Minister for Immigration and Citizenship v SZIAI & Anor

[2009] HCATrans 165

[2009] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S37 of 2009

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

and

SZIAI

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 JULY 2009, AT 10.16 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC (Solicitor‑General of the Commonwealth of Australia):   If the Court pleases, I appear with MR G.T. JOHNSON and MR G.R. KENNETT for the appellant Minister and also for the Attorney‑General of the Commonwealth intervening in the interests of the Minister.  (instructed by Australian Government Solicitor)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MS A.M. MITCHELMORE for the first respondent.  (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

FRENCH CJ:   Thank you.  Mr Gageler, it would assist us, I think, if you addressed us on the non‑constitutional aspects of the case and then we will hear from Mr Williams.

MR GAGELER:   Yes, of course, your Honour.  Your Honours, I propose to go first to the facts, then to the two points that are raised in the notice of appeal, the first of those being whether there exists a duty on the part of the Refugee Review Tribunal to inquire and the second being whether, if such a duty exists, it was breached by the Tribunal in the present case.  I propose then to go to the points raised by the notice of contention, the first of those being an alleged breach of section 425 and the second being an alleged breach of the rules of procedural fairness.

Your Honours, the facts for relevant purposes focus on the way in which the Tribunal in making the decision under section 415(2)(a) of the Act that is recorded at page 2 of the appeal book dealt with two documents, translations of which are reproduced several times in the appeal book but most clearly at page 219, a document purporting to be a certification by a Mr Nuruzzaman and page 220, a document purporting to be a certification by a Mr Hossain.

The context of the Tribunal’s dealing with those documents is provided first by the application for the visa which was made under section 45 of the Act, which is reproduced at pages 41 to 91 of the appeal book, then by the primary decision made under section 65, which one finds at pages 93 to 97, then by the application to the Tribunal under section 412 that one finds at page 99 and then by what were in fact, although probably not in law, three hearings before the Tribunal, the first two of which resulted in decisions which were set aside in earlier proceedings but understanding of what occurred in respect of those earlier hearings in fact is relevant to the Tribunal’s conduct in the present case.

The primary application contains at pages 69 to 70 a statement which sets out the essential elements of the applicant’s claim.  It is said at line 10 that he was born into a Sunni family, at line 22 that he converted to become an Ahmadiyya on 1 January 2000, at about line 35 and following that he feared persecution in Pakistan by Sunni extremists, across the page at the top of page 70 that there were incidents in January 2005 in Bangladesh – I had said Pakistan, Bangladesh – where he had been first threatened then attacked by Sunni extremists, then at line 28, that his legal advisor had suggested that he leave the country as soon as possible to ensure his life.

The primary decision is then recorded at page 95, line 25, expressing dissatisfaction of the primary decision‑maker and the reasons for that decision are set out at pages 96 to 97.  Within those reasons, at page 97, line 10 one sees the statement

I note that he –

That is the applicant –

has provided no evidence of his faith, even though such evidence would be easily available through the Ahmadi organisation in Australia.

The application for review by the Tribunal then resulted initially in what one sees at pages 104 to 105, a letter from the Tribunal inviting the applicant to a hearing under section 415 and that hearing was to occur, and in fact occurred, on 16 November 2005.  What occurred at the hearing is recorded at pages 7 to 8 of the appeal book, but is not relevant for present purposes.  The first hearing before the Tribunal being set aside, there was then a further letter from the Tribunal, at pages 123 to 124, inviting the applicant to a further hearing which was to occur on the 26th but in fact occurred on 13 September 2006.

That letter, which is in a pretty standard form, invited the applicant, at the top of page 124, to complete a witness form and send any documents that he wanted the Tribunal to consider.  It resulted in two letters from the applicant’s migration agent, one at page 131 which enclosed the document at page 133 which is another copy of the document I took your Honours to at page 219, that is, the certification purportedly by Mr Nuruzzaman.  The second was a letter at page 135 enclosing at page 136 a form of request under section 426 of the Act for the Tribunal to take evidence from a named witness, Mr Syed.

What occurred at the hearing on 13 September 2006 is then summarised at pages 8 through to 13 and at the bottom of page 12 in the last two lines, referring to the evidence of Mr Syed, it is said that:

The witness said that he had taken the applicant to the Ahmadiyya mosque on two or three occasions in the last few months.  He said that the applicant had talked to him about the Ahmadi faith but he confirmed that he was not an Ahmadi himself.

Following that hearing there was then an exchange of letters that one sees at pages 141 and 143.  At page 141 the Tribunal wrote to the applicant requesting, at about line 25, additional information in the form of:

A letter, preferably in the form of a Statutory Declaration, from the Imam or other senior person at the Ahmadiyya mosque which you attend.  This letter should state that you are known to the writer of the letter as a practising member of the Ahmadiyya faith, and should also state how long you have been attending the mosque and/or other activities in connection with the Ahmadiyya religion.

The response at page 143, line 25 was:

Our client has been unable to obtain the information requested in the RRT’s letter dated 13 September 2006.  We note our client’s claim that the mosque is not in the practice of issuing such letters for persons who enter Australia however, merely because the mosque will not issue a letter does not mean that our client is not of the Ahmadiyya faith.

The second decision of the Tribunal having been set aside there was then, at pages 160 to 161, yet a further letter inviting the applicant to yet a further hearing which was the hearing before the Tribunal as currently constituted which was to occur and in fact occurred on 9 November 2007.  One sees from the stamp on the document at page 220 that that second document, the second certification, was tendered at that hearing. 

So what occurred at the hearing on 9 November 2007 is then recorded in some detail in the Tribunal’s reasons at pages 13 through to 21.  What occurred there needs to be read in the light of a letter to the Tribunal from the Ahmadiyya Muslim Association that one sees at page 236, and I take your Honours to that letter first.  At page 236 what you see is a letter of 7 December 2004 to the Tribunal from the Ahmadiyya Muslim Association of Australia.  It says at about line 22:

1.When any person approaches the National Ahmadiyya Association, for being attested as an Ahmadi, he is asked to provide his antecedents such as his name with parentage, his previous address, the name of ‘Jamaat’ (branch of the Association) to which he belonged, date of joining the Association – if not an Ahmadi by birth, and other information which he may like to supply to help verify his religious status.  The information supplied by him is passed on to the National Amir of his country, who then obtains verification from the Amir/President of the local ‘Jamaat’ to which he claims to have belonged.  A letter of verification of being an Ahmadi is issued by us, on the basis of information thus obtained.  This procedure is followed in all cases unless I happen to know an applicant personally.

2.There is no other way to have the claim of a person of being an Ahmadi verified.

So that is the background.  At pages 18 to 19, in the course of describing what occurred at the hearing on 9 November 2007, there is then an important passage, which is a little long but I will try to pick out the eyes of it.  At about line 35 what one sees the Tribunal saying ‑ ‑ ‑

GUMMOW J:   What page are we on?

MR GAGELER:   Page 18, line 35:

I put to the applicant that the Ahmadiyya Muslim Association of Australia had advised the Tribunal in 2004 that it issued letters verifying that applicants for refugee status were Ahmadi and that there was no other way to have the claim of a person of being an Ahmadi verified . . . The applicant referred to the letter he had produced from Md Nuruzzaman and he said that he had not let the Amir know that he was leaving Bangladesh and coming here . . . The applicant said that he had approached them but they had not given him such a letter.  I asked him if he understood that I might infer that he was not a genuine Ahmadi.  The applicant said that the fact that he was unable to produce such a letter did not mean that he was not a genuine Ahmadi.  I put to the applicant that this was not what the Ahmadiyya Muslim Association of Australia said.  The applicant said that they might have some perception of him because he had married a Sunni girl or some personal jealousy of him.  I noted that this was not what the applicant had said was the reason in October 2006:  he had said that the mosque was not in the habit of issuing such letters for persons who had entered Australia.  The applicant said that when he had approached the Amir here he had been told that he needed to wait while they checked with his Amir and other people in Dhaka.  I noted that the Tribunal had requested the letter over a year ago which was a very long time to wait.  The applicant said that he did not know if he would have to wait five or ten years.  I asked him if he would consent to the Tribunal contacting the Ahmadiyya Muslim Association of Australia to ask if the information he had given was in fact true.  The applicant said that he had been visiting the mosque.

and on it goes.

There is then at about line 15 a statement by the Tribunal that the Tribunal was inclined to draw an adverse inference in the absence of consent.  At about line 28 it is said:

I put to the applicant that I could therefore infer from the fact that he was unable to obtain a letter from the Association that his claim that he was an Ahmadi was not true.  The applicant referred to the letter he had produced from Md Nuruzzaman and he noted that it bore a telephone number which could be used to contact him.  I put to the applicant, with regard to the documents he had produced, that the information available to the Tribunal indicated that forged or fraudulently obtained documents were readily available in Bangladesh . . . I put to him that I would therefore give greater weight to any response from the Ahmadiyya Muslim Association of Australia than I would to the sort of documents he had produced.

Then the applicant was given until 16 November to consider consenting to contacting the Ahmadiyya Association.  What one then sees following the hearing in the relevant correspondence is, at page 217, that consent, albeit reluctantly, being given, at page 222, then the Tribunal’s letter to the Ahmadiyya Association which said relevantly at about line 25:

Please receive this letter as a request for advice on whether the following individual is known to the Ahmadiyya Muslim Jamaat Bangladesh.

