Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Viane
[2021] HCATrans 144
[2021] HCATrans 144
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S34 of 2021
B e t w e e n -
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Appellant
and
ALEX VIANE
Respondent
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, MELBOURNE AND SYDNEY
ON THURSDAY, 9 SEPTEMBER 2021, AT 9.45 AM
Copyright in the High Court of Australia
KEANE J: For the record, Justice Edelman and I are sitting in Brisbane, Justices Gordon and Steward are sitting in Melbourne and Justice Gleeson is sitting in Sydney, and the matter is being hosted through Courtroom No 2 in Canberra. In accordance with the practice when the Court is sitting remotely, I will announce the appearances for the parties.
MR G.R. KENNETT, SC appears with MS R.S. FRANCOIS for the appellant. (instructed by Sparke Helmore Lawyers)
MR C.L. LENEHAN, SC appears with MR J.D. DONNELLY and MR K.P. TANG for the respondent. (instructed by Scott Calnan Lawyer)
KEANE J: Yes, Mr Kennett.
MR KENNETT: Thank you, your Honour. Your Honours will have seen that the decision under review in this matter was a decision by the Minister not to revoke a mandatory cancellation of the respondent’s visa and your Honours will have seen that it was the Minister’s second attempt at making this decision under section 501CA(4) of the Migration Act, which is why there were two rounds of submissions from the respondent that the Minister considered.
Section 501CA(4)(b), which your Honours will see in Part A of the materials at page 17, confers a power on the Minister to revoke a mandatory cancellation of a visa if the Minister is satisfied of either of two things: first, that the person passes the character test - and the Minister was not so satisfied here and there are no issues in relation to that; secondly, if the Minister is satisfied that there is what the statute refers to as another reason why the cancellation should be revoked.
The Minister came, in his reasons, to that question, starting at paragraph 10 on page 9 of the core appeal book. He discussed various factors that he regarded as relevant to that in a fairly lengthy set of reasons through to page 24, paragraph 119, and his ultimate conclusion that there was not another to reason to revoke the cancellation can be seen on page 25 in paragraph 129.
The issues in the case arise from two specific aspects of that reasoning. Part of the background to those issues was the respondent’s own background which is that, according to submissions he made that were not doubted by the Minister, he was born in American Samoa and raised in Samoa - that can be seen referred to by the Minister in paragraph 56 on page 15 – and that when he was about 14 he was adopted by an uncle and came to live in Australia, and the uncle had New Zealand citizenship and the respondent at that time was granted New Zealand citizenship, although he has never been to that country.
The Minister refers to that at paragraph 55 on page 15 and there is more detail about that in the respondent’s statutory declaration, which I do not need to go to, but which your Honours will be able to see at page 78 in the book of further materials.
With that in mind, the first controversial aspect of the Minister’s reasoning came under the heading, “Best interests of minor children”. The Minister said under that heading that he concluded that it was in the best interests of the respondent’s child, who is an Australian citizen child, and his two grandchildren, for cancellation of his visa to be revoked. That is at page 9 of the core appeal book in paragraph 13.
The issue that was raised here concerns particularly his child, who was I think about two years old at the time of this decision, and the effect on her if the respondent was required, as a result of his visa being cancelled, to leave Australia.
At paragraph 20, the Minister refers to the first submission the respondent had made in 2017 where he had said that he would not expect his partner and his daughter to move to Samoa or to New Zealand with him. That submission, if your Honours need to see it, can be found at page 78 of the book of further materials, relevantly on page 85. Then the Minister referred to a later submission – this is paragraph 21 – where the respondent had said there is a real prospect that his wife and child would relocate with him ‑ presumably with him – to American Samoa and that that would have fairly significant consequences for the child.
That submission starts at page 120 of the further materials and the relevant passage your Honours will be able to see at page 125, but for our purposes it is sufficient to stay with the Minister’s reasoning. The Minister summarises what the respondent said about the circumstances the family would face, particularly the child, in American Samoa, that she would be unfamiliar with the society there, the family would be homeless with no jobs, no social ties and no welfare or healthcare services.
The Minister also notes in paragraph 22 a later submission, again by the respondent’s representative, which clarified that when he said “Samoa” he meant either American Samoa or Western Samoa and, although this is not specifically cited by the Minister, it is useful to note how the representative in that submission framed the problem of relocation to either of those countries. At page 137 of the book of further materials at the top of the page the representative referred to there being:
little prospects of employment, denial of a first‑class education . . . problematic healthcare and no social welfare by the governments ‑
which one can observe is a less absolute set of propositions than the respondent himself had put and, in substance, fairly close to where the Minister himself landed on these issues.
To go back to the Minister’s reasons, paragraph 23 on page 11 of the core appeal book is a key paragraph. The Minister accepted there that the child would be significantly impacted. He accepted that the whole family would, at least initially, have problems with employment, income, housing and lack of family or social support, but the Minister observed there, relevantly to social dislocation, that English is widely spoken in Samoa and American Samoa and suggested that healthcare, education and some welfare support are available, albeit that they may not be of the same standard as one would expect in Australia.
Those are observations that the Full Court found involved jurisdictional error because no evidence was cited for them or included in the material that found its way to the court. Interestingly, no such complaint was made about what follows, namely, the observation that, as a matter of common experience, I suppose, a young child might not be as greatly affected by language and cultural issues as an older child. Nor was any complaint made about what the Minister said in paragraph 24 about New Zealand, which is the other destination open to this family, where the Minister described New Zealand as:
a society similar to Australia, where . . . health, education and welfare of a similar level that is available to them in Australia.
At any rate, the Minister accepted at paragraph 25 that relocation to either or any of the possible countries would involve “hardship” and went on to address the respondent’s relationship with his child and expresses again at paragraph 30 the conclusion that it is in her best interests for cancellation to be revoked.
The second controversial aspect of the reasoning involves similar statements by the Minister. Starting from paragraph 54 on page 15, the Minister considered what is referred to as the extent of impediments if removed, which is a way of referring to the difficulty that the respondent would face establishing himself in another country if removed from Australia. I have already mentioned paragraphs 55 and 56.
At paragraph 60 on page 16, the Minister refers again to the submission that had suggested a real prospect that the family would go to Samoa or American Samoa if the respondent came to be removed from Australia. At paragraph 63, the Minister refers again to the argument that the family would have no work, housing or access to welfare and healthcare.
At paragraph 64, the Minister goes some way – we would submit a long way – to accepting those arguments, but not all the way. The Minister accepts in paragraph 64 that the family would have no social ties and would have difficulty, at least initially, with employment and housing. But the Minister at 64 does not accept that there would be no access to welfare or healthcare services. The Minister puts the view that these services exist in Samoa and American Samoan and the Minister considers there that the respondent and his family would have the same access to healthcare and welfare as do Samoans or American Samoans in the same position.
The Minister then goes on at 65 to accept that removal to Samoa or American Samoa would involve what he describes as “significant adjustments and hardship” for the respondent and his family. Paragraph 66 again notes the alternative destination of New Zealand, and 69 indicates the understanding that I referred to earlier about the extent of social services and healthcare in that country.
I will not read the paragraphs that follow, but your Honours will have seen that they indicate an acceptance on the part of the Minister that removal of the respondent from Australia to anywhere would be significantly detrimental to him and to his family and that would be so whether the family relocated with him or not.
Each of the factors that I have mentioned – the best interests of the children and the hardship inflicted by removal – were brought to account by the Minister in the final balancing exercise at paragraph 128 on page 25, clearly thought to weigh in favour of revocation, but found not to outweigh what the Minister described as the protection of the Australian community.
Review was sought of course in the Federal Court. Four grounds were advanced, and your Honours can see them summarised by the primary judge in paragraph 4 on page 30. That application for review of course was unsuccessful and in substance the same four grounds were advanced in the Full Court.
The notice of appeal starts at page 47 of the core appeal book and the grounds are set out on page 48. The Full Court upheld the first of those grounds and rejected the others. We should note at this point there was a procedural fairness ground among the grounds of appeal but, as appears from paragraph 81 of the Full Court’s reasons on page 123, that alleged want of procedural fairness related to a particular subject matter, the same subject matter as to ground 3, which is not part of the issues in the present case. So, there was not a procedural fairness argument put below about the way the Minister dealt with what were or were not the conditions of life in Samoa or American Samoa.
There is a procedural fairness ground in relation to that sought to be raised in the notice of contention and I propose to address the Court on that briefly after my learned friend has addressed it. The first ground in the courts below, as your Honours have seen, focused on the statements by the Minister at paragraphs 23 and 64 and on the fact that no evidence had been cited in support of those statements, and I refer to these in a shorthand way as the impugned findings, although to use the word “findings” may possibly be overstating it, for reasons I will come to.
The first issue I need to address is whether there was any error in making those findings and, as to that, our written submissions make three points. Each of these starts of course from an acceptance that administrative decision‑makers have to act rationally and need some probative basis for the facts that they assert as the basis for their decision.
With that in mind, our first point is to point out that the context and the content of what we term the impugned findings are both important in understanding the issues that arise. As to the context, your Honours have seen the respondent asserted in his representations to the Minister relevantly first that his family would experience – and I am paraphrasing – very significant social dislocation if they moved to Samoa or American Samoa, and secondly that they would have no access - and it was put that high - to welfare or healthcare services. It is to be noted that those propositions were not bolstered by reference on the part of the respondent to any evidence. They were just assertions by him.
As to the first aspect of it, the Minister essentially accepted that removal to these countries would involve very significant social handicaps and dislocation, but he observed in effect as a partial mitigating factor to that, that English was widely spoken in these countries. That was one of the findings that was impugned below. It seems, with respect, an unsurprising statement and it has never been suggested that it might be incorrect, and it is also to be noted that it did not contradict any specific representation by the respondent.
As to the second matter that the respondent raised – that is, that there would be no access to healthcare or welfare – the Minister did not accept that there was a complete absence of healthcare or welfare services in these countries and that was the other impugned finding.
We submit that the Minister, in responding to these particular representations and not fully accepting them, did not need to cite specific evidence in order to be unpersuaded by factual assertions that had been put to him, especially where those assertions themselves did not cite any evidence.
It is true that the Minister expresses himself in these paragraphs, at least in some places, positively rather than negatively. He suggests that certain facts are true, rather than simply saying, “I don’t believe this”, but it would be a triumph of form over substance to say that specific evidence was required only for that reason.
The Minister did not, for example, assert the quality of life in Samoa as a positive reason why the respondent should be happy to go there. Rather, the Minister responded to representations that had been put to him and sought, in a brief way, to explain why he did not accept that things would be as bad as the respondent appeared to suggest that they were.
EDELMAN J: Mr Kennett, you accept that putting things positively will almost always involve going further than a mere rejection of a submission, but, as I understand your submission, it is just that in this case the positive terms in which it was put did not go very far at all. If it had gone further, then I suppose you would accept that there may be issues that arise.
MR KENNETT: Yes, your Honour. I think that is right, with respect. There would at least have been procedural fairness issues that would arise if the Minister had raised ‑ as distinct from simply being sceptical about what was put to him ‑ some new point and raised it on his understanding that life was great in a particular country. Then, on the face of it, the Minister would have been at least required to put that to the respondent and say, “This is what I’m inclined to think”, and perhaps also if the Minister had gone further than he did in making positive assertions in the present circumstances.
But my present point is that when one looks at these propositions in the context of the reasoning, they are really no more than responses of a sceptical nature to the outer boundaries of the submission that had been put to him.
GLEESON J: Mr Kennett, do you go so far as to say, putting aside the finding in relation to language, that they are a reformulation of the submission? So that to say that there is problematic healthcare is reformulated as to say that there is not a complete absence of healthcare. To say that there is no social welfare by the government is to allow for the possibility that there is welfare from non-government agencies?
MR KENNETT: The way that it was put by the respondent’s adviser in that submission certainly leaves room for the Minister to say what he says without contradicting that submission. So, in one sense, the Minister is taking up that later and more cautious submission rather than endorsing the earlier and more absolute one that the respondent had put himself.
I have to accept, though, that the Minister was, at least implicitly, obliged to give some attention to all of the ways that had been put because the power is triggered by making representations and there is a large body of cases in the Federal Court that say that the representations are therefore central to the process.
One can perhaps debate how far that goes, but we would accept that the Minister had to pay some regard to each of the substantial propositions that had been put to him and either agree with them or disagree with them or regard them as irrelevant, but to have some regard to them, which the Minister in effect did.
GORDON J: Mr Kennett, could I ask you about that aspect of the matter. I had understood that the authority was to have really two aspects to it, and that was that the representations were in a sense material because they were the matters that were sought to be raised by the applicant to the request from the Minister, so they were the things that in a sense had to be not only considered, but were central to the claim; and, secondly that, as I understood your argument, absent a clearly articulated argument supported by evidence, then it was open to the Minister to respond in the way that he had without what I might call these additional findings.
