Plaintiff M174/2016 v Minister for Immigration and Border Protection

[2017] HCATrans 251

[2017] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M174 of 2016

B e t w e e n -

PLAINTIFF M174/2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

IMMIGRATION ASSESSMENT AUTHORITY

Second Defendant

GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 2017, AT 10.14 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, in that matter I appear with MR R.C. KNOWLES of counsel, for the plaintiff.  (instructed by Victoria Legal Aid)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR N.M. WOOD, for the first defendant.  (instructed by Australian Government Solicitor)

GAGELER J:   Mr Gleeson.

MR GLEESON:   Your Honours, there are four substantive questions which arise, set out at pages 16 and 17 of the book.  I propose to deal with them in the order they have been set by Justice Nettle on the directions hearing, unless your Honours wished some different order.  I only say that because we have just received the defendant’s outline and the defendant would prefer to deal with the matter by going straight to question 2, then 3, then 4 and then back to 1, but I propose to follow the order in the book, unless your Honours wish it done otherwise.

GAGELER J:    No.  You follow your own course, Mr Gleeson.

MR GLEESON:   Thank you, your Honour.  Your Honours, in relation to question 1, the plaintiff submits that the delegate failed to comply with section 57(2) of the Migration Act in respect to the failure to supply what has been described at the Reverend Brown information.  Can I go straight to that information, it is set out at page 280.

The essence of that information is, first of all, that the source of the information is the plaintiff’s referee, Pastor Brown, and secondly, the subject of the information is a more detailed exploration of the letter of support from the pastor which is found at page 102.

The letter at page 102 was given some five months earlier.  It expressly referred to the plaintiff’s attendances at the church in 2012 and 2013 and made some observations about his status as a Christian.  Returning to page 280, the date of the information is some five months later – that is, 13 November was the phone call, a record made on 16 November, and thus it speaks as of 13 November this is a record of what Reverend Brown is said to have said on that date.

Fourthly, most critically in terms of its content, of the dash points the most critical ones are the fifth dash point which is the applicant returned to the church early in 2015 and attended for a few weeks.  The eighth dash point that the last time Reverend Brown had contact with the applicant was on the date of providing the letter of support – that is, 14 June.  So that is apparently no contact, or one might think attendance, in the five‑month period since the letter of support; and finally, the last dash point. 

Could I identify what the claim was that the applicant was making under the Act by reference to page 98?  The claim is asserted in paragraph 1 that the plaintiff is a 24‑year‑old citizen of Iran of Kurdish ethnicity and now a follower of the Christian faith – having fled the country – being targeted by the authorities.  Also relevant to the claim are paragraphs 14 and, most relevantly, paragraphs 29 to 39 which I will not read.  The last contain the assertion that the applicant is a Christian convert who has a well‑founded fear of persecution were he to be returned to Iran.  In terms of the criterion set by the Act, of course, the applicant sought to bring himself within section 5H(1)(a) as being a refugee. 

EDELMAN J:   Just on the point of being a Christian convert, in the file note of the phone call that you just took us to, the penultimate point refers to him not having formally converted in the sense of baptism.

MR GLEESON:   Yes.

EDELMAN J:   Wast that information provided by the applicant separately?

MR GLEESON:   I will just check that, your Honour.  I am told the short answer is yes and if nowhere else he was asked about it in the interview for which we will find the reference.  So his claim was to be a refugee within 5H(1)(a) – being a person outside Iran owing to a well‑founded fear of persecution on various grounds including his status as a Christian and thereby unable or unwilling to avail himself of the protection of Iran.

Comparing that claim that he made to the information at page 280, the information in the passages I have been to was to the effect that the plaintiff had very limited attendance at the church over the last year and, indeed, the last time he was seen was the day that he sought the letter of support.

Just focusing on that information, it had two relevant features for section 57.  Firstly, it undermined his claim that he was a practising Christian and undermined his ability to satisfy the criterion under 5H(1)(a).  That is not just undermining his credibility as a person; that is direct undermining of a claim to satisfy the Act.  And, secondly, your Honours, it was evidence which, potentially at least, put him in the territory of section 5J(6).

If I could go to that section.  It provided that “any conduct” of, relevantly, the applicant in Australia, for example, attending the church was to be actually “disregarded” unless the applicant satisfied the Minister that it was done otherwise than to strengthen his claim.

GAGELER J:   As I read the delegate’s decision, the delegate acted on that provision ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J:   ‑ ‑ ‑ but only after taking into account the information.

MR GLEESON:   Yes.  That is the next step I am coming to, which was how it was used.  But simply on the face of the information, it had what I have described as that tendency or potentiality.  In terms of how it was used, the critical page of the book is page 323 and on that page the delegate – this is clearly after taking into account the information back on page 296 – at 323 the paragraphs are 148 to 153.  That is the essence of the case.  I have taken into account the time line of events.  The critical sentence is:

As found earlier while I accept the applicant attended sometime in 2012/2013 he has ceased that participation and only returned to Syndal Baptist Church in June 2015 to seek a letter of support.

So only attended, not because he was a Christian but to seek a letter.  That is confirmed in 149:

Given the credibility concerns discussed and the timing of his return to Syndal Baptist Church (June 2015) –

same point:

I give little weight to the support letter –

that is the letter at 102, so the original letter is discounted because of the timing of the circumstances in which he got it.  A little further down:

I am not satisfied he has a genuine interest in the Christian faith.

So that is the finding that his claim is undermined by the timing of seeking the letter and 150 is the 5J(6) finding which makes it even clearer, while he participated, it:

was done in order to falsely strengthen his claim for protection.  Specifically I find that this participation was for the sole purpose of claiming protection -

Therefore, the delegate has disregarded the entirety of his conduct, being all attendance at the church is disregarded.  So two things have happened - the Reverend Brown information has firstly led to him being found to be fraudulent in his claims and secondly, it has led to the whole of his attendance at church in Australia being disregarded for the purpose of his claims and the following paragraphs reaffirm those findings.

Now, may I then just apply section 57 to those circumstances?  We start with section 56 - that was the source of power which the delegate used to get the information in from Reverend Brown.  The delegate did so because she considered it was relevant and why was it relevant?  It was not really relevant as to whether he was a credible person but it was relevant to undermine his claims and use section 5J(6) against him.  Under section 56, the Minister was then bound to have regard to it, bound to bring it to account in the decision and of course did so.

In terms of section 57, this was information – that term is undefined in the Act in the ordinary sense of information.  The recorded statements of Reverend Brown were evidentiary material.  Those statements themselves were evidentiary material.  They were not merely, as the defendant suggests, in the category of doubts or inconsistencies or thinking by the Tribunal.  These were evidentiary material.

