held not to infringe Chapter III on either count – this is an aspect of what I think is now called the chameleon principle – and their Honours went on after that to observe that even in a case ‑ and this was extradition ‑ where you have a court reviewing what the magistrate does as persona designata and deciding whether the magistrate’s was right still, even in that case, the court’s function was comfortably described as judicial, whereas the magistrate’s was not.
So some overlap between – and the problem that our friend alludes to is that if we have to go back and speculate about what a decision‑maker might or might not have done, had an aspect of the review been dealt with differently, it is put against us that involves going into the mind of the decision‑maker and speculating and straying quite close to the merits.
We would say it is not that. It is not the court deciding the merits for itself and it is certainly not the court granting a visa or making any administrative decision. It is a matter of the court assessing judicially on the basis of evidence what the possibilities would have been if the matter had been decided differently.
So, a backward‑looking discretionary analysis is conceptually possible, constitutionally unobjectionable and potentially influenced by evidence of the kind that the Minister wished to adduce in the Federal Circuit Court. So, if for those reasons the evidence was capable of being relevant, the primary judge should have at least assessed it for its relevance and assessed it in light of those principles rather than rejecting it a priori.
Just a couple of minor matters that I wanted to mention before I sit down. In Singh’s Case, paragraph 16 is important. Paragraph 16 notes, and the reasons why a hearing ended up this way are really not important, but it was not in issue, nobody had suggested that the material was irrelevant. Nobody had contended that the material underneath the certificates was irrelevant and their Honours went on to say in paragraph 16, if somebody had argued that, an inquiry into its nature would have been necessary. So, the submission that is contemplated here and sought to be supported by evidence is exactly the submission that was not made in Singh. The Full Court was completely correct in distinguishing Singh’s Case, we would say.
Finally, and this is peripheral but reference has been made again to the terms of section 425 and their reference to the issues arising in relation to the decision under review. That language, as we noted before lunch, was important in SZBEL 228 CLR 152. The Court stresses it at paragraph 33 of the reasons and the Court says that it is a procedural fairness case and the measure of procedural fairness is dictated by the statutory scheme and central to the statutory scheme was section 425 and this is what it provided for.
There is some more discussion and then at paragraph 36 there is a statement to the effect that the issues arising in relation to the review will not necessarily be all contained in the delegate’s decision but the applicant is entitled to assume that they are unless told differently. The implication of that, we would say, is that the new issue and what became the determinative issue for the Tribunal in that case - and I forget what it was but it was a factual issue that the delegate had not queried.
That was an issue arising in relation to the decision under review and thus something that the Tribunal was obliged to raise so that those words in section 425 encompass the kind of thing that happened in SZBEL. They are not just a starting point, therefore. They are not something to be added to by implication. They are the subject matter of the hearing that is required.
Your Honours, I said at the beginning of the day I was going to say something about relief. Your Honours, in the event that the appellant succeeds, the Court will have held that the evidence sought to be adduced by the Minister was irrelevant. The orders of the Full Court will be set aside. The question then arises what other order the Court should make.
Our submission is that because there was another ground of appeal in the Full Court which their Honours did not find it necessary to deal with, it is preferable for the matter to go back and if there are debates about ‑ there may very well be – if your Honours are against us on the issues in the appeal there may very well be nothing left to say about it and it might be a very short matter but those discussions ought occur, we would say, back in the Full Court and not at first instance here. That was the thinking behind what we originally put as a cross‑appeal but I do not think we should have. I think, on reflection, it was just a question of what is the appropriate relief so that is all we wish to say on that. If the Court pleases.
BELL J: Thank you, Mr Kennett. Ms De Ferrari.
MS DE FERRARI: Yes, your Honour, five points starting from the last matter mentioned by my learned friend. The significant thing is that he has failed to identify a single thing that could still possibly be dealt with by the Full Court. There is nothing. So, the proper order to make if we succeed on the appeal is to set aside the orders of the Full Court which would restore the orders of the primary judge and a decision of the AAT would stand quashed and the matter remitted.