MR KENNETT: Yes, as to the first aspect of that, there is a case in the court’s docket in which my learned friend is appearing which, as I apprehend it, will provide an opportunity to test some aspects of that jurisprudence that has arisen in the Federal Court, and there are some interesting and perhaps problematic issues about what the Minister is obliged to do with representations that are made to him. It is easy to slide into regarding them as mandatory considerations which would, we submit, be wrong.
GORDON J: Well, I know that Justices Nettle, Edelman and I in S270 said that although the discretion is wide under CA(4):
it must be exercised by the Minister [at least] considering the claims and material put forward by the applicant.
MR KENNETT: Yes.
GORDON J: Here, the material that is put forward is, as I understand it, at one level you might say as I understood your argument, assertion without evidence supporting it.
MR KENNETT: Yes. I hesitate to use “evidence” in any – well, I would not use “evidence” in ‑ ‑ ‑
GORDON J: Sorry, I meant material to support it.
MR KENNETT: Yes, that is so, and the statute makes the representations the starting point for this, and so we accept that the Minister must be under some obligation to consider those. It is a matter for another day, but we would submit that the Minister is entitled nevertheless to decide that a particular claim is irrelevant. It is a bit different from there being mandatory considerations.
STEWARD J: Mr Kennett, can I ask a more fundamental question of law here. The statutory scheme is one of mandatory cancellation where you fail the character test and then there is reposed in the Minister, on the assumption that you have continued to fail the character test, a very generalised power whether there is another reason to revoke the earlier decision.
Is not one way of looking at the power or characterising it to say that it is really just a general power of clemency? It is for the Minister to look at the representations made, which he is invited should be made, and then just say, “Should I exercise a power of clemency to revoke, or not?” There are really no prescriptions on the sources of information, material or what have you, that the Minister can have regard to, noting that what he mostly receives is not evidence at all but a series of pleas, often from children, assertions, as Justice Gordon has said, without evidence about what might happen in the future and so on.
So, he has this mass of material that he has to look at – and I say “look at” without getting into the terms of mandatory consideration – and then he just decides whether to exercise the power of clemency. Is that not what it is really about?
MR KENNETT: It is a sensible way to regard it, we would submit, at least as a matter of substance. The subsection is slightly strangely drawn in that the chapeau seems to repose a discretion in the Minister. The circumstance that gives rise to the discretion is the Minister’s state of satisfaction about a matter that is so diffuse and evaluative as to raise a question whether the…..is doing any work. So, in substance, as your Honour suggests, it is a very wide discretionary power, although in form it has two steps, which is perhaps slightly odd.
The first step is the formation of a state of satisfaction, but it is a state of satisfaction as to something highly evaluative with no signposts as to what is or is not relevant. So, the context of these findings was that they were responsive to assertions without supporting material to the Minister. The content of them, as we put it, is that they are statements at quite a high level of generality about circumstances in another country, certainly not statements or findings about anything particular to the respondent.
They are things that also, we would submit, that any moderately informed person would probably assume to be true about a nation in the modern world, even a small one located in the Pacific – that is, that there are many people who speak English, that welfare services exist, whether provided by government or by someone else, and that healthcare services exist at some level.
The possible exception to what I have just said is the expectation expressed by the Minister at 64 that the respondent and his family would have the same access to some services as other Samoans do. That is arguably more granular, as I think our learned friends put it in their written submissions.
It is important to note, though, that firstly it was the respondent’s contention to the Minister that he believed he had a legal right of residence in either country and there was nothing to suggest that members of his family would not have the same right, and a baseline assumption that we would submit can properly be made about countries in the world today is that there is some level of public health and some level of provision to those in serious need and, read in context, the Minister is simply not accepting that the respondent and his family would be left to starve or be denied medical treatment.
He should not be condemned for sloppy phrasing, we would submit, or for proceeding in the absence of evidence to the contrary on assumptions about the availability of welfare services and healthcare at some basic level in the country concerned.
Although the basis for this has not been really articulated in the cases yet so far as we are aware there must, we would submit, be some basic facts about the world that an administrative decision‑maker can rely on without having to cite specific evidence, otherwise lawful decision‑making would become difficult, if not impossible. Examples might be the existence of international air travel or the existence at the moment of a global pandemic or the existence of the internet. One just does not need in the ordinary course of things to cite a document in order to proceed on the basis that those things exist.
EDELMAN J: Mr Kennett, even apart from generalised statements that everyone is aware of, what is the source of the obligation upon the Minister to give, as you describe it, evidence or, as might be described, foundations for even very specific conclusions? Is it section 25D of the Acts Interpretation Act or is it something else?
MR KENNETT: We do not understand it to be section 25D, which governs the content of statements of reasons. As we understand it, the proposition comes from cases such as SGLB in this Court which suggests that findings for which there is no probative basis constitute errors of law, and there is then a question as to whether such errors are jurisdictional or not, which I of course need to come to later in my submissions.
EDELMAN J: Mr Kennett, sorry to interrupt, is there not a difference between a finding for which there is no probative basis and a finding for which no probative basis is supplied by the decision‑maker?
MR KENNETT: Yes, there is.
EDELMAN J: What I am asking you about is, suppose the Minister made extremely detailed and specific findings about the nature of the healthcare system in Samoa but did not provide any footnote to where that information had come from, and suppose also that it was accepted by all of the parties that all the information that the Minister provided was correct and had a strong probative basis, it is just that it was not supplied. What I am asking is where is the source of the obligation for the Minister to supply the source of that probative information?
MR KENNETT: The first point is that there is a requirement in section 501G, I think it is, to give reasons, and that is amplified by a provision in the Acts Interpretation Act which I think our learned friend was proposing to refer your Honours to, so that that duty to give reasons includes a duty to refer to the evidence on which findings of material fact have been based, evidence or other material. But that is not a jurisdictional requirement. Section 501G I think at subsection (4) makes that quite clear.
To the extent that there is a jurisdictional requirement on decision‑makers in relation to the findings that they make it would have to be, we would submit, to have a probative basis and not to expose one - and there could be contests, I suppose, about whether the decision‑maker had such a probative basis and there might be notices to produce and the decision‑maker might supply all the documents on which he or she relied. But that is a different matter from – that is a different issue from stating it in the reasons.
STEWARD J: Mr Kennett, can I suggest a pragmatic distinction, which you may reject or embrace, and that is that where we are talking about findings about objectively knowable matters, such as conditions in a country, and the Minister receives a submission from a person that, for example, English is not widely spoken, and the Minister responds and says, “I don’t agree; I think it is”, that they are matters that are objectively knowable and he possibly does not need to then footnote the basis for his statement, but it might be different where the Minister makes a statement that is personal about the applicant.
For example, he makes a statement about the applicant that, for example, he or she will not suffer any hardship if they are deported to a particular country and then gives no basis for that whatsoever. I say that the distinction is a real one because in the case of matters personal to the applicant the Minister cannot rely upon departmental knowledge. He cannot rely upon personal knowledge and therefore he must identify a basis for what he is saying. That might explain decisions like Splendido and Hands where, in both cases, there were statements that were personal about the individual in question.
MR KENNETT: That suggestion I think takes me a bit into my next point, which is to say that statutes often proceed on the basis and the Migration Act proceeds on the basis, we say, that administrative decision‑makers develop storehouses of knowledge and it is not necessary for them to cite a particular document whenever they are in those storehouses of knowledge and those storehouses of knowledge properly include matters such as whether a particular country has a health system but would not include, as your Honour suggests, anything personal to an applicant, because this is the first time the decision‑maker has seen the applicant, presumably.
So that is something I want to come to, but may I briefly finish what I wanted to say about what we submit is the very general and quite anodyne nature of what the Minister says in these findings. There are, as your Honours will I think have noticed, some single-judge decisions in the Federal Court holding that no evidence needed to be cited for the Minister to make general statements about New Zealand along lines similar to what the Minister said in this case.
Those are Uelese, which is tab 32 in Part D, and McLachlan, which is tab 26. I do not need your Honours to go to them. New Zealand might be the most obvious case. The reasons why the Minister is entitled to say anodyne things about New Zealand without citing supporting material is perhaps not worked through at the level of doctrine but instinctively, at least, must be right.
New Zealand is probably the most obvious case because of its close ties with Australia over a long period and the familiarity that many Australians have with that country and, of course, not many Australians visit Samoa or American Samoa or read a lot about those countries in the news.
We would submit, though, that it is an obvious and uncontroversial fact about the world that practically every country has things like schools and health services and practically every country has organisations that try to look after people in need and that there is nothing erroneous in the Minister proceeding on that basis in relation to a country in the absence of some evidence that suggests that it is not right.
So, when one has regard to the context and the nature or content of the impugned findings, it becomes apparent that they do not amount to the Minister drawing on some unheralded and specialised facts from his memory and deploying that adversely to the respondent. There was not a positive case being mounted against the respondent that conditions in Samoa were so benign that that is the reason why he should be happy to go there. Rather, it was a case of the Minister failing to be persuaded by a set of unsupported assertions where those assertions were contrary, we say, to everyday expectations about how modern states organise themselves.
So that, even though the issue that the majority below identify at paragraph 32 whether these were findings that were capable of being founded on personal or specialised knowledge, even though that was the subject of submissions from the court below, there was a need first to consider whether there was any need for the Minister to draw on a body of specialised knowledge in order to say those things and the answer, we would submit, was that there was not.
The second point that we make about this – and this takes me more into the area suggested by your Honour Justice Steward a minute ago – is that if the impugned findings are regarded as drawing on some slightly more specialised form of knowledge about two particular countries, then we make the points we made at paragraphs 22 to 26 of the written submissions.
The first step in that is there are cases recognising that administrative decision‑makers can rely not only on particular evidence that is put before them, but on knowledge that they build up in the course of making a series of decisions.
That point was made about the Refugee Review Tribunal in Muin which we refer to, and we would direct your Honours’ attention particularly to what Justice Hayne says at paragraph [116] in that case. If your Honours need to look at it, that is on page 693 in Part C of the authorities bundle. In that paragraph his Honour notes that the expectation or assumption that Tribunal members will build up a storehouse of knowledge affects the inferences that might properly be drawn from the omission by the Tribunal to refer to specific material.
It may very well be that if the Tribunal just asserts something and does not cite a source for it, one does not therefore infer that there was no source because it may be a fact that the Tribunal member has come to know through a course of decision‑making. Also, in the same case at page 724 of the bundle, at paragraphs [263] to [264], Justice McHugh notes the effect that that expectation as to building up a body of knowledge might have on the Tribunal’s procedural fairness obligations.
Now, unlike the Refugee Review Tribunal or, as it now is, a division of the AAT, the Minister of course has things to do other than make decisions of this kind but, nevertheless, like the Tribunal, the Minister is a regular and repetitive decision‑maker. He deals with a steady flow of character cancellation decisions, many of which will involve consideration of hardship occasioned by removing a former visa holder to some particular country and it is to be expected that the Minister, through performing that function and probably others, will come to have certain knowledge about particular countries to which people might be sent.
We next put a proposition in paragraph 23 that, firstly, there is some authority that consequences may flow as a matter of statutory construction when a function is vested in an expert body. We refer to two cases that illustrate that. One is the case of Spurling, which I do not need your Honours to go to, but it is tab 35 in Part D of the bundle, which concerned a town planning tribunal. The passage that we quote in our submissions can be seen on page 950 of the bundle, starting at line 35.
In that situation, Justice Stephen was addressing grounds of review which were not by any means far removed from the ground that is in issue here. His Honour expressed a deep hesitation in finding that the tribunal had had no probative basis for particular findings because it was an expert tribunal and could be expected to be drawing on a body of expert knowledge.
We rely on that case, as well as on Minister for Health v Thomson, as supporting a proposition that when a power is vested in an expert body, an applicant who asserts that a finding by that body had no probative basis needs to do more than just point to an absence of specific evidence in the record. It would be necessary to prove, for example, that the issue was beyond the field of expertise of the decision‑maker or that the conclusion was not one supported by any body of learning within that field of expertise. That would be a heavy onus, which the respondent here did not attempt to meet. The Full Court, we submit mistakenly, appeared at paragraph 42 to regard it as necessary for the Minister to show that he had and was drawing on an accumulated body of specialised knowledge.
Thomson, which I mentioned a minute ago, was a case about a medical services committee of inquiry and it indicates that legislation may proceed on the basis that an expert decision‑maker will utilise his or her own knowledge and that if the decision‑maker is an expert then that assumed knowledge will include a field of specialised expert knowledge.