Then gives as further background, at line 40, that the applicant had produced the two documents.  The letter back from the Ahmadiyya Muslim Association is then at page 225 passing on the information from the Bangladesh Ahmadiyya Muslim Jamaat that one sees at page 226 and, relevantly, what is said at page 226 is, at about line 22:

For your kind information on enquiry our Khulna Jamaat informed me that they could not find out any such name in their record.  Both the certificates submit by him are fake & forged.

One then sees at page 229 through to page 247 a very long letter with many annexures setting out in considerable detail particulars of the information that had been sought and received from the Ahmadiyya Association and particulars of adverse inferences that the Tribunal was inclined to draw from that information and from other perceived inconsistencies and inadequacies in the applicant’s evidence and inviting the applicant, at about page 235, about line 22, to comment.

FRENCH CJ:   The specific reference to the Bangladesh letter is 231, is it not?

MR GAGELER:   That is right, 230 to 231, yes.  The only response to that is at page 249 and that response from the applicant’s migration agent is simply this:

We are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi.  He cannot, however, otherwise prove that to be so.

So that was it; one would think a fairly straightforward case for the Tribunal.  The way in which the Tribunal, though, dealt with that situation is recorded at the bottom of page 27 and over to the top of page 28.  At line 30 on page 27 the response from the migration agent is noted.  It is then said a couple of lines further down:

This means that so far as the inconsistencies in the applicant’s evidence are concerned I am left only with the explanations which he advanced at the hearing before me.

It said in the paragraph that begins at the bottom of that page:

Having regard to the information referred to in the Tribunal’s letter . . . I conclude that the applicant is not a witness of truth and that there is no truth to the claims he has made in support of his application for a protection visa.  I consider that the corroboration afforded for the applicant’s claims by the documents he has produced and the evidence of his witness, Mr Mostaque Ahmed Syed, who gave evidence at the hearing before the second Tribunal on 13 September 2006 does not outweigh the problems with the applicant’s evidence outlined above.  At the hearing before me on 9 November 2007 the applicant said that the Ahmadiyya Muslim Jamaat in Bangladesh had a bad attitude towards him because he had not obtained their permission before marrying a Sunni Muslim and he suggested that the Ahmadiyya Muslim Association of Australia might also have some perception of him because he had married a Sunni girl or some personal jealousy of him.  However, as I put to him, this was not the explanation which the applicant gave to the Tribunal in October 2006 for his inability to obtain a letter from the Ahmadiyya mosque.

So it goes on.

FRENCH CJ:   The Tribunal did not specifically address the way in which it dealt with the letter from Bangladesh.

MR GAGELER:   The Tribunal?

FRENCH CJ:   Did not specifically address the way in which it dealt with the letter from Bangladesh, the assertion of the certificates being fakes and forgeries.

MR GAGELER:   I think not.  It is certainly ‑ ‑ ‑

FRENCH CJ:   It is really all wrapped up in that, “Having regard to the information referred to in the Tribunal’s letter dated 14 January,” is it not?

MR GAGELER:   Yes, and, in effect, the substance of that letter is recorded back at about page 22, your Honour.

FRENCH CJ:   Yes.

MR GAGELER:   Yes.  The foreshadowing of the reliance on the information was in the letter of 14 January.  That is really summarised at page 22, but there is no doubt that the Tribunal was relying on that information.  Then I should just take your Honours very briefly to what Justice Flick said about all this.  The crunch point of his judgment is at page 371, really the first couple of lines, he says:

Notwithstanding considerable reservation, it is considered –

by that he means I consider –

that the Tribunal should have proceeded to make an inquiry of either Mr Nuruzzaman or Mr Hossain or the Association.

That has to be read with what he said at page 368 at about line 33 where he said:

The “point” of making an inquiry of either Mr Nuruzzaman or Mr Hossain (or both), was to obtain their input into the views otherwise being expressed in apparently persuasive terms by the Ahmadiyya Muslim Jamaat in Bangladesh.  They may or may not have been able to provide further assistance; but the failure to make an inquiry stripped the Tribunal of their input.  It was an inquiry centrally relevant to the issues to be resolved and an inquiry which could readily have been made.

Apparently, as an additional element in his Honour’s reasoning one sees at the bottom of page 371 at about line 39 this being said:

There may be no general obligation to make inquiries to test the authenticity of documents produced to the Tribunal . . . But where an inquiry initiated by the Tribunal itself places the authenticity of documents otherwise before it in issue, further inquiries should be made to attempt to resolve the conflict that emerges.

GUMMOW J:   Where would this process stop?

MR GAGELER:   Where does?

GUMMOW J:   Where would it stop, on the judge’s view of it?

MR GAGELER:   Well, heaven knows.  I do not know, your Honour.  I say the process should not be embarked upon at all but, really, one must get to the point – and I will take your Honours to a passage in the judgment of Justice Hill in the anti‑dumping case of Enichem in due course, your Honour Justice Gummow conferred, but the passage is to the effect that decision‑making is a function of the real world and you come to a point where you say enough is enough and make a decision on the basis of the material before you.  Can I approach that in an orderly way and dealing with it ‑ ‑ ‑

HAYNE J:   Just before you do that, is the principle that is said to be engaged articulated in paragraph 23 of the reasons of Justice Flick, particularly 369 of the appeal book at about line 5 or 6:

Even if there was such evidence, as there was in the present proceeding, it may nevertheless remain unreasonable not to make further inquiries –

is that the principle that is said to be engaged here?

MR GAGELER:   Yes, that is the principle and his Honour draws that principle – this is where I was moving to, in any event, your Honour.

HAYNE J:   Yes.

MR GAGELER:   His Honour draws that principle from the discussion of Justice Kenny in the case of Le which he summarises at page 367, her Honour seeking in that decision of Le to apply a strain of reasoning that one gets from a stream of Federal Court decisions which begin with the judgment of Justice Wilcox in Prasad.

GUMMOW J:   I thought Prasad was interred some time ago.  It seems to be reincarnated.

MR GAGELER:   Yes.  I will certainly try to deal with the history of it, your Honour.  Interred may be a bit strong, but certainly not particularly well.  A passage from Prasad is set out at the bottom of page 369.  I need to address this point of principle at really two levels.  One is the way in which his Honour dealt with it which is as a matter of administrative law principle applying that line of cases coming from Prasad.  I need to also deal with it at another level which is the way in which our learned friends really seek to defend his Honour’s decision and that is to seek to draw an inference from the structure or from the scheme of the specific provisions of Part 7 of the Migration Act.  So let me deal with it at the Prasad/Le level first and then I will deal with the way in which Mr Williams seeks to defend what the Federal Court has done here.

Can I take your Honours back to Prasad very briefly really just to make two things about it.  The first is that it was not a jurisdictional error case, it was an AD(JR) case and what was said in that case was concerned, relevantly, with the scope of the statutory ground of review provided by section 5(2)(g) of the AD(JR) Act.  The second point to make is that what was said in that case about that statutory ground was said in the context of addressing the question that one finds set out at page 169 and the question which is noted in the middle of that page was said to have arisen during the hearing of the evidence, and the question was:

as to the relevance to the issue of reasonableness of material which was not before the Minister, actually or constructively.

and then his Honour sets out three possible views, his Honour favouring the third of those views which he describes as

An intermediate position is that the court is entitled to consider those facts which were known to the decision‑maker, actually or constructively, together only with such additional facts as the decision‑maker would have learned but for any unreasonable conduct by him.

It is really quite important to recognise that what his Honour was addressing was the ability of a court to judge the reasonableness of a decision by reference not only to the facts before the decision‑maker, but also to these additional facts that could have been available to the decision‑maker, but the challenge was not ‑ ‑ ‑

GUMMOW J:   Is 5(1)(e) set out anywhere in this judgment?  Because 5(2)(g) is a development of 5(1)(e), is it not?

MR GAGELER:   That is right.  I do not think it is, your Honour, but 5(1)(e), of course, can be read as having a procedural flavour to it.  Section 5(1)(e), as your Honours recall, refers to the making of the decision being an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.  That is what Prasad was deciding, that is, that engaging a reasonableness of the outcome, the decision that was made, it was open to the court to consider not only the material that was before the decision‑maker, but other material adduced in evidence before the court.  In support of that proposition, his Honour invoked, at page 170, the decision of the High Court in Pestell.

The idea that section 5(2)(g) read with section 5(1)(e) might allow for a decision to be set aside merely by showing an unreasonable procedure, some unreasonableness in the process without needing to show unreasonableness of the outcome, was something that one can see suggested by Justice Wilcox at the bottom of page 169, but it was not what this case was actually deciding.  It appears to have been taken up at some later stage in the development of the doctrine in the Federal Court, precisely when is a little difficult to say, certainly by the time of the Full Court judgment in Teoh, which was noted but not endorsed by the Chief Justice and Justice Deane in Teoh in the High Court, 183 CLR 273 at page 290.

GUMMOW J:   We have to interpret the AD(JR) Act, Mr Solicitor.

MR GAGELER:   Pardon, your Honour?

GUMMOW J:   Section 5(1)(b) of the AD(JR) Act is all about procedures.  Section 5(1)(e) is all about making decisions.  Section 5(2)(g) is linked to 5(1)(e).  So it is all about outcomes, not about procedures.

MR GAGELER:   Your Honour, that is the submission that we would make.  What I was going to say about that, though, is that the correctness of ‑ ‑ ‑

GUMMOW J:   I must say, it suffers from an absence of attention to construction of section 5.

MR GAGELER:   Yes.  Your Honour, we would endorse that.  All I was going to say about that is that the correctness of the stream of authority under the AD(JR) Act is not directly in issue in the present case, but what your Honour says about the construction, we would embrace.

