Mzapc v Minister for Immigration and Border Protection & Anor
[2021] HCATrans 37
[2021] HCATrans 037
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M77 of 2020
B e t w e e n -
MZAPC
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 5 MARCH 2021, AT 9.45 AM
Copyright in the High Court of Australia
MR D.J. HOOKE, SC: May it please the Court, I appear with my learned friends, MR S.H. HARTFORD DAVIS, MR S.G. LAWRENCE and MR D.J. REYNOLDS, for the appellant. (instructed by Conditsis Lawyers)
MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with MR M.A. HOSKING, for the first respondent. (instructed by Clayton Utz)
KIEFEL CJ: Yes, Mr Hooke.
MR HOOKE: Thank you, your Honour. As your Honours will have seen, the appellant, who is a citizen of India, sought a protection visa under section 36 of the Migration Act and made an application for that visa, which was refused by a delegate of the Minister. That occurred on 4 June 2014.
The basis of the application is set out in the appellant’s written submissions at paragraph 8 and is summarised in a more abridged form in the reasons of Justice Mortimer at core appeal book 55. As your Honours will see from the nature of the claims that were advanced by the appellant, they were heavily dependent upon the view that the decision‑maker took of the reliability and the credibility of the account that the appellant gave of the matters that were set to ground the entitlement to the visa.
The nature of the matters relied on by the appellant was such that they were not ascertainable through objective information – or not ascertainable through sources such as country information to which regard might otherwise be had. They were entirely dependent upon an acceptance of what the appellant said. In particular, in the primary judge’s summary at core appeal book 55, drawing from paragraph 8.5 of the Minister’s submissions below, he had feared that:
if he were to return to India, his uncle would kill him for the land –
that was the subject of dispute. That, in our submission, is self‑evidently a matter that must depend upon an acceptance of what the appellant said about the background to it and about the fear that he had and the basis upon which he had it. It is apparent from the refusal of the visa by the delegate that those matters were not accepted. But oddly perhaps, the day after – to use the date on the section 438 notice, which is in the appellant’s further materials at page 9, the Department sent the Tribunal documents presumably in anticipation of its obligations to do so on the lodging of an appeal under section 418 of the Migration Act.
If I can remind your Honours of section 418, it provides by subsection (1) that if an application for review is made to the Refugee Review Tribunal:
the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
Subsection (2) provides that the Secretary must, within 10 working days after that notification:
give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a)sets out the findings of fact made by the person who made the decision; and
(b)refers to the evidence on which those findings were based; and
(c)gives the reasons for the decision.
Significantly, we say, subsection (3) provides that:
The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
So that would appear to be the basis upon which the Department sent material to the Tribunal, the day after or very shortly following, including the section 438 notification and the material which it covered. We say that is of significance because of the qualification to the Secretary’s obligation to provide material to the Tribunal being limited to the material that, or the documents that, the Secretary considers relevant.
So, to the extent that there is an argument put against us, that the material under cover of the section 438 notice was at best of peripheral relevance, whether that is a distinction that in fact bears any relevance having regard to the appropriate test for materiality, in our submission, is another matter, but it certainly was in the view of the Department relevant to the exercise of the power of review by the Tribunal.
The section 438 notice, I have already drawn your Honours’ attention to the material that was annexed to it, follows in the appellant’s further materials, starting at page 11. Now, the relevant record starts at 14, and the offences that it discloses are summarised in a number of places, but in the respondents’ submissions, at paragraph 10.
I should say, your Honours, that at paragraph 10 of his submissions, the Minister raises a query in relation to a second state false name offence, to the extent that our submissions in‑chief are understood as suggesting there was a second such offence. There was not, and the Minister correctly identifies that issue at paragraph 10.
Some three weeks later, on 27 June 2014, the appellant applied to the then‑Refugee Review Tribunal for a review of the delegate’s decision, and the grounds upon which that review was sought were the same grounds as were advanced for the initial claim to be dealt with by the Minister’s delegate.
At no stage during the Tribunal proceedings or, indeed, in the Federal Circuit Court was the existence of the section 438 notice or the material that was provided to the Tribunal disclosed to the appellant. That did not emerge until the appeal from the Federal Circuit Court was resting in abeyance waiting for the determination of this Court in SZMTA.
It is common ground in this Court, as it was in the Federal Court, that this amounted to a breach of the Tribunal’s obligation of procedural fairness and the reasons for that breach being conceded and made out are as the majority in SZMTA explained in paragraphs 29 to 38 of that decision which is in the joint book of authorities at pages 440 to 443.
The issue that arises in this appeal we accept to be largely as formulated by the Minister at paragraph 32 of his written submissions, and that is whether it was necessary for the appellant to prove on the probabilities that the Tribunal actually had regard to the information the subject of the notification, and that is in distinction to establishing that the Tribunal could have had regard to that material.
We say, in short form, that that test is inconsistent with longstanding authority of this Court that imposes an obligation to establish only that the applicant for relief was deprived of the possibility of a different outcome. We say, once the test is elevated in any aspect of it to a question of probability – a question of fact on the probabilities – the measure of possibility that the authorities discuss consistently is destroyed.
GAGELER J: Do you accept that if the proper inference to be drawn on material is that, on the balance of probabilities, the Tribunal did not have regard to the material – that the test of materiality cannot be met?
MR HOOKE: If the proper conclusion of fact is that, on the probabilities, the Tribunal did not have regard to the material then, yes. But we say that that question is to be understood in the context of cases such as Stead which has had an extensive review and the submissions in this case. We draw a distinction – as we do in our written submissions – between the possibility of a different outcome that we accept we must establish and say that we have, as opposed to ‑ ‑ ‑
EDELMAN J: The question of the possibility of a different outcome is not, as a matter of principle, part of any materiality assessment, is it? Because if there is no possibility of a different outcome, would you not always conclude that there just could not be any procedural unfairness. There cannot be any unfairness in, for example, failing to disclose material about which there could be no possibility that it could affect the result.
MR HOOKE: No, and that, your Honour, is the very distinction between this case and SZMTA and BEG15 which travel with it.
EDELMAN J: So, the only real onus – when one comes to the question of materiality – is the onus of proving that what would be a denial of procedural fairness could have made a difference and you say that that onus ought to be borne by the Minister or the State.
MR HOOKE: Indeed. We accept that we must establish that it was an error of the kind that your Honour describes. But we say that if the respondent to an application for relief wishes to say that it would be futile – even in the face of the prima facie possibility of a different outcome – then that is, at least, an evidentiary onus that the respondent carries. That is the language of the unanimous judgment of the Court in Stead. It is the language of Kioa v West and it is the language that was also deployed by this Court in WZARH.
KIEFEL CJ: Do you seek to have this Court review and, if necessary, clarify what was said about onus of proof in SZMTA?
MR HOOKE: Yes, your Honour.
GAGELER J: Would that meet your concerns? Would that meet your concerns with the doctrine of materiality if the onus were cast on the defendant to prove immateriality?
MR HOOKE: Yes, it would.
GORDON J: May I ask, on the assumption that that is right, does that also affect this presumption, does that mean that the presumption goes?
MR HOOKE: Yes, because the presumption necessarily casts the onus on the applicant for relief. We also say that there are difficulties with the onus at a number of other levels, which we will address.
KIEFEL CJ: Why is the same presumption not available to the respondent? If the onus is on the respondent, why is the presumption not available to the respondent as well?
MR HOOKE: Your Honour, because the presumption – we have dealt with this in our writing and I will come to it – but there are a number of reasons why we say that the presumption is problematic. The first is that we say that it presumes regularity in a process that has already been found or, in this case, conceded to be irregular. The irregularity in this case is not an irregularity that is unrelated to the matter in respect of which the inference might operate.
KIEFEL CJ: I see. The distinction you draw is that there is not a presumption which applies in all cases. It is affected by the circumstances of every case so that so much must be accepted, I would have thought.
MR HOOKE: Indeed. That is why we say in our writing that one of the errors that was made in the Federal Court was to elevate what was said of the presumption in paragraph 47 of SZMTA from a permissive statement, depending on the facts of the case, to ‑ ‑ ‑
KIEFEL CJ: To a conclusory.
MR HOOKE: To a prescription.
KIEFEL CJ: Yes, but if there is nothing on the face of the reasons of the Tribunal to suggest that the information has been taken into account, would that not be sufficient?
MR HOOKE: No, your Honour, because the difficulty with it – and in this sense there are parallels with VEAL of 2002, with Kioa v West and with another case which immediately escapes me, where the Court has looked at the statutory context in which the question arises and it is significant, in our submission, in this case to look at what it is that section 438 requires.
It requires two things. First of all, it requires, as SZMTA makes clear, disclosure of the very existence of the notification. That is the first point. We know that the decision‑maker presumably was not aware of that obligation because there was no disclosure. Secondly, it requires, if material is to be relied upon, disclosure of either the material or the substance of it.
Now, the second is the issue upon which our learned friends place significant reliance in saying, well, there is no reference in the reasons to the discretion in 438(3) being considered, ergo it follows that it was not.
KIEFEL CJ: There is another aspect, though, that needs to be fed into the equation, is there not? This is just a question of fact. If the information is, of its nature, not something that you would expect a decision‑maker, having read the reasons, to take into account, or – sorry, that it is, of its nature, such that you would not expect a decision‑maker to take it into account because it does not seem to bear, in any substantial way, upon any matter before the Tribunal. That would be sufficient for an inference that the Tribunal is not likely to have taken the matter into account.
MR HOOKE: Well, it might aid the drawing of an inference ‑ ‑ ‑
KIEFEL CJ: That is the territory we are in with this information, is it not?
MR HOOKE: Not really, your Honour, because it was accepted below, and Justice Mortimer recorded this at paragraph 17 at core appeal book 57, where her Honour said:
The appellant’s argument focused on the fact, not disputed by the Minister, that the outcome of the review depended at least in part on the Tribunal making findings at [22] and [23] of its reasons, which led it to reject what might be seen as the central claim made by the appellant in support of his protection visa application.
Her Honour then set out paragraphs 22 and 23, and I want to take your Honours back to those paragraphs, because they are starkly illustrative, in our submission, of the possibility of a different outcome.
EDELMAN J: Just before you do, just so I understand your position about the presumption, as a standardised inference, your concern with the presumption is not that an inference cannot be drawn, but your concern is with the idea that the inference ought to be standardised across all cases such that the omission to mention something in one set of reasons is an inference that one would draw, in a standardised way, that it was something that was not considered, even though, for example, decision‑makers might often not refer to something for many different reasons.
MR HOOKE: Absolutely, your Honour. Our learned friends place a high regard on section 430, which is the Tribunal’s obligation to give reasons. Section 430 is prescriptive in terms of what must be addressed by the reasons, but two things that your Honours will not find in section 430 are reasons for views taken in relation to credit, or matters of procedure, which would include the dealing with matters under section 438. They are not matters that are listed in the obligatory subjects to be addressed by the Tribunal’s reasons, and, of course, in this case we say, well, these reasons were given before this Court had spoken in SZMTA, and as ‑ ‑ ‑
GORDON J: There is also a human aspect, is there not, and that is it is a process of reasoning, as Justice Edelman says, sometimes you, as part of a reasoning, will consider a matter but not include it for a whole range of reasons.
MR HOOKE: Of course, and that also harks back, your Honour, to the observations that have been made by Justice Brennan in Kioa and by the Court more recently in a number of cases about the subconscious effect of material that is before a decision‑maker.
GORDON J: But it may be conscious, it may be that there is a process of reasoning of writing out the reasons that one forms the view that it may be put aside or should be put aside?
MR HOOKE: Quite.
GORDON J: Or, is available and open, but decides not to include it?
MR HOOKE: Indeed, your Honour. The decision‑maker at a tribunal level may well take the view that it is sufficient to say, well, I do not accept unreservedly the evidence of this witness and think that that it is sufficient, but that, of course, does not shed any light on whether that approach to the evidence was informed by a consideration of material that was before it, but not disclosed.