We have to accept, of course, that there are no particular educational qualifications to be a Minister of the Crown, including an Immigration Minister, but the Minister, whoever he or she is, has two attributes which point to him or her having or having access to a storehouse of knowledge that can, if necessary, be described as expert knowledge. We touch on these at paragraph 24 of the submissions.
One is that the Minister makes a steady flow of decisions of this kind and will naturally build up a body of knowledge about circumstances, at least at a general level, in other countries. The other is that the Minister does not work alone. He or she is, constitutionally speaking, an officer responsible for administering one of the Departments of State of the Commonwealth and has the support of officers in that Department, so is able to be briefed on matters that arise from time to time, including matters relevant to making these decisions.
GLEESON J: Mr Kennett, would you go so far as to say that if a Minister states a proposition of fact in his decisions that the appropriate inference in the absence of anything to the contrary is that the Minister had a basis for that statement of fact?
MR KENNETT: We would submit that that is an appropriate inference in the case of what one might call general facts, such as there are doctors in country X - much more problematic in the case of any finding particular to an applicant.
STEWARD J: Leaving aside findings about an applicant, why would not even detailed statements about conditions in a country be taken to have a basis in the absence of an applicant demonstrating for a discovery, what‑have‑you, that there was no such basis? I mean, it is hardly likely that they would have made it up.
MR KENNETT: That is so. I think your Honour is right, with respect. The natural inference would be that a Minister of the Crown acting on advice is not simply making things up and it could be proved if he or she were. So that the proper starting point would be, in the absence of anything to the contrary, an inference that the Minister had some basis for the understandings that he expressed about circumstances in the countries that he was referring to.
KEANE J: Mr Kennett, is it not - the discussion that you are having with the members of the Court, in relation to section 501CA(4) suggesting that there may be a basis for challenging a decision made by the Minister in response to representations, but that the basis for the challenge really is not about whether or not the Minister has acted upon evidence or has affirmed that he has, but rather the question is whether the party challenging the decision is able to demonstrate either that it was unreasonable or that it was unfairly arrived at, and that is what must be shown, and all this talk about evidence is a very, very long way away from the terms of the section or anything that one would ordinarily associate with this kind of decision‑making.
MR KENNETT: We are seeking to reconcile what has occurred with a general understanding that administrative decision‑makers are not entitled to make things up and that they need some rational basis for the facts that they find. But what your Honours have been putting to me is right. It would be for an applicant to show that proposition had been made up or to show that that proposition did not form part of any body of knowledge that the Minister has.
The factors that limit what I have been – the proposition that I have been putting are really, firstly, of course good faith and, secondly, procedural fairness, as the primary judge here recognised at paragraph 13 on page 34. Relying on accumulated knowledge adversely to an applicant without disclosing the substance of it and inviting comment on it may well in certain cases involve a denial of procedural fairness, and that is likely to be the case if what the decision‑maker takes from his or her accumulated knowledge or understanding of the world is something that takes the applicant by surprise.
As I have said, no procedural fairness point along those lines was taken below. But that, we would submit, is how the check arises on a decision‑maker such as the Minister relying on his or her own understandings about how the world works and how particular countries work in the course of making a decision.
GORDON J: Mr Kennett, can I add in one other limitation before both of those, and that is the statute itself, to pick up something Justice Keane put to you, and it goes back to in a sense something also Justice Steward put to you. Section 501C(4) is dealing with an assessment of representations made and 501G requires the Minister to set out the reasons for the decision.
So ordinarily you have a compacted set of issues that are in play, have you not, in this sense, that if the matter is relevant to the decision and it takes on a different character – in other words, the statute does not assume that the Minister has expertise he does not have. So, we have a confinement by the statute in itself of what is in play, what is in issue, what is relevant to the decision.
The difficulty with this case, as I understand the way you put it, is that you have acceptance of the representations broadly asserted and so the need either to go outside of those representations or the need to modify them does not, in effect give rise to, in the way it has been set out, non‑compliance with 501GE.
MR KENNETT: I am just ‑ ‑ ‑
GORDON J: In other words, one looks to see what are the representations made. One looks to see how the Minister dealt with them. One does not assume that the Minister has expertise across the board, but one stops and says, “Have I got expertise either by reference to the issue that is in dispute, that is being resolved” – that is, addressing the representations and coming up with a set of reasons as to why it is the representations are rejected in part, accepted in part and then the balancing exercise.
It may very well be that it is necessary in some instances, either by reason of the nature of the issue, it might be by reference to procedural fairness requirements that it is necessary for the Minister to set out, either before he makes his decision or afterwards, the basis for it.
MR KENNETT: All of that is right, with respect. I have been hesitating because it is not clear that the Minister is limited to the representations in the matters that he or she takes into account.
GORDON J: I accept that, Mr Kennett, but here the complaint is about the fact that the representations were made and there were findings made in relation to those representations. We are not in other territory here.
MR KENNETT: That is true.
GORDON J: That is my point. On the facts of this case, we are dealing with a set of representations, which have been accepted in whole in one bid, which have been partially accepted in the second aspect and modified. We are not dealing with other non‑responsive matters or other matters that are outside of those representations, are we?
MR KENNETT: Yes, I certainly accept that. That is right, with respect, and that is a large part of the reason why we say the Minister was entitled to do what he did. Your Honours, the third point we make about this is – I suppose the point that my second point reaches is that the Full Court was mistaken to regard the possession by the Minister of a body of specialised knowledge or whether he was using a body of specialised knowledge is a matter that he had had to inquire into on the evidence.
The third point we make is that if that was an issue of fact, we make certain criticisms between paragraphs 27 to 34 of how the Full Court resolved that factual issue but mention that their Honours appear, at least on the face of things, that we have the onus of proof the wrong way around, but other than noting that, I do not propose to add to what is put in our written submissions in those paragraphs by way of critique of how the factual issue was resolved.
The endpoint of that submission and of the other points that I have been putting is that the Full Court erred in holding that the impugned findings were made without any probative basis and therefore involved error.
My second major issue of course is, if I am wrong, if the Minister did err in some way in making the impugned findings without having particular evidence to base them on, was that an error going to jurisdiction? I propose to deal with the issues under this heading in the reverse order to what is in the written submissions and put the narrower point first because, if that is right, then the Court does not need to come to the more fundamental and perhaps complicated issues canvassed in the submissions at 35 to 41.
So, the narrower argument looks to the way the Full Court framed the errors, particularly at paragraph 61 on page 117 as having “affected a critical aspect of the Minister’s reasoning”. A similar turn of phrase was used also at paragraph 48. After their Honours had referred to the decision of the Full Court in Hands, they referred to an error in the critical step in the reasoning.
That of course has some echoes of the type of reasoning that we acknowledge in paragraph 35 as reflecting an approach of Justices Gummow and Kiefel in SZMDS, although the way it is put at paragraph 61 may go a step further, rather than referring to a critical step, putting it as having “affected a critical aspect of the Minister’s reasoning”.
Now, obviously a judgment to be made by the Minister here was a broadly evaluative one involving potentially competing factors, not a judgment that could be said to proceed by steps, and there is no single critical fact or even set of critical facts upon which the decision can be said to have turned.
It is also apparent that, as to both the interests of the respondent’s daughter and the impediments he would face if removed, the Minister’s conclusion on each of those factors was favourable to the respondent and given weight ultimately in his favour, and more specifically the conclusions in relation to Samoa and American Samoa were far from a complete rejection of what the respondent had put. Indeed, the Minister’s conclusions were not, we would suggest, in any significant way inconsistent with how the respondent’s adviser had put the matter in the submission that I referred your Honours to.
Now, true it is if the Minister had completely accepted the respondent’s representations, he might have made stronger findings about disadvantage in Samoa and American Samoa and some possibility arises that he might have given more weight than he did to those factors.
STEWARD J: Mr Kennett, is there not a more fundamental problem – namely, that if you wanted to demonstrate practical injustice here on the facts of this case, you would need to show that both factual observations were mistaken, something which was open for the respondent to do at trial, to lead evidence about English in those countries and about the social welfare system, and absent knowing that the observations are mistaken, how do they demonstrate that the Minister could have reached a different decision?
MR KENNETT: It is a problem for our friends, with respect. Perhaps they did not need to prove that the findings were mistaken but it does not really get off the ground unless there is some reason to think that they were at least contestable. There would have had to be, we would submit, some evidence led, and some finding made to the effect that there was some real prospect of a Minister coming to a different view about these things if he had referred to evidence.
I suggested that these are not critical findings in any sense that makes an error in reaching a jurisdictional error, first because they went only to a matter of degree and affected, at most, the weight that was to be given to two relevant factors and, secondly, because in this case it was never in contest that the respondent had the option of taking his family to New Zealand and no complaint was made about the Minister’s findings in relation to that country, that it is a country very similar to Australia.
So, the hardship that was being imposed on the respondent and his family was not being sent to Samoa or American Samoa, the hardship being imposed was having to choose between going there or going to New Zealand. He had reasons not to be particularly thrilled about going to New Zealand and those reasons were real. He has never been to that country and he said that he had no contacts there, but to the extent that Samoa had particular problems of basic survival and obtaining healthcare and things of that sort, on the Minister’s findings they could be avoided if he wanted to avoid them by going to New Zealand.
In a sense, the worse things were in Samoa, the less likely it was that he would ultimately decide to take his family there and if his prospects in those countries were really as grim as he seemed to suggest, then a decision to take his family there would be quite a quixotic one, which the Minister would have been justified in discounting.
In those circumstances and for that reason at least the findings that are impugned were far from being critical findings in this case. The prospect that a different decision might have been reached if the Minister had read some evidence and cited it is a very small prospect.
We stress though that what I have just said is not directed at a concept of materiality as it has been developed in recent cases in this Court such as SZMTA. The majority below referred to that test at paragraphs 49 to 51 and we submit, with respect, that that was a distraction. It was a distraction because the concept of an error in a critical step in the reasoning, which is how their Honours seem to have framed it, sets up a test for error that, of its nature, includes already an element of materiality and that obviates the need for any subsequent inquiry as to whether the error is material in the SZMTA sense.
That is a point that members of this Court made in MAZPC at paragraph 33, which we cite in the reply submissions at paragraph 8. On the hypothesis that I am dealing with at the moment, the error needs to be one that occurs in a critical step in the reasoning and, if the step is critical, then the error will necessarily be material, and, if it is not critical, then one does not reach the materiality question. So that to invoke a standard of materiality was actually a distraction, in our submission. That is our narrow argument on judicial error.
EDELMAN J: Mr Kennett, before you get to your broader argument on jurisdictional error, is not this broader argument really the starting point for everything? In other words, one needs to identify which category of jurisdictional error one is in before one even considers what is meant by critical error, was there an error. The category really here ought to come first and at the moment I do not quite understand what the category is said to be.
One can see an argument that it is unreasonableness of the ultimate decision or a category of illogicality of the ultimate decision, or a category that there was a failure to give reasons within section 501G, but then one runs into 501G(4), or potentially some jurisdictional fact, but what is this other universe of critical error that would otherwise arise as a separate jurisdictional error?
We understand the reasoning against us at a very basic level to be an administrative decision‑maker errs if he or she makes a finding of fact that is not supported by any probative material, and, secondly, that if that occurs in a way that affects a critical step in the reasoning, then the error goes to jurisdiction.
EDELMAN J: That is not quite right, is it? It is not alleged against you that the finding of fact was not supported by any probative evidence. What, as I understand, is put against you is that the finding of fact was not in the reasons provided to have been sourced in some probative fact. No one is alleging that there are not facts out there that establish that English is not widely spoken in Samoa, and so on.
MR KENNETT: No, that is right. The allegation is not I think put against us as a matter of underlying fact. It might be a question of did the Minister not only cite but have a basis for what he said, that is, was there something in the Minister’s files or in the back of his mind that provided a probative basis for these conclusions.
The Full Court, as your Honours will have seen, embarked on the question of whether the Minister had a body of specialised knowledge that he was applying here, and was not persuaded that he did. So that rather suggests that what was being relied upon here was a notion that the Minister as an administrative decision‑maker was not entitled to assert and rely on a finding of fact unless he had available to him and in front of him some form of probative material that would support it.
Then the next proposition is that that may go to jurisdiction on the basis that it is critical. What I have said so far I suppose assumes the broader point against myself because we do at the end of the day question that sequence of reasoning – the correctness of that sequence of reasoning that I have outlined. We do not suggest that administrative decision‑makers are entitled to make up their own facts, but we do say that there are quite narrow limits on the circumstances in which factual misunderstandings might lead to jurisdictional error.
As to that, the starting point, I suppose, is at paragraph 38 of our submissions with the basic proposition about the concept of jurisdiction, which I do not need to labour before your Honours. In this case, the relevant precondition to the exercise or non‑exercise of the power was the holding or not by the Minister of a particular state of satisfaction.