FRENCH CJ:   There seems to be a bit of a conflation between the unreasonableness ground extracted from 5(1)(g), unreasonableness based upon facts that were known or ought to have been known but for unreasonable conduct by the decision‑maker.  Then you get into the question of whether the decision‑maker has unreasonably failed to ascertain relevant facts, and that is the conflation between the substance of the decision and the manner of the decision‑making.

MR GAGELER:   Absolutely, and it is a conflation which is, we would say, if we are permitted to say, under the AD(JR) Act impermissible as a matter of construction.  For present purposes though, of course, we are concerned with jurisdictional error.  We can leave the AD(JR) Act cases to one side.  There is a problem in Justice Kenny’s judgment in Le and in some of the earlier cases in the Federal Court to which she refers, simply picking up this ‑ ‑ ‑

GUMMOW J:   Is Justice Kenny’s decision an AD(JR) case?  It is not, is it?

MR GAGELER:   No, it was a ‑ ‑ ‑

GUMMOW J:   It is a jurisdictional error case.

MR GAGELER:   ‑ ‑ ‑ jurisdictional error case, but she has imported this reasoning first articulated in the AD(JR) context.  Probably wrong in the AD(JR) context as a matter of construction, but certainly wrong, in our respectful submission, when one gets to the field of jurisdictional error.  I wanted to take your Honours back very briefly to Pestell which his Honour referred to in Prasad, which was, of course, a jurisdictional error case in this Court.  Pestell one sees in 128 CLR 305 and it was, as I said, a jurisdictional error case arising in State jurisdiction, not under section 75(v).

On a proper analysis, in our submission, it provides no support for any notion of a duty to inquire and is really just an illustration of the proposition that in reviewing the ‑ ‑ ‑

GUMMOW J:   Well, Pestell was a case for declarations, was it not?

MR GAGELER:   Yes, it was.  The relevant section is set out quite usefully in the judgment of Justice Menzies at page 322.  What you see is provision in not unfamiliar form where the power of the local council was conditioned on the formation of an opinion by the council.  It was read as requiring a reasonable opinion.  One sees at page 323 in the first full paragraph there a familiar and very useful passage from the judgment of Justice Menzies, really, to the effect that one reads opinion of the council as meaning reasonable opinion of the council. 

GUMMOW J:   Well, that passage has been applied in this Court within recent times.

MR GAGELER:   Yes, that is right, many times, including in jurisdictional error cases arising under the Migration Act.  In applying that passage to the facts, his Honour, at page 324 and across to page 325 in passages that I will not read, relied upon findings of fact by Justice Street in the Supreme Court of New South Wales at first instance as to what the objective circumstances were in respect of the decision that had been made by council.  It is pretty obvious, and I will not go to the detail, it is pretty obvious that one walking down the relevant streets would have been able to see what it was that Justice Street found as a matter of fact. 

So, in our submission, what Pestell is is nothing more than an illustration of the proposition that, in reviewing the reasonableness of an opinion or a state of satisfaction, the Court is entitled to have regard to such objective circumstances as were, or at least can reasonably be inferred to have been, within the knowledge of the decision‑maker or the organisation at which the decision‑maker forms a part.  Pestell, in our respectful submission, goes no further than that.

If one looks back through the jurisdictional error cases, and I am not going to take your Honours to them, but if you start, for example, with Hetton Bellbird Collieries, go through Foley v Padley, Buck v Bavone, Eshetu and then the cases that followed Eshetu in this Court, what one sees is that the reasonableness implication that is read into a statutory requirement for the formation of an opinion or the formation of a state of satisfaction is one that is concerned with the quality of the outcome, that is, the quality of the opinion that is in fact formed or the state of satisfaction that is in fact reached, and not the quality of the process that results in that opinion or state of satisfaction.

So when one sees opinion or state of satisfaction one reads in the word “reasonableness”, the reasonableness being judged, in our submission, by reference to the material actually or constructively before the decision‑maker.  When I use the word “constructively” I am using it in the sense that it was used in the Full Court of the Federal Court, I will just give your Honours the reference, in the case of J Wattie Canneries Limited v Controller General of Customs 16 FCR 136 at 150. That is:

as a shorthand term to refer to matters which were not in fact within the personal knowledge of the decision‑maker but which the decision‑maker was deemed by law to have before him or her; as was the case, for example, in Minister for Aboriginal Affairs vPeko Wallsend Ltd (1986) 60 ALJR 560.

That, of course, was a case where ‑ ‑ ‑

GUMMOW J:   Was Wattie an anti‑dumping case?

MR GAGELER:   It was an anti‑dumping case, yes.

FRENCH CJ:   When you speak of the quality of the opinion, it really reduces to a question whether the requisite opinion, namely, one based on reasonable grounds, for example, which is a condition of the exercise of the relevant power has been formed, or state of satisfaction as the case may be.

MR GAGELER:   Yes, that is right.  It is not concerned with the procedure process by which the material on which that opinion is formed has come.

HAYNE J:   And contains the element of addressing the correct question.

MR GAGELER:   Of course, yes.

HAYNE J:   Avon Downs and Melbourne Stevedoring.

MR GAGELER:   Yes, indeed.  I am implicitly accepting all of those qualifications, your Honour.

FRENCH CJ:   If you have not done that, you have not formed the requisite opinion.

MR GAGELER:   That is right.  All I am seeking to do is distinguish between outcome and process.  I am not trying to say anything more than that.  In our submission, if you extend the implication of reasonableness to the process, then what you are doing is ignoring or even usurping the really quite distinct, quite tailored and quite confined implication that does deal with process, and that is the implication of procedural fairness. 

I do not ask your Honours to turn to it, but simply to note that in Kioa v West 159 CLR 550 at 627 there is quite a useful discussion by Justice Brennan as to the element of reasonableness that is a part of procedural fairness, that is, procedural fairness is a requirement for a decision‑maker to adopt a reasonable process but it is not reasonableness at large as to process. It is, as many authorities say, relevantly, an obligation to take steps to ensure that a person affected has a fair opportunity to present his or her case. To expand reasonableness to cover the entirety of the process is really to ignore the scope of the implication of procedural fairness to render it autois, very much.

There were, your Honours, cases in the Federal Court shortly after Prasad which suggested, and I think in one case held, that is in the case of Teoh in the Full Court of the Federal Court, that a duty to inquire could be seen as an aspect of procedural fairness.  We have mentioned then in paragraph 43 of the Minister’s submissions in‑chief, we have mentioned there that those cases were disapproved in this Court in the joint judgment of Chief Justice Mason and Justice Deane in Teoh 183 CLR 273 at 290 and the thought does seem to have re‑emerged as a procedural fairness thought since that time, that is, since Teoh in the Full Court.

In our submission, to deal with it as procedural fairness is just wrong for the reasons that I have given.  All of that is really put in perspective if one thinks for a moment about Lam in this Court.  Lam, of course your Honours will recall, is 214 CLR 1. Although it really was not quite argued that way, Lam, of course, was a failure to inquire case.  It was a case where the Department had said to the person affected that certain inquiries would be made and those inquiries were not made.

FRENCH CJ:   I suppose, if we go to Lam, in the context of this case the question might arise whether the acceptance of a conclusionary statement by a third party that the certificates were faked or forged meets the requirements of procedural fairness where the applicant has been simply given an opportunity to comment on those statements.  The question is whether the requirements of procedural fairness would require some further examination by inquiry of those conclusionary statements, which the applicant really probably is not in the position to – or, the applicant is not cross‑examining the people who have made the statements because they have simply come in a letter.  I suppose that is the question.  Is it enough that the applicant is given the opportunity to comment?

MR GAGELER:   In our submission, the answer to that is unquestionably yes.

HAYNE J:   The same point, I suspect, is to be made by looking at it from the other end.  The proposition which is said to be engaged is that there has been an unreasonable failure to inquire.  The real work in the proposition is done by the single word “unreasonable” or the phrase “unreasonable failure”.  Those words are masking what it is that is said to be engaged.  Unreasonable in this case is said to be satisfied because the inquiry was one easy to make.  Is that what is at issue here when it is said something is an unreasonable failure?  Or is it, in truth, a proposition about what the Act is requiring of the decision‑maker?  If it is the latter proposition, where lies the obligation?

MR GAGELER:   That is right, and I will turn to the Act in just a moment, your Honour, but if I can just complete this procedural fairness thought, procedural fairness at large.  As I said Lam itself was a failure to inquire case.  It was argued on the basis of a legitimate expectation having been created and the failure to fulfil that legitimate expectation was vitiating the decision, so it was said.  That was rejected, but was not rejected on the basis that the failure to make the inquiry was a reasonable failure to make the inquiry.  It was rejected on the basis that all that procedural fairness required was that the applicant have a fair opportunity to present his case, and the applicant was not deprived of a fair opportunity to present his case by the conduct of or on behalf of the decision‑maker.

One sees that at paragraph 38.  One sees it at paragraphs 105 to 106 and one sees it at paragraph 114.  I foreshadow wanting to take your Honours to another anti‑dumping case, it is good to dust these off, Enichem Anic 39 FCR 458, and there are really just three sentences in the judgment of Justice Hill with which your Honour Justice Gummow and Justice O’Connor agreed. At page 469, at about point 3 of the page, this is said:

Decision‑making is a function of the real world.  A decision‑maker is not bound to investigate each avenue that may be suggested to him by a party interested.  Ultimately, a decision‑maker must do the best on the material available after giving interested parties the right to be heard on the question.

In our respectful submission, those few sentences really sum up the nature of the decision‑making process absent something special in the statutory scheme, but also the proper bounds of the principle of procedural fairness, that is, it is right to be heard.  It does not translate, in our submission, into a duty to investigate.