GAGELER J: Can I just ask you a question about section 430, which I think you said would not require reference in the statement of reasons to the police record if it were taken into account in assessing credit. Is it ‑ what do you say about the operation of section 430(1)(d)?
MR HOOKE: Can I, first of all, correct what your Honour has understood me to have said.
GAGELER J: I may have misunderstood you.
MR HOOKE: The submission that I made about section 430 was that it does not include, in the list of mandatory matters to be addressed by the reasons, matters of credit or matters of procedure.
GAGELER J: Yes.
MR HOOKE: Yes, it requires in (1)(d) that evidence on which the findings of fact were based be addressed but that is open to be understood, one might think, in the mind of a Tribunal member as being, well, I am referring to the evidence, that is the evidence that the applicant gave and I am saying that I do not unreservedly accept it and, indeed, in these respects I reject it.
GAGELER J: That may be so, but focusing just on the legal operation of that paragraph, does it or does it not require reference to the police statement in the reasons of the Tribunal if the police statement is taken into account in assessing credit?
MR HOOKE: We would say, not on its face. We would make the submission in a different context, of course, that obviously it would be desirable that the reasons for conclusions of credit be expressed. That is an observation that has been used, for example, in MZAOL, which is in the joint book of authorities at paragraph 77, to say in this case we would not infer necessarily – the adverse credit findings would not lead us to infer that they were driven by, or influenced by the undisclosed material, because in this case the Tribunal has explained that it did not accept the relevant evidence because of a number of inconsistencies and other matters that were identified in the reasons.
But here there is nothing, nothing, other than section 438 material that was capable of driving any reservations as to credit that were identified in the reasons of the Tribunal. Now, it is said against us, well the Tribunal member used the term “not plausible” in conjunction with “not credible” as a basis for rejecting certain aspects of the evidence and that is so. We also make the observation in our written submissions that there may have been matters of demeanour that impacted on the Tribunal member’s evaluation of the credit of the appellant, but that is not disclosed.
So we say that it is simply not possible, in the absence of those reasons, to conclude that this adverse material in the criminal record was not something that bore upon the Tribunal member’s assessment of the appellant’s credit. It simply cannot be excluded, and it is not, in our respectful submission, an available inference to say that because that prejudicial material was not referred to it did not play a role - nor was any other basis for reservations as to the appellant’s credit disclosed in the reasons. That is the danger. It highlights the danger that we identified in a prescriptive presumption of the kind described in SZMTA.
STEWARD J: What do you say to the proposition that when one looks at the reasons of the decision‑maker, when it came to considering whether your client had a well-founded fear there were really three reasons given for why that could not be so. One was the antiquity of the incident, which was accepted; the second was your client’s own evidence that his father had been pressured, not actually harmed or threatened; and, thirdly, a rejection that because his mother’s brother was a policeman, they would not attack the father but would attack him instead. How does any of that reasoning process bear upon the credibility of the appellant?
MR HOOKE: We say that that is drawn, your Honour, from the findings expressed in paragraphs 22 and 23, which it is probably convenient ‑ ‑ ‑
STEWARD J: In 22 they accept the claim, notwithstanding what are said to be concerns about credibility, and then in 23 they reject the well‑founded fear claim based upon the reasons, I think, that I just gave you.
MR HOOKE: Well, can I take your Honours through 22 and 23 ‑ ‑ ‑
STEWARD J: Yes, please.
MR HOOKE: ‑ ‑ ‑ because we say there is a little more to it than meets the eye and certainly more to it than the Minister would have the Court conclude. The two paragraphs are conveniently set out at core appeal book 57 in paragraph 18 of the judgement of Justice Mortimer. As your Honour Justice Steward observes, the opening words:
Despite some concerns about the applicant’s credibility -
there is nothing anywhere in the reasons that discloses why the Tribunal would have any concerns about ‑ ‑ ‑
KEANE J: Would it not be fair to say that your client, having been in the country on a student visa and having made several applications for a student visa over a period of about six years before asserting a claim for a protection visa, that you might start off in context where there is just naturally a bit of scepticism about his claim for a protection visa?
MR HOOKE: Well, if that is the basis of it, your Honour, it is not found in the reasons of the Tribunal.
KEANE J: Yes, but it is one of those things that is an inescapable aspect of the context in which the Tribunal member comes to decide the case.
MR HOOKE: Your Honour, it may be.
KEANE J: How could one not have – how could one not start from a situation of some concerns about the credibility of the account when it is an account given for the first time after several years and several applications for a student visa? I mean, you know, in the real world who would not be sceptical?
MR HOOKE: Well, your Honour, the Tribunal might be and perhaps that is a fourth element, a fourth possibility that goes into the mix along with demeanour, the 438 material and the other matter that we identified earlier. But that does not establish that the appellant was not deprived of the possibility of a different outcome by the non‑disclosure of this material. All it does ‑ ‑ ‑
KEANE J: All it shows is there are obvious reasons for some concerns about your client’s credibility.
MR HOOKE: Your Honour, it shows that there is another possible matter in the mix, and I accept that it is possible that that may be the reason but that, with respect, does not answer the possibility that the 438 material operated in a way that deprived him of the possibility of a different outcome. I accept the force of what your Honour says about that being a matter which may well have played into the consideration but that, with respect, is not an answer, in our submission.
KEANE J: The 438 consideration in relation to stating a false name could possibly have had some bearing, some extra bearing on the scepticism that arises just from the nature of the story that is told and the lateness with which it is told, that it would anything at all to that scepticism?
MR HOOKE: Your Honour, it is an offence of dishonesty. A number of the other offences that are disclosed by the record involve varying elements of deception – driving whilst disqualified, driving an unregistered vehicle, removing a defect label. They all involve to a degree, with the exception of the drink driving offences, some element of dishonesty or, at the very least, disregard for social standards and norms and rules and regulation.
We say, with respect, the way that your Honour puts the proposition to me is to elevate what we are required to establish in order to ground a claim for relief to a matter of probability rather than possibility. That, with respect, is the error that we say follows from the approach that our learned friends take to the question of materiality.
KIEFEL CJ: Mr Hooke, if one takes the Tribunal at paragraph 23, in the second part of that paragraph, to be saying that the story put forward is not credible or plausible, given that the applicant is putting forward stories which are not credible or plausible, why is that not the explanation for the concerns about the applicant’s credibility?
MR HOOKE: Again, your Honour, it may be – and I think that was the third possibility that I had identified earlier.
KIEFEL CJ: It is plausible, is it not? One does not separate the reference to credibility in paragraph 22 from what follows. One takes the reasons given and says this is obviously what has operated on the mind of the Tribunal. This is a non‑credible story. It is not accepted, and the applicant is a person putting it forward.
MR HOOKE: That becomes, with respect, a little chicken and egg because ‑ ‑ ‑
KIEFEL CJ: Only if you have read this about 350 times.
MR HOOKE: But the issue of plausibility – and this, in a sense, feeds into what the primary judge was discussing in relation to the Canadian cases and the care that is needed in the approach to findings of plausibility or implausibility, particularly where they cross over cultural norms. One needs to be careful about the making of findings of implausibility but, particularly, where, as I said right at the outset, all of the appellant’s claims turned on what he said. So, it is not as though the Tribunal member is saying, “Look, he says this, but I have had regard to country information which tells me something different and I, therefore, find his account to be implausible”. The finding ‑ ‑ ‑
KIEFEL CJ: But a story can be inherently implausible. It can just not carry any weight in terms of rational explanation.
MR HOOKE: It can be, your Honour, but, with respect, other than disbelieving what the appellant had told him, there is nothing that leaps off the page as being inherently implausible or outlandish about what he is recorded as having said. It is, of course, a matter for the Tribunal as to what findings it makes and what view it ultimately takes.
In our submission, the conjunctive reference to credibility and plausibility, where that conjunction appears, links at least to the level of possibility ‑ the rejection for implausibility to the bedrock question of credibility. Of course, there are a number of other matters where the Tribunal simply says, “I do not accept”. Even if you go back to the very first line of paragraph 22, the Tribunal says:
Despite some concerns about the applicant’s credibility, I am willing to accept –
It is almost as though the acceptance of even those propositions was something that was reluctantly breached. Our learned friend is saying well, that does not – the words “some concerns about the applicant’s credibility” do not amount to the clear adverse finding of credibility, but one has to read, of course, the whole sentence. When one reads those words in context with the concession that, notwithstanding the Tribunal was willing to accept certain matters, it puts rather a different slant on the extent to which the Tribunal was questioning the credit of the appellant.
I have said I will take your Honours through and identify the points in paragraphs 22 and 23, and I know your Honours will have read this a number of times. We start with the opening words of 22 and then we have a willingness:
to accept that there was a dispute between his father and his uncle –
An acceptance that:
when the applicant visited Amritsar in 2003 or 2004, he was taken to a house by his cousin –
but rejects his evidence that he was actually threatened when he was taken to the house, but why we do not know. It is not said to be implausible; it is just rejected. He was held until a ransom was paid. He accepts that the applicant stopped going to the Punjab. At the start of paragraph 23:
I do not accept that the applicant has been subject to continuing threats ‑
Five lines down:
Furthermore, the applicant’s oral evidence at hearing, in recent times his father has been pressured . . . I do not accept that if the relatives wanted to harm the applicant . . . they would not be threatening or harming his father . . . I do not accept as credible or plausible that simply because his father was in Delhi and not Amritsar . . . The applicant stated at the hearing that his mother’s brother was a policeman, which I accept. However, I do not accept as credible or plausible that the relatives would not threaten or harm his father . . . because his mother’s brother was a policeman.
Now, credible or plausible, we know because the Tribunal accepted it further up the page, that in fact he had been taken to a house and held for ransom by those same family members. The fact that – so it does not immediately leap out as inherently implausible:
I do not accept that the relatives have a continuing adverse interest in the applicant.
STEWARD J: But is that not because of really ‑ if I can summarise it ‑ because the incident has become stale? Is that not what they are really saying here? They are saying, look, I accept that you were drugged and kidnapped, but having regard to what has happened since, you do not presently have a well‑founded fear of prosecution because, look, you lived in Delhi peacefully, your father has not been threatened, and your suggestion that they would harm me instead of my father because my mother’s brother is a policeman, sort of beggars belief a bit. Is that not what they are really saying?
MR HOOKE: Well, whether it beggars belief or not is ‑ ‑ ‑
STEWARD J: I mean, there is no rejection of his credit in relation to that reason, what is rejected is the explanation of fearing harm if returned now.
MR HOOKE: Well, the opening words at paragraph 23 are:
I do not accept that the applicant has been subject to continuing threats ‑
STEWARD J: That is because the reason is then given at the next sentence.
MR HOOKE: Yes, but the appellant had given evidence that despite that he was the subject of continuing threats. So that, in a sense, strips away the proposition that the fear is stale. But all of these possible explanations for why a view might be taken in relation to the credibility, plausibility, of the appellant’s evidence simply, in our submission, served to highlight the possibility that this material played a role in the outcome.
GAGELER J: So, your case as I understand it ‑ ‑ ‑
MR HOOKE: We – I am sorry, your Honour ‑ ‑ ‑
GAGELER J: I am sorry, I do not mean to cut across what you are saying, but you are saying, look, it is enough for materiality to be established or not displaced, if the onus of proof is on the defendant that it was possible that the police record was taken into account and that it was then possible that having been taken into account it influenced the findings of credibility in paragraphs 22 and 23. I think you accept though that if the proper inference on the balance of probabilities is that the police record was not taken into account then that meets the materiality point entirely.
MR HOOKE: Yes, if, as a matter of fact, it was not considered at all.
GAGELER J: So leave any presumption aside, you have an obligation on the part of the Tribunal in section 438 itself not to take the material into account unless certain procedural steps are taken. We know that those procedural steps were not taken. Arguably, at least, there is an obligation in section 430(1)(d) to identify any material that was taken into account in the statement of reasons, and we see that the police record is not identified in the statement of reasons. Then we see, in the statement of reasons, in paragraphs 22 and 23, arguably, a self‑contained explanation of a story that the Tribunal just did not believe. Why should we not infer, in those circumstances, that on the balance of probabilities what should have been taken into account was not taken into account?
