Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2017] HCATrans 251 (7 December 2017)

Last Updated: 8 December 2017

[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 [2009] HCA 31; 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 [2008] FCA 319; 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 [2010] HCA 23; 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 [2010] HCA 23; 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] FCA 21; (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] HCA 39; (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.

So, the Minister is saying this scheme has not completely excluded reasonableness but its content is not much above zero. So, on this part of our submission which is in the alternative to paragraph 2, we want to argue that reasonableness has not totally been excluded but we have to try and identify what its content is in a scheme which is harsh in the extreme because it says you do not have to be fair or just. What could reasonableness mean in the context of that scheme?

Having set the problem up that way, when the Court was speaking in Minister v Li and elucidating what “reasonableness” meant, that was in the context of the AAT-type scheme where fairness, justice and opportunity to be heard were express parts of the scheme and they informed the idea of reasonableness. So, here we have got a scheme where, in the ordinary case, it is done on the papers. So, you never get heard. So, what is the minimum that a decision-maker must do in the context of that scheme? And, what we seek to do in paragraphs 14 and 15 is to identify what the minimum is as a matter of law and then apply it to the facts of the case. So, if I could ask your Honours to go, particularly, to these two key sections – 473DC and DD? DC is a power to get in information.

GAGELER J: Which is the relevant provision here? Is it DC or DD?

MR GLEESON: It is, ultimately, DD because DC simply means, as we would read it – it is the entry point to any exception to DB. Under DB, I only look at the papers. Under DB, if that is where the story ended, it would be unlawful to look at anything beyond the papers. DC is the entry point to look at something extra and it has a threshold simply of, it was not before the Minister when the Minister made the decision under section 65. That is one of the references to the “under” and “the Authority considers may be relevant”. So, it may not be impossibly difficult to satisfy a DC hurdle. But, having got it in under DC, as we read it, you still cannot consider it unless you get through DD.

GAGELER J: So, do you read “get” in DC as including “receive”.

MR GLEESON: Receive. Well, “get”, your Honour is correct that the core example of “get” is go out and do something active to ask someone for information but - - -

NETTLE J: Subsection (3) rather suggests that, does it not? I know it is without limitation but gives the flavour.

MR GLEESON: It certainly involves positive action of some sort by the Authority. It is not terribly apt to cover the case where the applicant says, I demand you consider my material. It may not cover that at all and so, I would agree with the proposition put that this factual case hinges on DD, whether you go through DC or not. One observation you have to make before coming to DD is that one of the things which the Authority has done in its practice note - which is in the material before you and it is somewhat relevant to this case - the practice note is at page 353 – the Authority in paragraph 20 has told people they can put in a written submission as to why they disagree or any matters that were overlooked and the Authority seems to think that can be done irrespective of going through DD. It is not new information.

We cannot see any justification for that approach in the statute. We would apprehend that under DB, the ordinary rule is you look only at the material that has come to you from the Secretary. You can only look at and consider something different if you get through DD. Now, that is of some importance in this case because what seems to be happening in the Authority level and it happened here, which your Honours will see at page 376 in the Authority’s decision, paragraph 5 is the material which the applicant tried to put in.

NETTLE J: Mr Gleeson, just before we go any further, why is the practice note not within the ambit of subsection 473DC(3)? Could it not be seen as an invitation to people generally to have a go, as it were?

MR GLEESON: Could I just consider that, your Honour. Your Honour, the difficulty we have, and I do not have a perfect answer to that question, is how DC and DD relate together because DC seems to be permission to get new information - - -

NETTLE J: Yes.

MR GLEESON: - - - but DD says - which is a prohibition which the Minister emphasises - you cannot consider it unless. So, it seems that even if you are invited to do it under DC(3), DD says, you must not consider that new information unless you get through the gateways.

NETTLE J: Surely you would get it, have a look at it and see, well, is it exceptional? If it is not, I put it out of my mind; if it is, away I go.

GORDON J: In other words, paragraph 20 is dealing with DC and not DD.

MR GLEESON: The problem, your Honour, is – I accept what your Honour is putting but the problem is that the way the practice note is set up, it draws a distinction between the submissions and new information, and it seems to indicate in 20 and 21 your submissions, which we offer you the opportunity of generally, we will look at irrespective of DD considerations, because 22 says we will only consider new information, information was not before the Department as set out in DD. We then must be satisfied there is new circumstances.