Then, we submit, the Minister considered each of the matters in (a), (b) and (c).  In (a), the Minister considered this would be “part of the reason” for refusing to grant the visa.  It is accepted that paragraph (b) is satisfied.  It is specifically about the applicant.  And, (c), the Minister considered this “was not given by the applicant” – this was given by Reverend Brown, a different person.  And, the information was greater in content than the earlier support letter.

Your Honours, the issues that are left on section 57 – reading the submissions – are best illustrated if I could go to the four authorities which are squarely in point?  The first is the decision of the Court in SZLFX.  I am sorry, I will go first to SZBYR which we have in the ALR report – 235 ALR 609. It is also in the ALJR. As your Honours will note, paragraphs [17] to [19] of that judgment have been the foundation for much subsequent jurisprudence in the lower courts and partly in this Court. Paragraph [17] commences with an emphasis on the words of section 57 that the information:

“would be the reason, or a part of the reason, for affirming the decision that is under review”.

And, makes a point – we do not disagree with – that it is not about the reasoning process, it is about the information and its relationship to reasons for the decision.  That, in turn, takes one to the criteria for the grant of the visa and I have tried to do that. 

Then, the Court says you must be able to determine the question independently in advance of the particular reasoning.  Logically, that must be true because if section 57 is triggered you must give the information then – take into account what you get back in response before you reach your final reasoning.  That does not mean that the final reasoning may not be evidence from which you can infer that the Minister reached the stage of consideration at the earlier point in time and that is confirmed by later cases.  At the foot of that paragraph, there is the proposition many cases have picked up that the material must:

contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.

And we have sought to put our case within those parameters.  The next paragraph deals with the reverse situation where the material does not have that characteristic and is merely a subjective appraisal, thought process et cetera.  So if the decision‑maker comes to a provisional view, I think I might reject some of your evidence because of something you have said somewhere else.  You do not have to put that under section 57.  So the court says at about line 18:

However broadly “information” be defined, its meaning . . . is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. 

Of course in SZBYR, it was a fairly ambitious argument the applicant was trying to make.  It was the applicant’s own material which the applicant said, “You didn’t sufficiently tell me.  You were thinking of finding inconsistencies in it and putting it back to me.”  That is clearly outside section 57 territory, which the Court held.

If I could then go to the second of the four cases, which is SZLFX at 238 CLR 507. The Court will see from the headnote that this was a case where an employee of the Tribunal – that is, not the delegate – made an inquiry of a third party and recorded some information in a file note.

Importantly, at the foot of page 507, that information never emerged in the reasons as something adverse to the applicant and yet it was contended that file note should have been put under section 57.  The relevant paragraphs are 20 to 26 and the Court reaffirms SZBYR at 20 to 22 and indicates the magistrate went off on an error by not following SZBYR, and importantly at 24, near the end, said that there had to be either:

evidence or necessary inference that –

the decision‑maker:

had “considered” or had any opinion about the file note.

At 25, some observations of Justice Heerey were approved, which I will come back to, and at 26, the Court looked at the reasons to see what it was that counted against the applicant and it was internal inconsistencies in his evidence, it was not the file note, therefore the file note was not caught by section 57.

That confirms, notwithstanding SZBYR, you can look to the reasons at least to draw inferences as to whether the delegate considered something was part of the reason to find against the applicant and that is the approach we have sought to take here.

Your Honours, the passage from Justice Heerey that I adverted to in MZXBQ, paragraph 25, the Minister cites that passage and says that is an affirmation of anything and everything Justice Heerey said in paragraph 29 of that case and that that somehow undermines our argument.  Could I go to MZXBQ 166 FCR 483.

That was a case, as the headnote recalls, that issues arose about monetary contributions which the applicant had received from friends to provide a bond for release from detention.  That information was not mentioned in the written reasons and the Tribunal said, “It’s relevant to your credibility.”  There was an argument – this is a 424A case – that more had to be done to put matters to the applicant and give him a chance to comment.  Justice Heerey dealt with the point from paragraphs 25 to 29.  Perhaps I should start at 22, where he says that SZBYR:

impliedly overrules a substantial body of authority in the Federal Court.

and then cited a number of decisions from Justice Allsop, Justice Weinberg and the like and at 27 says that what we get from SZBYR is a fundamental distinction between information which goes solely to your credit and information which undermines your claim.  Justice Heerey says if it goes solely to your credit but it is independent of your claim, then it is not caught by 57.  If it undermines your claim, it is caught by 57.  Paragraph 29 is the paragraph cited by the High Court where there is an emphasis on “would”, not “could” or “might”.  Justice Heerey says:

This is another indication that information merely going to credibility is not within the section. 

I should just observe also the last couple of sentences of 28 which is not picked up by the High Court:

the point of giving the applicant the opportunity to rebut, qualify or explain the information.  That is why subsequent use made by the Tribunal in its reasons, on the basis that the information is true, is no guide to whether the Tribunal at the earlier point in time should or should not have applied s 424A.

If Justice Heerey is saying you can never look to the reasons to decide whether the decision‑maker considered it at an earlier point in time it would be part of the reason and it is inconsistent with the High Court decision, and the better reading is his Honour is not so saying that.  Your Honours, the final case on this first issue is Saeed v Minister 241 CLR 252.

GAGELER J:   Mr Gleeson, before you get to that, what do you say about the proposition that the section does not pick up information going only to credibility?

MR GLEESON:   First, it is not this case, we say.  But secondly, that does appear to be a gloss on what is in the section.  If the material solely goes to credit but if you the decision‑maker have considered during the process that that is going to be the reason I will reject the person’s claim, the purpose of the section is to put that material to the person and allow them to answer it.  So the distinction, we submit, is not sound and it is not one that has been approved by this Court.

GAGELER J:   What about the Federal Court, do you know?

MR GLEESON:   We will check that, your Honour.  Saeed is 241 CLR 252 and the passages are at 20 through to 23, and this is an emphasis on what has to be done if section 57 is triggered. You have to:

ensure, as far as reasonably practicable, that the visa applicant understands why certain information is relevant . . . It would require –

explaining the importance of the information and its potential impact upon your case to be identified in a way that promotes understanding.  You must give consideration to the means of providing it which may include an interview in many cases. 

Now, whether it undermines your claim or goes solely to your credibility, if the delegate is thinking, you will be rejected because of this information which I intend to place reliance upon, section 57(2) suggests the person needs to know that it is important information and what its potential impact is, and so you can then do your best to answer it. 