So, your Honours, approached at the level of principle, which is the way his Honour Justice Flick approached it, in our submission, the implication of procedural fairness is concerned with process but not outcome.  It says nothing, however, about the duty to inquire.  The implication of reasonableness is concerned with outcome, not process and it too says nothing about a duty to inquire. 

Turning then to the way in which his Honour’s decision is sought to be defended.  It is said that a duty to inquire emerges from the scheme of the Migration Act and Part 7 in particular.  The question one asks rhetorically is, where do you find that duty within the statutory scheme?  It is not implicit in the requirement of section 65 that the Minister or the Tribunal, standing in the shoes of the Minister, form a state of satisfaction, nor, in our submission, can it be implicit in the duty of the Tribunal under section 414 of the Act to conduct a review of the decision under section 65. 

Your Honours have considered the nature of a review on a number of occasions, including in the case of Che.  What it requires is that the Tribunal reconsider and remake the decision of the Minister or the delegate on the material before the Tribunal to the extent that review might be thought to have some procedural content.  Then that content is given by the provisions of Division 4, and I think that that basic explanation is consistent with the way in which the Court explained the position in Naff 221 CLR 1 at paragraphs 22 to 26. I don’t want to take your Honours to that, but it is useful and extensive discussion.

If you then look at the terms of Division 4 and ignore for present purposes section 422B, then you see a number of procedural provisions which are cast in terms that the Tribunal may or the Tribunal must, and within the context in which they are used, it is clear enough, in our submission, that “must” means must and is used to impose a duty and “may” means may.  It is used consistently with section 33(2A) of the Acts Interpretation Act to confer a discretion, that is, there is no reason to read Division 4 as evincing a contrary intention for the purposes of the Acts Interpretation Act, a point your Honour Justice Gummow made actually in the case of SAAP 228 CLR 294 at paragraph 134.

So, reading the provisions in that literal but straightforward way, what one finds is that the Tribunal in section 425 has a duty to give the applicant a hearing on issues.  The Tribunal under section 424A has a duty to give the applicant an opportunity to comment on potentially adverse information.  But under section 424(1) the Tribunal has a discretion to get further information and under section 427(1)(d) the Tribunal has a discretion to require the secretary to arrange for an investigation. 

In the Minister’s submissions in reply in footnote No 7 we have given your Honours a number of cases in the Federal Court and one in the High Court, to which I will go in a moment, which really have held that those discretions to get further information or investigate do not impose a duty.  They are discretions.  Indeed, the Full Federal Court has held, in our respectful submission, correctly that those provisions do not even impose a duty to consider the exercise of the discretion to which they refer.

Our learned friends in their written submissions have referred to quite a number of cases in this Court and elsewhere where the function of the Tribunal has been described as inquisitorial.  In our submission, it is wrong to translate those general descriptions of the Tribunal as an inquisitor into a duty on the part of the Tribunal proactively to seek out information.  When one goes to most of those descriptions of the function of the Tribunal, the description of the Tribunal as an inquisitor can be seen to have been invoked, really, to the quite the opposite effect.

What is generally being said when it is said that the function of the Tribunal is inquisitorial is that it is for the applicant to make out the case and for the Tribunal to decide whether or not the applicant’s case is made out.  For example, your Honours, that is very clearly said in the joint judgment of your Honour Justice Gummow and Justice Heydon in Plaintiff S154 201 ALR 437 at pages 57 to 58 where your Honours were using the language of inquisitorial function.

FRENCH CJ:   The proposition that the Tribunal’s powers of inquiry and powers to obtain additional information and the like do not impose a duty on the Tribunal.  It does not necessarily answer the proposition that there may be circumstances in which a failure to avail itself of those powers might underpin jurisdictional error.

MR GAGELER:   Your Honour has to find the jurisdictional limitation somewhere.  If it is not in the sections, where is it?  That is the point I was making.

FRENCH CJ:   It has to be related somehow to the formation of a requisite opinion or state of mind, does it not?

MR GAGELER:   That is really what I was saying.

FRENCH CJ:   Either that or procedural fairness issues.

MR GAGELER:   Yes.  None of those.  One does not find it in the formation of the opinion which really goes, as I said, to the substance of the opinion, to the outcome.  One does not find it in procedural fairness for the reasons that I have given.  One therefore does not find it in the terms of section 55 of the Act.  Possibly I can understand an argument that it might be read into the nature of the review, but the review substantively is standing in the shoes of the original decision‑maker and remaking the decision on the material before the Tribunal.  That is the classic Drake type formulation of the nature of the review.  Then the procedures governing the review are really those spelled out in the terms of Division 4. 

With or without section 422B there is an argument as to what, if anything, procedural fairness might have to say about those procedures.  Leave that to one side, procedural fairness, in our submission, just does not get you to a duty to inquire, so leave that to one side.  Where else is it?  It can only be somewhere in the detail of these provisions and one does not find it.  That is really, in effect, what we think is actually being held in this Court in the matter of SGLB, and I just want to take your Honours to SGLB 207 ALR 12.

GUMMOW J:   This has not passed into the Commonwealth Law Reports?

MR GAGELER:   No, a couple of quite important administrative law cases under the Migration Act for some reason have not made their way into the Commonwealth Law Reports; usually the ones I am in, it seems, your Honour.  What I wanted to point out here is the proposition that I am putting is really one that emerges from the reasoning of three members of the Court.  Chief Justice Gleeson at paragraph 1 agreed with your Honours Justices Gummow and Hayne and what your Honours said, relevantly, is in paragraph [42] through to [43] where Justice Selway had held, although he did not rely specifically on Prasad, that the Tribunal in the particular circumstances of this case had come “under a duty to inquire”.  What your Honours said with the concurrence of the Chief Justice is:

This ground of error is misconceived for two reasons.  First, there was evidence before the tribunal to assist it in determining how to deal with the question of unreliability . . . Secondly, whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so.  Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence.  Thus, the tribunal is under no duty to inquire.

Now, what your Honours were stating there was a conclusion drawn from a consideration of the statutory scheme.  What your Honours stated was without qualification.  It represents the holding of the Court with the concurrence of the Chief Justice and, in our respectful submission, it is a correct statement of the statutory scheme, that is, one does not get consistently with the statutory scheme an implication of a duty to inquire.

Your Honours, moving then from the absence of duty to the absence of breach if a duty exists.  The duty is formulated against us, and is certainly formulated by Justice Flick, as your Honour Justice Hayne has pointed out, as one conditioned by a requirement of reasonableness.  In our submission, there is simply nothing unreasonable about the Tribunal faced with conflicting evidence, even on the topic of central importance, having given the applicant an opportunity to present evidence on that topic and to comment on the evidence against the applicant, to proceed without further inquiry to prefer one piece of evidence over another, that is, the Tribunal simply doing its duty.

KIEFEL J:   It did a bit more than simply preferring.  I think it is stated that it had some experience with the information which had been provided by the association and it considered it to be well qualified.

MR GAGELER:   Yes.  In the present case, yes.

KIEFEL J:   You are speaking at a more abstracted level.

MR GAGELER:   That is right.  I was putting the proposition deliberately at the abstracted level first, your Honour.  Your Honour points out the important aspect of the present case, but even if that were not the case, your Honour, I wanted to make the point that there is nothing unreasonable about the Tribunal going on to make the decision that it is required by the statute to make.  It can make no difference in principle, in our submission, that the evidence which is adverse to applicant and which the Tribunal prefers has come into the possession of the Tribunal through its own inquiries, which would seem to be the point that Justice Flick was making as a point of principle. 

There are aspects of the present case which are also significant.  One of them is the point that your Honour Justice Kiefel made, another is that the Tribunal not only had a history that suggested that the information that it took into account was from a reliable source.  It was also possessed of country information which suggested that Bangladeshi documents were often fraudulently obtained.  Here the only reason that had been put forward by the applicant for discounting what had come from this apparently reliable source was that put forward at the hearing on 9 November 2007 and that smacked, as the Tribunal said, at the time of recent invention. 

So, put that with the other numerous reasons which I have not taken your Honours to but are set out in a letter of the Tribunal to the applicant raising questions about his credibility, put all that together, there was absolutely nothing unreasonable about what the Tribunal did in the present case.

FRENCH CJ:   In the general territory of the question of whether the Tribunal has an obligation to act in a sort of proactive fashion, there is a line of cases, and I am sorry I cannot recall any of the names at the moment, in relation to the identification of issues or claims made.  Now, there was some question of whether an applicant for a protection visa had not explicitly raised a particular claim but that that ground for grant of a protection visa was apparent on the material presented to the Tribunal, the Tribunal should as part of its – I think it was an element of its duty to review under 414, deal with that claim.  It was not required, as it were, winkle out claims from a mass of material but rather not to overlook something which was obvious but which the applicant simply had not been able to formulate.

MR GAGELER:   Yes, your Honour, there is a case in this Court, the name of which I just have never been able to pronounce, that deals with that issue.  It is the case of Dranichnikov.

FRENCH CJ:   The only question is whether that tells us something about the duty to review that is relevant.

MR GAGELER:   It certainly does, the formulation of it, again I think only in the Australian Law Reports, 197 ALR 389.

KIEFEL J:   I think it was where Mr Dranichnikov had not been able to identify himself as part of a particular group, everyone had overlooked it.

MR GAGELER:   The error here was put in terms – at paragraph [24] – of a failure to respond to:

a substantial, clearly articulated argument relying upon established facts –

That is the territory of those cases, your Honour.  Your Honours, that is what I wanted to say really about the appeal.