MR HOOKE: Well, again, can I respectfully take issue with your Honour’s description of 430(1)(d) because it does not require an exposition of all the material taken into account.
EDELMAN J: Section 430(1)(d) is in remarkably similar terms to the common expressions of the test for adequacy of reasons, which picks up for – whether for a judge or for a Tribunal member, the requirement to express all evidence which is crucial to the decision.
MR HOOKE: Yes, but 430(1)(d) refers to the material on which the findings of fact were based and that, in our submission, is a narrower construct than the general obligation, the judicial obligation, to give reasons.
EDELMAN J: You are relying effectively upon a gap between evidence that is crucial, or evidence upon which findings are based, and evidence which could possibly have affected the outcome.
MR HOOKE: Well, we are really answering a proposition upon which our learned friends rely, and that is that because 430 requires the Tribunal to give reasons for its decision, the fact that the 438 material does not appear in the reasons is evidence that it did not consider them. We say, well, 430 simply is not that broad or clear in its application to the subject matter that we are dealing with here.
The other matter, and I am jumping ahead, in fact, moving on to the earlier decision of the Tribunal, and your Honours will recall that this case is somewhat unusual because there were two decisions made by the same Tribunal member, one made in the absence of the appellant, on 19 September 2014, and that decision is in the appellant’s further materials starting at page 28 and on page 29, at paragraph 3, the Tribunal member recorded that:
On 18 August 2014 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone.
On any view, the 438 material was material before it relating to his application, so we say that regardless of any inference or any absence of reference to the 438 material in the reasons that were ultimately under review, it is plain from the terms of the first decision that the Tribunal member had considered the material sent under 438. We say not only does that operate to displace any permissible inference, but we say it is direct evidence of the fact that the material had in fact been considered.
Your Honours have engaged me in debate about a number of possible reasons why the Tribunal might have expressed reservations or concerns about the appellant’s credibility and I respectfully accept the force of all of them, but the fact is that in this case there is a conceded denial of procedural fairness and there is a direct statement by the Tribunal member in the first decision that he had in fact considered that the material was subject of that breach.
EDELMAN J: Is there any provision equivalent to the provision of the - in relation to the Immigration Assessment Authority that requires the Tribunal to consider all the material or information that is provided to it?
MR HOOKE: Your Honour, I believe not. We have searched for it. There is such an obligation on the Minister and, as your Honour observes, there is on the Authority, but we do not understand there to be in relation to the Tribunal.
KEANE J: Mr Hooke, this material that you have just shown us, page 29 of the appellant’s book of further materials, was this document before Justice Mortimer?
MR HOOKE: I believe so, your Honour. Yes, your Honour, it was, and it is identified in the core appeal book at page 77, the second item on that page, “RRT Decision Record 19 September 2014”.
KEANE J: Sorry, the core appeal book?
MR HOOKE: Page 77, which is the index to the appeal book in the Federal Court.
KEANE J: Thank you.
MR HOOKE: It is the second item.
GAGELER J: There was once somewhere a statutory obligation to invite an applicant to an interview or hearing in circumstances where the Tribunal is not able to reach a decision in the applicant’s favour on documents alone. Was that reflected in the legislation as of November 2014?
MR HOOKE: It was, your Honour. It is at section 425 – I am grateful to my learned friend.
GAGELER J: So clearly enough to think that the reference in the early statement of reasons is explicable as the Tribunal attempting to comply with the obligation in section 425?
MR HOOKE: The Tribunal at paragraph 3 of the first reasons recounting as a matter of history that it had considered all of the material and had extended the invitation under 425. That invitation was frustrated for reasons that are presently irrelevant. But we rely on it as evidence of the fact of consideration. That is as far as it may go.
Of course, the obligations in relation to disclosure find further force in 424AA and 424A, which provide respectively for the giving of oral notice or written notice of material or the substance of it that might bear upon the consideration of the review. It was that confluence of obligations that largely informed the implied obligation of disclosure found in SZMTA. So it is against that background that the obligation arises and against which it fell in this case.
GORDON J: In a recent decision which was published a couple of days ago, which has been provided by the respondent – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 - there is an analysis in the context, I must say, of the apprehended bias claim where their Honours, at paragraph 112, and following, in effect, set out the statutory scheme for Part 7. In a sense, that is the core of the submission, is it not, that you have these provisions which sit with section 438 – the provision of the material under 418(3), giving rise to this question here about whether or not the inference can be drawn?
MR HOOKE: Quite so. While your Honours have that decision open – relevant to the observations that your Honour Justice Gordon made earlier in relation reasons and what might or might not find their way into it for whatever reason – the court, at paragraph 81, made the same type of observation in relation to conscious or subconscious effect and the difficulty in excluding the possibility that matters - that material that had been read or considered or seen might apply to a role in the decision‑making process.
So, all of that is uncontroversial, it would seem. But it sits ill with the approach that Justice Mortimer took to the question of onus and the presumption from SZMTA. Her Honour says in terms that had she not considered herself bound by this prescriptive presumption, the outcome may well have been different. So it is clear that in her Honour’s mind the presumption, as she understood it to be, was dispositive of the appeal before her.
Whatever be the force of possible other explanations for views taken as to credit, this one remains, and it just cannot be excluded as a possibility, in our submission. Indeed, at core appeal book 67, in paragraph 36, her Honour discusses the nature of the credit findings that the appellant relies on.
GORDON J: Is that paragraph 56?
MR HOOKE: Paragraph 56, I am sorry, your Honour, thank you.
GORDON J: Thank you.
MR HOOKE: In the first sentence, her Honour says there is nothing that indicates that:
the Tribunal had formed a clear opinion the appellant had lied.
Now, in the way that your Honour the Chief Justice poses, the proposition in relation to the appellant telling implausible stories and therefore being not a witness of credit becomes something of a circular argument because if it be the case that the reason for the finding is that he told implausible stories and therefore was not to be believed, then that is a finding that he is a liar.
EDELMAN J: In the absence of a presumption, you say that Justice Mortimer might have then reached a different decision.
MR HOOKE: Yes.
EDELMAN J: Do you take any point then about the absence of a notice of contention on that point.
MR HOOKE: Yes. I think we have said as much in writing that there is no contention that her Honour would have been wrong to so conclude, and indeed it was not put, as we understand it, that the 438 material was incapable of having an effect if it were considered. It was put that one might infer that it was not considered because of what the Minister describes as the marginal relevance of it, but it was not put that it was incapable of influencing the outcome if it were considered.
KIEFEL CJ: Mr Hooke, in the absence of the Tribunal dealing with the applicant’s aspects of his demeanour or other things attributable to him as a witness of truth, given that that does not appear anywhere in the reasons, why would one not infer that it was the storytelling which was the only aspect of the finding of credit?
MR HOOKE: Because that is not said either, your Honour, with respect.
KIEFEL CJ: You are asking a lot of tribunals to explain powers and explain every word that they say - I mean they say concerns about credit and go on to explain aspects of the stories which, as Justice Steward has pointed out are so late in the piece, so long ago and so inherently odd ‑ ‑ ‑
MR HOOKE: We would respectfully take issue with that characterisation of it.
KIEFEL CJ: I appreciate that.
MR HOOKE: Nor, may I say, would we put the obligation to give reasons as high as your Honour describes. We simply say that one would, in the absence of some expressed reason for the finding, the general finding as to credibility, bolstered then by the - being dragged into willing to accept in the following words and then rejecting a number of aspects of the appellant’s evidence, we say in the absence of some exposed rationale it is an available inference and one that is sufficient to establish materiality ‑ ‑ ‑
KIEFEL CJ: The way in which I put it to you is in relation to the Tribunal’s reasoning on its face seems to be the way in which her Honour Justice Mortimer has approached the matter at paragraph 56.
MR HOOKE: Can I say something else about paragraph 56 because it is important. At about line 35, her Honour says:
Those passages appear to me to be the Tribunal explaining that whether the appellant’s narrative made objective sense, or whether he might be embellishing or making up aspects of it, either way, it did not lead in the Tribunal’s opinion to an objective basis for his fear.
Wrapped up in all of that is an assessment of this man’s credit. The fact that her Honour engages in that passage in the speculation as to what the Tribunal’s reasons in paragraphs 22 and 23 mean in terms of the appellant’s credit and speculation as to why the Tribunal said what they did in those paragraphs illustrates, with respect, our point.
In a sense, that finding is all we need to establish materiality, in our submission, because it illustrates that it is not clear why the Tribunal reached those views and it leaves open the possibility, one which her Honour elevated to a probability on the basis of the inference, that there was a different outcome available with compliance with the obligation for procedural fairness.
That passage, in our submission, in one sense is enough for us to succeed on the proper test for materiality because it leaves open the question and it makes clear the fact that her Honour as the reviewing court, thought that this might be what the Tribunal was reasoning, but that is as far as her Honour could take it. As her Honour says at paragraph 57 at the foot of the page:
The Tribunal’s reasons do not disclose any real assessment of the appellant’s honesty at all ‑
So this is not a case like MZAOL and the other cases where the Court is able to say, “The Tribunal has explained that, because of this evidence, this evidence and this evidence, which contradicts the evidence given by the applicant, I do not accept the evidence of that witness”. This is not that case.
In this case, there just is not that exposition. So, it leaves open, indeed, we say it leaves quite exposed, the role that the 438 material may have played in this case. And it is all the more so when one has regard to the fact that, as we know, this same Tribunal member had considered all of the material, which must be taken to include the 438 material, before any hearing was convened.
As we have submitted elsewhere, the nature of the material, although characterised by the Minister as of marginal relevance, and even if one accepts that epithet, was credible, relevant, and significant in the way described in VEAL of 2002. It was credible because it came from the source of the Victorian Police, so it was official record. It was relevant because it bore on his credibility and on his respect for social obligation and rules, and because the Department considered it to be relevant, because that is the only basis upon which it would have been sent under 418(3), and it was significant for the same reasons that it had relevance. So, it was not material ‑ ‑ ‑
KEANE J: Does not significant mean pointing to the outcome? Does it not mean apt to make a difference to the decision?
MR HOOKE: Apt to bear upon the decision, but I would accept ‑ ‑ ‑
KEANE J: That is relevant.
MR HOOKE: Yes. Well, it is difficult to discern ‑ ‑ ‑
KEANE J: Significant normally means pointing to the outcome. That is why it is significant.
MR HOOKE: Well, we would say that in the context in which that formulation of words was used in VEAL, it does not rise that high. But certainly it means something that cannot be immediately dismissed as something that would be put to one side. So it is something that ‑ for example, if the applicant had sent the Minister a Christmas card and it was attached to a section 438 notice, then that would plainly be something that would not satisfy the requirements of relevance or significance, even if credible. That is an extreme example, I accept, but we say that in the context of the material under consideration in VEAL, significant does not mean that the material must point directly to the outcome. Indeed, the material in VEAL ‑ ‑ ‑
KEANE J: Well, might affect the outcome.
MR HOOKE: It might?
KEANE J: Would that be enough to be ‑ ‑ ‑
MR HOOKE: I accept that, yes, it would ‑ ‑ ‑
KEANE J: So, to be significant, it might affect the outcome?
MR HOOKE: Yes, and the way in which it might do that is not something in respect of which one could close categories.
KEANE J: But you have to be able to say it might make a difference to the outcome?
MR HOOKE: Yes, whether by affecting credit or any other matter of relevant fact or discretion. The other authority to which we draw attention, particularly in our submissions in reply, of course, on the question of materiality and the inference to be drawn, is Kioa v West, and we have extracted the signal passages in our submissions in reply.
There is one error in one of the citations, if your Honours have the submissions in reply at paragraph 2. The passage from Justice Brennan said to be at 603 is in fact at 628 of the report.
GAGELER J: I suppose you would accept the last ‑ the expression of the test in the last sentence of the extract from Justice Wilson that you have in paragraph 4?