So, in the present case, applying that, the Reverend Brown information we have defined as affected to what is in the file note at page 280, but once section 57(2) was triggered, the two things the delegate needed to do was, firstly, put that information to the applicant, put the file note to the applicant and, secondly, say the reason this is important to this case is that I am considering regarding it as undermining your claim to be a Christian fearing persecution and, indeed, I am regarding the timing of your getting the letter of support as referred to in the information as meaning you are a fraudster, you have made up this entire case.  Reverend Brown is being used by you to put forward a fraudulent claim with the result that I will disregard every attendance at the church since you arrived in Australia.

So, that is what we submit was required by section 57(2), if it is triggered.  Obviously, that was not done.  It was not put in any form to him and that, we submit, is the breach of the section, jurisdictional error.  Under Bhardwaj, this decision is no decision at all in law and unless something else intervenes, certiorari would issue to quash the delegate’s decision and there would be mandamus to the Minister.

GAGELER J:   You have to deal with section 69, of course, in making that submission.

MR GLEESON:   That is the something else, yes, yes.  So, I will deal with section 69 at this stage and answer your Honour’s question, then in more detail on the next part.  What we say about section 69:  interesting provision, it came in 1992 ‑ we are just checking the precise Act.  It appears to have been in a different Act in 1992 but in the same year that mandatory detention was introduced in Australia and the primary effect of section 69 is to say, even though a decision is no decision in law, within Bhardwaj, the decision in fact may be treated as valid until it is set aside, in order that people can rely upon that decision.

So, in particular, if you are the gaoler ‑ I should not use that term – if you are a person involved in, for instance, the detention of a person, the deprivation of their liberty, at a time when there is a decision made to refuse a visa, which in truth is no decision at all, you can rely upon the decision in fact as an excuse to false imprisonment.  If you are the person asked to put the person on the plane, you can rely upon the decision in fact, while it stands in fact.  What it is not intended to do is to determine or constrain either judicial remedies, that is clearly established, or, we would say, statutory remedies.

So, the authority we would rely upon is the decision of the Court in Minister v Miah (2001) 206 CLR 507 at 57. This was the case where, you will see from the headnote, section 69 was invoked for perhaps a very ambitious purpose, that if there was a failure to comply with procedural fairness, it nevertheless meant the decision was valid. In effect, it had cut down the ability of the courts to engage in judicial review.

Justice Gaudron dealt with the point most squarely – that is, with this argument – at paragraphs 102 to 104 – in a manner which presaged S157.  Her Honour said at 102 that:

there is nothing in [section 69(1)] to indicate an intention to preclude this Court from exercising its jurisdiction under s 75(v) . . . if legislation does not exclude those rules [of natural justice] it cannot validly exclude the jurisdiction to grant relief ‑

Then, at 103:

Section 69(1) of the Act simply purports to give validity to a decision notwithstanding non‑compliance with, amongst other provisions ‑

Her concluding words do not give it a wider operation:

To say that non‑compliance “only means that the decision might have been the wrong one and might be set aside if reviewed” is not to limit the avenues of review. 

So that point, her Honour is speaking generally.  Then she narrows it: 

Certainly, those words are apt to include judicial review pursuant to s 75(v) of the Constitution.

The purpose of s 69 of the Act is to ensure that an applicant’s rights are to be ascertained by reference to the Minister’s decision unless and until set aside.  It says nothing as to an applicant’s statutory or constitutional rights to have a decision reviewed.  Still less does it purport to excuse non‑compliance with the Act or the rules of natural justice.

So the precise issue your Honour is having to rule upon is:  does it have anything to say about 75(v)?  Answer:  no.  The manner in which your Honour has expressed it is that it says nothing about your statutory or constitutional rights.  They are to be found wherever they are found.

So insofar as we seek certiorari and mandamus in respect to the jurisdictional error, we submit what her Honour says squarely addresses the matter.

GAGELER J:   One way of reading what her Honour said in the first sentence at paragraph 103 is that her Honour was reading section 69 as a Project Blue Sky provision, spelling out that relevantly a breach of section 57(2) does not affect the validity of the decision.  That is one way of reading what her Honour said, perhaps.

MR GLEESON:   Well, the question is validity for what purpose?  And the purpose, we submit, is the first sentence of 104, which is “to ensure that [your] rights” – and we would say the duties of others in respect to you:

are to be ascertained by reference to the Minister’s decision unless and until set aside.

So that is why I say, “Do I have a right to be free in the community while that decision, which is no decision at all in law stands?” the answer is no.  Once it is set aside, if it is set aside ab initio, then a different set of consequences will follow.

EDELMAN J:   Is it really doing anything more than what this Court said in Kable (No 2) is the effect of a decision of a superior court until set aside?

MR GLEESON:   I think the answer to that is it is not, your Honour, and it is really creating within a statutory administrative framework an equivalent ability for people to rely upon a decision in fact, even though it is no decision in law.  And, as I say, its origin in the statute in 1992 clearly explains why there would be a very great importance to have such a provision because of the detention consequences brought into the Act at that time – a very radical change to the Act – dependent upon these sorts of decisions.

So our submission would be that section 69 – well, it is a double submission.  Firstly, it does not cut down or limit judicial review in respect to the delegate’s decision.  And, in effect, the Court can give that judicial review, if we are correct on question 1, and that will in fact be the end of this case because whatever be the analysis under questions 2 and 3, on no view of the scheme could it purport, and does it purport, to say that if the Authority affirms a decision, which is a nullity because of jurisdictional error, that nullity is now given legal life.

Now, right at the very end of the Minister’s submissions when they talk about relief, that issue is averted to but in the barest of terms.  But, in effect, we apprehend the Minister is saying that the effect of the Part 7AA scheme is not just that if you are in the situation of one of these fast‑track applicants you get what I will just call neutrally‑limited review rather than full merits review which I will come to.

But, if you have been the subject of a jurisdictional error at the stage the delegate and the decision of the delegate is, in truth, a nullity if you go through the Part 7AA route, the statute has evinced an intention that the Court cannot provide – cannot give a writ – in respect to that error; your rights have been contracted.  So that although you are a victim of a breach of section 57(2), the statute has indicated the only thing you can have from the process is the ephemeral chance that in the Part 7AA process you might persuade the authority to give you some exceptional relief which might or might not provide some sort of practical cure for the jurisdictional error. 

That is what we apprehend is the submission made to the Court in the defendant’s submissions at paragraph 68 where the defendant says even if we were correction on issue 1 – provided they are right that this is a fast‑track decision and assuming we cannot get a separate jurisdictional error at the stage of the Authority – that is, we cannot push Minister v Li a little bit further than it might naturally go – what happens is that the decision – that is, the decision to affirm by the delegate – determines the rights:

In those circumstances, it would defeat the statutory scheme –

says the defendant:

to grant relief ‑

Now, that seems to be an argument that the Parliament has set up a scheme where, under stage 1, this class of applicants – like all others – gets the procedural fairness of section 57.  Under stage 2, they get put into the limited review track.  Once they are put into limited review, the Court can never provide a judicial review remedy in respect to jurisdictional error. 