KIEFEL J:   I suppose just returning for a moment to the question of the Tribunal’s approach, one aspect of the way in which the Tribunal reaches its level of satisfaction under its review is unlike a judicial model to use its own experience, it is applicable in this case, I am not talking in generalities, but in terms of what we were discussion before, it uses its experience to resolve matters by saying, as here, the association has been shown to be a reliable source as is some country information.  Does that in any way explain or throw up the approach taken, in particular by the first respondent, to whether or not there is an obligation to pursue issues in an evidentiary way?  Is there anything in the distinction between the role of a decision‑maker here and the role which you would more of a court to take further evidence to resolve issues?

MR GAGELER:   The point your Honour raises really goes to the weight that the Tribunal would prima facie be ‑ ‑ ‑

KIEFEL J:   Rather than the question of principle about whether a duty can arise at all.

MR GAGELER:   Yes, I think it just goes to the weight.

KIEFEL J:   That might be so.

MR GAGELER:   Your Honours, there are few points raised on the notice of contention which I outlined in opening and can I just deal with those points very briefly.  So far as is said that there is a breach of section 425, our answer is this, in terms of the Act, what the letter from the Ahmadiyya Muslim Association amounted to was new information within the scope of section 424A not the raising of a new issue within the meaning of section 425.  In our submissions, the veracity of the applicant’s claim to have been an Ahmadi was squarely in issue from the date of the primary decision that was under review by the Tribunal.  That was the issue, and this was simply evidence that went to that issue, even if the issue were to be

more narrowly confined, then the authenticity of the two documents that the applicant was adducing in evidence in support of the claim, was really quite squarely and specifically the subject of scepticism put in issue, if you like, at the hearing on 9 November 2007.

So this was an issue upon which the applicant had a hearing, the hearing on 9 November 2007.  It was not a new issue.  It was simply new information.  That is the answer to section 425.  The other point raised in the notice of contention is one that goes to procedural fairness and it seems to be put in two ways.  In one sentence in the respondent’s written submissions in paragraph 56 the argument is advanced, as we read it, that there was a failure to accord procedural fairness simply because there was a failure to inquire.  That is the argument that I have really dealt with already.  Procedural fairness does not extend to a failure to inquire and, in any event, there was nothing unreasonable about what occurred here.

Then there is an argument that is advanced with a little more elaboration in paragraphs 54 and 55 of the respondent’s written submissions and that is an argument which is complex, but it appears to be an argument to the effect that within the scheme of Part 7 what procedural fairness required was not simply that the applicant be given an opportunity to comment, but that he be given a new hearing.  Our answer to that is, if one looks to the terms of section 425 itself, there is no requirement for a new hearing unless there is a new issue and for the reasons I have said, there is no new issue.  But that on any view the Tribunal’s letter – that extensive letter at pages 229 and following of the appeal book – fully and fairly set out not only the information, but the implications of the information and gave ample opportunity to the applicant to comment.  The applicant, in his response, said nothing substantively and did not request a further hearing.  So there was no want of procedural fairness, in our respectful submission, on any view.

Section 422B, in our respectful submission, is not breached and given the indication of your Honour the Chief Justice at the commencement of the hearing, I just will not go there in‑chief.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Williams.

MR WILLIAMS:   Yes, thank you, your Honour.  Your Honours, the critical passages in the Tribunal’s reasons for rejecting the first respondent’s claims are from page 284 of the book.  I regret I have used a different version to Mr Solicitor, sorry.  They demonstrate that the Tribunal has accepted, in our submission, and acted upon each of the assertions in the association’s letter of 8 January.  At page 284 of the book at about line 47:

Having regard to the information referred to in the Tribunal’s letter dated 14 January 2008 as set out above, I conclude that the applicant is not a witness of truth and that there is no truth to the claims he has made in support of his application for a protection visa.

Over on 285 at about line 12:

I conclude on the basis of the information referred to in the Tribunal’s letter dated 14 January 2008 and having regard to the view I have formed of his overall credibility for the reasons given above that he is not a genuine Ahmadi.

Page 285 at about line 20:

Having regard to the . . . information referred to in the Tribunal’s letter dated 14 January 2008, I do not accept that the applicant converted . . . that he was threatened . . . I conclude that there is no truth to the claims which formed the basis of the applicant’s application for a protection visa.

Then 285 at about line 37:

Since I do not accept that the applicant is a genuine Ahmadi or that there is any truth to the claims . . . I do not accept that –

he has a well founded fear.  Each of these references is a reference back to the 14 January letter which your Honours have been taken to, but at 229 the letter commences, if I can just make one point about it – it starts by inviting him:

to comment on information that the Tribunal considers would, subject to any comments you make, be the reason, or a part of the reason, for affirming a decision under review.

Now, the first of the reasons is then set out.  In effect, at about line 25, it is a summary of the history from there through to about 230, line 50.  The adverse conclusion is foreshadowed at 231 at about line 8:

This information is relevant to the review because it casts doubt on your claims that you converted . . . The advice provided by the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh may lead the Tribunal to conclude that there is no truth . . . relevant to your overall credibility –

The decision, of course, was based heavily on adverse credit findings.  Now, I took from the Solicitor’s submissions that there may not be an issue between us as to this, but although there is no express finding that the letters were fake and forged, manifestly the Tribunal has accepted that assertion.  The Tribunal has also accepted the asserted lack of records referred to in the response from the association as indicating that the first respondent did not attend the Khulna Jamaat.  That in turn obviously impacted upon the Tribunal’s view of his credibility.  Now, in our submission, the material before the Tribunal standing alone did not provide a rational foundation for acceptance of those two bare assertions in the letter from the association.

HAYNE J:   Sorry, can you put that proposition again?  What is the premise for it?

MR WILLIAMS:   The material before the Tribunal standing alone, in particular the letter from the association, did not provide a rational foundation for the bare assertions stated in that letter and further inquiry was required if those two bare assertions were to be accepted.  We develop that submission in our written submissions from paragraphs 9 to 12. 

Briefly, the reply was unresponsive, there were two questions put to the Australian association, the first was whether he was known to the association in Bangladesh, the second was whether he was known at the local mosque in Sydney where he claimed to attend every Friday night.  Neither of those questions was answered and the answer revealed a misunderstanding of the questions posed.  The Tribunal in turn drew inferences from the statement that there were no records of him at the mosque; that without any information as to what records were kept there may have been a number of explanations as to why there were no records of him at the Khulna Jamaat.

One explanation may be that the Jamaat did not keep anything but rudimentary records, but there is no inquiry as to that, and no material in the letter from the association to indicate that there is a foundation for that bare assertion, or a foundation for inferring from the bare assertion that there is no record of him at the Khulna Jamaat that he was not an attendee there, or that he had not converted there back in 2000.  The letter was also entirely unresponsive as to the query whether he was known at the mosque in Sydney, there was simply no response to that question at all; nor was there anything beyond bare assertion that the letters were fake and forged.

There was no basis stated for that assertion, there was no reference to whether the authors were indeed attendees at the Khulna Jamaat, there was no reference to whether if they were attendees they had expressed any views about the genuineness of the letters.  So the statements did not rise above bare assertion, and in the absence of further information from the association, or from the identified authors of the letters, who the applicant had invited the Tribunal at the hearing to contact, the Tribunal was not in a position to draw the inferences that it did from that letter ‑ ‑ ‑

BELL J:   Could I just take up this with you?  As I had understood his Honour’s reasons, the unreasonableness of the Tribunal was the failure to pursue inquiries of the two authors of the certificates who had supplied their mobile phone numbers in each instance.  A moment ago you spoke of “in the absence of further inquiry of the association”, are you making a wider case, or have I misunderstood his Honour’s reasons?

MR WILLIAMS:   Your Honour is, with respect, correct that his Honour Justice Flick did identify inquiries of the two named authors, but his Honour went further.  If the Court were to go page 368 at about line 41.  First his Honour identifies from about line 35 the point that your Honour Justice Bell makes, but at the foot of that paragraph:

An inquiry of the Association may have provided a basis upon which its conclusions as to the certificates being “fake & forged” could be accepted or rejected.

His Honour, in essence, makes the point that I am seeking to develop at page 369 at line 31:

It could not reasonably have reached a conclusion either accepting the Certificates provided by the now Appellant or the Association’s letter without further pursing which documents were to be accepted.

BELL J:   Just looking at the consideration that his Honour gave to the relatively simple task of contacting the authors of the certificates on the mobile telephone numbers that had been supplied, those were mobile telephone numbers apparently relating to people in Bangladesh, is that right?

MR WILLIAMS:   Yes, your Honour.

BELL J:   So that the inquiry might have revealed that the author of the certificate did not know the respondent, which would not have assisted him, or it might be that the person who answered the mobile telephone said that the certificate was a genuine certificate and not a forgery.  For my own part, I do not see how that would have resolved any matter.

MR WILLIAMS:   It may have provided further information that was corroborative of the genuineness of the certificates.

BELL J:   The matter that I am raising with you as a matter of practicality is if a document suggested to be forged contains a contact number, one reasonable supposition is that the person who answers the phone will support the authenticity of the document.  It does not seem to me that answering the relatively simple inquiry that his Honour posed would get one anywhere and that it would really be a much larger inquiry.

MR WILLIAMS:   In relation to your Honour’s point, it may have answered the inquiry by providing collateral corroboration of the genuineness of the certificates.

BELL J:   But how would a person on a telephone saying, “Yes, I am the signatory of that certificate and the respondent is a person known to me and I am aware he is an Ahmadi” how would that help?  This is a disembodied voice on a phone.