As I mentioned in response to Justice Steward earlier, it is a very broadly and nebulously expressed matter for satisfaction but, as a matter of drafting at least, the section erects as a precondition the Minister’s satisfaction as to an issue and the inquiry is therefore as to whether the Minister had the relevant state of satisfaction or not.
One thinks then of classic cases in this Court, such as R v Connell, which we refer to at paragraph 39, to point out that the requisite state of satisfaction is not present if the decision‑maker, in purporting to reach it, has applied the wrong test in some way. That is well established. In Connell the Chief Justice also says that the requisite state of satisfaction is not present if the opinion reached was not such that it can be formed by a reasonable decision‑maker who correctly understands the law. We set that out in paragraph 39.
That formulation expresses a boundary or a standard of review that is obviously analogous to the boundary set by Wednesbury unreasonableness in the context of discretionary decision‑making and, if that is the boundary of the principle, then any error of the Minister here plainly does not go to jurisdiction because the impugned findings plainly did not take the final decision outside the bounds of rationality.
The large question that arises is whether, when a statute requires the state of satisfaction to be held, it requires not only an opinion that is truly held and open on the evidence but an opinion that has been reached by a sound process of fact‑finding and reasoning. That was a question that divided this Court in 2010 in SZMDS, which is tab 15 in Part C of the authorities bundle, where the complaint was about a finding of fact in the context of a protection visa decision.
The finding was that the respondent, who claimed to be homosexual was not, and, with the exception of Justice Heydon, that was regarded as having at least arguably preceded, by any logical inference from the evidence. It could be said to be a critical step in the rejection of the respondent’s refugee claim and that was enough for Justices Gummow and Kiefel to hold that the decision under review should be set aside. The important part of their reasoning as to how that comes about appears to be what is said at paragraphs 37 to 42, which starts on page 379 of the authorities bundle.
We favour what was said, on the other hand, by Justices Crennan and Bell. We submit that their approach is preferable, and they framed the issue in a way that aligns with the way the Chief Justice had put it in Connell and that I mentioned a moment ago. If I could ask your Honours to go briefly to SZMDS, and assuming that I myself still have it on my screen, it is tab 15 in Part C of the authorities bundle, and it is sufficient to start at paragraph 130, which is on page 402, using the red page numbers at the top of the page. This comes at the end of a discussion about the role of concepts of irrationality and illogicality in judicial review and the conclusions that their Honours reach in paragraphs 130 and 131 are firstly that:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review . . . it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” . . . The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error . . .
The complaint of illogicality or irrationality was said to lie in the process of reasoning.
But plainly enough their Honours did not regard that as fertile or appropriate ground for divining irrationality in a sense that would go to jurisdiction and in the remainder of paragraph 131 their Honours refer to situations where:
reasonable minds might adopt different reasoning or might differ in any decision or finding to be made –
Just to finish with that in the particular case before their Honours, paragraph 135 brings this back to the evidence before the Tribunal in that case and their Honours hold there that on the probative evidence before the Tribunal a logical or rational decision‑maker could have come to the same conclusion as the Tribunal and a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on material before the decision‑maker.
That, we say, echoes the Chief Justice in Connell and is the better view, we would submit, of the proper standard of review. Their Honours were part of the majority in that case, although Justice Heydon, who was the other member of the Court, decided it on a different basis. He was of the view that there was no illogicality at all and that it was not necessary to go into those deeper questions. Nevertheless, in our submission Justices Crennan and Bell are to be preferred and their approach is more consistent with how a judicial review in this country is understood. Since that time ‑ ‑ ‑
EDELMAN J: Mr Kennett, does this issue really arise in this case because, at least as I understand Justice Gummow and Justice Kiefel’s reasons, their conclusion about a ground of jurisdictional error being concerned with critical findings that are not supported on logical grounds is essentially, by inference, from section 430(1), that that provision, which they set out at paragraph 33 concerning the requirement for findings on material questions of fact, requirements to refer to the evidence and material on which those facts were based, and so on, led to an implication that findings of fact needed to be based, at least where they are critical, upon logical grounds.
MR KENNETT: Their Honours also referred – and I do not have the passage at my fingertips – to notions of streams rising above their source, which I took to be a suggestion that administrative decision‑makers step outside the province allotted to them if they make decisions which purport to be rational applications of statutory criteria that in fact are not.
I must confess, I have some difficulty grasping and explaining the exact contours of that reasoning but one available view, I suppose, is that when a statute requires a decision‑maker to have or not have a state of satisfaction, it requires a state of satisfaction that is not only defensible but in fact reached by a logical…..
That may be an available view of it, we submit not the better view for two reasons. Firstly, it is ultimately an exercise of statutory construction and the question of what the statute requires as a precondition for a valid exercise of power – if the statute requires a state of satisfaction, it no doubt requires a bona fide satisfaction and requires the decision‑maker reach a state of satisfaction about the right issue.
It requires only a small exercise in implication to say in addition that the state of satisfaction must be one that is rationally available on the evidence, a much larger step to say that the legislature also intends to require that the state of satisfaction had been reached by a fact‑finding and reasoning process that contains no lapses in logic.
Another way of framing this that leads to the same position might be by having regard to the now fairly familiar statement by Professor Jaffe that this Court referred to, among other places, in Hossain at paragraphs 18 to 19, which your Honours will find at tab 10 in Part C of the authorities bundle.
I think your Honours probably know the statement that I mean where Professor Jaffe says that the concept of jurisdictional error is almost entirely functional and that it is related to the gravity of the error and, if that is an appropriate way into this, we would submit that a decision‑maker’s state of satisfaction that cannot be rationally justified can be seen as something that requires correction, but a state of satisfaction as to which reasonable minds might differ and absent a denial of procedural fairness or misconstruction of the law calls much less strongly for intervention by the court, where Parliament has at least as a general proposition left it to the decision‑maker to decide the facts.
Another reason why we would suggest the approach of Justices Crennan and Bell is the preferable one when compared to the approach of Justices Gummow and Kiefel is in the coherence that their Honours note between the way they put it and notions of unreasonableness in discretionary decision‑making.
Since that case was decided, of course, it has become apparent from decisions of this Court that Wednesbury is not the last word on the notion of unreasonableness without going into that growing area of jurisprudence and noting that neither my friend nor I seem to have put any of the cases in that area in the bundle.
One can note that this Court and the Federal Court, rather than sticking to the Wednesbury formulation, now more frequently refer to notions such as absence of an intelligible justification for a decision, but unreasonableness in that sense remains an exceptional conclusion necessarily involving more than just disagreement with the result.
It is desirable at least that a similar standard of review, or at least a conceptually related standard of review, should apply in satisfaction cases where the complaint is about factual findings or inferences. We can put to one side cases where a purported state of satisfaction is reached capriciously, not via the engagement with the material, by tossing a coin for example. That would be beyond power for quite distinct reasons and it would not matter if the coin toss happened to be a decision that a rational person - a decision which could also have been reached in some other way.
But where the decision‑maker has been carefully through the material and made findings of fact and the complaint is that one or more of those findings was irrational or had no basis, their Honours’ view that that needs to be treated as being of the same order as a complaint of unreasonableness brings the approach to discretionary powers and satisfaction issues into alignment and that alignment is a virtue not least because the present section 501CA(4), as I noted earlier, is one of what seemed to be a growing number of provisions that are expressed to turn on satisfaction, but perhaps in substance discretionary, because the issue for satisfaction is so broad and nebulous.
It is a fairly arid, although maybe interesting, debate whether there is then some residual discretion in the chapeau of the section, but such arid debates are made at least less likely to be necessary if the standard of review for the satisfaction and the discretion are conceptually related.
That is another point which we would submit makes it desirable to adopt the approach of Justices Crennan and Bell, so that for those reasons we say the majority framed the test for jurisdictional error wrongly. The correct question - if the Minister can be said to have made findings that had no probative basis - was whether that resulted in a decision that could not rationally be made, and we submit clearly it did not, for reasons that I explored earlier. Unless there is anything else I can help with, those are the submissions in‑chief of the Minister.
KEANE J: Thank you, Mr Kennett. The Court will take its 15 minutes break now. Adjourn the Court, please.
AT 11.23 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.40 AM:
KEANE J: Yes, Mr Lenehan.
MR LENEHAN: Thank you, your Honour. Your Honours, can I…..Justice Edelman’s hint and perhaps start with the question about Mr Kennett’s broad contention to identify specifically what the nature of error in issue here is and how does it operate.
Now, your Honours have seen that what essentially is in issue is what is sometimes called a subjective jurisdictional fact, and can I say Justice Derrington both extrajudicially but also in some of the cases, including a case called EHF17, has helpfully written about this area and sought to summarise the Court’s jurisprudence. We have not given that to the Court, but what I am about to say reflects that learning.
Your Honours will recall that Mr Kennett’s essential argument for this branch of his case rests upon what was said by Chief Justice Latham in Connell and from that he says that the essential question is whether the relevant opinion called for by the word “satisfaction” is such that it can be formed by a reasonable person with a correct understanding of the law and that, he says, suggests that judicial review is concerned and only concerned with – or perhaps concerned at its outer limits with whether the opinion is rationally defensible in light of material before the decision‑maker. So, from that, he says that it is not in any way concerned with the findings of fact supporting the decision‑maker’s reasons.
Now, we say that is contradicted by observations made by Justice Gummow in Eshetu which we say are entirely consistent with both sets of joint reasons in SZMDS. Could I start with Eshetu (1999) 197 CLR 611, which is the additional authority that we gave your Honours this week.
If I could invite your Honours to start at paragraph 130, which is page 651 of the report, this is where Justice Gummow introduces what he describes as an awkward species of jurisdictional fact, being in this case a precondition on section 65 that the Minister be satisfied that a person answers the description in section 36(2).
In the passages that follow, he summarises this Court’s approach to such provisions, including over the page at paragraph 133 the passages from Connell that our friends cite against us. Then Foley and Buck v Bavone – this is at paragraph 136 – where one also finds the notion of reasonableness as perhaps the outer limit of review in this area. Then if your Honours could move forward in the report to paragraph 145 which appears at the bottom of page 656, his Honour gets to the point and says:
Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision‑maker was arrived at reasonably -
So that is Mr Kennett’s point that he derives from Connell:
I would not adopt the criterion advanced by Lord Wilberforce.
That is in Tameside, and I should have referred your Honours to this on the way through. It appears at 141, which suggests a rather more liberal approach to review of such things:
I would prefer the scrutiny of the written statement provided under s 430 –
the provision that Justice Edelman referred to before:
by a criterion of “reasonableness review”. This would reflect the significance attached earlier in these reasons to the passage extracted . . . in Buck v Bavone. It would permit review in cases where the satisfaction of the decision‑maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.
So, there are two separate ideas there. If your Honours look down to footnote (139) at the foot of the page, he has two citations for that notion. The second is a Canadian case called Southam. That is not in the joint bundle of authorities. It is sufficient for me to say this about that authority. Justice Iacobucci there referred to that kind of review involving scrutiny of either the evidentiary foundation, itself underlying the relevant decision, or, what was more in issue in SZMDS, the logical process by which conclusions are sought to be drawn from that evidentiary foundation.
Going back to Eshetu at paragraph 147, Justice Gummow concludes that the fact‑finding and the reasoning of the Tribunal here did not display either of those flaws, and he does that by reference to the reasons of Chief Justice Gleeson and Justice McHugh. But what we say is that it is clear that his Honour was of the view that the state of satisfaction could be vitiated by the very things that our friends deny – that is, a contention that it was based on findings or inferences of fact which were not supported by some probative material.
Now, if that is a requirement which is – a requirement that we say derives from the notion of reasonableness and an approach that your Honours are very familiar with – that is, this is a common law principle which one applies to statutory powers unless one discerns a contrary intention. So, that is a requirement concerned with the path by which a decision is made. The fact that one might have formed the ultimate conclusion in a different way, we say would not be to the point if it is the case that that kind of constraint upon power operates.
EDELMAN J: But Mr Lenehan, this is not a case, as I understand it, where there is any allegation that the findings by the Minister were not supported by probative material. The allegations are said to be based upon whether or not the Minister had exposed what probative material was or what the basis for his reasoning was. There is no suggestion that there is no probative material in the Minister’s file or in the Department that reveals whether or not English is spoken in Samoa.
MR LENEHAN: Your Honour, I have to accept not in the Minister’s file or perhaps the Department, but if your Honour looks to 114 of the core appeal book and paragraph 47, you will see that is where the majority identifies the nature of the error. They say:
Properly construed, the power is subject to the implied condition that the Minister’s state of satisfaction, or non-satisfaction, be formed on the basis of factual findings that are open to be made on the evidentiary materials. In the present case, the Minister failed to comply with that condition in respect of ‑ ‑ ‑
those two findings. The reason that their Honours arrive at that conclusion your Honours see earlier on 112 in paragraph 41. It is because the arguments put below presupposed that the Minister had in fact relied on some sort of specialised knowledge.