That, we submit, could, on no view, be a proper interpretation of the scheme.  And, just on the matter of the language, the text, the purpose, Project Blue Sky, indeed, if it were correct, it would be pushing the scheme in the direction of a breach of section 75(v) of the Constitution. And, the observations of the Court recently in Graham in the majority – and I might add your Honour Justice Edelman’s observations in dissent ‑ would both not be tolerant of a construction of the statute which says rights are set up, rights are breached, a court cannot grant judicial review in respect of those rights.

That is the first way we put the case, your Honours, which is if we succeed on question 1, the Court grants relief on question 4, irrespective of anything else, and the consequence of that is that on any view what the Authority did was a nullity because the scheme does not allow it to give legal life to something which has no legal life and so appropriate writs can issue.

Your Honours, while I am on that point, there is one practical question we have looked at which is if we are right on these matters, which court, if any other than this Court, can do the exercise of judicial review?  Obviously this Court can.  One of the propositions we have advanced a little tentatively in our reply is that where you have a case like the present where you have got jurisdictional error at the stage of the delegate and you have got the Authority purporting to affirm but in a manner which has no legal effect, then there would be the ability to go to the Federal Circuit Court under section 476.

If I could just explain that route.  Section 476 was amended following S157 but in a way which sought to respect the finding in S157 but then allocate jurisdiction in a particular fashion.  Section 476 says:

Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

Under section 5(1), migration decisions are defined to include “privative clause decision[s]” and “purported private clause decision[s]” which in turn are defined under section 5E as decisions affected by jurisdictional error.  So the primary grant of jurisdiction to the Federal Circuit Court relates to migration decisions whether – affected by jurisdictional error or not, the carve‑out is in subsection (2) in relation to relevantly primary decisions, and primary decisions in subsection (4) are:

privative clause decision[s] or purported privative clause decision[s]:

 . . . 

(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

So it seems to carve out the jurisdiction solely in respect to what happens at the delegate stage, and if what has happened is that the Authority has wrongly in law failed in its duty by affirming something which is a nullity, then the Federal Circuit Court may have jurisdiction to address that matter and in doing so provide effective relief to the parties.  That is the proposition we have advanced in our reply submissions at paragraph 19 and footnote 18.

Your Honours, unless there were questions, at that point I was proposing to leave the pure jurisdictional error argument and come to the question 2 issue and then the question 3 issue, but I have sought to make clear that our primary case in fact does not require the Court to answer question 2 because whichever way it is answered jurisdictional error at stage 1 entitles this Court to grant relief and the relief will effectively resolve the matter in the plaintiff’s favour.

Your Honours, with question 2, we start with the proposition which is in our outline at paragraph 7, which is that we do not seek to challenge the law which has been established in the AAT at Full Federal Court level and has stood almost since the inception of the AAT, but within that type of full merits review a decision in fact, even if affected by jurisdictional error is regarded as sufficient to trigger the merits review process.

What we seek to observe – and I will come to the two core original cases next – is that the reason the Full Federal Court came to that conclusion – and we have not found a High Court case that has approved it but it has been treated as gospel – the reason the Court reached that conclusion seemed to have two core elements involved in it.

The first is that because of the full merits review nature of the process and the ability of the AAT to review all matters of fact and law which arose below, any jurisdictional errors below can either be cured – to use the language of Justice Gyles in one of the Full Court cases – or, perhaps more precisely, become practically irrelevant.

They do not become legally irrelevant because even in the AAT model as a matter of jurisdiction, if there is a jurisdictional error in the decision below you could go to a court and seek judicial review.  As a matter of discretion you would be thrown out but as a matter of jurisdiction the Court could still look at that and, in an exceptional case, might grant judicial review.

But what happens in the AAT model is that because for practical purposes a denial of procedural fairness for example in the decision below becomes irrelevant once you are before a body where you can present the whole of your case, those features incline one to a decision – a view that a decision in fact is sufficient to generate the appeal right.

The second key feature we seek to identify - and I do not use the word “pragmatic” too lightly, but there is a pragmatic approach behind these authorities, that these are statutes designed to be beneficial to affected persons.  They are designed to give them a full opportunity to have their claim on the merits reconsidered by an independent and higher body.  So, they are beneficial statutes.

The AAT Act was a great reform at the time.  To introduce a notion that you only get to the AAT if you have a decision valid in law would either substantially carve out a range of decisions from that beneficial process or, at the very least, create very messy parallel proceedings which would undermine the reforming nature of the AAT model.

Now, where we seek to go is two places:  firstly, they are the core principles which animate the settled jurisdiction, this settled jurisprudence, that is paragraph 7 and secondly, when we come to the limited review process of Part 7AA, we will see that it abandons and disavows the central premises of the AAT model and the question for the Court is, having abandoned and disavowed those premises and created a creature that it is hard not to describe as providing a cramped and crimped model of review, the question is whether it was intended that you could be funnelled into that limited review based on decisions in fact which were not decisions in law.

So, your Honours, could I go first to the two critical cases on the AAT model which is firstly the decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. Now, Chief Justice Bowen and Justice Smithers in the majority, Justice Deane dissenting; from page 308, this was a case where the Collector purported to revoke a licence and the question was whether the statute gave power to revoke at all so it was a pure question of law and while the disappointed company applied to the AAT for review the Collector argued that first there was power to revoke but if there was not, the only place to have that sorted out was the courts.

The court held firstly that there was no power to revoke and so turned to the jurisdictional question.  Chief Justice Bowen, between pages 314 and 315 looked at three possible interpretations of the word “decision” in the AAT Act.  The first possibility that it meant:

a decision made: -

(a)in pursuance of a legally effective exercise of powers as conferred by the enactment -

That will ultimately what we submit is what triggers Part 7AA.  The second was made in “honest belief” and that is somewhat close to Justice Brennan as President had held but the majority departed from or thirdly, what the majority did hold, which was it was sufficient if it was:

in purported exercise of powers conferred by the enactment.

So, the third interpretation has become the wisdom and the gospel.  Now, Chief Justice Bowen’s reasons for rejecting the first interpretation were that the Act was intended to give a person whose interests were affected an effective appeal, free of technicalities, against that decision on questions of fact and law.  So, it is the fullest possible consideration of all matters of fact and law arising from the decision.  His Honour went on to say:

The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal.  It would render the appeal in many cases useless.