MR HOOKE: We accept that formulation.
GAGELER J: You accept that formulation.
MR HOOKE: We say that is reflective of the true test. We say it is reflective of – the standard is reflective of the other cases that have followed. And there are significant policies reasons, of course, why the bar for materiality should not be set high. The process of judicial review and the remedies that follow – the rights that it safeguards – are very significant.
As this Court said on numerous occasions – it is a matter of great significance that there be consistency in the application of those rules. It ought not, for example, and this is a point that was emphasised by Justice Nettle and Justice Gordon in SZMTA ‑ it ought not depend whether or not there has been jurisdictional error through a failure to comply with a statutory precondition upon whether or not particular evidence is available in a particular case going to a particular matter that one would ordinarily not expect to be the subject of evidence.
And, to use this case as an example, trying to delve into the mind of the Tribunal member, you go behind the reasons that are exposed, is simply not an available evidentiary option. It is not available because of the terms of the Act constituting the Tribunal, now the AAT Act, and the provisions in volume 1 of the joint book of authorities. A member of the Tribunal is not compellable in any proceeding.
So, when one has, as Justice Mortimer understood to be the case, a prescriptive presumption, that the reasons are the be‑all and end‑all, that creates a significant barrier to the exercise of the entrenched right to judicial review, and one that, with respect, this Court would not endorse.
What we say about the appropriateness of the low bar is emphasised by the decisions – by the reasons of all members of the Court in Minister for Immigration vWZARH 256 CLR 326. Your Honour the Chief Justice and Justices Bell and Keane addressed the issue at page 339 of the report, in paragraphs 42 to 44 and Justices Gageler and Gordon at pages 341 to 343 in paragraphs 54 to 60, in particular 58 to 60. I take your Honours to those reasons, the reasons of Justices Gageler and Gordon, because we do not understand what is said there to be different in principle from the treatment of the issue by the other members of the Court. I see the time, did you Honours intend to - - -
KIEFEL CJ: We usually adjourn at 11:15. Thank you.
MR HOOKE: As your Honour pleases, I will deal with this. At paragraph 54, her Honour has extracted a well‑known and controversial passage from Aala and emphasised that what is important is process in this context. It is not the correctness of the ultimate decision that is in issue, it matters not in a sense whether the reviewing court might think in its own mind that the decision was right. The remedy for jurisdictional error for denial of procedural fairness is directed to process. The way in which it was formulated then in paragraph 55 and following is:
The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration.
Such a breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome” ‑
citing Stead. So, it is apparent from that passage, in our respectful submission, that the bar for materiality in terms of the possibility of a successful outcome in the context relevant to this appeal, is set very low. And, over the page at 342, there is some more emphasis given to that submission. At paragraph 58 their Honours said:
Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed.
And I pause there to interpolate that that, with respect, sounds awfully like the submission being put by the Minister in this appeal. Their Honours continued:
What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision‑making process.
And then, importantly, at 59:
There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.
Now that, of course, is Stead, to take an example. And our learned friends say, well, Stead is in fact illustrative of the correctness of the Minister’s position because if the trial judge in Stead had rather than accepting the evidence of the witness in respect of whom he had stopped counsel addressing, it could not then be said that there was a denial of procedural fairness that satisfied the test of materiality, and that is plainly correct. But nor, in that situation, would there, properly understood, have been a denial of procedural fairness, because the judge would have done what he had indicated to counsel he was going to do.
So, the distinction that our learned friends draw in that respect is wrong at a factual level. But, secondly, it is distinguishable from this case because it falls into the category of cases described in paragraph 59 of WZARH. This case, however, falls within paragraph 60. Their Honours continue:
Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
And that is the very way in which we frame our submission in relation to the way the onus operates in this case.
KIEFEL CJ: That might be a convenient time, thank you, Mr Hooke.
MR HOOKE: If your Honour pleases.
KIEFEL CJ: Will you be much longer with your submissions?
MR HOOKE: I will not be much longer, your Honour, no.
AT 11.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 11:29 AM:
KIEFEL CJ: Yes, Mr Hooke.
MR HOOKE: Thank you, your Honour. Could I return to your Honour Justice Keane’s question to me about “credible, relevant and significant” and ask the Court to take up volume 2 of the joint book of authorities at page 301 which is Applicant VEAL v Minister 225 CLR 88 at 96. In paragraph 17 of the joint judgment of the Court, halfway down the paragraph, their Honours said:
“Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision‑maker before making the decision. And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision‑maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
Or, we would add, not expressing reasons. So, that is the context in which that label is to be understood in our submission. It is given further context in paragraphs 18 and 19, which follow immediately after and which are, respectfully, to like effect to the passage from Justice Gageler and Justice Gordon in WZARH – to which I took the Court before the short break.
It is put against us, in a way that finds expression in the respondent’s submissions at paragraphs 29 and 30, that there is in fact no difficulty with the presumption in paragraph 47 of SZMTA. But, in our respectful submission, the submissions of paragraphs 29 and 30 make good the very difficulty that we submit arises.
It is put as though it is an acceptable approach to judicial review, that it is no problem at all that in the case described in paragraph 29, that is, where it is contended that information favourable to the applicant was not taken into account, that a finding that the notified information was not considered will suggest that jurisdictional error has occurred.
Now, that is well and good and that was the scenario in SZMTA. It was effectively a case, like all of the cases upon which the Minister relies, of a failure to take into account relevant material. The failure to do that, of course, to the extent that it is characterised as a denial of procedural fairness, is of an entirely different character to failing to disclose the provision to the decision‑maker of adverse material.
The Minister says at paragraph 30, well in the case where there is adverse material that is not disclosed, in conceded breach of the obligation of procedural fairness, the inference is that if it is not mentioned it was not taken into account. Ergo, there is no denial of procedural fairness of a material kind.
The difficulty with that dichotomy is that the informing of the question by the nature of the error is overlooked. It is arbitrary, in our submission, that one case of jurisdictional error has a different onus – a different set of onuses, and a predisposition towards a different outcome depending upon whether the material the subject of the breach is favourable or adverse.
So, the effect of the Minister’s submission is that an applicant for review who complains that some favourable material was not considered is entitled to succeed because the reasons do not disclose that it was and therefore there is jurisdictional error, but an applicant for review who has not been given the benefit of knowledge or disclosure of material adverse to them fails in the same claim for judicial review purely because of the nature of the material the subject of the breach, and that, with respect, cannot be right.
It is the very point that we make, and that Justice Nettle and Justice Gordon made in SZMTA, that the rules of judicial review must apply consistently, not arbitrarily according to variations on a theme – except to the extent of course that the nature of the error informs an inquiry. But something so fundamental as the distinction that the Minister draws at 29 and 30 of his submissions, in our submission, serves to highlight the very matter of which we complain.
The final area that I wish to address is a submission that even if SZMTA is to be understood as Justice Mortimer understood it, the presumption is not engaged in the circumstances of this case. We have identified in our oral outline at paragraph 10 a number of particular matters that we say lead to the disengagement of the presumption because, in our submission, on any view it cannot be understood as prescriptive, as I submitted earlier on.
Those matters have in large measure been addressed in the course of debate with your Honours already and I do not intend to repeat those submissions. Suffice to say that we say for the reasons we have given in writing and more compressively summarised in paragraph 10 of our oral outline that, even if SZMTA stands as it is presently expressed, the presumption is not engaged for those reasons and of course, as arose early on in the piece, if we be wrong about that and Justice Mortimer is correct in her understanding about the effect of SZMTA, then we respectfully submit that the Court should overrule it. Unless there is anything further, your Honours, those are our submissions.
KIEFEL CJ: Thank you, Mr Hooke.
GLEESON J: Mr Hooke, in Mr Donaghue’s oral outline he notes at paragraph 13 the appellant’s submission below that the only conviction in the police record rationally capable of affecting the assessment was the “state false name”. Are you putting the denial of procedural fairness solely on the basis that there was consideration of the “state false name” conviction, or are you relying more broadly on the consideration of the police record?
MR HOOKE: No, we do put it more broadly, your Honour, and we have addressed in writing in our submissions in-chief the fact that that was the approach that was taken before Justice Mortimer, but we do seek to depart from it. It is not a matter that would be addressed by evidence or anything of that kind. It is really a question of how one views the material the subject of the breach. We do put it on a contextual basis and that, I think, was the way that I expressed it in discussion with Justice Keane earlier.
GLEESON J: Thank you.
KIEFEL CJ: Thank you, Mr Hooke. Yes, Mr Solicitor.
MR DONAGHUE: Your Honours, can I start by identifying three matters that, as we understand it, are not in dispute between the parties. First, your Honours will have seen that the Minister accepts that the Tribunal denied the appellant procedural fairness by failing to disclose the existence of the notification given by the Secretary under section 438 of the Act, and that was recorded by Justice Mortimer below at paragraph 30.
Second, there is no dispute between the parties that that denial of procedural fairness will constitute a jurisdictional error only if it is material in the sense that there could realistically have been a different decision if the Tribunal had disclosed the existence of the 438 notification, and you see that, amongst other places, in our friend’s submissions at paragraph 2(a) and 23 to 24, where they, it seems to us, accept that they have a burden in relation to materiality, and that is the third point.
There is, as we understand it, no dispute that the appellant, as the moving party alleging jurisdictional error, bears the onus of proving that the breach was material, the dispute being about what the appellant had to do in order to discharge that accepted burden.
KIEFEL CJ: I had understood the Minister to say that the question of onus addressed in SZMTA should be reviewed as well, in oral argument.
MR DONAGHUE: In oral argument, there did seem to be some suggestion that the question of onus should be reviewed but I think, your Honour, that that was part of a more general discussion about whether how what has been called the presumption, which is really a process of fact finding, based on inferences, works in resolving the fact finding, whoever has the burden.
EDELMAN J: Mr Hooke said that the only onus that an applicant ought to bear, whether you call it in relation to materiality or in relation to the procedural fairness issue itself, is the onus to prove that there could have been a difference and he accepted that that might actually be part of just a practical consideration of whether there was any procedural unfairness at all, rather than a question of materiality which would leave the entire materiality onus on the respondent.
MR DONAGHUE: But what I was seeking to set up by way of things that were not in dispute was, I think, the first part of what your Honour Justice Edelman puts to me, and it is, we are relying on paragraph 2(a) where our friends say in their submissions, the essential issues are:
whether, in judicial review proceedings, the onus in relation to materiality requires an applicant to establish more than the possibility of a different outcome –
So they seem to have accepted they have to establish the possibility of a different outcome, I do not think our friend departed from that.
EDELMAN J: Do you accept that possibility of a different outcome is something that is almost intrinsically built in to procedural unfairness? In other words, how can it ever be unfair, for example, not to disclose something that could never possibly affect the outcome?
MR DONAGHUE: I certainly accept that. It could never possibly affect the outcome but, as I will seek to develop, part of – we do not disagree with that formulation. The appellant has to establish the possibility of a different outcome. Our submission is that the appellant cannot do that in a case of this kind without first proving that the Tribunal actually looked at the material because if the Tribunal did not have regard to the material, and made an adverse decision, then there is no possibility of a different outcome based on disclosure, because the Tribunal, in fact, made its decision without reference to the material that is the subject of debate. So that is what I seek to develop. But that is the contest between the parties, how ‑ ‑ ‑
GORDON J: Does it come down to this label, as I understand it? If you accept what Justice Edelman just put to you, as I understand it in relation to that first question, a realistic possibility of a different outcome is something that is other than fanciful or improbable, so that hurdle is that hurdle for that question. It is a separate question having, in effect, established procedural fairness because that is part of that question to then move to the second question, which I understand from Mr Hooke is, he suggests, or contends, should be put on to the Commonwealth.
So if you take them as two separate stages, this question of what is procedural fairness, in some cases it may be evident on its face because of the nature of the error, in some cases you have to ask yourself whether or not he could have, could not, would have, possibly, realistically possibility, led to a different outcome.