MR WILLIAMS:   Your Honour, it is in the realm of the hypothetical since the inquiry was not made, but the inquiry may have led to the person providing evidence, providing further material to the Tribunal.

BELL J:   That is the matter I am raising with you.  The phone call to the nominated number must be understood to be merely the starting point of the further inquiry unless the result of the phone call was unfavourable from the respondent’s point of view.

MR WILLIAMS:   It may be that that would not be the most rational or efficient starting point.  The rational or efficient starting point may be a further inquiry of the association of the kind that his Honour suggested.

BELL J:   Yes.

MR WILLIAMS:   What would be required would be no more than a single inquiry seeking to ascertain the basis of the assertions.

CRENNAN J:   I suppose the point is he may still be left with an unresolved conflict in the evidence.  I mean, it comes back to the question I think Justice Gummow raised, how far would you be expected to go?

MR WILLIAMS:   Well, since the inquiry was not made, we do not have the benefit of the answer, but the inquiry ‑ ‑ ‑

CRENNAN J:   No, but I think Justice Bell’s point is this, that it is not difficult to imagine the precise inquiries which are said to be those which should have been made, not being capable of resolving the conflict in the evidence.

MR WILLIAMS:   Certainly as regards to the inquiries of the nominated authors of the letters, one can readily see how that could occur, but a further inquiry of the association, one would hope, an inquiry of the association in Australia, might elicit an answer to the question that was asked but not answered in the first letter; is he known at the mosque where he says that he attends regularly ‑ ‑ ‑

KIEFEL J:   Why would a further inquiry of the association be needed, or indeed any further inquiry, given what the Tribunal said at appeal book 276, line 13, about the Tribunal’s experience with the association, and they were in a position to tell the Tribunal whether someone was an Ahmadi or not, and that in the sentence which follows, the obvious opinion stated by the Tribunal that the association is well qualified to comment?  These were the matters to which I was referring in my discussion with Mr Gageler about a Tribunal being in a somewhat different position from a court in a way being able to inform itself and having developed some knowledge about the reliability of country and information and the like.  So was it not a fairly simple step for the Tribunal to say that faced with two certificates which make assertions about knowing the applicant, but then having information from a reliable source and an association with whom the Tribunal has had some experience in previous cases, that it accepts that information?  The issue would therefore be resolved, would it not, there would be nothing further to inquire about?

MR WILLIAMS:   The Tribunal’s response here had not addressed the questions asked.  It had not answered whether the applicant was known at the local mosque, and it had not addressed the question whether he was known at the Khulna Jamaat.  It had addressed different questions, said nothing as to the first; as the second, said something about his presence or otherwise in unidentified records, and made an assertion with no stated basis that the certificates were fake and forged.  It is apparent from what follows in the letter itself, without intending any disrespect, that the national amir may not have entirely understood the question that was being put.  The letter goes on from that to make statements about who can provide genuine international transfer certificates.  That was nothing to do with the question that was being asked, in our submission.

KIEFEL J:   It may be taken to mean that you would expect that he would have a document in such a case, because he would have known to have asked for it.  But that is a matter, perhaps, of conjecture.  I think at that point they may have been at cross‑purposes.  That is certainly possible.

MR WILLIAMS:   Certainly by that point and we say that is relevant to how one reads the entire letter.

FRENCH CJ:   Mr Williams, I notice at page 368 in paragraph 22, the last sentence, his Honour said:

An inquiry of the Association may have provided a basis upon which its conclusions as to the certificates being “fake & forged” could be accepted or rejected.

The association offered no such conclusions, did it?  That came from the national amir in Bangladesh.

MR WILLIAMS:   His Honour may be referring there to the Bangladeshi Association, rather than the ‑ ‑ ‑

FRENCH CJ:   Well, is that a Bangladeshi association that wrote?  See they sent their letter, or the national amir at page 240 addresses his letter to the Australian association.  It is just his Honour has been using the word “association”, I think, by reference to the Australian association.  It would have to be an inquiry to the national amir, would it not, in Bangladesh?

MR WILLIAMS:   Yes, that would be so, your Honour.  The Australian association it is correct because, with respect, as your Honour observes, the Australian association did not express any conclusions.  So with that as the factual foundation for the legal submission, accepting that there is no general duty upon a tribunal to make inquiries or an applicant’s case or to make an applicant’s case, an unreasonable or irrational failure to make inquiries, in our submission, can amount to jurisdictional error.  One is present here in the drawing of inferences from these letters without making inquiries that were necessary for those inferences to be drawn.

HEYDON J:   There is one important thing you have got to deal with.  It was not just an inference drawn from the letters.  It was an inference drawn from the applicant’s failure at a time when he had a solicitor acting for him, experienced in the field, to respond to the very detailed letter of 14 January.  You have presented this morning powerful sort of disintegrating arguments.  They would have been a lot better presented in answer to the letter of 14 January.

MR WILLIAMS:   Your Honour, what we say in relation to the letter of 14 January was that the Tribunal had, at the 9 November hearing, raised in general terms, the proposition that documents could be obtain, but were forged.  The applicant had at that time put forward to the Tribunal that it should make its own inquiry by ringing the nominated authors.  The Tribunal had failed to do so and then had, having obtained the letter, sent it out to him for comment.  The failure to say more in response to that letter should not be viewed as any concession as to the accuracy because the letter expressly reserved that position.  The letter expressly stated that the applicant maintained his position but was not in a position, plainly enough, since he did not enjoy the access that the Tribunal enjoyed to the association in Australia and through it in Bangladesh, to obtain the evidence to support it.

HEYDON J:   To say to a seven‑paged letter, very detailed and, for it is worth, in my opinion, a very fair letter, “We maintain our overall position and we are not going to deal with the points you make in detail” – take paragraph 9 of your written submissions that you started your oral address with – just viewed in isolation there is a certain power in those points. The failure to make the points by 29 January does permit a finder of fact, does it not, to draw certain inferences?  The mere mouthing of an assertion that “We maintain our position” is simply not rationally helpful to the finder of fact.

MR WILLIAMS:   Your Honour, we cannot deny that some inference is available from the exchange of letters in January but our submission is that it is not sufficient to overcome the difficulties apparent on the face of the association’s response forwarding the national amir’s response.  But, your Honour, if our case does not rise to the level of irrationality in failing to make the inquiry at a factual level, then perhaps what I should do is to refer the Court simply to our written submissions in relation to the legal basis and move on to the point of procedural fairness.

There is, indeed, two cases that I would wish to take the Court to briefly in relation to the duty to inquire.  Firstly, the judgment of Justice Allsop in SZJBA 164 FCR 14 at page 29 of the judgment. The facts here were different from the present case. It was a failure to follow up on a fax cover sheet that promised five pages of submissions but delivered only the cover sheet. His Honour, at paragraph 59, did distinguish the facts from an evidence gathering task but at paragraph 60 set out a statement of principle on which we rely in relation to the duty to inquire. His Honour on page 30 acknowledges that unreasonableness does not necessarily equate to jurisdictional error, which is an anticipation of the appellant’s principle point of criticism of the judgment below here.

HAYNE J:   Does this decision or do other decisions identify the criterion or criteria which engage cases within the exception?  You see at the foot of 29 his Honour says:

in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error.

Do we find either here or elsewhere a statement of the principle that engages the exception?

MR WILLIAMS:   Not in this judgment, your Honour.  In relation to jurisdictional error, an opinion that is arbitrary or capricious or irrational cannot provide a basis for an exercise of power.

HAYNE J:   Is that more than the Avon Downs proposition that it bespeaks addressing the wrong question?

MR WILLIAMS:   No, your Honour, no, but the authorities in this respect are brought together by a Full Court of the Federal Court in WAIJ 80 ALD 568 and if I can take your Honours to the passage at 573 at paragraph [22]? This is in the joint judgment of Justices Lee and Moore. Their Honours refer to Abebe and S20.  Then in the middle of the paragraph:

The tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds.

They refer to authority in that respect, Eshetu and Enfield and, indeed, the judgment of Chief Justice Spigelman in Hill v Green –

A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result.  It is because it is based upon such findings that the determination is an unreasoned decision.

GUMMOW J:   I do not think you could say that the Tribunal here reached a decision based on illogical or irrational findings or inferences of fact, could you?

MR WILLIAMS:   That is the factual question that Justice Bell and others have raised with me.

GUMMOW J:   Yes.

MR WILLIAMS:   Our submission is that, having regard to the terms of the letter itself, it did not rise above bare assertion of the two key propositions and did not provide a rational foundation for acceptance of those two key propositions.  In the present case, it is not a question of a wrong finding of fact, but rather a misstep in a chain of reasoning that must be undertaken in order to achieve a state of satisfaction.  As the Full Court pointed out in WAIJ, a decision in respect of which such a misstep can be demonstrated is one that is not supported by reason and has no better foundation than an arbitrary selection of the result, and that involves, in our submission, jurisdictional error under 75(v). 

Your Honours, if I can turn to the second point raised by the notice of contention, that is that by the failure to invite the first respondent to a further hearing after receipt of the association’s letter, the Tribunal fell into jurisdictional error?  Section 425 mandates an invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review.  Decisions of the Federal Court have held that where an issue in relation to the decision under review arises after a hearing, a second invitation must be given.

GUMMOW J:   Is this paragraphs 54 and 55 of your submissions, Mr Williams, that you are developing, the further hearing point?

MR WILLIAMS:   This is the earlier paragraphs, your Honour, referring to section 425 of the Act.

FRENCH CJ:   This is 51, is it?

MR WILLIAMS:   Yes, 51 and following.