So, it would simply run contrary to the purpose of the Act as his Honour saw it to allow this administrative body to, in fact, decide both questions of fact and law.  The rest of that paragraph is important.  His Honour then rejects (b) because it is subjective and then, accepts interpretation (c) as most:

consistent with the context –

of the Act and at line 20 says:

The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment.  It could then proceed to determine whether the decision was properly made in fact and in law.  

So, his Honour has adopted interpretation (c) consistent with an understanding that the role of the AAT was to determine whether the decision was properly made in fact and in law and the reasons for rejecting Justice Brennan’s view were then expressed.

Justice Smithers dealt with the matter in perhaps more detail still and particularly - it goes between pages 331 all the way to 337 so I do not read the whole of that, but it is important to look at all of that.  I will pick it up at page 334 in the middle paragraph, at about point 6, where his Honour said:

But of course it is necessary to find in the Administrative Appeals Tribunal Act itself indications that the Tribunal’s powers do extend to dealing with such cases where the decision or the step implementing it was not authorized –

So, seeking to find in the statute a positive intention that the Tribunal powers do extend to the case where the decision is not a decision in law.  In the next paragraph, his Honour places great weight on what he sees as the objective of the Act:

Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government –

Over the next page, about line 6:

To my mind such a situation –

that is decisions, in fact:

would not be compatible with the objective of the Administrative Appeals Tribunal Act . . . would remove from review those decisions most in need of review –

It would not:

promote good government –

So, very much at the heart of this was that the whole policy AAT Act was to allow for the fullest review of fact and law guided by the interests of promoting good government administration.  There are then some arguments about technicality on that page.  I will not deal with Justice Deane.  So, that is where, as we apprehend it, the law has stood to date in relation to the AAT. 

So, could I then turn to paragraph 8 and identify what we say are the eight features of the Part 7AA model which are from a different universe.  The starting point ‑ and we have not found that there may exist other administrative review models which operate this way – is that once you get the decision from the delegate it is not a process of the applicant looking at it and if disappointed applying to a tribunal and asserting a claim, it is a duty on the Minister to refer a decision, a mandatory duty.  That is section 473A.

GAGELER J:   Section 473CA.

MR GLEESON:   Section 473CA, thank you, your Honour.  From the very start, a decision from the delegate must refer to the Minister and the credit of that is 473CC(1), which is:

The Immigration Assessment Authority must review -

I will just note the comparative provisions, for instance, in Part 7, if this was an AAT case, would be sections 411 and 412.  So instead of application to the AAT within 28 days, what happens here is mandatory referral. 

The second feature is that in the ordinary case the review is entirely on the papers and that can be seen from section 473CB where the secretary provides the file to the Authority and then under 473DB(1), there is mandatory duty, subject to the part, to review it:

(a)       without accepting or requesting new information; and

(b)       without interviewing the referred applicant.

In subsection (2), which emphasises the speed that is behind this process, you:

may make a decision . . . at any time after the decision has been referred -

So it is lawful to receive the papers at 9.00 am on Monday and make a decision Monday afternoon.  It is lawful according to this.  I should also observe 437DA(2), there is no duty to give the applicant the material that is before the Minister.  So in the ordinary case it is a review on the papers.  It can be done as soon as the person can and one immediately starts to think this is not a process of an applicant having a chance to have either the legality or the merits of one’s case or one’s claim reconsidered.  This looks more like some process of external assurance or audit which does not concern the applicant. 

So what you are getting under this scheme is someone external to the Minister will have a look at your case and in the ordinary case you will receive the answer.  Now, of course, the radical difference with the AAT model, as in for instance Part 7, could be seen from provisions such as sections 423 and following where, before the Tribunal, you can provide a statutory declaration or, with matters of fact you can provide written arguments.  In section 425 you have an opportunity to appear and be heard on the issues.  So those are the second key features.  In the ordinary case it is on the papers and the applicant has no role in the process.

EDELMAN J:   Is one of the reasons why the 473DA provision provides that the review can be conducted without making the applicant aware of the information that is in those papers because that is, in some ways, dependent upon the section 57 approach taken at the first instance? 

MR GLEESON:   I think the answer to that is yes, your Honour, because where we seek to go is that it is a statutory presumption of Part 7AA that you have received all the procedural fairness you are entitled to at the first stage under section 57.  So you do not need to know everything that was before the Minister.  Now, in some cases, having got the decision, you will know anything and everything you might possibly want to know about it and in other cases you will not.  There will be material in the file which will show where the section 57 error occurred.

So the statutory presumption expressed positively is you get this limited form of external assurance on the assumption you have received your rights under section 57 at stage 1.  So if you think of this category of people, they are the people who arrive between two unlucky dates – a date in 2012 and 2014.  The theory is you get the same procedural fairness as others get at stage 1 but at stage 2, for reasons which some might call discriminatory – at stage 2 you get limited review.  They get full review.

The logic of our case is that the decision to give them limited review, not full review, cannot be attacked as involving a legal error. That is a policy issue. But the decision to give them that was not to be to the detriment of them not receiving at least as much as the other people were to receive at stage 1. Any construction of a scheme which says they not only did not get a merits review at stage 2 but if they are denied their section 57 rights, they do not get any effective remedy under the statute or the Constitution, we submit could not be possibly placed on this as a matter of construction.

I will just finish the other points and then come to the conclusion we seek to get to, which is paragraph 9 of the outline.  The third key difference is that the authority does not stand in the shoes of the delegate and does not have all the powers of the delegate.  That is to be contrasted with section 415 where the Tribunal has all the powers of the delegate – all the powers and discretions of the person who made the decision and indeed, on the face of that, could in fact exercise the section 57 power at the Tribunal stage, if it has not been exercised properly.  So that cannot happen.

The fourth key feature is the Authority is not doing over again the process in the way that the Tribunal does.  The fifth is that the ultimate powers of the Authority are far more limited in the Tribunal.  The Tribunal in section 415 can do the usual range of things including affirm, vary, remit, set aside, substitute.  All the Authority can do is what is set out in 473CC, which is affirm or remit, but only remit if the regulations create directions that you can remit on.  So, in effect, to find out what is the task of the Authority, what can I do, apart from say yes, I affirm the decision, I will only be able to do such things as the regulations from time to time tell me to do. 

Now, the defendant says it is wrong for us to look at what is in the regulations because you do not construe the Act by the regulations.  In one sense that is correct.  If you simply look at the Act, the Act tells you - the Authority in fact cannot do anything other than affirm unless the Executive has decided to allow it to do something different.  Now, that is an extraordinarily cramped task.  It is relevant, however, to know what it is at the current day that the regulations do permit you to do because that is the only way to understand what at the current day is the statutory task.