MR DONAGHUE: Well, your Honour, as I understand it, the point that divided the Court in SZMTA was connected but not exactly the same as the second issue that your Honour just put to me, in that it was accepted that there was a breach of procedural fairness, and the debate is then when will that breach of procedural fairness constitute a jurisdictional error. The majority hold that only if a statutory implication described in short form as materiality can be established, in that the appellant can show that the identified breach of procedural fairness could have made - realistically have made a difference, so that the majority is part of the jurisdictional error conclusion.
GORDON J: In that context, they said in SZMTA, that realistically meant distinguishing assessment of possibility of a different outcome from something that was fanciful or improbable.
MR DONAGHUE: I cannot recall exactly that passage that your Honour is putting to me, but I said could realistically have resulted in a different decision was the formulation that was used a few times. To complete my answer to your Honour’s question though, for your Honour and Justice Nettle, that is the second question, that it was a discretionary refusal of relief question, and if the case be analysed in that way, then I would accept that the Commonwealth or the Minister would have the burden to establish, once a jurisdictional error has been proved to exist, the Commonwealth would have the burden, but, in our submission, that analysis, and your Honour and Justice Nettle’s analysis rejects the existence of materiality as relevant to the establishment of the jurisdictional error, and that is why the burden does not lie on the appellant.
EDELMAN J: But that is not a rejection of the could question.
GORDON J: No.
EDELMAN J: So if, for example, in this case, the material that was not disclosed was, say, three very minor speeding offences. There would be a very real question, even on the approach that Justices Nettle and Gordon took, as to whether there is procedural unfairness, because you might say that two very minor speeding offences are matters that just could not affect the decision‑making process, and so therefore there could be no procedural unfairness in failing to disclose them.
MR DONAGHUE: Your Honour, I do not disagree with that. That, in my submission, ties into some of the questions Justice Keane was asking about relevant, credible and significant – there could be material that just does not meet that test and therefore cannot establish a breach of procedural fairness. I think, Justice Gordon and Justice Nettle and the majority in SZMTA would be at one in saying no breach of procedural fairness there.
But if we are not in that category, so that you do have, as we have conceded in this case, a breach of procedural fairness, on the majority in SZMTA, that is not a jurisdictional error unless you have something more, unless you have a scenario where that could realistically have resulted in a different decision. And because that is part of establishing jurisdictional error, as a matter of principle the appellant must bear the burden in relation to that because their cause of action requires them – the moving party – to establish jurisdictional error.
KIEFEL CJ: Accepting that that is the argument that is put, in SZMTA the question of onus was not gone into in any great detail. I do not think it was something that was particularly argued. I understand that your view would be that the question – the onus lying upon the applicant or appellant would follow from the requirements of jurisdictional error.
MR DONAGHUE: Well, your Honour, the majority expressly said it in paragraph 46 of SZMTA. Could I ask your Honours – I do not think you have actually been taken to SZMTA, so could I ask your Honours to go to it. It is volume 2, tab 17 (2019) 264 CLR 421. The paragraph I was just referring your Honour the Chief Justice to was 46, but could I ask your Honours just to start at 44. This is in the judgment of your Honours Justices Bell, Gageler and Keane, which is the majority judgment.
So, at paragraph 44 their Honours reject the arguments that both parties had advanced in that case, and in the last half of 44 identify the proper approach as:
Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection –
And that is a reference to the joint judgement of your Honour the Chief Justice and Justices Gageler and Keane:
the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
Now, I will not take your Honours, at the moment at least, to Hossain, but in Hossain, particularly at paragraphs 27 to 30, that rule of construction is identified as one of the common law principles that informs the construction of a statute in terms of the identification of the legal limits of the power that the statute confers.
So, the whole jurisprudential foundation of the materiality concept is that it is part of the ascertainment of where the line is to be drawn beyond which the statute no longer authorises administrative action to be taken. Once it is understood in that way, it necessarily follows as a matter of principle that the onus of proving that that limit has been exceeded falls on the party who alleges it.
EDELMAN J: Is that right? Are the common rules that inform materiality themselves influenced by the history of statutory development, or could they be? So, for example, this common law rule may be influenced by rule 48 of the Rules that was brought in at the time of judicature which provided across the whole of the civil side for an exception to the exchequer rule which allowed for a new trial not to be granted in circumstances where it was not a substantial wrong or miscarriage, but that onus was always on a defendant.
MR DONAGHUE: Your Honour, there is some difficulty and our friends rely interchangeably on cases decided in the judicial context ‑ new trial context and the administrative law context, and there is some difficulty just moving between those two in terms of working out how the applicable limit is to be identified, because when a court will under rules of court determine to grant a new trial is, in my submission, not the same at all as identifying where a power conferred by statute does or does not impose a limit, the breach of which means that the decision‑maker will exceed their function. So in Hossain – perhaps I will take your Honours to Hossain ‑ ‑ ‑
GAGELER J: Mr Solicitor, just perhaps before we go to the detail of the cases, the underlying principle of construction could be stated in a couple of different ways, and I am not sure that we have been entirely consistent in the way that we have stated it between Hossain and SZMTA. It could be said that a breach of procedural fairness amounts to a jurisdictional error if affording procedural fairness could realistically have resulted in a different decision. Now, on ordinary principles, that is a formulation that casts the onus of proving materiality on a plaintiff.
MR DONAGHUE: Yes.
GAGELER J: But it could be, and I think even in what we have said, might be from time to time expressed just slightly differently to the effect that a breach of procedural fairness constitutes jurisdictional error unless affording procedural fairness could not realistically have resulted in a different outcome. That would be a formulation that according to ordinary principles of statutory construction would cast the onus on the defendant. I understand to be in play in argument in this case whether one formulation or the other or some variation of it is the preferable formulation.
MR DONAGHUE: The latter formulation your Honour used is the formulation that would, ordinarily, have been understood as accepting that the breach of procedural fairness would constitute a jurisdictional error and that then relief would follow unless the Minister shows that there is no purpose in doing so, as a matter of discretion, because they can show it would not realistically have made – making a decision – that is ‑ ‑ ‑
GAGELER J: It might coincide with that but conceptually it is slightly different in the way that you ‑ ‑ ‑
MR DONAGHUE: Conceptually, it does not necessarily have to be.
GAGELER J: Yes.
MR DONAGHUE: But, your Honours did grapple with this question – specifically in SZMTA – and in paragraph 46 said, in terms:
the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
So, the point was decided as being understood as having been decided in at least two cases of the decisions of the Full Federal Court since then – which I will take your Honours to – and have applied that point and should not be regarded as open unless your Honours are persuaded that there is a proper basis to depart from that decision.
GAGELER J: Yes. It is against the background of what is said in paragraph 41, of course.
MR DONAGHUE: Yes.
GAGELER J: It was really not the subject of any intense argument.
MR DONAGHUE: Yes, because your Honours identified that both parties had not analysed the issue, perhaps in the right way. But, in my submission, nevertheless, your Honours, if I might say so with respect, coherently analysed the foundations of the materiality principle drawn from Hossain that you had identified in 44 as the applicable principle, said that materiality had to be shown in order to establish jurisdictional error. Applying that, the question at the end of 45, it is material:
only if compliance could realistically have resulted in a different decision.
And then said the appellant has to prove that and went about explaining, in the paragraphs that follow, how that worked by reference to inferences of fact. The label “presumption” has been attached to one of those inferences that I will come to but, really, your Honours were not creating anything new here. You were explaining a fact‑finding process by which a court might draw conclusions about whether or not a jurisdictional error had or had not been proved in circumstances where the existence of that error depended upon the appellant establishing that their compliance could, realistically, have resulted in a different decision.
While your Honours still have SZMTA – I will come back to the question of inferences and the presumption in a moment – but, just in terms of the questions of fact that the reviewing court might need to resolve what facts should be found, the judgment gives some guidance about that. If your Honours look, in particular, at the end of 47, the last few lines of 47, one of the things the Court on judicial review might find, or might infer, is that the Tribunal:
paid no regard to the notified document or information in reaching its decision.
That is identified as a relevant conclusion to be drawn by inference from the facts, and your Honours then returned to that in paragraph 50 over the page:
In order to inform curial determination –
Of two identified issues, the first of which is:
how the Tribunal in fact acted in relation to the notified document –
That is identified as one of the things that is relevant to be found
EDELMAN J: The appellant accepts that, the only point the appellant says is you do not elevate that to a presumption.
MR DONAGHUE: Your Honour, as I understand the appellant’s submissions, they say that we are wrong in principle to say that the Court needs to make a finding about what did happen, they say all they need to do is make a finding about what could have happened. They say if it could have happened, that is enough in their submission.
GORDON J: They are really the flip side of the one coin though at the moment, are they not? The question is, as I understand it, could have happened by reference to an – instead of established facts and the drawing of appropriate inferences from the facts, as distinct from this kind of analysis which says I have to prove in effect what did happen on a higher standard, probabilities versus possibilities.
MR DONAGHUE: Your Honours, can I show you how the majority actually applied this in analysing the facts that were before it? If your Honours go on to paragraph 68 on page 451, your Honours will recall there were three cases before the Court, this is in relation to SZMTA itself, and at 68, the majority are describing what Justice White, who was the Justice who constituted the Federal Court on the appeal below, and it said:
his Honour speculated as to how the Tribunal “may” have treated information in the identified documents in reaching the decision under review and ultimately found jurisdictional error by virtue of “the prospect that, by reason of the presence of the delegate’s notification, the Tribunal did not have regard to information ‑
So, the prospect that it might not have been considered or speculated as to how it may have been treated, that in paragraph 69 is said to have involved four errors, “erroneous in four respects”, the third of them, which is about at eight lines down:
Third, his Honour failed to make a finding as to whether the Tribunal had in fact failed to take such documents and information into account in reaching its decision.
So, it was not enough to speculate as to whether they might or might not have been taken into account, it had to find what was taken into account or not. That is what the Court itself did in paragraph 70, in the latter part of that paragraph. It finds, applying the inference identified in paragraph 47, reading from about four lines from the bottom of the page:
In the absence of any reference to the documents or information in the Tribunal’s statement of reasons, the appropriate inference to be drawn is that the Tribunal accepted on the basis of the notification that s 438 applied . . . and accordingly took no account of the documents or information in reaching its decision.
So that is the finding of fact referred to back in 69. But then there is a further step that these documents were so peripheral that it could not realistically make a difference anyway.
EDELMAN J: In response to a question from Justice Gageler, the appellant’s counsel accepted that, if the respondent proved that the material in this case was such that it was not taken into account by the Tribunal, then the respondent would have discharged what the appellant says is its respondent’s materiality onus.
MR DONAGHUE: Yes, which must be right.
EDELMAN J: Is that saying anything more than what paragraph 69 and onwards is saying?
MR DONAGHUE: It is putting the onus the other way around.
EDELMAN J: Yes, apart from that onus point.
MR DONAGHUE: Apart from the onus point, no. The concession is correctly made, if I might say so, with respect to my friends because if, in a case where the information, if it is relevant at all, hurts a person’s case – and it is different in the reverse situation – and it was not considered, was not taken into account, the person still lost, they cannot do better by getting a chance to make submissions about the information that hurts their case because the most they could hope to do is to say, “Do not use this information to hurt my case”, and that is what already happened, so it cannot realistically ‑ ‑ ‑
GORDON J: That depends, though, does it not? That is question ‑ the discussion and debate a number of us have had with Mr Hooke – that is, it is not a binary choice. It may be that the material, on the assessment of the facts – and that is the reason why, as I understood Mr Hooke’s argument, you may accept it or reject it ‑ took us through the reasoning and analysis of her reasons because it may be apparent that there is no other justification for a finding. So it may be that the material is adverse and it was either – I mean, someone talks about “conscious” and “subconscious”, but it might have been taken into account.
MR DONAGHUE: Your Honour, I understood the premise of the question to be that it had been proven on the balance of probabilities that it was not taken into account by someone. I thought Justice Edelman was saying either by –
GORDON J: I see.