FRENCH CJ:   You are using 425 in a different way.  I am looking at 54 to which Justice Gummow ‑ ‑ ‑

MR WILLIAMS:   I am sorry, your Honour, yes.  Our submission is that section 425 read in its own terms mandates a further hearing where a new issue arises after a hearing, and we take from our friend’s submission that that is common ground, although the degree of particularity or extraction of identification of the issue might divide us, but the submission that we put in paragraphs 54 and following seek to invoke the rules of procedural fairness in support of that proposition, that in substance the rules of procedural fairness mandated a further hearing by reason of the issue that had arisen from the association’s letter, and the Act provides that the form of such a further hearing is in 425.

FRENCH CJ:   If he was entitled as you say, and he was represented, what consequence do we attach to the fact that there was no request for a further hearing?

MR WILLIAMS:   Your Honour, if there was a duty to offer a further hearing, the fact that none was requested is of no moment.

GUMMOW J:   How do you get this out of the words of 425?

MR WILLIAMS:   The key words, your Honour, are in relation to the issues ‑ ‑ ‑

GUMMOW J:   Arising from time to time during the course of, is that how you read “arising”?

MR WILLIAMS:    Yes.  Issues can arise before, after or during the hearing.

HEYDON J:    But really an issue or an admittedly powerful evidentiary‑type point going to an already existing issue; namely, what was his religious creed and practice.

MR WILLIAMS:    Your Honour, we submit that it is a fresh issue, the issue arising from the letter itself.  An allegation that the certificates were fake and forged itself went first to the heart of his credibility before the Tribunal, which is a matter on which the decision turned.  But it also went to the question of whether he was indeed an Ahmadi as claimed.  It raised a matter which the Tribunal had, in the most general terms, touched upon as a possibility at the hearing.  But the Tribunal in saying:  I will give greater weight to what I am told by the association than any certificate that I am given was not raising a specific matter for him to address, a specific allegation that he was not known at the Khulna Jamaat; a specific allegation that the certificates were fake and forged.

These were fundamental matters.  If they were correct, his claim as a whole was based upon documents that were fake and forged and assertions that were false.  If on the other hand  it were incorrect, if the association’s letter relaying the material from the National Amir were incorrect, then he was, as he claimed, an adherent since 2000 of a persecuted minority faith.  It was fundamental to the issue that the Tribunal had to determine and for that reason it gave rise to a fresh issue.

GUMMOW J:    Does this word “issue” appear elsewhere in Division 4?  It is an unfortunate use by the draftsman because it comes out of common law pleading systems which by definition certainly do not apply here.

MR WILLIAMS:    I cannot immediately assist your Honour.

HAYNE J:    I thought we had looked at this earlier.

MR WILLIAMS:    SZBEL, your Honour.

HAYNE J:    Was that the case of the Iranian seaman?

MR WILLIAMS:    Yes, your Honour.  I will take the Court to that shortly.

HAYNE J:   Thank you.

GUMMOW J:    Just section 423(2) as Justice Heydon’s remarks.

MR WILLIAMS:    Yes, (1)(b) as well, your Honour:

written arguments relating to the issues arising in relation to the decision under review.

GUMMOW J:    From what does one judge whether an issue arises?

MR WILLIAMS:    The answer to that is in our submission to be found in the judgment of Justice Besanko in the Full Court of the Federal Court in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1. The decision concerned a review application that had been remitted by the Federal Magistrates Court. There were in essence two contentions, the first was that in any case in which a decision is remitted a further hearing must be offered.

That is a contention that Justices Gray and Gyles accepted, but Justice Gray also agreed at paragraph 2 with the narrower view that was adopted by Justice Besanko and that was that although a fresh hearing was not required in all cases, section 425 requires a further invitation in all cases where an issue emerges after the hearing.  Justice Gyles agreed with Justice Gray.  From page 26 of the report in the reasons of Justice Besanko, there is a reference first to the judgment of the Court in SZBEL.  The invitation must be an opportunity to give evidence and present arguments relating to the “issues arising in relation to the decision under review”.  Then in paragraph 103, the key paragraph, it is:

an essential part of the review conducted by the Tribunal and if an issue in relation to the decision under review emerges after the hearing conducted by the Tribunal then, in my opinion, a second invitation to appear must be given.

Your Honour, it is, I apprehend, common ground with the Minister that in some circumstances a second invitation to appear must be given, although it is not common ground that this was such a case.  Then further down in the paragraph:

In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was, or may be, an issue.  That is the nature of the obligation –

his Honour then quotes, I think, sufficiently for present purposes, the judgment of the Court in SZBEL.

HEYDON J:   You skipped over the sentence beginning “Furthermore”.

MR WILLIAMS:  

Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue.

His Honour develops this point further on in the reasons in relation to the two particular cases that his Honour is dealing with.  Having quoted SZBEL, his Honour refers to some single judge decisions, but at SZGOD the claimant in that case had claimed feared persecution by reason of political and trade union activity in the transport industry, but the issue that was not apparent at the hearing is whether the appellant was involved in the transport industry at all.  The issue was a fundamental one in that it was the basis of his claims.  At paragraph 108 the Tribunal had in that case sent a 424A letter, but had not given a second invitation to appear and that was conceded to be sufficient to amount to jurisdictional error.

FRENCH CJ:   I suppose if one were to try to look at some sort of test for what is an issue and what is not one might look first to the criteria for the grant of a protection visa, starting, of course, at the most general level of Article 1A of the Convention itself, and one might then look to the particulars of the way in which the applicant says that his situation attracts those criteria.  Now, I am of such and such a faith, I am a convert from another faith and as a result, et cetera, so all of those might be thought to be issues.  The question is, I suppose, whether an assertion that he has faked or forged certain documents in support of his case is an issue, or simply an evidentiary matter, which underpins the judgment that has to be made about some of the particulars which he puts forward as engaging the general criteria for the grant of the visa.

MR WILLIAMS:   Yes, if I can answer your Honour’s question in two ways?  First, I will take your Honours to the formula that Justice Besanko adopts, and also to SZBEL.  The question does not lend itself to an answer considered extracted from the purpose of section 425 itself.  Section 425 is manifestly intended to be the vehicle by which an applicant gets a reasonable opportunity to be heard, to present evidence in relation to the issues before the Tribunal.  A choice of characterisation at some vertical level, without regard to the particular issues or without regard to the particular questions or the nature of the material, may lead to an outcome that is inconsistent with scope, object and purpose.

For example, there may be facts that are below the primary level of does the person have a well founded fear?  Below the secondary level of whether it is fear by reason of being an Ahmadi and being identified as such, facts which of their nature mandate, in the circumstances, an opportunity to be heard, an opportunity to respond.  Indeed, in a sense SZBEL was such a case, as I will take your Honours in a moment.  Before doing that can I take your Honours simply to the formulations at 113 and 115, in particular 115, adopted by Justice Besanko?  The factual issue that was in question is set out at 113, the reference to “the appellant’s use of Falun Gong member as opposed to Falun Gong practitioner”.  The first question at 114:

that the matter play a part in the Tribunal member’s decision . . . 

The second question is that the matter be substantial enough to constitute an issue.  That depends, obviously enough, on the interpretation of the word issues in s 425(1).  On a narrow interpretation, issues might be defined only as the main elements . . .  I do not think that such a narrow interpretation would be correct.  In SZBEL 228 CLR 152, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1).  In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.

That approach, in our submission, is consistent with the approach of the Court in SZBEL. That is reported in 228 CLR 152, the key passage in the reasons at 165. At paragraph 41, the Court had described various ways in the which the complaint could be characterised or expressed, but in 42:

But closer examination reveals that the appellant’s complaint is more deep‑seated than a complaint about the making of unstated cultural assumptions.  It is that he was not on notice that his account of how his ship’s captain came to know of his interest in Christianity, and his account of the captain’s reaction to that knowledge, were issues arising in relation to the decision under review.

That is an issue that is at least a third‑tier issue in the taxonomy that your Honour the Chief Justice raised with me.  Nevertheless, a matter on which he was fundamentally entitled to be heard because it was a matter central to the Tribunal’s reasons.

HAYNE J:   What is said there has to be read in light of what appears in 43, 47 and 48, and in particular has to be read in light of what had happened in that case.

MR WILLIAMS:   We accept that your Honour, yes, but at the level of principle in answer to your Honour the Chief Justice, at the level of principle, there cannot be any strict taxonomy starting from the top and working down and it must depend upon the facts of the particular case and the scope, object, and purpose, the reason for section 425 so providing being to give the reasonable opportunity to be heard in relation to the issues.

GUMMOW J:   Was paragraph 47 considered in Justice Besanko’s judgment – 47 and 48 of SZBEL?

MR WILLIAMS:   The answer to that question appears to be, not explicitly, your Honour, although a series of his ‑ ‑ ‑

GUMMOW J:   It just seems to me the formulation of principle that is paragraph 115 in the last sentence, does it not on the face of it indicate insufficient appreciation of what is really involved in SZBEL?  Paragraph 47.

HEYDON J:   Paragraph 47 in SZBEL appears to be quoted in paragraph 103 of Justice Besanko’s judgment in SZHKA 172 FCR 1.

MR WILLIAMS:   Yes, I am sorry.  Yes, your Honour is, with respect, correct.

HEYDON J:   It is not really dealt with specifically in the more detailed analysis around paragraph 115.

MR WILLIAMS:   No, although we may take it that his Honour ‑ ‑ ‑

HEYDON J:   Had it in mind.