EDELMAN J: Mr Lenehan, that statement at paragraph 47, if read literally, would – that is simply merits review. It just means in every case you can say, well, one of the 20 findings of fact that were made were not open to be made on the evidentiary materials.
MR LENEHAN: Your Honour, we do not say that, and that is why what is said next by the plurality in paragraph 48 about the notion of whether it is a critical step, that is why that is….. But really, what is involved here is something - outside a state of satisfaction case would be described as a “no evidence” case.
KEANE J: Mr Lenehan, looking at paragraph 47, that sentence:
the power is subject to the implied condition that the Minister’s state of satisfaction . . . be formed on the basis of factual findings that are open to be made on the evidentiary materials.
On the evidentiary – I mean, if we are going to take that seriously, if we are going to sake seriously this notion of an evidentiary basis for the conclusion, the Minister had no basis in evidentiary materials for a finding of satisfaction in your client’s favour.
MR LENEHAN: Your Honour ‑ ‑ ‑
KEANE J: The situation was simply there were a few assertions, in a very general way, about conditions in Western Samoa and Samoa, and that was it. If we are to take this notion that it is all subject to a proper evidentiary basis, then your client just loses. Your client never got to square one.
MR LENEHAN: Your Honour, the condition that I am saying was found by the plurality and that, we say, is what our case rests upon, is for fact‑finding along the way. So, it is a process‑directed condition, and it is ‑ ‑ ‑
KEANE J: And the process begins, according to the section, with representations by the applicant.
MR LENEHAN: Yes. Yes, and that is the point made by Justice Gordon, by reference to Plaintiff S270, and so those representations then become the focus for the Minister’s consideration of the possible exercise of the power. But, necessarily, in considering that, there is going to be fact‑finding upon the matters raised. But I do have to ‑ ‑ ‑
STEWARD J: Mr Lenehan, can I ask you a narrow question about your case. At paragraph 31 the majority below say:
It is common ground that there was no objective evidentiary material before the Minister capable of supporting either of the findings.
Then the question became, did the Minister use his personal knowledge? Their Honours go through four reasons why they did not think he used his personal knowledge.
MR LENEHAN: Yes.
STEWARD J: So, is it your case that the Minister made this up?
MR LENEHAN: Your Honour, the way we put it is really reflected in what the majority says in its fourth point at paragraph 46, that is, these were reasons that were drafted by a departmental officer and put forward for adoption by the Minister and, in that process, it is entirely understandable that things may be missed. The requirement for a particular statement to be supported by evidence may have been something that is lost in the process. I am certainly not saying “made it up”. I am saying there was a procedural flaw.
STEWARD J: Can I just ask you this question about the final sentence of paragraph 41, there their Honours say that the Minister adopted the findings in the draft reasons. Once the Minister had done that, why was he then not reaching a state of satisfaction, or not reaching a state of satisfaction, based on his new personal knowledge?
MR LENEHAN: Well, your Honour, if it was reflecting – so to go back a step, what their Honours there say is that if this was personal knowledge on the part of the Minister, then the departmental officer had no knowledge of that. We would say it cannot be the case that simply putting forward an assertion in a set of reasons satisfies the condition that Justice Gummow identifies in Eshetu, that is, the need for some probative evidence to support a finding.
EDELMAN J: Mr Lenehan, as you will be aware, there are probably thousands of immigration decisions that are made where the decision‑makers refer to country information just generally. Country information is this, country information is that. Is every single one of those decisions invalid if the country information could be said to be a critical finding of fact and no more source is provided other than just the assertion that this is country information?
MR LENEHAN: Your Honour, no, and that is - the point that is made by Justice Hayne in Muin at about paragraph 164, which is the passage that Mr Kennett took your Honours to before, the point is that where it becomes more specific and particular, then the answer is yes, that is a matter that both gives rise to procedural fairness obligations but also some specificity in how those matters are dealt with in the reasons.
Can I then turn to SZMDS and show your Honours that nothing said in that decision is inconsistent with what was said by Justice Gummow. So, again, that is in the joint book of authorities in volume 3, tab 15, and using the page numbers at the top, can I invite your Honours to look to page 393, and this is in the reasons of Justices Crennan and Bell, and in paragraph 103 you see the same passage that I took your Honours to in Eshetu, and their Honours say that that is perhaps the origin of the statement that they extracted in SGLB.
Can I then note what appears, if your Honours go forward, again using the numbers at the top, at 400 to 401, and paragraph 124. Now, Mr Kennett mentioned that their Honours deal with the relationship between the possible standalone ground of rationality and other possible grounds, and this is what they are exploring in this paragraph. In the part of the paragraph that appears on page 401, would your Honours note this. They say that that notion, Mr Kennett’s rationality notion:
appears to be allied as well to the principle that fact finding must be based on probative material –
so, clearly having in mind Justice Gummow’s requirement in Eshetu, one correlative of which is that a decision based on “no evidence” displays jurisdictional error. We take two things from that: first, the requirement for fact‑finding to be based on some probative material, and the correlative ground of error where it is not, is related to, but as their Honours make clear, distinct from, rationality, which is what their Honours discuss in the paragraphs that Mr Kennett took you to later in the address.
EDELMAN J: But that is not what they say. They do not say it is where the fact‑finding is based upon no evidence. It is where the decision is based upon no evidence.
MR LENEHAN: Yes, and, your Honour, we say that a decision would be based upon no evidence where critical findings of fact have no probative basis.
EDELMAN J: Just so I understand that, a decision which is based upon five findings of fact, perhaps all of which might be said to be critical to the decision, but one of which is not based upon any evidence.
MR LENEHAN: Yes.
EDELMAN J: The “no evidence” ground, which is traditionally related only to the ultimate decision, which is supported by some evidence, you say also extends to one of the five findings of fact upon which there was no evidence.
MR LENEHAN: Yes, we do. As your Honours will have seen in our written submissions, we accept that that is, if you like, I think our friends used the notion of a quantitative standard, and we in fact embrace that and say that – sorry, it is a qualitative statement about the extent of non‑compliance with the implied condition, which then will result in the decision lacking the characteristics necessary to be given force and effect by the statute, to pick up the words of the plurality in Hossain.
But, and this perhaps further answers a question that your Honour Justice Edelman asked me before, we say that fact, that character of the inquiry, does not mean that what is involved is merits review. We have included in the joint bundle in volume 5 at tab 39 and page 1008 what we think is a helpful article written by Justice Robertson extra‑curially, where his Honour points out that many aspects of judicial review involve matters that can be described as “qualitative” in some sense. So, we say, absent any contrary intention the majority was correct to apply that approach, what I have described as the critical aspect of the reasoning approach to section 501CA.
One reason that they were entirely correct to do so is that it was in fact based on at least intermediate appellate court authority of some standing and their Honours referred to one recent example of that line of authority. That is the decision in Hands, which your Honours have in the joint bundle of authorities at volume 4, tab 25. You see in the reasons of Justice Allsop at paragraph 32, using the numbers at the top page 645, his Honour applying the critical step approach in the context of section 501CA(4) and that, see page 651, was reasoning which both Justice Markovic and your Honour Justice Steward agreed.
STEWARD J: I did not agree necessarily with the reason. I agreed with the result.
MR LENEHAN: I apologise, your Honour – reading too much into your Honour’s reason. What we do say is that in such a case, again using Justice Gummow’s notion in Eshetu of “based on”, the state of satisfaction will be based on a finding lacking evidence in the sense that that finding is of significance to the ultimate conclusion, getting back to my notion that these things are qualitative statements about the extent of non‑compliance with an implied condition on power.
That then is how we would frame the error that was found by the majority in this case and we say it was entirely correct to do so and we say that your Honours would reject Mr Kennett’s broader argument for that reason.
Now, that then takes me back – and I am sorry to do this out of order, I just thought it would be helpful to start with that point and then move on to how we approach what it was that the majority did in analysing whether that kind of error had in fact taken place.
So, if I can then move back to ground 1 and to the earlier part of our outline. As I have said, the dispositive finding was really that no such knowledge, no such specialised knowledge, had been applied by the Minister. That is what their Honours say in paragraph 41 and, as your Honour Justice Steward said, they had earlier concluded that there was otherwise no objective evidence to support the relevant findings which we, adopting their Honours’ terminology, have described as the language finding and the welfare finding.
Now, can I say first that that approach, the approach their Honours took in paragraphs 41 and following, necessarily assumes that the authorities that our friends rely on, that is, cases like Spurling, Thomson, Nguyen and Jia, are applicable to the construction of section 501CA. But we say the effect of each of those authorities – and we dealt with this in some detail in our written submissions – is really no more than that the statute, properly construed, may indicate that it is permissible for a decision‑maker to apply accumulated general or perhaps expert knowledge, and the majority at least appear to have assumed, in the paragraphs that our friends take particular issue with, in favour of the Minister that such an approach was authorised by section 501CA. That of course is the subject of ground 1 of our notice of contention and I will come back to that.
It is also important to observe in introducing this aspect of the case or this aspect of our argument that the application of those authorities really goes no further than saying that it is permissible for a decision‑maker to rely on that kind of knowledge. They do not suggest that one is to take for all purposes and in all circumstances the operation of what our friends in their written submissions label the statutory assumption of specialised general knowledge. In particular, one does not simply assume that such knowledge that the statute permits to be applied has in fact been applied.
The authority that Mr Kennett described to your Honours, that is, Spurling, in fact illustrates that point because it is true that Justice Stephen there said that it was permissible for the Tribunal in that case to have regard to expert knowledge, but his Honour in fact found that the Tribunal there had not done so. He scrutinised the reasons and also the transcript to conclude that the Tribunal had instead relied on the expert evidence placed before it and had placed no reliance on its own experience or its accumulated knowledge which, as I say here, had accepted it could have regard to.
That then leads me to the specific paragraphs that our friends criticise and that is the reasoning that appears on 113 of the core appeal book. Can I take those in turn? The first point that is made is that the reasons do not specify that the findings were based upon personal or specialised knowledge.
Our friends seek to downplay that point, describing it as a neutral factor in the absence of other evidence, but that is what we see as the relevance of section 501G of the Act, which we have given to the Court, which is in similar terms to section 430. It required the Minister to give my client a notice which was to include reasons, see subsection (1)(ba) and subsection (1)(e), and that, as the Court has noted this morning during Mr Kennett’s address, engaged the requirement in section 25D of the Acts Interpretation Act to do two things: first, set out the findings on material questions of fact and, second, refer to the evidence or other material on which those findings were based.
Your Honours know that in Yusuf, dealing with the similarly worded section 430, the Court said that if a decision‑maker does not set out on some question of fact in the face of such a provision one may infer that it made no finding on such a matter and that may in turn support an inference that the relevant matter was considered immaterial.
There was some discussion of that principle in SZMTA in the reasons of Justices Nettle and Gordon at paragraph 106, and in MZAPC in the reasons of Justice Edelman at paragraph 205. It is true, as Justice Edelman observed in MZAPC, that any inference arising from the reasons and, for that matter, the circumstances of their adoption is not conclusive, the evidence may in fact - or the facts and circumstances of the case may suggest otherwise, but here we say those facts and circumstances went the other way.
We say when one applies a similar approach in the case of silence as to the evidence or other material on which the relevant findings were based, those words in the Acts Interpretation Act are broad and were apt to include Minister’s knowledge on specific matters adverse to my client, accepting the point that I accepted before in responding to Justice Edelman that not every piece of material might be of that nature.
So, we say the failure to identify material on which a finding was based will entitle, although not require, a court…..the findings were, in fact, based on no such material. The basis for that approach was, I think, discussed in argument in MZAPC by Dr Donaghue, that is, the Court assumes the regular administration of the Act, and so infers that the Minister complied with the obligation under section 501G read with the Acts Interpretation Act. Now, as I say, we accept that that is not conclusive. It is only an inference, but we say the other circumstances ‑ ‑ ‑
STEWARD J: Mr Lenehan, can I ask you a question - are we really in the territory of fact‑finding? I know what the Full Court said in Omar, but really, are we not in an area where the applicant gives reasons for revocation and the Minister’s job is to accept or reject them in deciding whether there is another reason for revocation. The Minister is not really required to make findings per se of fact but, indeed, as you well know, most of the material he gets comprises no more than assertion. He does not get, usually, evidence. Occasionally he might get a psychiatric report about someone, but it is not really an area for evidence, for reasons.
MR LENEHAN: Your Honour, we do say, your Honour knows the cases Omar, Ali, and, for that matter, an authority that the Full Court referred to in paragraph 52, that is Marzano, that it has been said that fact‑finding is an essential aspect of this function, and that is what we say.