MR DONAGHUE: So, if it really has not been taken into account, then it just cannot make a difference and so the critical question then becomes one of onus, but if the limit on power is understood as it was identified in Hossain and, in my submission, followed in SZMTA, then as a matter of principle the burden is where it was found to be in paragraph 46 on the appellant.
That means that in a case of this kind they have to prove what the Tribunal actually did in the past. You cannot do what Justice White did and say, “Maybe it was taken into account, or not” because on the basis of a maybe it was taken into account and maybe it was not, the appellant has not discharged the burden of showing that they have lost anything, even a possibility of a different result. So, the situation is, of course, different if the information – this inference does not always help the Minister. This inference goes against the Minister in the case of information that could have assisted the applicant because if one infers that information that could have assisted the applicant was not considered by the Tribunal usually that will be bad news for the Minister in terms of defending the decision.
So the difference arises not because there is some different principle in play but because in the context of procedural fairness the significance of an error will depend upon the way the information that is the subject of the breach of procedural fairness could have borne upon the decision to be made.
So, in SZMTA, the inference actually identified in 47 worked against the Minister, but the information was so tenuously relevant that it turned out that it could not have made a difference, in any event. But, as a matter of principle, the fact‑finding process should be the same in either kind of case, and the ramifications that that then has for the result depends upon the content of the documents, and the nature of the case that is being made.
That submission I have just made about how SZMTA should be understood has been – that is the analysis that the Full Federal Court has adopted twice in unanimous decisions, and can I just briefly show your Honours those. The first is MZAOL, in volume 3 tab 19, it is an unreported case in [2019] FCAFC 68, and the relevant passage for the moment is at paragraph 66, where your Honours will see that the Full Court in the joint judgment of the Court said:
The curial determination of this ground of appeal depends upon “how the Tribunal in fact acted in relation to the notified document or information”: SZMTA at [50] . . . A finding that the Tribunal took into account the impugned information in the sense that it acted on the information or had regard to it by treating it as material to its decision . . . is critical to the appellants’ success on this ground of appeal. If the Tribunal did not have regard to the impugned information it could not be said that “there is a realistic possibility that the Tribunal’s decision could have been different” –
And yesterday, in the decision that we have provided to the Court in Minister for Immigration v CQZ15 [2021] FCAFC 24 at paragraph 85, the Court reasoned in the same way and, in fact, did so rather emphatically in that ‑ your Honours will see with the Court’s original emphasis, that at a couple of places in paragraph 85 the Court says:
how the Tribunal acted in fact in relation to the notified information . . . falls to be answered “by inferences drawn from evidence . . . it is for the applicant to satisfy the reviewing court on the evidence before it that the Tribunal did in fact have regard to the material. A finding that the Tribunal did not have regard to the information means that the Tribunal did not in fact act on it, whether consciously or unconsciously –
STEWARD J: Sorry, Mr Solicitor, what paragraph is that?
MR DONAGHUE: Sorry, it is paragraph 85.
STEWARD J: Thank you.
MR DONAGHUE: So to accept what your Honours are being asked to accept by the appellant here is, in my submission, to reverse a decision – accept, admittedly, by majority, but nevertheless a decision of this Court made two years ago that has been understood and applied in the Federal Court in the very way that we submit its reasons indicate it should be applied such that the applicant bears this burden. And they need to discharge it in circumstances where the ordinary process of fact‑finding by way of inference are available to them.
It is not that there is an irrebuttable presumption, or something of that kind, but also importantly, they need to discharge that burden in circumstances where the statutory context is very different from the statutory context in the cases that the appellant invites you to rely upon, so you have heard much discussion about Stead and Kioa and VEAL. None of those are directly on point, because section 438 importantly changes the decision‑making context, or the procedural context, upon which the question has to be answered, for the reason that was explained in SZMTA, and on this I think it is fair to say that the Court was not divided on this aspect of the decision.
So, if your Honours still have SZMTA could I ask you to go to paragraph 22, where the Court was explaining how 438 of the Act works. The earlier paragraphs which I will not need to take your Honours to are about the meaning of the preconditions in subsection (1), and the obligation to disclose the existence of the certificate which we accept did not happen here and that is why there is a concede of breach of procedural fairness.
But the section then goes on to deal with how the Tribunal is to treat notified information, and at paragraph 23, the Court identifies the discretion under 438(3)(a):
to have regard to the information or to any matter contained in the document for the purpose of exercising its powers, including for the purpose of making a decision on the review.
And explains that it is:
Implicit in the conferral of that discretion is that the Tribunal has no power to have regard to the information or to any matter . . . unless the discretion is affirmatively exercised.
And then in 424 explains how that interacts with the other provisions in the scheme of Part 7, that your Honours have heard a little about this morning, and it said, from four lines down that it is:
Implicit in the conferral of that discretion and in the hierarchy of provisions –
In effect that the other powers 427, 424AA, 424A and 425, do not impose an obligation to disclose information:
unless the discretion [has been] affirmatively exercised.
So, while the position normally in the Tribunal, leaving aside 438, would be that where relevant information is given to the Tribunal in the ordinary course you would infer that the Tribunal would have regard to that information, in making its decisions, and that ordinary position is what underlies VEAL and Kioa.
The expectation that we have relevant information before a decision‑maker, the decision‑maker just cannot put it completely out of account. 438 reverses that position. The fact that the information has been given to the Tribunal even the fact that it be relevant, does not mean and does not provide any foundation to assume that the Tribunal has had regard to the information. On the contrary, 438 means that it cannot have regard to the information unless there has been an affirmative exercise of discretion to do so and that critical feature of the statutory context is what explains the inferential reasoning process that one sees in paragraph 47 to 50 of SZMTA, that 438(a) operates in that way.
So if your Honours could then go back to 47, in the context of what you have just seen at 23 about how 438 works, in 47 the Court explains – or at the end of 46 explains that:
Like any ordinary question of fact –
this is whether information could have made a difference:
it is to be determined by inferences drawn from evidence ‑
At 47 it is said:
The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act.
In my submission, that is an uncontroversial proposition that I will seek to support a little more in just a moment. But then the Court identifies two inferences. The first starting from the second sentence, which is not controversial in this appeal, is that:
the Tribunal can be expected in the ordinary course to treat a notification . . . as a sufficient basis for accepting that the section does in fact apply ‑
The second which is what, as I understand it, has been labelled the presumption but is really just an inference of fact from the ordinary administration of the Act, is that:
the Tribunal can then be expected in the ordinary course to leave that document or information out of account –
That is the notified document or information:
in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3).
Now, in my submission, that sentence might perhaps be better read as “in the absence of the Tribunal exercising its decision under 438(3)(a)”. The next sentence is then important:
Absent some contrary indication –
either in the reasons or elsewhere in the evidence, that is what you would infer. So the Court is not creating a rule. It is just saying, “Well, if the evidence does not point against that being the case you would in the ordinary administration of the Act infer that what happened is what is supposed to happen”.
STEWARD J: Is that no more than saying, Mr Solicitor, that really given the specific statutory context, the inference is extremely powerful that the decision‑maker did not take into account the material and that if an applicant wants to show the realistic possibility of a different outcome, they have got to do more than just speculate because ‑ ‑ ‑
MR DONAGHUE: Yes.
STEWARD J: In other words, that obligation to show a realistic possibility of a different outcome may be, on your case a low bar, just as it is for Mr Hooke. But on the particular circumstances of 438 and its regime, it practically means you are going to have to do more than speculate.
MR DONAGHUE: That is correct, your Honour. I respectfully adopt that.
STEWARD J: Thank you.
MR DONAGHUE: That inference that is identified in 47 gets reinforced by another and related inference identified by the Full Federal Court in MZAOL in a context which was not the SZMTA context where the information is adverse to – or potentially adverse to – the affected person. Your Honours will see the Full Court’s reasons for that in MZAOL, which is volume 3, tab 19, particularly at paragraphs 74 through to 76. I will not read all of that out to your Honours but, in my submission, the essence of the reasoning that appears in those paragraphs is that where – that the inference that the Tribunal did not have regard to information is strengthened where the information is adverse to the interests of the applicant and also where the information was not disclosed to the applicant.
So, the Tribunal has adverse information and it has not given it to the Tribunal and the inference that it did not take into account is strengthened because that is not something a fair‑minded Tribunal would do without good reason – that is, it would not rely upon adverse information that it kept to itself unless there was a good reason to do that. So that because – and, really, stepping it through, it is the second‑half of 74, because it is possible for the Tribunal to act in the way I just described – it is legally possible for it to act on adverse information without disclosing it – but that is an unfair thing to do – the obvious unfairness, your Honours will see at the end of 74. It would not do that without good reason. That is the second point made in paragraph 75.
It did not actually give the documents in question to the appellant. That is the first part of 76. Then, in the middle of 76:
there is good reason for thinking that a fair minded Tribunal member in the regular administration of the Act . . . would not have affirmatively exercised the discretion to have regard to the impugned information –
but not to give to the person adversely affected by it:
without good reason.
So, unless you can see in the nature of the information itself, some good reason why the Tribunal might have had regard to it without telling the appellant, that further reinforces the inference that is identified in SZMTA [47], to infer that the Tribunal just chose not to have regard to the information under 438. You can see it is a further reinforcement from the last few lines of 76 where it said:
Additionally . . . there is further justification –
and there is a reference to SZMTA at [47].
EDELMAN J: That does sound a lot like a presumption against procedural unfairness.
MR DONAGHUE: In my submission, your Honour, it is not. It is to say that where in this particular statutory context the Tribunal has to decide, where it gets this notified information, where it has to decide am I going to use it, that you do not just speculate that the Tribunal chose to use it without some basis to reach that conclusion in circumstances where, if the Tribunal in fact did not have regard to that material, which is the default position under 438, there will not have been any unfairness to the applicant because the default position is protective of the applicant in this scenario, so if the applicant wants to say the default position did not happen they have to prove it.
They can prove it by inference, but they have to prove it. That is, in my submission, how SZMTA and MZAOL should be understood. That whole notion of – I said I would come back to the idea of inferences from the regular administration of the Act ‑ ‑ ‑
GAGELER J: Mr Solicitor, just before you do, before you leave MZAOL, there is this really quite precise terminology used in section 424AA and 424A that you see in paragraph 74, and this of course is a codification of procedural fairness insofar as it concerns what must be told to an applicant by the Tribunal.
Would the police report or the contents of the police report, if taken into account in the way that it is suggested it might – that is, as bearing on credibility – have answered that description of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review? I just do not know and I think there is some case law that gives a rather precise meaning to that expression.
MR DONAGHUE: There is, your Honour. If the premise to your Honour’s question is that the information is subject to the notification under 438 and has not had an affirmative exercise of discretion to have regard to it, then SZMTA seems to answer the question by saying 438 trumps those obligations.
GAGELER J: Yes, but what I understand you to be suggesting where, in a case of this nature, there may be an additional inference drawn from the non‑exercise or the non‑performance of the duties imposed by 424A and 424AA in relation to the information in question, I thought that was the submission that you are making ‑ ‑ ‑
MR DONAGHUE: The submission I was making was that the additional inference comes from the non‑exercise of the discretion under 438(3)(b), the non‑exercise of the discretion to give the person an opportunity to deal with the adverse information, that is, if the Tribunal was going to take it into account under (a) but not disclose it under (b), that would be a legally available course but one that a fair-minded Tribunal would take only for good reason.
So if you cannot see any reason, and in a criminal record, for example, someone’s own criminal record, why would you not disclose that if you were going to take it into account, a fair-minded Tribunal, so the fact that there has been no disclosure of the information reinforces the inference that it was not considered at all.
GAGELER J: Thank you.
MR DONAGHUE: Your Honours, I was going to say something about the regular administration of the Act and divorce it for a moment from 438. Your Honours are aware of 430 of the Act which has been the subject of some discussion this morning – the statutory obligation to give reasons and it has long been the law - and I will not take your Honours to it, but Minister for Immigration v Yusuf in volume 2, tab 10 is perhaps the leading authority - that section 430 entitles a court to infer that any matter not mentioned in the 430 reasons was not considered by the Tribunal to be material. So, paragraph 69 in the plurality and paragraph 35 Justice Gaudron in Yusuf both made that point, and your Honours Justice Nettle and Gordon cited that in SZMTA at paragraph 106.