MR WILLIAMS:   ‑ ‑ ‑ had it squarely in mind having set it, and I think it alone, out in detail from the – I am sorry, it is one of three paragraphs that his Honour set out from the ‑ ‑ ‑

HAYNE J:   But, in this case it invites attention, if we are to work by reference to what Justice Besanko said, to the distinction his Honour drew between evidence relating to an issue and the issue itself and in this case there was undoubtedly an issue of whether the visa applicant was an adherent of the particular faith and there was various evidence that bore on that.  Was it not plainly an issue, from the commencement of this third Tribunal process, that the applicant’s claim to be an adherent of the particular faith was a matter of controversy?

MR WILLIAMS:   Yes, but we submit that there is not a rigid dichotomy between evidence and issues.

HAYNE J:   I understand that and here the visa applicant is told that the association is accorded a particular place in connection with inquiries seeking to verify adherence to the faith.  Inquiries are made of that body, a response is received, the response is given to the applicant, “What do you say about that?”  “I state again I am an adherent of the faith, there is nothing more I can say”.  Is that not the position that we are presently confronted with, Mr Williams?

MR WILLIAMS:   Your Honour, that recounts the facts, with respect, but if there ‑ ‑ ‑

HAYNE J:   Then what further hearing was required?  At what point?

MR WILLIAMS:   Upon receipt of the response containing, as it did, an allegation first that the certificates were fake and forged which, if accepted, went fundamentally to his claim and, indeed, in the Tribunal’s reasons manifestly did completely undermine his claims.  Secondly, an assertion that he was not recorded in the records of the Khulna Jamaat which the Tribunal has manifestly inferred is not recorded because he was not observant there, he did not attend there.  In light of when those two bare allegations, as we describe them, were received, a fresh issue arose of the Tribunal as to the correctness of those allegations.  That was a fundamental issue, an issue going fundamentally to the nature of his case and in those circumstances a 424A letter was not the appropriate course.  The appropriate course was to invite him to attend a hearing.

BELL J:   The suggestion that the documents provided prior to the hearing, being the two certificates, were forged was in play at the hearing.

MR WILLIAMS:   Not directly, in our submission, your Honour.

BELL J:   In play in the sense that the Tribunal relying on its own experience in light of the country information and past cases, one infers, raised with the respondent the suggestion that certificates of this character coming from this country in its experience were sometimes forged, something of that effect, did it not?

MR WILLIAMS:   It did not go quite that far, although your Honour, with respect, is very close.  Perhaps I should go to the passage for complete accuracy.  Page 276, at about line 25, commencing with the Tribunal putting that it:

could therefore infer from the fact that he was unable to obtain a letter from the Association that his claim that he was an Ahmadi was not true.

He referred to the certificates, noted the “telephone number which could be used to contact him”, or he referred to one of the certificates:

I put to the applicant . . . that the information available to the Tribunal indicated that forged or fraudulently obtained documents were readily available in Bangladesh –

which is only a slight variant, with respect, from what your Honour put to me.  There is then references to various country information to that effect:

I put to him that I would therefore give greater weight to any response from the Ahmadiyya Muslim Association of Australia than I would to the sort of documents he had produced.

In our submission, that falls short of putting to him that the documents were faked and forged.

BELL J:   Could you identify with some precision the issue that was raised that required that the Tribunal issue the further invitation?

MR WILLIAMS:   The two allegations in the association letter that he was not recorded at the Khulna Jamaat and the specific allegation that the certificates he had put forward were fake and forged.  We put that by reference to the difference between a general proposition that in a particular country forged documents might be obtained and a specific proposition that these documents were fake and forged.

BELL J:   Those two matters together are one new issue arising after the hearing.

MR WILLIAMS:   They might be two new issues, your Honour.

CRENNAN J:   They are sub issues, in a sense, in relation to the question generally about conversion to the religion.

MR WILLIAMS:   Yes, your Honour.

FRENCH CJ:   Really, the point that I think was implicit or perhaps explicit in what Justice Hayne put to you earlier, with his solicitor’s letter back to the Tribunal he is effectively telling them, is he not?  There is nothing more he could say at another 425 hearing?  He says I cannot otherwise prove that to be so.

MR WILLIAMS:   Your Honour, if these were new issues, then the 424A letter and the response did not obviate the need to invite him to a further hearing.

FRENCH CJ:   What, so he could say, “I cannot say anything”?  What was going to happen?

MR WILLIAMS:   Well, at the hearing, if he had been invited to a hearing, a number of things might have happened.  There might have been further information obtained from the Australian association in relation to the question of whether he attended regularly at the mosque.  There might have been further information obtain from the national amir, but in the absence of the further hearing, that is really in the realm of the hypothetical.

CRENNAN J:   There is a section 425 invitation, though, as to the applicant to give evidence and present arguments.

MR WILLIAMS:   Yes, but it includes, necessarily, by the terms of 425A together with 426 an invitation to obtain evidence, matters of that kind.  So the three sections have to be read together.  Your Honours, those are the submissions we put in relation to each of those first two issues.  It appears from the submissions of the Minister to be accepted that in some circumstances a further invitation to appear may be required.  It appears also to be accepted that SZBEL reflects the proper construction with respect to section 425, notwithstanding the enactment of 422B.  And if that were so then the constitutional issues would not arise.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Williams.  Yes, Mr Gageler.

MR GAGELER:   Your Honour, there are three short points in reply.  Your Honours were taken to Justice Allsop’s judgment in SZJBA 164 FCR 14. The discussion of Justice Kenny’s judgment in Le begins at paragraph 60 and your Honours will see, from the opening sentence at paragraph 60 that his Honour’s judgment did not rest on Justice Kenny’s reasoning.  The gravamen of his Honour’s judgment appears in paragraph 49, about the middle of that paragraph where he said:

It is implicit in Div 4 of Pt 7 that the Tribunal must read and have regard to any response to an invitation to comment sent pursuant to s 424A.

That is the basis of the decision and we do not quibble with the decision on that basis.  Next, your Honours were taken to WAIJ 80 ALD 568 and your Honours were referred to a discussion in that case on the topic of whether illogicality or irrationality in the process of reasoning to a factual inference can itself constitute unreasonableness in the jurisdictional error sense. That is part of a debate in the Federal Court that we have noted in paragraph 33 of our submissions.

We have collected together in footnote 37 a number of Full Court cases that have rejected the proposition in WAIJ.  There has been a considerable debate in the Federal Court as to what was decided in Applicant S20 in this Court on that topic.  It is a matter that may well be coming before your Honours substantively in other cases fairly soon.  It does not squarely arise in the present case, and my submission is that it really forms no part of the present case; your Honours ought not address it in this case.

GUMMOW J:   Your paragraph 33.2, the traditional view is that it is a constructive failure, is it not?

MR GAGELER:   Yes.

GUMMOW J:   Constructive failure to exercise jurisdiction, really.

MR GAGELER:   Well, your Honour, the question is whether, looking at the facts and looking at the decision, that is the facts and the outcome, if one can say that is a reasonable decision or an available decision or a decision that could be fairly inferred on the basis of those facts, then that is enough.  We say that is the traditional view.  One does not parse the reasoning of the Tribunal and say, although I can see how a reasonable tribunal could come to that view of the facts, the way in which this Tribunal has come to that view of the facts is, itself, irrational or illogical.  It is that process of reasoning illogicality or irrationality, where the dispute lies.  That need not be determined for the present case.

The only other point I wanted to make was this.  In relation to what is an issue for the purpose of section 425 one has to recognise that in the language of the Act, the language of Division 4 of Part 7, there is a reference in section 424A to information and in section 425, and elsewhere, to issue.

So those two terms are used distinctly.  One can accept that they may overlap in a particular case, but there is a difference between information in concept and issues.  If one goes with that in mind and with the obvious purpose of these provisions in mind to SZBEL 228 CLR 152 and recall what was said in that case quoting Alphaone in the Full Court, if you go to paragraph 32 of the case, it is said that:

In Alphaone the Full Court rightly said:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues –

and, in our respectful submission, the word “issues” in section 425 is used in no different or more technical sense that that Alphaone sense –

and to be informed of the nature and content of adverse material.”

That is the information referred to in section 424B.

FRENCH CJ:   There is an example, I think, of maybe what Mr Williams would call a third tier issue which occurred in a case – again it no doubt had some acronym which I cannot recall now – but where the Tribunal is considering some document which is produced and then in its reasons, without any prior warning, without the matter having being suggested or raised in the hearing, makes a finding that the document is a forgery.  In other words, the question of forgery only arises when the Tribunal gives its decision.  I suppose that might be the kind of third tier issue which would attract the application of 425.

MR GAGELER:   The way we put it, your Honour, and we do not advocate by any means a particularly technical approach to what constitutes an issue, but if I can venture ‑ ‑ ‑

FRENCH CJ:   It has to serve natural justice purposes.

MR GAGELER:   That is right.  If I can venture a kind of definition – which I think really emerges and is supported by paragraph 36 of SZBEL – the kind of definition that we would venture is that an issue is an aspect of an applicant’s claim in relation to which the Tribunal remains to be satisfied.  Precisely what amounts to the issue of whether it covers the whole of the claim or only some part of the claim will really vary from case to case.  In the present case, the veracity of the entirety of the claim to be an

Ahmadi was squarely an issue, in our respectful submission, from the beginning, that is, from the decision which was under review by the Tribunal. 

That is the level at which the relevant issues should be identified in the present case, but in any event the authenticity of these documents was squarely an issue at the hearing that had previously occurred.  Paragraph 36 of SZBEL, in our submission, is the key to the factual discussion to which your Honours were taken later in the judgment.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision.

AT 12.44 PM THE MATTER WAS ADJOURNED