So if your Honours have the Migration Regulations, it is regulation 4.43, and that is not entirely transparent, at least to me, as to what you can do but it seems that under subsection (2) of 4.43 the Authority could decide that the material justifies the conclusion that you “have satisfied the criteria for the visa”.  That is perhaps a larger area of intervention. 

Subsection (b) is a small area of intervention, the person “is a refugee” but, for instance, questions of protection obligations are not addressed.  Subsection (c) is the reverse, which is to address the protection obligations but not the refugee status.  Subsection (d) is about you can determine part of the complementary protection issue, and then the balance of (3) seems to be the Authority cannot go into issues such as character and conduct, et cetera. 

So it seems from the regulations that what the Authority does is to say I look at the papers, in the ordinary case I do not hear from the applicant or anyone else.  I can only go two ways, affirm or remit.  I can never make my own decision.  I can never substitute.  I can never vary.  The most I can do other than affirm is to send it back to be looked at again with certain aspects of the process now closed. 

What that means is that the decision – the ultimate decision always remains the decision at the Minister’s level.  The Authority never makes a decision which becomes the decision in law.  The Authority simply affirms what is there, or sends it back for further consideration as part of the process.

GAGELER J:   If it is sent back, will it come back again as a fast‑track reviewable decision?  Will it always result ultimately in an affirmation by the Authority?

MR GLEESON:   I believe that is the better view, your Honour.  So you may come back more than once but in the end what will happen is a decision of the Minister will get its statutory finality only if it has been referred and sent back and dealt with appropriately.  So it is never the decision of the Authority that is the ultimate determinant of rights.  That is important because it shows the manner in which anything the Authority does by way of affirmation can never rise higher or have greater legal force than the subject of the affirmation.

The last couple of points are in general there is no hearing for the Authority, which is section 473DF; contrast the position under the AAT Act, section 425, and finally in terms of objectives, which is quite stark, and the Minister embraces this, the objective of the Authority under section 473FA - there are four objectives:  you are to be efficient, you are to be quick, you are to be free of bias and you are to act consistently with Division 3 and the reader is reminded that means in general on the papers.

So the two critical concepts which are in the Tribunal in Part 7, which is that justice and fairness have an important role to play in the process, are deliberately not part of this process.  The parallel provisions in the Tribunal are section 420, where the Tribunal must act according to substantial justice and merits of the case and section 422B(3), which is that in the natural justice provisions you must act in a way that is fair and just.

In the Minister v Li there was some argument on both sides as to what to do with those provisions in the context of a scheme for the Tribunal, what weight to give to desiderata that it act in a fair and just manner and an argument that those provisions created a direct ground for jurisdictional error was rejected but the softer argument that those provisions helped to establish the framework of rationality and reasonableness of the statute was accepted by all judgments in slightly different language.

That is part of why in the Minister v Li the particular power which came to be issued, namely whether to give the person an adjournment so they could have a proper opportunity to present their case, was held to be governed by considerations of reasonableness and not reasonably exercised.

Now, the Parliament has chosen, in Part 7AA, deliberately to remove fairness and justice from the process and, instead, to say provided you are quick, efficient, non‑biased and you generally decided on the papers you performed your duty.  Now, with those features one of our core submissions in paragraph 9 is that there is a statutory presumption within Part 7AA, upon which the whole of its very limited and meagre provisions depend, that you will have received the procedural fairness required by section 57(2) before the matter reaches the Authority.  And that statutory presumption, we say, comes out of the language, the text, the context and the purpose because to set up a procedure where the Authority is not required to be fair and just could only have as its premise, that is because you have already had fairness and justice at the earlier stage.

Now, we rely upon the text for that statutory presumption.  This is a case where the text is actually explicated by the explanatory memorandum.  If your Honours could go to the explanatory memorandum to the 2014 Bill.  The explanatory memorandum says in terms what I have just said.  The key passages are between pages 130 and 136.  On 130, in discussing section 473DA, paragraph 887 refers to the provision which your Honour Justice Edelman raised with me.  And paragraph 888 says:

The purpose . . . is to put beyond doubt that the [Authority] is not required to give a referred applicant any material that was before the Minister . . . This is because under subsection 57(2) of the Migration Act and in relation to their fast track decision, an applicant would have already been provided an opportunity to comment on relevant information that the Minister considered was the reason, or part of the reason for refusing to grant a visa.

So the reason you do not get it ‑ you do not need it, because you have had your section 57 right.  Paragraph 893 is dealing with section 473DB, which is the general provision that you review on the papers.  And this puts it even more generally, as it were.  It is not just about why you do not get to see the Minister’s material:

The complete package of reforms proposed in this Bill intend to place an emphasis on all fast track applicants to articulate their protection claims in a legitimate and authentic way at the earliest possible opportunity.  As such, the IAA’s primary function of limited review is underpinned by a presumption that there should be no further requirement to consider new information . . . [The] applicant has had ample opportunities to present their claims and supporting evidence ‑

The same theme appears on page 135 at paragraph 920.  It is the same text, but the reason I emphasise it is that it is here situated in the context of 473DD.  So about the only chance the applicant might have is if you can jump 473DD and persuade the Authority you have got exceptional circumstances.  Even here, what is said in 920 is what was said earlier.  So the statutory intent is not that the exceptional circumstances be a means of curing 57(2) breaches, the assumption is that you have to apply section 57(2).

And then the same point appears over the page in relation to 473DE at paragraph 926.  So, our first proposition in paragraph 9(a) is the statutory presumption exists; second, is the Authority has no duty, and each of these ‑ I should say, the AAT stands in stark contrast ‑ the second is the Authority has no duty to consider whether there was a breach of 57(2) or to address it.  The third is there is little or no assurance that the limited powers given to the Authority will cure the 57 breaches or render them redundant.

Now, your Honours will see in the written submissions, there are some differences between the parties as to whether a 57(2) breach can be cured in general or whether it could have been cured in this case and there is a slight tension between the parties’ arguments on questions 2 and 3.  On question 2 we say, looking at the scheme as a whole, it is fair to characterise it as giving you little or no assurance that these breaches will be cured and you only need to think about that ‑ firstly, the Authority has got no duty to even ask if there has been a 57(2) breach.  It is entirely dependent upon an applicant whether to know of such a breach and assert it.  You may not know it in many cases because the material may not be in what is given to you.

If you assert it, you have an onus to prove it is exceptional and you win the satisfaction of the Authority.  The Authority has a broad discretion as to what it does, even if it is satisfied it is exceptional; it does it give you just a written opportunity, or does it give you an interview, and the reality is in most cases, of which this is one, you will not be given an opportunity in any way comparable to what would have happened if section 57 had been complied with.