We say that is so for, essentially, the reasons given by – embracing the matter that Justice Gordon raised with our friend before, that is, although it is true that this is a broad – call it discretion, call it power conditioned on a state of satisfaction, which is large, one looks to the fact that this is all funnelled through a requirement in the Act to invite representations which then enlivens the power in the first place to consider revocation, and then takes place, we say, by reference to those representations, which must be considered, see again S270. So, in dealing with matters of fact that arise out of those representations, we say yes, this is an area of fact‑finding, or where it is required.
GLEESON J: Mr Lenehan, just looking at that reasoning at paragraph 43, is there not an important omission there, that there is no reference to the absence of any evidence that the findings were wrong, or at least contestable?
MR LENEHAN: Your Honour, that is true. If I am right – and this is perhaps why I completely changed the order of my address this morning and started with Justice Edelman’s point – if we are right about the nature of the error then it is an error about the process by which the power is exercised.
So, whether or not there is other evidence out there which might have borne on these matters, or whether the applicant – whether my client could have put it forward, whether the Minister might have been able to draw on it but did not, those things are irrelevant because one is talking about a condition which is directed to the process by which the state of satisfaction is formed.
I mentioned before that Justice Derrington had said some helpful things in this area. Can I just give your Honours the reference. I mentioned EHF17 (2019) 272 FCR 409, and the relevant paragraph that I had in mind is paragraph 84.
So, I am then back with the way in which the majority approached what we say is the factual question that arose here, that is, was there any knowledge in fact applied by the Minister. The second reason, of course, they give is in paragraph 44, and that is essentially the notion that the relevant subject matter was both particular and relatively obscure.
Now, as we understand the submissions made by our friends – see paragraph 31 of their written submissions – they accept, at least as a general proposition that is made in that paragraph, that is:
the more obscure the subject matter, the less likely –
it is that the court:
will draw the inference –
that the decision‑maker has acted on evidence in the nature of common knowledge or specialised knowledge.
Before I address the actual findings in the context of the representations and reasons which we agree with Mr Kennett is the correct approach, can I say why that proposition, which Mr Kennett accepts, is correct as a matter of principle and common sense?
In this particular statutory context, unlike Spurling and the medical tribunal cases, which we have perhaps given your Honours too many of in the joint bundle, we are not dealing with a repository of power appointed by reference to their qualifications or experience, the point that Mr Kennett accepted this morning.
So, the correct explanation for why such a person may be able to proceed on the basis of their personal knowledge is that given by Chief Justice Gleeson in Muin at paragraph 7. I do not need to take your Honours to it, because the point is really this. He refers to the accumulated knowledge of delegates and the Tribunal by reason of:
the repetitive nature of the matters with which they deal.
So, as a statement of the obvious, the accumulation of that sort of knowledge via that repetitive performance of functions becomes relatively less likely as the subject matter in question becomes more obscure or particular. So, obscurity or particularity of the subject matter is a further circumstance which suggests that the inference available from the silence of the reasons is to be preferred, that is, that no such knowledge was relied upon. As I say, we understand our friends accept that general proposition. The issue between us is really this. They, as we understand it, deny that it was open to characterise the subject matter in issue here in that way.
GLEESON J: But, I mean, we do not know whether Minister Dutton has made many decisions about removing Samoan offenders from Australia.
MR LENEHAN: No.
GLEESON J: But, on its face, that does not sound like a very obscure activity.
MR LENEHAN: The fact that he may have done so, that may be right. Whether he addressed the particular subject matter that I am about to come to, that may be more open to question. Perhaps illustrating that, your Honours will see, in paragraph 44, and also earlier in the book at page 111 and paragraphs 36 through to 38, discussion of the first instance Federal Court authorities that Mr Kennett referred to before, because they really illustrate the point that the Full Court was seeking to make here.
Uelese, which was Justice Robertson’s decision, and McLachlan, both cases concerning New Zealand, the court had relatively little difficulty in concluding that the decision‑maker could infer, as a matter of common knowledge, or the application of what Justice Robertson described as a general proposition, that the former visa holder would have access to welfare benefits and health treatments in New Zealand that were of a similar or equivalent standard to those in Australia.
In Schmidt, on the other hand, which is the authority their Honours referred to in paragraph 38, and which is one of the authorities that your Honours have in the book, it is – I do not want to take your Honours to it, but it is in volume 4, tab 30, page 900. Justice Burley found jurisdictional error in a finding unsupported by any separate evidence that the United States had a welfare system that was broadly comparable to that available in Australia.
So, the point being made by the majority at paragraph 46 was that, like Schmidt, the subject matter here was, of its nature, of some particularity, and also, they used the term, obscurity. That then supplied, we say, the foundation for the application of the common‑sense proposition that I have identified for, that, as I say, we understand Mr Kennett to agree with.
Can I then move to the representations and findings which your Honours have already seen, and I do not propose to take you back to in detail. Can I first say this about the finding regarding English. Although it is expressed in broad strokes, it was a – I will call it a quantitative finding. It was a finding about the prevalence of anglophones in one foreign State and in the part of another foreign State. It is also expressed as a conclusion of prevalence throughout those two geographical areas. It is not confined, for example, which may have been a more obvious proposition, to, say, urban centres.
So, we say it is not in any way akin to the more basic factual matters in issue in Uelese and McLachlan. It is an issue of some potential sophistication on which one might, for example, want to consult things like census data, if it were available. Can I note that the Minister addressed that matter apparently in the course of considering a submission made by Mr Viane’s former legal representative, Mr Rigas, on 2 March 2017. Your Honours have that in the appellant’s supplementary materials at page 103. At the top of that page, in the second numbered paragraph , Mr Rigas says:
If relocating to Samoa, the child, although young, will have limited understanding of her father’s native language and as such any schooling and advancement in life will be materially affected by –
what he describes as a:
language and cultural barrier that will be placed upon her.
Can I first say, the Minister refers to that submission at paragraph 18 of his reasons, which appear at core appeal book 10. The finding that your Honours have already seen in paragraph 23 regarding English is seemingly an ameliorative matter which will reduce those negative effects, albeit that the Minister also there acknowledges that there will be some impact upon Mr Viane’s daughter by reason of language differences.
The particular point we say was seemingly this. Should the family settle within either Samoa or American Samoa, regardless of where within those territories it settles, the respondent’s daughter will be within a community where her own language is widely spoken, and where she would ‑ ‑ ‑
GLEESON J: Mr Lenehan, this reasoning ultimately led to a finding that it would be better for the minor child if her father stayed in Australia.
MR LENEHAN: Your Honour, yes, it did.
GLEESON J: The finding is – it is almost inexplicable that the Minister felt the need to go into this detail. It is not within a bull’s roar of a material fact in relation to the conclusion that the child would be better off with her father staying in Australia.
MR LENEHAN: Your Honour, we say the reason that your Honours would not conclude that the Minister was off on a fact‑finding frolic of his own was really the issue that your Honours have been putting to me, and Mr Kennett earlier, that is, 501CA(4) is a broad – it is a power, or state of satisfaction which permits a broad range of matters to be taken into account, and then an evaluative finding to be produced at the end of it. One is not talking about, ultimately…..conclusions on any of these matters.
So, it is true that the Minister concludes that it is not in the child’s best interests for the visa to be revoked, but then the significance of that matter, and this is the point that the majority makes when it is dealing with whether this is a critical fact - this is at paragraph 61 on page 117 - goes to how the Minister might have evaluated what was being put forward as real difficulties or hardships.
GORDON J: So, in a sense, the argument is this is something where the weight that was attributed to this factor would have been more significant. Is that the way it goes?
MR LENEHAN: Yes, and so ‑ ‑ ‑
GORDON J: I ask that for two reasons, because when one looks at the representations made by your client, no material is proffered in support of the representations you took us to, and then when you go to page 125, which is I think the second round of representations, I think it is a fair assessment to read paragraph 32 as being in less strong terms. It says:
For example, my partner and child will be unfamiliar with the culture and society –
So, there seems to me to be a foundational error, if you want to use it, in terms of the way in which the representations are put. Then you have, as Justice Gleeson put to you, a finding which is in your client’s favour, and then you say, hang on a minute, the finding which was probably, at least on this aspect, stronger than that which was put by way of representation, somehow needed to be given greater weight. Then one ‑ ‑ ‑
MR LENEHAN: Well – sorry, your Honour, I interrupted.
GORDON J: No, that is fine.
MR LENEHAN: I think Mr Kennett accepted that because the representations are to be approached in the manner that your Honours noted in Plaintiff S270, there is a need to deal with each of them, and so they may be worded differently.
STEWARD J: Mr Lenehan, would you be able to complain if the statement made by the Minister about the prevalence of English were accurate?
MR LENEHAN: Your Honour, yes, because, as I say, this is a condition that applies to the process by which one arrives at the state of satisfaction.
STEWARD J: You say the Minister errs at law by taking into account something which is true, simply because there is nothing in the reasoning to suggest a basis for why it is true?
MR LENEHAN: Because at the time of making, the time of reaching that state of satisfaction, there was no probative material which supported that factual finding, yes, that is what I say.
STEWARD J: Why does that matter, if it is accurate and true?
MR LENEHAN: Because, your Honour, and this is the point I think I was trying to make before, but I have obviously made badly, this is a condition upon power that relates to the process by which one reaches the conclusion. So, if there are facts out there that the Minister could have relied on to arrive at a legally impeccable state of satisfaction, that matters not.
EDELMAN J: Mr Lenehan, can I just ask you to clarify your answer a little bit more. You said the reason is because at the time of making the decision there was no probative material going to these facts. Do you mean that, or do you mean at the time of making the decision there was nothing exposed in the reasons which revealed any probative material?
MR LENEHAN: Well, I get to the first alternative that your Honour puts to me by route of the second alternative, so ‑ ‑ ‑
EDELMAN J: But you cannot do that without subpoenaing the Minister’s files and the briefing notes and the information provided to the Minister by the departmental officers, can you?
MR LENEHAN: There is no doubt that our case would have been considerably improved by that sort of forensic exercise. It was not undertaken. What we do have is the reasons which we say in the way that the majority describes at paragraph 43 at least – and we say support an inference that there was no such material before the Minister.
EDELMAN J: But would not the far more obvious inference be that when the Minister records something in his reasons, he has it from somewhere and either he has it from accumulated knowledge in the area or, alternatively, he has it from a briefing note or information which he has been provided with.
MR LENEHAN: Well, that sounds a little like the challenge that Justice Steward issued to me before to say that the Minister was in some way being delinquent. We do not say that, but we do say that the circumstances in which the reasons come to be into being, which is identified at paragraph 46, that is something that creates room for things to be missed, and that is what we say has happened here.
I think I have then said much of what I want to say about the finding concerning English. We say the finding regarding health and welfare services is also, as Mr Kennett says, to be understood in the context of both the reasons and the representations. So, the Minister correctly appears to have understood my client to be contending that his family unit, although this was put in different ways, would not have access to welfare and perhaps also healthcare in Samoa and American Samoa.
You see that most clearly in the Minister’s reasons at paragraph 63, core appeal book page 16. As was the case in Schmidt, and unlike Uelese, the possible need for social welfare was also clearly identified there. The Minister observed that my client – he made reference in his representations to his family having no work, no housing and no social ties.
The Minister then correctly understands that that representation raises at least two sub‑issues. First, did such services exist at all in Samoa and American Samoa and, if so, would they be accessible to my client’s family? As was pointed out during argument in the Full Federal Court which in fact your Honours have - the relevant part of the transcript appears at pages 85 to 86 of the core appeal book - Justice Kerr put to Ms Francois that the existence of welfare services in Pacific Island countries is not something that one could necessarily regard as a straightforward proposition, similar to what was in issue in Uelese vis‑à‑vis New Zealand.
His Honour there notes, giving the example of Papua New Guinea, that some Pacific Island countries may, for example, have developed hospital and education systems, yet no welfare services. Further, even if such services did exist, and this was the point that Mr Kennett noted that we do raise in our written submissions, the question of whether they were accessible to my client’s partner and daughter on the same basis as Samoans and American Samoans was not an obvious proposition and potentially involved difficult considerations, including, perhaps, recalling Justice Gleeson’s point that Dr Donnelly directed, specifically, the Minister’s attention to government welfare services, difficult issues of foreign law.
So, if such government services did exist, whether they were accessible on the same basis as Samoans and American Samoans might, for example, depend upon any requirement in the nature of a citizenship requirement, noting that the evidence here indicated that my client’s partner and daughter were both Australian citizens.
GLEESON J: Mr Lenehan, would the Minister have erred if he had simply addressed your client’s representation of no welfare services, no healthcare by saying I am not satisfied as to the correctness of those submissions?