The next point – and it really is in one sense directed to paragraph 16 and also the notion of documents being relevant to jurisdictional error - in our submission, on the Minister’s view of jurisdictional error and that the documents might have been relevant is just something that was not determined by the Full Court. It is simply impossible to see how the Full Court in Singh could have concluded that there had been a denial of procedural fairness.
If the documents or the information behind it were not relevant to any issue arising under Part 5 review, which is a submission that the Minister makes as to why there might be no procedural fairness owed, that fact that non‑relevance on the Minister’s view of the law would have obliged the Full Court to find that there had been no jurisdictional error is that simple. Why? Because if they could not have been relevant to any issue arising under Part 5 review, then on the Minister’s view of the law Mr Singh could not have been deprived of the possibility of a successful outcome. It is that simple.
In terms of SZBYR and the issue as well that there might be a decision that involves a breach on issue B, but the proper basis is that the application was denied on issue A, that might be possible in some cases, such as in SZBYR. It is impossible, in the present case, which is a affirming of a refusal of protection visa decision by the Minister on credibility issues.
In terms of acting on an invalid certificate – this notion, so‑called – it is not the same as reliance. It is the Minister who has been trying to make it an issue about reliance. The decision of Justice Beach in MZAFZ did not speak about reliance. All that is meant by this notion – unhelpful, as it is, in my submission – is that the Tribunal proceeded, thereafter, on a basis that it had been given a certificate which is not shown by the AAT, by the Tribunal, to have been properly determined to have been invalid. It just proceeds from there on. That, clearly, is the case when, after receiving the invalid certificate, you issue an invitation. Why? Because the certificate is part of the material that went before it and the AAT would not – could not – have issued that invitation unless it had considered that certificate.
Finally, on Chapter III and my failure to say something orally, Pasini is not relevant. Pasini and the chameleon principle deal with situations where Parliament confers a power or duty either on an administrative tribunal or on the court. It deals with a statutory conferral. There is no authority – we have said that in the written submissions and the Minister has not been able to find any authority - for the proposition that section 75(v) would also permit the level of reconstruction of the process of decision‑making, ruling out all possibilities that we say would be involved in this case; no authority.
In any event, the fact that there is no authority conforms with decisions of this Court such as Quinn and Church of Scientology v Woodward. Why - because the limits of this Court’s jurisdiction under 75(v) are with enforcing legality. Unless there is anything further, those are the submissions in reply.
BELL J: Thank you, Ms de Ferrari. The Court will reserve its decision in each of these appeals. Adjourn the Court until 10.00 am tomorrow.
AT 4.13 PM THE MATTERS WERE ADJOURNED
- AGLC
- Minister for Immigration and Border Protection v SZMTA & Anor; CQZ15 and BEG15 v Minister for Immigration and Border Protection & Anor [2018] HCATrans 177
- Case
- [2018] HCATrans 177
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the Minister was entitled to rely on adverse security assessments provided by ASIO when making decisions on protection visa applications, even if those assessments were not disclosed to the applicants. The Court was required to determine the scope of the Minister's obligations under the *Migration Act 1958* (Cth) and the *Administrative Decisions (Judicial Review) Act 1977* (Cth) in circumstances where national security considerations were paramount.
The High Court held that the Minister was entitled to rely on the adverse security assessments provided by ASIO. The Court reasoned that the statutory framework governing protection visas, particularly sections 46 and 47 of the *Migration Act*, contemplates that the Minister may have regard to information that is not disclosed to the applicant, especially when that information relates to national security. The Court affirmed that the Minister's duty to provide procedural fairness does not extend to disclosing information that is prohibited from disclosure by law, such as ASIO assessments, where such disclosure would be contrary to the public interest. The Court found that the Minister's decisions were not vitiated by a failure to disclose the ASIO assessments, as the applicants had been informed that their applications were refused due to adverse security assessments.
The High Court allowed the appeals, setting aside the orders of the Federal Court and remitting the matters to the Federal Court for further consideration in accordance with the High Court's judgment.
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