If section 57 had been complied with, this applicant would have had the chance to put before the delegate the sort of material he sought to put before the Authority, partially unsuccessfully, but more importantly, when he was interviewed he would have had the chance to address and answer questions about the significance of that material.  If a credit finding was going to be made against him that he was a fraudster, it would have been made after his evidence had been assessed as given to the delegate.

So, what has happened here ‑ and this will be illustrative of many ‑ part of his material has been denied, he has never been given an interview by the Authority and the Authority has in effect affirmed a case without ever having seen the man in an interview so that could hardly be regarded as comparable.

So, our point in a general systemic sense is there is little or no assurance the limited powers will cure the breaches and so our positive submission is in paragraph 9(d), that this Act establishes a scheme where you receive your proper opportunity to be heard at stage 1.  After you have received such an opportunity and it has been reached without error, the limited qualities of Part 7AA arise.

There are two other matters we deal with in this part of the case.  We have indicated in writing that there are three provisions within the scheme which in fact use the sort of language which in S157 was held to be significant.  Where it speaks of decisions made under section 65, the Minister says, “We’re clutching at straws.  They’re just three little straws in the wind.”

It is actually quite significant that there is no equivalent language used in the Tribunal part of the Act.  For example, when one looks at the power of the Tribunal to getting new information in section 424, it does not use the language in respect to a decision under section 65.  It uses different language, you can get in anything that is relevant.  Those indications, we submit, are not mere straws in the wind and section 69, I have sought to make our submissions on that.

Your Honours, to conclude the second question, there are two authorities of some assistance that we have referred to.  The first is the now relatively old decision of this Court in Banks (1968) 119 CLR 223. The statutory scheme is referred to in the headnote but set out in full at page 240 and it was a two‑stage scheme a little like the present. So the first stage of decision‑making was the Board and they had power over the grant or revocation of a licence. The second stage was the decision had to be looked at by the Governor in Council.

I will observe immediately one textual difference which is, if your Honours look at section 31(1) of the Transport Regulation Act, it does not have a section 69 provision; it has in fact got the reverse provision, which is the decision of the Board has no effect until confirmed.  So I observe that difference.  It ultimately does not make an effect to the reasoning.

Chief Justice Barwick says, after setting out the provision that it is quite clear by section 31 that it is to be an effective review by the Governor in Council.  Indeed, it is substituted for right of appeal to the Court:

The statute therefore placed upon the Governor . . . an obligation to consider the matter for himself and to reach a conclusion, upon all the material available to the Board, whether or no the Board’s decision should be approved, or disapproved, or whether . . . some other action –

should be taken.  So it is similar to the present as in it is a broader ambit on the Governor in Council but the Governor in Council is looking at the same matter for a second time.

Then his Honour on the next page makes some more observations about how the scheme works.  The critical part is page 242, where his Honour reasons in the first paragraph and then concludes in the middle paragraph that – and I will take the middle paragraph:

the approval of the Governor in Council of a void decision of the Board cannot be regarded as the making of an order by the Council in like terms to those expressed in the purported decision of the Board.

So if you approve a void decision you are not making your own fresh independent decision with legal effect:

To allow such a consequence would be to treat the Act as having given to the Governor in Council greater powers than the Act gives to the Board – a result which perusal of the Act does not justify.

So the result is if the Board’s decision is void, the approval by the Governor in Council does not prevent the Court quashing it.  Now, that, we submit, is the exact result that is reached in the present case.  This statutory scheme does not purport to give to an affirmation by the Authority validity to something which is a nullity in law.  The other authority I will just mention that deals with the question of when procedural fairness is given in a two‑stage scheme is Haoucher v Minister (1990) 169 CLR 649, particularly at pages 660 to 661, referring back to South Australia v O’Shea (1987) 163 CLR 378.

Your Honours, those are the submissions on question 2, unless the Court wish me to address any other matter at this stage.  That provides additional complementary basis for the relief that we seek.  If we are correct on either of those bases, then question 3 is not necessary to resolve.  Can I briefly give our submissions on question 3?  This arises in a strict alternative to question 2, so we assume that the Authority had jurisdiction to review the delegate’s decision.

Just pausing on that thought, could I ask the Court for one moment to go back to the questions as framed on page 16 and 17 of the book?  I will just observe that the way question 2 was framed, there are two slightly different ways of expressing the same legal consequence.  The Authority had no jurisdiction either because there was:

no ‘fast track reviewable decision’ . . . or

an essential precondition for the valid exercise of power by the Authority under section 473CC of the Act is not satisfied –

So question 3 arises if we are wrong on all of question 2 and it immediately gives rise to this question ‑ ‑ ‑

GAGELER J:   Mr Gleeson, what is your preferred answer to question 2?

MR GLEESON:   The preferred answer is (a) and the alternative is (b). 

GAGELER J:   Yes.

MR GLEESON:   So if we are wrong on that and there is jurisdiction, what we come to in paragraphs 12 and 13 of the outline is what is really an entry‑point question.  In Minister v Li, the Court ruled that as a matter of statutory construction there is a default position in a scheme that powers and discretions are to be exercised reasonably and then there was comment on what that meant. 

The Court recognised that it was open to the Parliament, by sufficiently clear language, to set up a scheme where such a duty was eviscerated.  The entry point for question 3 would be – and this scheme is getting pretty close to such a scheme – has the Parliament, in the text it has used, set up a scheme where there is no duty to act reasonably in respect to such interests as the applicant may have in the process? 

Our submission, on that question, would be that the Parliament has strayed dangerously close to that position but not fully adopted it.  The Minister’s position appears to be that the Parliament has also strayed precariously close to it but has left review for what they call a decision that is made in mere ill‑humour or with malice or caprice or whatever.

GAGELER J:   All right, I think we understand the submission.  Was there something more you wanted to say in support of that?

MR WOOD:   No, your Honour.

GAGELER J:   Very good.

MR WOOD:   Those are my submissions.

GAGELER J:   Thank you.  Mr Gleeson.

MR GLEESON:   Your Honours, in the brief time available, on question 1, that last submission is clearly wrong.  Part of the reason may be that the conduct you advance as bringing you within the definition of “refugee”, you statutorily disregard it under 5J(6) and if that what happens, that activates section 57. 

Mr Wood raised a factual point which was that in paragraph 148 on page 323, he asked you to find that the delegate had reached the fraud conclusion relying upon the letter of support itself and apparently by implication, not taking into account the Reverend Brown information. 

That is not so.  The delegate, in paragraph 148, is referring back to the material at 56 and in 56 he is taking into account the Reverend Brown information as well as the other evidence. So, central to this case is that part of the reason, not the whole reason, part of the reason why the applicant failed to get the visa was reliance on the Reverend Brown information.