MR LENEHAN: Your Honour, I would have a much more difficult argument if he had done that. But this is the point that Justice Edelman made, by going further and making a positive finding, that is then something that attracts the principle in Eshetu, we say. So yes, but that is not this case.
GORDON J: In a sense, that is why I asked you, Mr Lenehan, because the fact of the matter is that it was open to your client and its advisers to put forward the very things you are talking about, whether it is census data, whether it is – at the beginning, as part of the representations, to say listen, look, here it is, here is the factual material, engage with it.
MR LENEHAN: Yes, your Honour, I have to accept that is so, and that he did not. But the way in which the Minister then treats those representations as – accepting that the basis upon which they were put was far from perfect, that is then something that does attract Eshetu if he makes a positive finding of fact without any probative material.
Now, returning then to the aspects of the reasons that our friends criticised, I think the paragraph that I have not addressed is paragraph 45, which is essentially that the evidence did not support an inference that the Minister in fact had specialised knowledge or expertise in respect of the relevant subject matter.
Mr Kennett says that he did not require it, he did not require it in any event, because it is general knowledge. We say that is not so, for the reasons that I have just given, but we also say there is no error in what is said in paragraph 45. The court is not denying, in that paragraph, that the Minister may have, to use Mr Kennett’s term, some general knowledge about the nations of the Pacific through the performance of his functions, and nor is it there denying that he could apply such knowledge if it were relevant.
The point was that the relevant subject matter did not, in fact, involve matters of, to use Mr Kennett’s term again, general knowledge about the nations of the Pacific. The court was then not prepared to infer, for example, the more sophisticated, say, level of linguistic and demographic knowledge implicit in the language finding, from the mere fact the Minister held ministerial office.
We say that again, that circumstance tended to confirm what was suggested by the failure of the reasons to identify the Minister’s knowledge as the basis for the findings, that is, that they were not in fact based on such knowledge. So, taken together, we say that those matters adequately supported the conclusion reached by their Honours that the Minister had not, in fact, applied any either personal general knowledge or specialised knowledge, and, again, as Justice Steward pointed out before, it was common ground that there was otherwise no objective material which supported those findings.
Now, that then leads me, and I am jumping around again in my outline, to the further question of whether that was a jurisdictional error which, as I have said, we say turns on the notion of whether the findings made were critical in the sense that I have identified before, and we say these things.
First, again, as your Honour Justice Gordon has noted, in Applicant 270, it was made clear that although the discretion is wide, it has to be exercised by the Minister considering the claims in the material put forward by a person in my client’s position. Here, those claims - I have perhaps already made these points - included a claim that the respondent’s daughter would have limited understanding of her father’s native language, which was an important matter because it was put as something that would materially affect her schooling and advancement, and the claim that the family would have no social welfare via the governments in either American Samoa or Western Samoa was important because it is a related representation that my client and his family would have no work, no housing, and no social ties.
The point of those representations in each case was to identify a specific potential harm to the family or family members and we say the corollary then is that the language of welfare findings involved either a complete or a partial rejection of key aspects of those representations. It involved complete rejection of the claim that the family would have access to no social welfare. It involved partial rejection of the claim that my client’s daughter would confront a language barrier affecting her schooling and advancement in life.
Can I immediately accept ‑ and this comes back to some points made to me in the course of this morning – that it is true that at a general level the Minister accepted that my client’s daughter would be significantly affected by any relocation and that it was in the best interests that cancellation was revoked and that removal would involve significant adjustment and hardship to the families - see paragraphs 23, 30 and 65 of the reasons.
It is also true – and Mr Kennett made this point this morning – that regard was had to those broad findings in the weighing process at paragraph 128, but – and this is the point that the majority made and I perhaps have already made this point - at paragraphs 60 and 61 – that was really the point, the fact that the interests of my client’s child were given significant weight in that ultimate evaluative exercise served only to illustrate the comparative importance of the factual findings that the Minister made regarding those matters. They were central to an important aspect of his reason.
The findings were important because they tempered his conclusions about possible impacts upon the family and my client’s child and we say it was open, in those circumstances, for the Full Federal Court to conclude that those findings led the Minister to afford less weight to the interests of my client’s child and also the representations relevant to that issue, again things that he was required to have regard to by reason of the statutory text. We say there is no difficulty in describing those findings as critical in the context. If all of that is accepted, then the failure to abide by the statutory conditions that I have identified at the start of my address spelled jurisdictional error.
Your Honours, I note the time. I have left my two notice of contention points. I am not sure if your Honours wish to take the adjournment ‑ ‑ ‑
KEANE J: This might be a convenient time to adjourn for lunch, Mr Lenehan. The Court will adjourn until 2.15 pm.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KEANE J: Yes, Mr Lenehan.
MR LENEHAN: Thank you, your Honour. Your Honours, I only have left our two grounds of our notice of contention, which your Honours have in the core appeal book at 146. Our first ground is a point that was argued below. Your Honours will have seen that, in essence, we take issue with the assumption that I said before the majority of the Full Federal Court acted upon, that is, that it was in fact permissible for the Minister to have applied specialised or personal knowledge in this case, although, as I have said, the majority in fact held that the Minister did not do so.
Now, in contending that that was not in fact permissible, we take as our starting point the observations made by Justices Middleton, Moshinsky and Anderson in Navoto, which is a case the Court has in volume 4 of the joint book of authorities at tab 31. It starts at 848, and if I could direct your Honours to a passage that appears, using the numbers at the top, 874 and paragraph 77.
When your Honours have that passage, you will see there that their Honours refer, in paragraph 77, to the differing results in Uelese, McLachlan and Schmidt, on which your Honours have already heard something this morning, and say that in contrast to Uelese and McLachlan, Schmidt can be understood as a case where:
an administrative decision‑maker was not permitted to rely on such knowledge –
Then their Honours say, in paragraph 78:
Although we express no view on these decisions, our view, which may be subject to more detailed consideration in an appropriate case, is that it is unlikely that a precise test may be formulated to prescribe the circumstances in which an administrative decision‑maker may rely on general knowledge or accumulated specialist knowledge: see Dekker –
which I am about to take your Honours to, and they say that:
That issue, where it arises, is likely to be determined by reference to all the circumstances of the case, including, amongst other factors, the nature of the decision‑maker, the extent and character of the decision‑maker’s specialisation, and the form of the particular knowledge relied upon by the decision‑maker.
So, unhelpfully, if that is right, not a bright line test, but if I could show your Honours Dekker, which supplies one, we say useful, illustration of how that circumstance‑specific approach might work. Dekker is in the same volume, it is tab 23, and if I could direct your Honours to page 579 – sorry, that is where it starts, I am actually looking to page 605 using the numbers at the top of the book, and then paragraphs 73 and 74.
Dekker, of course, was a medical tribunal matter, and involved an allegation of conduct that would have been regarded as improper by colleagues of good repute and competency. In the course of discussing that kind of case, their Honours say, paragraph 73, that proof of a generally‑accepted professional standard or duty and its content – that being one of the issues that generally arises, would ordinarily be expected to be the subject of:
expert evidence from a person of good repute and competence within the medical profession to attest to the existence –
and content, but in some cases, the expertise of the board might be relied upon to conclude, without evidence, that such a generally‑accepted professional standard existed. An example that their Honours give is the duty not to have sexual relations with a patient. Then in paragraph 74, you will see towards the end of the paragraph they say that the tribunal might also be able to infer without specific evidence that breach of such a fundamental and important duty:
would be regarded as improper by professional colleagues of good repute -
So, we take from that that the point of distinction that the court seems to have in mind, which separates those two classes of cases – that is, those requiring evidence and those not – is that in a case of fundamental duties their existence would be clear and obvious to the expert members of the tribunal by reason of that expert knowledge.
We say that that is a useful way of thinking about the different results in Uelese and McLachlan, as opposed to Schmidt. The Federal Court in those cases has correctly only been prepared to permit the Minister to rely on the Minister’s own knowledge in clear cases where the issue to be determined can be regarded as obvious to a person with some basic understanding of relevant matters by reason of their, what I have called before, repetitive performance of the relevant duties.
For the reasons that I gave before, we say that is not the case here. We say the subject matter in question is particular and not aptly characterised as basic knowledge about country conditions. Your Honours have already heard my submissions on that.
Now, if that is right, then for that further reason we say the Full Court’s conclusion that the Minister’s findings were not based on any probative evidence is made good in the sense that there was no material, even on the assumption that the Minister could have regard to those matters to which the Act permitted regard.
STEWARD J: Mr Lenehan, which words of section 501CA support that dichotomy?
MR LENEHAN: Your Honours possibly have to squint, but of course they do not positively support regard to that sort of material either. I accept that the textual basis for that is slender. I do say that this is supportable as a general correct approach to the way in which a decision‑maker should apply their knowledge where the Act permits it. That is the point that we say…..
KEANE J: Mr Lenehan, if it were the case that one were to read section 501CA(4) as subject to implied obligations of reasonableness and fairness, what basis would there be for the further kind of implication that you are inviting us to see there?
MR LENEHAN: I am sorry, Justice Keane. Just so I understand that, the particular obligation that I say is the subject of ground 1?
KEANE J: Yes.
MR LENEHAN: We would say that that is a similar sort of obligation to that discerned by Justice Gummow in Eshetu. That is a process‑specific condition on the exercise of power that arises from the notion that it should be exercised and reasonable. Perhaps that better answers Justice Steward’s question. That then leaves me with a ground ‑ ‑ ‑
EDELMAN J: Sorry, Mr Lenehan. Before you move on, so that I understand the submission, your submission is that, in effect, one aspect of the general implied condition of reasonableness is that the Minister will not decide a case other than upon the basis of material that is before the Minister or material that the Minister himself discovers, which may itself be subject to obligations of procedural fairness?
MR LENEHAN: Yes.
EDELMAN J: The only carve‑out that you have from that is matters that are of widespread general knowledge.
MR LENEHAN: Yes, that is what we say, your Honour.
EDELMAN J: Why would that implication as part of reasonableness be implied into a provision that is as open textured as section 501CA?
MR LENEHAN: Before I answer that question, can I say that I think I answered the last question too quickly. Not really general knowledge but the sort of general knowledge that one could anticipate that one would acquire by reason of the repetition function. It is that more particular aspect that the Act has in mind, we say, that the Minister can have regard to.
I think in the course of answering that question, I have forgotten your Honour’s further question, which I think was why would one construe the Act in that way?
EDELMAN J: Why would a very open‑textured provision like 501CA contain that sort of restriction as part of a reasonableness requirement?
MR LENEHAN: I think this perhaps gets back to my point before about what is clear is that, by reason of the fact that the process involves the making of representations and then we say the making of findings of fact on those representations, that process has limits and we would say that one of those limits – in fact…..related to the notion that one has to have regard to probative material is that it should be properly based. That is how we would put it.
That then leaves me with the awkward ground that is being argued in this Court for the first time and that is ground 2 of our notice of contention. We accept that we require leave to advance it. I am not sure of Mr Kennett’s position on that matter and he will no doubt shortly inform your Honours of whether his client consents to that grant of leave.
Can I say, the essential point that we seek to raise there is a point raised by Professor Aronson in an extract that we have given your Honours in volume 5 at page 1002, behind tab 38. Can I summarise what is said in this way. Professor Aronson says that some of the older authorities dealing with this general area tend to state in absolute terms that when a statute permits a decision‑maker to rely on their personal or expert knowledge, they can do so without disclosing that knowledge to an affected person.
You can see examples of that approach in the case book. Thomson ‑ I do not need to take your Honours to it – is in the joint book volume 4, tab 28 at page 742 and Justice Fox at page 746 collects a number of the authorities in support of that proposition and then a similar statement can be seen in the authority that Mr Kennett places some reliance on – that is Justice Stephen’s decision in Spurling, which your Honours have in the bundle at tab 35.
We do not necessarily understand that Mr Kennett and Ms Francois support that proposition, although in fairness they have not had much of an opportunity to respond to this point, but in any event, our submission is that, for essentially the reasons given by Professor Aronson and his colleagues, that approach ought no longer be applied. Rather, adopting the proposal that we understand Professor Aronson to advance, a requirement for disclosure ought be implied, absent contrary legislative intention, whenever a decision-maker intends to have regard to adverse material of that nature, that is - he uses the words “identifiable, particular or specific”. For my purposes, “particular or specific” are the more important aspects.
Your Honours will have seen in our written submissions there is some support for a requirement of that kind in the more recent authorities and in Dekker ‑ which I do not need to take your Honours back to; we give the relevant abstract at paragraph 58 of our written submissions – it was observed that the:
[s]pecific disclosure would generally be required in relation to particular medical facts –
and the comparison being drawn was to those involving the:
“general knowledge and experience of the medical profession”.