That, in our submission, is an example of an inference from the regular administration of the Act, that is the Court infers that the Tribunal complied with its obligation under section 430 to include in its statement of reasons anything – any findings in relation to any fact it thinks is material. It is only because the Court infers that the Tribunal complied with that obligation that it makes sense to infer that the Tribunal did not have regard to any material that it – or did not treat as material anything that it did not address in its reasons.
So that is an inference drawn every day in the Federal Court in migration courses in reliance on 430 that is based upon the proposition that one can properly draw inferences from the regular administration of the Act. I should say, while on the topic of 430, just to pick up some questions your Honour Justice Gageler asked, that as a matter of principle, in our submission, if the Tribunal reasons in such a way that it says I do not accept that you are a credible witness applicant, therefore I do not believe the things that you are saying, in order to give the reasons for the decision that is being made under (1)(b) – to set out the reasons for the decision, you would have to say that.
How otherwise could the Tribunal explain the reasoning process in which it engaged in reaching a decision in any particular case. Indeed, it then must refer to the evidence or other material in which the findings were based. So, while the law on 430 does say you do not have go through item by item, evidence by evidence explaining why each claim was rejected, nevertheless, at least in a case where the reasoning process in fact adopted is such that the person lacks credibility and for that reason I do not believe what they say, in order to comply with the statutory obligation in my submission you would need to say that. Otherwise your reasons would be misleading. If the Tribunal has reasoned in that way and not said so, then the reasons would conceal what actually happened in that decision‑making process.
The other element of this drawing inferences from the regular administration of the Act idea that underpins paragraph 47 of SZMTA is, and I will not take your Honours to it, but we gave your Honours yesterday an extract from Cross on Evidence on the section of that text released last year dealing with the presumption of regularity.
GORDON J: Before you get to that, can I just pick up this reliance upon Yusuf. As I understood your submission, you do not put it as high - the fact that it is not referred to, or what is referred to, is somehow a presumption they did not have regard to material. As I understood the passage in Yusuf at 69 it was:
The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some –
other. In other words, it was not a presumption, it was a mechanism of looking at the reasons and analysing them to determine what had happened.
EDELMAN J: It is one of the factors in the mix.
GORDON J: One of the – exactly.
MR DONAGHUE: Your Honour, I do not think that I disagree with that, but ‑ ‑ ‑
GORDON J: Sorry, I thought you had put the proposition high – in a similar presumption, and I wanted to make it clear ‑ ‑ ‑
MR DONAGHUE: If I said that, your Honour, I did not intend to. I am seeking to avoid that language. What I was referring to was an inference from, and what was said at 69, about halfway down the paragraph, on 436:
a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.
GORDON J: Then you need to read it in the context of what then follows. In other words, as a thing that goes into the mix of what are the facts and matters that might be taken into account when one is looking at a set of reasons.
MR DONAGHUE: But that is, having drawn the inference that something either – well, if it is in the reasons, it was considered. If you draw the inference that it was not considered, similarly to my submission about SZMTA, different things might then follow from that, depending on the asserted error. But if the thing that is not mentioned in the reasons is a mandatory relevant consideration, then the inference that that matter was not considered will prove the jurisdictional error. You can use it in that way. But similarly, if the inference – if the material that is not mentioned is material that was said to be a mandatory irrelevant consideration, then the absence of any reference in the reasons would entitle you to draw the inference that the mandatory irrelevant consideration was not ‑ ‑ ‑
EDELMAN J: It might, or it might not. One would look at all the circumstances in every case ‑ ‑ ‑
MR DONAGHUE: There might be other evidence to rebut the inference. I am not suggesting it is a presumption, let alone an irrebuttable presumption, but it is evidence in favour of that proposition.
EDELMAN J: But it is a presumption if you are saying that by itself it establishes an inference. Inferences are either established by looking at all of the circumstances and inferring in all of the circumstances a conclusion, or alternatively an inference is established by saying the presence of one single fact can be standardised to give rise to a presumption. Which of the two are you relying upon?
MR DONAGHUE: Your Honour, if forced into that dichotomy, the latter, because in my submission what Yusuf says is – I will read the sentence again leading to paragraph 69:
The provision entitles a Court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material -
That is applied to every day, that you can infer from the section 430 statement of reasons that something was not considered if it is not mentioned.
EDELMAN J: Then any other factors are only used to rebut that inference rather than other factors used in order to – together with the absence of mention, to establish the inference.
MR DONAGHUE: My submission is the absence of mention, if you had no other material, the absence of mention is enough to justify that finding of fact. If there is other evidence that contradicts it, so it is not in the statement of facts, but you can nevertheless in some way prove that the Tribunal did have regard to the material, then that would be a different equation but, in my submission, you do not need more – in the same way as in SZMTA at 47. The inference is rebuttable but can properly be drawn if the evidence does not rebut it.
Section 430 is an example of that happening routinely but the SZMTA reasoning at 47 is another example of it. The Cross on Evidence passage that I handed up ‑ ‑ ‑
GORDON J: Sorry, just one more thing – I apologise, I just want to finish it off – because the way in which Justice Edelman just put it to you, as I understand you accept that Justice Gaudron’s reasons in Yusuf are the first category rather than the second.
MR DONAGHUE: Your Honour is referring to paragraph 35?
GORDON J: I am.
MR DONAGHUE: Your Honour, I had not understood her Honour as saying anything different from what was said in 69.
GORDON J: I see, thank you.
MR DONAGHUE: In the extract from Cross that we have given your Honours on page 30 – and really I am reasoning by analogy here, the presumption of regularity rests, in my submission, on the same kind of logic as underpins the drawing of inferences from the regular administration of the Act. Your Honours will see on page 30, in the first paragraph near the end, leading up to footnote 213, it says:
Sometimes it is a presumption of fact.
Then there is a footnote to a decision in Hill v Woollahra Municipal Council:
(“The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs . . . In deciding whether the presumption . . . is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances” –
It is a similar concept. Over the page, leading to footnote 220, it says:
The presumption is that “statutory duties are duly and properly performed”.
That is quite similar to the regular administration of the Act inference in SZMTA. At the bottom of that same page, leading to footnote 228, there is a quote from a very well‑known passage from Lord Justice Lindley in Harris v Knight about the kind of inferences that can be drawn in that context.
So, in our submission, SZMTA is right in establishing that the burden is on the applicant to prove materiality. It is right, we respectfully submit, in saying that that burden can be discharged in the ordinary way from inferences which include inferences from the regular administration of the Act, and it is right in concluding that the consequence of that is that, absent something in the reasons or elsewhere in the evidence – it can be either one, the inference should be drawn that 438 material has not been considered because that is the default position. That is the position that the statute requires the Tribunal to adopt absent an affirmative exercise of discretion.
The consequence of all of that is then, if the Tribunal did not consider the particular material, then the applicant can make their arguments. If they are saying you did not consider material that favours me, then they may well succeed. But if they are saying you did not consider material that hurts me, then the conclusion that the material was not considered by the Tribunal will mean that the person did not lose any possibility of a favourable decision, because the decision that was made was made in disregard of the material that they would have sought to persuade the Tribunal to disregard, that is, they could not have done better than what actually happened.
So if the Court finds as a fact that what happened was the material was not considered, that is the best possible result the applicant could have hoped for. They have not lost anything and therefore there has been no jurisdictional error. Justice Mortimer reasoned in the way I have just articulated; so did the Full Federal Court in the two cases that I have just mentioned to your Honours, and that reasoning, we respectfully submit, is correct.
Our friends do not really address your Honours as to why you should overrule SZMTA. It is put really at the heel of the hunt that if you do not accept their submission SZMTA should be overruled. In our submission, this case does not meet any of the criteria that the Court usually applies, and I will not take your Honours to John v Federal Commissioner of Taxation, but the principles that govern that decision by this Court to overrule its prior authorities are well known. SZMTA – so the first factor is was it worked out through a line of prior authorities. At a minimum one would say Hossain and SZMTA perform part of ‑ ‑ ‑
EDELMAN J: Does the criteria in John apply where a matter is not subject to argument?
MR DONAGHUE: In my submission it applies to any application to overrule a decision of this Court. So if it was a matter of ratio, then no ‑ ‑ ‑
EDELMAN J: But is it authority at all if it was not subject of argument?
MR DONAGHUE: Your Honour, I would certainly not be so bold as to say that SZMTA is not an authority for anything. It is true that the way that the Court analysed the case, the principles were different in some respects from the way that the parties - the arguments that the parties advanced, but the whole subject matter of argument in that case was what is the legal effect of a failure to disclose either an invalid 438 notification or a failure to disclose a valid one.
EDELMAN J: Yes, but just on the onus point. If the onus point was not the subject of argument, is that point a matter of binding authority and, secondly, if so, or if not, is it subject to the John criteria?
MR DONAGHUE: But the onus point, in my submission, was a critical part of the reasoning process that the Court engaged in, because it moved from materiality being an element of jurisdictional error, to the applicant therefore having to prove it, to an analysis of the inferences, to a conclusion about what the applicant had or had not proved to a result, so it was, in my submission, inseparable from what followed.
But also one sees, particularly in Hossain, which SZMTA is obviously building on, that materiality did not come out of nowhere. There are references in both SZMTA and Hossain to earlier cases, including Stead, including Peko‑Wallsend, where Chief Justice Mason, in the context of relevant considerations, expressly referred to materiality considerations. Yusef and Craig talk about, in those classic statements one finds in those cases of the nature of jurisdictional error, they both talk about an error that, quote “affects the exercise of power”.
So while it had not been described in exactly the way that it was described in Hossain and SZMTA, the idea that in order to make a jurisdictional error there must be an error of a kind that affects the exercise of power has a long lineage, and therefore does not meet John’s criteria one. The John’s second factor is there a difference in the reasoning of the majority, the answer is no, joint majority judgment in SZMTA.
It is not to the point that there is a difference between the majority and the minority that the formulation is a difference in majority reasons, because the point is, is there a clear statement of the applicable legal principle? If the majority’s reasons differ, then there is no clear legal principle, but that cannot be said of SZMTA.
KIEFEL CJ: I understand you to say, Mr Solicitor, that it is not so much a question of whether the parties argued it fully, but rather whether the majority ‑ ‑ ‑
MR DONAGHUE: Decided it.
KIEFEL CJ: ‑ ‑ ‑ turned their mind to and had to as part of the process of their reasoning deal with the question of onus.
MR DONAGHUE: Exactly, your Honour. In my submission, that definitely did happen. As part of their reasoning to the result they considered and concluded that the onus lay on the appellant. In my submission, the third factor is whether there is no useful result or considerable inconvenience. SZMTA was decided several years ago in a high-volume jurisdiction. There is every reason to think it has been regularly applied in other courts in the Australian hierarchy. If your Honours were now to depart from it, all of those decisions are wrong and would be appealable - would reveal appealable error, in my submission.
GORDON J: One of issues which may be relevant, and let us say it is, is the observations of a number of judges about the difficulties of the onus question and more particularly this presumption – or the way it is being construed as a presumption by the courts below.
MR DONAGHUE: Certainly, your Honour, there are some judicial statements, including Justice Mortimer’s reasons in this case. As against that in my submission, in paragraph 50 of her Honour’s reasons, her Honour precisely identified the correct approach in the same terms as the Full Court did in MZAOL and in the case yesterday.
KIEFEL CJ: Her Honour does not appear to have had great difficulty.
MR DONAGHUE: No, her Honour does not, and nor does the Full Federal Court, so, insofar as there was uncertainty, it does not exist now, and in my submission all of that strongly militates against reopening the points that were decided in SZMTA.
Your Honours, our outline indicates I was going to take your Honours through some of the cases that are relied upon against us. I do not think that I need to do ‑ ‑ ‑
KIEFEL CJ: That is in paragraph 9.