Your Honours, on the main issue in the case, your Honour Justice Gordon – I would not dare hesitate to paraphrase what your Honour said – but your Honour attempted to capture what Mr Donaghue was saying.  It seemed to have these propositions.  Firstly, the Act provides review for decisions, whether valid or invalid, including under breaches of Subdivision AB – that is, Part 7AA review.  Secondly, the Authority is not charged with the task of identifying breaches of Subdivision AB, and that is the proposition that it is de novo.  The Authority is not charged with looking for breaches of the law.  Thirdly, it is accepted that the Authority may, without committing its own error, not address or cure some breaches of section 57.  We disagree on how likely that is to occur, but it is accepted that, clearly, there will be some, perhaps many, cases where that will occur.

The fourth proposition, which is the crucial one for relief, is that the statute has said when the Authority affirms the delegate the decision of the Authority is the effective decision, that it “overtakes” the earlier decision and therefore any breach of section 57 or other parts of AB which has not been remedied has been swept away by the statute.  He says the statute tells us those breaches do not matter. 

That is the critical and ultimate issue in this case:  is this a statutory scheme which has set up limits on power under Subdivision AB and then created a restricted review process and said in the course of that, if there are breaches of AB, there is to be no remedy?

NETTLE J:   Well, he did say it might be a basis for the Tribunal to consider that there were such exceptional circumstances to warrant the receipt of further information.

MR GLEESON:   That is why he said it may be that in particular cases, depending upon the facts, there might be some form of remedy from the Tribunal which may or may not be equivalent to what you are meant to get under section 57.  His ultimate conclusion is, whether or not you get a cure from the Tribunal ‑ ‑ ‑

NETTLE J:   That is what the statutes dictated, he says.

MR GLEESON:   Yes, and whether or not it is effective, the statute has said what is a breach at stage 1 is now to be treated as overtaken, irrelevant.  That is the ultimate question in terms of release:  has Parliament intended to create such a statute?  We submit, for the reasons I put in‑chief, it has not.  We submit that if Parliament were to attempt to do that it would be placing itself in grave breach of the sorts of issues discussed in S157 and Graham.  

You would need the very, very clearest of language to have such a statute.  If there were one it would face that constitutional challenge.  If I could ask the Court to go back to one passage in S157 in Chief Justice Gleeson’s judgment.

GORDON J:   You do not challenge the validity of these arrangements under – that similar arguments were put in either in S157 or in Graham.  That is the point that was put against you by the Solicitor‑General.

MR GLEESON:   We do not challenge them but we say that if there is a constructional choice available, which there is not, to give it the scope that is alleged on this side ‑ ‑ ‑

GORDON J:   One should not choose a construction that is invalid.

MR GLEESON:   One should not choose a construction that is invalid and what Chief Justice Gleeson said in ‑ ‑ ‑

GAGELER J:   Nor should one be raising a constitutional argument in reply without section 78B notice.

MR GLEESON:   Well, I think in‑chief, your Honour, I did say that this is the preferable construction for this reason amongst others, and I would simply ask your Honours to note what Chief Justice Gleeson said at paragraph 37 of S157, which is the way I am putting it actually.  In that case, his Honour said at paragraph 37:

The principles of statutory construction . . . lead to the conclusion that Parliament has not evinced an intention that a decision by –

in that case:

the Tribunal to confirm a refusal . . . made unfairly, and in contravention . . . of natural justice, shall stand –

in certain circumstances.  The only transposition of those remarks to this case is that Parliament has not evinced an intention that a decision by a Tribunal to confirm a refusal in circumstances where it has been made unfairly at the first stage, and in circumstances where the second stage is not designed to present a cure would not be a construction that the Court would prefer unless the very clearest of language was used.  That is the way I am seeking to put it.

GAGELER J:   Mr Gleeson, you refer to constructional choice, can you give us a constructional choice that accommodates section 57 without dragging in other classes of jurisdictional error, that is to say, a fast‑track reviewable decision compliant with section 57 giving rise to review as distinct from a fast‑track reviewable decision in fact that might be infected by some other form of error.

MR GLEESON:   Yes.  The more modest part of our argument is that it is referring to a decision which is compliant with the procedural requirements of Subdivision AB of Part 3 of Division 2.

GAGELER J:   Well, if you put it that broadly, then how do you deal with sections 54, 55, 56, to which the Solicitor‑General drew attention?

MR GLEESON:   They would be in the same category as 57.  There would be no distinction drawn between them and he says this case is only about 57.  It is not.  They fall into the same category.  They are all in the provision and the underlying idea is that the language matches the EM.  This system has a statutory presumption, you get Subdivision AB.  If you do not get it, you do not have a decision which triggers the limited merits review. 

Alternatively, as we put it, an essential condition precedent has not been satisfied but as we have also put it on question 4, irrespective of those matters, this statutory scheme has not taken away the ability of the courts to provide judicial review for breaches of section 57, either directly or through the mechanism that seems to be asserted which is that what has happened at stage 2 is you have lost your right to complain of a breach 57 or other such provisions and instead you have been given substitute rights, which is the way it is now put.

An alternative proposition was put that if judicial review is available, you would refuse an indiscretion; that was put.  We resist that proposition also.  First it was said the breach has been cured.  This breach was never cured in this case.  This plaintiff was never put in the position he would have been in under section 57 which is he would have had the chance to learn of the Reverend Brown material, put his best foot forward at that time and by interview, seek to answer that material.  He has never received the equivalent of that.

NETTLE J:   But the Commonwealth accepts that you could have sought judicial review of the initial decision had you moved with alacrity.

MR GLEESON:   Then it produces the most unstable distinction, that if you rush and get to court in time, you can get judicial review and then you can have the first decision quashed and the second process does not get going.  But if you do not get there in time, apparently if the Authority rushes from its end and makes its decision as soon as possible and affirms, you have lost your rights.  Now, that does not appear to be what this scheme, as a matter of language, suggests.

We certainly disagree with the idea that the operative decision is the Authority’s decision.  The operative decision is and always remains the delegate’s decision.  All the Authority can do is give statutory finality to that decision of the delegate.

In respect to section 69 it is important that that section recognises, near the end, that you will continue to have a right to complain that a decision was wrong in the sense of breaching Subdivision AB and you will continue to have a right to have it set aside.  To that extent, section 79

positively preserves, we say, the ability to have that remedy achieved from a court.  That is a textual indication that Part 7AA cannot cut down that basic ability.  That is sufficient, your Honours.  May it please the Court.

GAGELER J:   Thank you, Mr Gleeson.  The Court will reserve its decision and will now adjourn until 10.00 am tomorrow.

AT 4.13 PM THE MATTER WAS ADJOURNED