We say for essentially the reasons that I have already given that that was the nature of the information or the material in issue here, particular material, and there is no issue that it was not disclosed.
EDELMAN J: Mr Lenehan, do you accept that procedural unfairness requires unfairness in a practical sense?
MR LENEHAN: Yes.
EDELMAN J: Independently of any materiality consideration, unfairness in a practical sense that the material to which an opportunity to respond is not given is material which could or might possibly affect a result?
MR LENEHAN: Yes, I do accept that, your Honour. Your Honour plainly has in mind…..and perhaps a point made by our friends. We say here that, if we are right, the relevant breach involved being given no notice of that kind of particular adverse material and that the effect of that breach, no notice, was that my client did not have the opportunity to deal with that relevant adverse material – see, for example, WZARH. We do not need to go further and show that Mr Viane would have or could have sought to provide further contrary evidence.
GLEESON J: Mr Lenehan, do you accept the qualification in footnote 303 to what Mr Aronson says ‑ in other words, that the decision‑maker can rely on its own knowledge to reject an argument that has been put?
MR LENEHAN: Your Honour, yes, we do, and that is the point that Mr Kennett advances against us by reference to Kioa. That seems to have in mind that the Minister may have been doing – this was the subject of some discussion this morning – no more than saying that he was unpersuaded by my client’s claims. Our answer to that is to say, again, he went further and made a positive factual finding and it is that factual finding, based on material that we say was of some particularity and adverse to our client, that then attracts the duty of disclosure.
I was about to draw the Court’s attention to the fact that the primary judge did refer to this issue and said something that perhaps helps me and something that does not. You find that in the core appeal book at pages 33 and 34. You will see, starting about paragraph 11, his Honour deal with what we have called the welfare finding. He then refers to the passage in paragraph 12 that I have noted by reference to Navoto and then says, top of page 34, this is not a new problem, and then in paragraph 13 says:
In the present statutory context, it is most probably the case that administrators accumulate a great deal of knowledge –
That is the point Mr Kennett relies on:
But to rely upon such knowledge, at least without disclosing that knowledge and inviting a claimant to, for example, make submissions or adduce additional evidence or other materials with respect to that knowledge, may well be tantamount to a denial of procedural fairness.
Your Honours will see – I am sorry, I am moving around too quickly here – page 33, paragraph 11, and this is in the context of saying that he thinks there is greater reservation to be expressed on this issue. He says – and this is a familiar theme from this morning:
wherever the line is to be drawn, the question as to potential hardship to Mr Viane and his family . . . was a question resolved in his favour.
We do say that this notion that there was potential procedural fairness derives at least some support from that statement. As to the “resolved in his favour” point, that clearly has in mind a form of materiality argument and our answer to that is essentially that that I have given before – that is, that this all took place in the context of a decision which gave significant weight to the interests of my client’s child in the ultimate evaluative exercise.
It is true that it was said that not cancelling the revocation – I am sorry, I put that badly ‑ revoking the cancellation would be in her interests. However ‑ and this the point that I have waivered on somewhat this morning ‑ the impact upon her interests was considered to be tempered by reason of the language, health and welfare findings.
We say essentially one cannot unscramble that egg for the purposes of the counterfactual required when one comes to consider materiality. That tempered conclusion formed an important aspect of the Minister’s reasoning and that tempered conclusion was made, if we are right, in a manner that was procedurally unfair.
In those circumstances, there was at least a realistic possibility that the decision could have been different ‑ see Hossain, SZMTA and MZAPC – if the breach had not occurred. Indeed, our friends accept in their written submissions the possibility that if different findings were made, the Minister might have given more weight to the impact of the decision on the child.
That is all I wish to say about our second ground and that brings me to the conclusion of my oral address.
KEANE J: Thanks, Mr Lenehan. Mr Kennett, anything in reply?
MR KENNETT: Thank you, your Honour. I wanted to go back briefly to the aspects of Justice Gummow’s reasons in Eshetu that my learned friend touched on and go from there very briefly again to SZMDS, if I may, and then say a little bit about the notice of contention.
If your Honours still have Eshetu, if you go to paragraph 129 on page 651 of the report which introduces the discussion that my learned friend referred to, you will see that his Honour is addressing an issue that did not arise and thus, in a way that he says is provisional and not foreclosing debate at some later time on fully developed submissions.
A further point we would note is in paragraph 145, which our learned friends took your Honours to, his Honour introduces a point that he makes there by the words:
Where the issue whether a statutory power was enlivened . . . whether the requisite satisfaction of the decision‑maker was arrived at reasonably -
Now, that is pregnant with some ambiguity and perhaps looks forward to the contest that occurred in SZMDS because if his Honour is referring to a satisfaction that is reasonable, that is one thing, but if his Honour is referring to a satisfaction arrived at by a process that was reasonable, that is something different.
The AD(JR) Act would clearly contemplate the latter or both of those things. It is far from clear whether the concept of Wednesbury unreasonableness, as traditionally understood, and as applicable under section 75(5) would do so. That is the circumstance in which his Honour suggests a preference for what he terms “reasonableness review”.
Then in the paragraph that follows, his Honour accepts at paragraph 146 that he may be that there should be some stricter view as to what needs to be shown in a case under section 75(v), which, of course, in substance the present case was, being a case in the Federal Court’s section 39B jurisdiction. When one goes from there forward to SZMDS ‑ ‑ ‑
EDELMAN J: Before you do move on, Mr Kennett, is there some ambiguity – and it may be that this is the difference between your view of Eshetu and Mr Lenehan’s – in the final sentence of Justice Gummow at paragraph 145, where the sentence reads:
It would permit review in cases where the satisfaction of the decision-maker was based on findings –
and the difference may be whether that is to be understood as based entirely on findings or based in part on findings. If it is based entirely on findings, then he would simply be reiterating what Justice Gibbs had said in Buck v Bavone that an ultimate decision that has no reasonable grounds is liable to be set aside.
MR KENNETT: Yes, your Honour, whereas if the finding or findings that are not supported by probative material are one or two out of many that comprise a net, as it were, rather than a chain – I thought I would be able to avoid that creaky old metaphor, but there it is – that is quite a different case. Because, as his Honour says, this is all provisional, it may not be expressed in as much detail as it would otherwise have been and perhaps we should not criticise his Honour for the ambiguity that remains in it.
In paragraph 124 of SZMDS, there is a similarly open‑textured piece of language used in referring to a decision that is based on no evidence. In light of what Justices Crennan and Bell say later, we would submit that that ought to be read as referring to a decision that has no rational basis, rather than a decision involving perhaps a single finding of fact that can be criticised on that basis. Our learned friends then sought really to confine the effect of SZMDS by stressing that it is a case about rationality rather than a case about no evidence.
We would submit, respectfully, there is no real difference of principle between those classes of case – at least for present purposes. Decision‑makers, at least ordinarily when they express findings of fact think that they have evidence for them. The court may think otherwise, and the court may articulate that by saying there was no evidence for this, or by saying it was reached by a process of inference from evidence that was irrational. In the end they amount to effectively the same criticism.
The difference in view that we see in the Court in SZMDS and the resolution of the matter by Justices Crennan and Bell we say does have a lot to say about cases such as the present one. Those are the only matters in the appeal that I wanted to touch on in reply.
On the notice of contention, ground 1 I think has been sufficiently dealt with along the way in the submissions that we have made on the issues in the appeal. Ground 2 is the natural justice ground. We make two short points about this in our reply submissions, both of which your Honours have touched on in the exchanges with our friend.
The first point is that – and we rest this on a statement in Kioa, but we might equally have referred to the closing paragraphs of the role of the Court in SZBEL, which are to the same effect, which is to say that the decision‑maker does not have to expose his or her thought processes as the inquiry or hearing goes on and ask for comment or give a commentary – “running commentary” is the expression used in SZBEL – on the evidence.
What that leads to is that a person seeking something from the Executive can put whatever they seek – whatever they wish to put, but then, as Justice Mason puts it, cannot complain if they are not believed without further reference to them. That is an old and well‑established principle, we say, and in substance refers to what happened here.
The Minister expresses positive findings only as a matter of form, we would say not as a matter of substance, and it would be strange if the case turned on the fact that the Minister expressed views to the contrary of part of the representation rather than simply saying I am not persuaded by this.
The second point we make asserts a lack of practical injustice arising. I should, perhaps, stop – before I get into that, say that it will probably be apparent to your Honours that we do not submit that notions of procedural fairness are excluded where a personal store of information is relied on. Indeed, part of our submissions in‑chief was that an important controlling mechanism that prevents reliance on specialist knowledge from leading to injustice is likely to be, in some cases, procedural fairness.
If the specialised knowledge is pulled out of the bottom drawer and deployed to make some point that the applicant, or the former visa holder, would not have thought of, then that is a clear case where procedural fairness would be needed. But if personal knowledge is merely in the decision‑maker’s mind when he or she declines to agree with a submission then that is a different matter as we have said.
But on the practical injustice point, there are really two sub‑issues to this. One is that a different determination on these particular findings, for reasons we have outlined in‑chief, would have been extremely unlikely to make any difference to the outcome in any event. That is in large part because it was uncontroversial that the respondent had the option of going to New Zealand, a country which nobody seems to have doubted has welfare, education, health services, quite similar to those of Australia.
The respondent said to the Minister that despite that there was a possibility that he might take his family to a very poor country where those services were lacking. Now, the Minister might have been forgiven for thinking that that was slightly disingenuous but did not. The Minister took that seriously and analysed the conditions in those countries, but where that leaves us is that if the conditions in those countries really are as terrible as the applicant was suggesting, then it was available to him and his family to go to another country where, whatever else might be said, those problems would not arise.
So, the Minister’s final articulation of where the interests of the child lay and his final understanding of the extent of hardship being visited on the respondent and his family were, we would say, very unlikely to have shifted in any material way if his findings about Samoa and American Samoa had been stronger than they were.
That is one reason why any want of procedural fairness ought not sound in relief. The other is that, as we say, in the reply there is a fairly strong basis here to infer that there was, in effect, nothing to be said to the Minister that would have led him to different conclusions about Samoa and American Samoa.
Now, that is not something that in the ordinary course an applicant for relief needs to lead evidence about. But here, the present respondent had representation before the Minister. At both stages he was competently represented. He made assertions about the state of affairs in another country. His representatives could have done an internet search and given the Minister some material. They did not. A fair inference from that is that the material would not have assisted.
If your Honours are not with us on that, then a prospect arises that my client might have led some evidence on this which takes us back in a roundabout way to the question of leave to raise this ground. In fact – it is not in the material, but in the hearing before Justice Flick, my learned junior actually did some internet searches and tried to tender them and his Honour was not interested. But that serves to illustrate that had this been in play in the courts below it might have been a matter on which the Minister would have wanted to go into evidence.
So, at the very end of the argument, as it were, I come back to what should have been the first point, which is that this is a matter that should not be allowed to be raised now. Of course, I do not expect your Honours to rule on that instanter and perhaps my learned friend should have a right of reply on it, but those are the submissions of the Minister in reply.
KEANE J: Thanks, Mr Kennett. Mr Lenehan, do you want to respond to Mr Kennett’s invitation?
MR LENEHAN: Your Honour, I do not think I need to add to what I have said earlier.
EDELMAN J: Mr Lenehan, there is one point that I think I would like to hear your response to Mr Kennett. That is the very last point that he made where he suggests that had procedural fairness been raised as an issue
before Justice Flick then that could have been met by evidence from the Minister which might have affected the result.
MR LENEHAN: I am sorry, your Honour, I should have addressed that issue. I was just trying to find out from my juniors what happened before Justice Flick. Your Honour, we would say that that would not have made any difference to a procedural fairness claim because the breach is that that I have identified before, that is, it was essentially a failure to give notice which may have then given rise to an opportunity on my client’s part to address that issue.
So, again, whether there were facts outside the entire administrative process that may have weighed one way or another on all of that, the breach of procedural fairness would have been complete as at that point. That left open, in terms of materiality then, the possibility of a different result.
It is hard to see – I am not entirely sure what it was that Ms Francois sought to tender, and I am looking at emails to see whether I have any further – I am told, but I am just basing this on what I am told, that the document did not, for example, say anything about welfare and only said English was spoken in the capital. So, it may be that even if I am wrong on that none of that would have advanced the Minister’s argument very far.
My fundamental point is the one that I have made, that is that the breach was complete. It is then difficult to see within that matrix where whatever was in Ms Francois’ proposed tender might fit.
KEANE J: Is that all you want to say, Mr Lenehan?
MR LENEHAN: Yes, thank you.
KEANE J: Thank you. The Court will consider its decision in this matter. The Court will adjourn until 9.30 am tomorrow.
AT 2.54 PM THE MATTER WAS ADJOURNED
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