MR DONAGHUE: Yes, that is right, I do not think I need to do that. I would say, in relation to Balenzuela and Stead, that they are – not only are they both cases about retrials in a court, but, more relevantly, they are both cases where the breach of procedural fairness was that a party lost an opportunity to put favourable - information that would support their case, or submissions that would support their case in Stead, and then lost. So they are cases where the party was deprived of an opportunity to support their case by material they wanted to rely upon, and they failed.
That is the kind of case where it is quite hard to answer an allegation of denial of procedural fairness. The information really needs to be of extremely little weight, of the kind Justice Edelman put to me earlier. So they do not really help, in an adverse information context. Kioa and VEAL are both adverse information cases, much more adverse than the information here, which is of very peripheral relevance if it is adverse at all.
The main point we make there is that they just do not help, because they are not cases decided in the statutory context of 438. So I am not challenging those cases, but as Justice Steward put to me earlier, 438 relevantly and importantly changes the context. I would just note, in relation to VEAL, that in that case, I will not ask your Honours to go to it, but in paragraph 13 of that case, the Court in its unanimous judgment expressly points to section 438 and says we do not need to consider 438 because the Secretary had not given a notification in relation to this material, so put that to one side.
So the judgment seemed implicitly to acknowledge the possibility that 438 might have had a bearing on what their Honours had to say but then needed to think about it because it had not been engaged and then they went on to say what your Honours have seen. In our submission, there is no tension between SZMTA and any of those other decisions.
In terms of the application of this to the facts, in my submission, Justice Mortimer, in her reasons from paragraphs 52 to 57 in particular reasoned in an unimpeachable fashion and I do not know that I will assist your Honours a great deal by taking you through the reasoning there, but you will have noted, particularly on the last full page of her Honour’s reasons on page 67 of the appeal book, that her Honour says, at 55, that the relevant offence:
The “State false name” offence was buried in the Victoria Police record –
which is a fair description of it. Her Honour expresses some hesitation about whether it really bore upon honesty at all but then says, leaving that question, I think, unresolved:
More problematically –
which is more problematically for the appellant, there is just nothing to suggest that this was a decision where it turned upon a clear view that the appellant was dishonest. Her Honour, clearly in my submission, at 56 and 57, leans against that. Unlike many decisions, including MZAOL where there is a clear adverse credit finding, here one has suggestedly adverse information buried in the Victoria Police record and a decision that only dubiously bears on the honesty of the applicant and a decision that does not clearly turn upon the decision or the honesty of the applicant.
That leads her Honour to conclude at 57 that I think really by reference to – that there was in effect nothing in the nature of the information that was in question that pointed against the SZMTA inferences and the finding that her Honour makes in 57 is critical:
I do not consider this is a review where the Court should find that the Tribunal did have regard to the Victoria Police record and to the “State false name” conviction in particular, even though it did not say as much.
There is no assessment of honesty. So that is a finding in terms that is not just about the “state false name” conviction. It is about the whole police record. So, in answer to your Honour Justice Gleeson’s question, if your Honours allow the second ground of appeal – and I am not going to address your Honours on it – but, in our submission, the appellant should be bound by the conduct of their case. They expressly did not run the case they are now seeking to run before your Honours. But even if your Honours do allow them to run the point, it is answered by that finding.
Exactly the same reasoning applied in relation to the “state false name” offences. The rest of the police record – none of it was – it was found as a fact that none of it was considered and, none of it having been considered, none of it resulted in an adverse – or none of it can have - the consideration of it cannot have deprived the appellant even of the possibility of a different result.
KEANE J: Mr Solicitor, Justice Mortimer does not seem to have referred to paragraph 3 of the statement of reasons.
MR DONAGHUE: No.
KEANE J: That is at page 29 of the appellant’s further materials. Do you want to say anything about that?
MR DONAGHUE: Thank you, your Honour. I had overlooked to address that. I think your Honour is right. I did not see any reference to it in Justice Mortimer’s reasons. But in my submission our friends said it was self‑evident or unarguable – I cannot remember the exact words, that when the Tribunal said it had considered all of the material relating to the application but was unable to make a favourable decision, that must include the 438 information. In our submission there is no basis for that at all.
The first Tribunal, just like the second Tribunal making the operative decision was not entitled to consider that information without an affirmative exercise of discretion under 438(3). There is no evidence that there was an affirmative exercise of discretion under 438(3). The certificate already existed at that point in time before this decision was made, and as I think Justice Gageler pointed out, that sentence is evidently an indication to the Tribunal referring to its function under 425. It is saying because I cannot make a decision in your favour under 425 I need to go further. In that context, considering all the material is, in my submission, properly read as considering all of the material that I am entitled to take into account on review.
KEANE J: There might be some support for that view from paragraph 23 on page 32 where the Tribunal actually says why the evidence in support of the claim was in such a state that provisionally at least it could not be accepted. There is certainly no suggestion that it has gone beyond what was described as the:
extremely limited and vague evidence before me -
which can only be the evidence of the applicant.
MR DONAGHUE: Yes, I accept that, your Honour. So, in my submission, that paragraph – paragraph 3 – does not help because, unless one could rebut the SZMTA inferences in relation to the first decision, you would still conclude that the Tribunal did not have regard to information that it was not entitled to have regard to without having exercised its discretion in that affirmative way. Your Honours, I am content to rely on our written submissions in relation to ground 2. So, unless the Court has any further questions, those are our submissions.
KIEFEL CJ: Thank you, Mr Solicitor. Mr Hooke, how long would you be in reply?
MR HOOKE: Just a few minutes, your Honour. Your Honour Justice Gageler, with respect, in our submission, correctly identified, with our learned friend, the tension that exists in the current authorities. Your Honour, the tension is perhaps best reflected by contrasting the passage in WZARH, at joint book of authorities 369, paragraph 60 with SZMTA, paragraph 45, at joint book of authorities 442.
That, in our respectful submission, does reflect the difficulty that is occasioned, not just in the Tribunal, not just in the Federal Court, but at all levels of administrative decision‑making. This is not an issue, as the Minister would have it, that is confined to the Migration Act and the Tribunal. This is a pervasive difficulty.
It does not only arise in the context of section 438. The issue of materiality and of onus and the matter to be proved in addressing the issue of materiality arises in many different statutory contexts and we had understood our learned friends to accept that when my learned friend rose and opened his submissions, as we said in‑chief, the question of materiality is informed by the nature of the error.
In our submission, the effect of WZARH in the passages to which we took your Honours, amounted in short form to a requirement that the respondent to an application for relief proved that the denial of procedural fairness did not deprive the applicant of the possibility of a different outcome in the context of the paragraph 60 cases in WZARH, whereas paragraph 45 of SZMTA inverts that question of onus and places it on the applicant.
As your Honours have observed, the question of onus as is apparent from paragraph 41 of SZMTA was not a matter in respect of which the parties were at issue and whilst the majority did consider the issue in coming to the conclusion that it did, it did not do so with respect on the basis of full argument.
We say that that in itself is sufficient reason why the Court should revisit the issue in this case. We submit of course that the SZMTA formulation is the aberration in the line of authority to which we have taken your Honours.
Our learned friends make much of the difference in the context in which statements of principle have been made in cases like Balenzuela and Stead and VEAL and Kioa, and that much can be accepted. But the same criticism, if it in fact be one, is to be made of the cases upon which the respondent relies because all of the cases on which the respondent relies are in truth “failure to consider” cases in which the question is an entirely different one, in our submission.
So there is perhaps an inconsistency in the approach that the Minister would have the Court take to the authorities but, in any event, it is plain from the expressions of principle in the cases to which your Honours have been referred that at a level of principle there is startling consistency until there is a hiccup, if I can respectfully call it that, that finds fruition in SZMTA.
The other difficulty with the fundamental plank of our learned friend’s submissions is the proposition that, because section 438 prohibits material being considered unless there is a determination to do so, that of itself means that the appropriate inference where it is not mentioned is that it was not considered.
But that is something of a bootstraps argument, in our submission, and elevates the proposition to a self-fulfilling prophecy because what section 438 effectively says is that you cannot look at the material unless you have looked at it to determine whether or not you are going to look at it. So in order to determine whether or not it is a matter in respect of which subsection (3) is going to be engaged, the Tribunal has to first look at and consider the material in order to decide whether or not it ought to embark upon the subsection (3) exercise.
That is the point that was made by the Court in VEAL, that in effect the damage was done by the non-disclosure because in order to decide whether or not it was going to consider the, in that case, undisclosed information in the letter, the decision‑maker first had to consider it to determine whether it was worthy of consideration.
So, that is the point at which the Minister’s argument, in our respectful submission, falls down. It seeks to make another self‑fulfilling prophecy which is that because something is not mentioned, it can never be proved that it in fact was considered, even though the process in respect of which regularity is sought to be inferred is defective. In the passage from Cross, which our learned friends handed up, at the top of page 32, in the second paragraph, the learned author makes the point:
The presumption of regularity will not be applied to the making of regulations, proclamations or ordinances if there is an apparent defect on the face of them.
By parallel reasoning, we say that that is why one does not infer regularity once there has been irregularity in the process established, especially as here, where it is directly related to the subject matter for which the inference or presumption is sought.
The other flaw with the Minister’s reliance on section 438 as a prohibition on considering material that has not been addressed under 438(3) is, of course, that the submission depends for its success upon compliance with the obligation cast by 438. In this case it is known that there has been non‑compliance with 438, and that is the conceded denial of procedural fairness. So the logical fallacy in our learned friend’s submission, or reliance on 438 as a prohibition, depends upon compliance with the section, which has already been breached.
GAGELER J: It is a logical fallacy to say because there is one error there must be another error, surely.
MR HOOKE: It is a logical fallacy to say that because there is one error there is necessarily another error, but it is equally a logical fallacy to say that one should presume regularity from that which is conceded to be irregular. So the reliance on the effect of - on the prohibition as it is put in 438, really, in our submission, does not assist the Minister. It goes nowhere. But it is a fundamental plank of the argument that our learned friends put.
The other point that I should make in response to the criticism of reliance on cases like Balenzuela and Stead is that our learned friends say, well, in those cases there was material that the unsuccessful party wanted to rely on, was not permitted to and failed, and it was clear what that was and what it meant. That is true as far as it goes, but in Balenzuela your Honours will recall that the excluded evidence was a photograph in which in the distance could be discerned a dog and all the members of the Court said the photograph is of very marginal relevance, but it is not for us to embark upon a merits determination of what effect this particular piece of information would or might have had on the jury or to put ourselves in the position of the jury.
The position is no different. The denial of procedural fairness that resulted from the wrong exclusion of the evidence is the same. The deprivation of the opportunity to rely on evidence or submissions or, in this case in the context in which we have exposed in writing an application that the Tribunal member, having decided the matter once and we say clearly considered the 438 material the first time, or antecedent to the first time, were clearly lost to him and that, in our submission, is enough.
In relation to Justice Mortimer’s reasons, we say two things. First, our learned friends concede that paragraph 47 of SZMTA does not create a rule or a presumption, it is simply an available inference. Well, that is not what Justice Mortimer thought, it is not what her Honour said, and it is not what her Honour drew from MZAOL.
So if the concession is taken as read then, in our respectful submission that must mean that her Honour’s reasons miscarried. In relation to the reasoning process, our learned friends say that her Honour reasoned in an unimpeachable manner. But when your Honours look, and I do not want to take your Honours to it – but when your Honours look at her Honour’s reasons at core appeal book 65 to 66 in paragraphs 48 to 51, and her Honour’s statement of how she understood what she described as the presumption in SZMTA and the issue of onus, and then the conclusion at paragraph 58, with respect, the reasoning is not unimpeachable in light of a proper understanding even of SZMTA, and in light of the Minister’s conceded position in relation to what it means at its high point. Unless there is anything else, your Honours, those are our submissions.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 10.00 am on Wednesday, 10 March in Canberra.
AT 1.05 PM THE MATTER WAS ADJOURNED
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