So the Authority is setting up a distinction, submissions as of right, new information, if you satisfy exceptional circumstances. Our point is there is no such distinction. They could give a general invitation to put in submissions under DC(3) but only if under DD they then say you will have to now satisfy us of exceptional circumstances. So we think that the Authority is, in an attempt to ameliorate the harshness of the scheme, trying to bring back in features which do allow for a modicum of fairness and justice but which the statute just does not provide for, because your job is to do it on the papers.

Your job is not to – it would be very helpful to have these submissions if you were trying to reach a fair and just decision, because you would know why the person disagreed and you would know any matters that were overlooked. In fact, that is almost a hint to if you think you have got a section 57(2) breach you might tell us in your submission and we might take it into account.

GORDON J: I must say I misunderstood. I thought when I looked at 473DB what it said was that the Authority must review it:

without accepting or requesting new information –

So it was tied to the new information bit rather than submissions, and secondly –

without interviewing the referred applicant.

So it seemed as though there was at least a mechanism for them to – consistent with 473DC(3) seeking a submission.

MR GLEESON: Well, your Honours, that is I suppose the question of construction. The best we can make of it is that anything which is not CB material – that is, coming from the Secretary over to the Authority is new. Anything beyond that is new.

GORDON J: Is that right given – I mean, I do not think you can look at it without looking at DB.

MR GLEESON: Our reading is putting them together; CB says the Secretary provides a file, that is straightforward; DB, you are to look at that file and not look at any new information. Then your Honour Justice Nettle refers me to DC(3). That says you have a power to seek new information and that is your escape hatch from the strictures of DB.

So you could say to people we give a general invitation for you to put in a submission as per paragraph 20, but what you cannot do is to say as a submission we will now go on and consider it irrespective of exceptional circumstances. That is what is the enlargement of what the statute had contemplated.

GAGELER J: That is drawing a distinction between information – well, refusing to draw a distinction between information and submissions.

MR GLEESON: Yes. So it may not be essential for the Court to decide that issue in this case but I want to put our submission on it. It seems to us the submission is a form of new information. Why is it new? It is something other than what was in the file in CB. That is the proposition.

GORDON J: I do not know about that because as I read the definition of “new information”, it is information that is not before the Minister and which:

the Authority considers may be relevant –

if you just take (a). What 20 is dealing with is material that has been overlooked. So it was material that was before the Minister. At least, in part of it, it is seeking to deal with material outside new information.

MR GLEESON: If your Honour looks at 473DC(1) - - -

GORDON J: That is the bit I am talking about. If you take (a) – material which is not before the Minister – and as I read the practice note it is saying, tell me if there has been something that has been overlooked – i.e., it was before the Minister and just overlooked. Anyway, it may not matter but I do not think you can, at the moment, put the two of them together and assume you will end up with the same topics.

MR GLEESON: Your Honour, the question I am seeking to address is whether DC stands independent of DD. I accept that DC appears to have some amplitude in it to allow you to get things - you could get things in. The question is whether DD is saying – DD operates on the expression “new information” and that new information is what is defined in the beginning of DC as being “documents or information” not before the Minister and which you consider to be relevant. So, it seems to take the category of material that you have got in under DC – which is new information – and then said, here is a prohibition – you have got it in but you cannot consider it unless you go through these extra hoops.

NETTLE J: That appears to be the way it is construed in the practice note too, at paragraph 22.

MR GLEESON: That is what the practice note is certainly doing on 22. The slight conundrum is whether the practice note is treating submissions as something that have to then jump through the section DD “new information” hurdle – which would mean we have no problem with the practice note. If the practice note is saying, having got it in under DC, we can then look at it irrespective of exceptional circumstances, that is where take issue with the approach.

EDELMAN J: It may be if it goes back to the delegate, the delegate can then look at it without exceptional circumstances.

MR GLEESON: Exactly, exactly. So, your Honours, where I was then seeking to go was with DD – which appears to capture all the new information as defined in DC – there is a prohibition:

must not consider. . . unless –

and then there are two hurdles. The first is:

exceptional circumstances to justify considering –

and then secondly, if it is coming from the applicant which will not be every case, you must satisfy the Authority of certain matters, e.g, it:

was not, and could not have been, provided to the Minister –

Returning to our outline, the minimum standard of reasonableness that we submit has not been excluded by these provisions is that in a DC category where you are looking at getting in information, the Authority would be required to attend to the nature of potential new information – that is, assuming you know of its potentiality – and you would be required to attend to the relevance that it is likely to have to the discharge of your mandate to affirm the decision below or remit it on a ground permitted by the regulations and then come to a reasoned conclusion considering the merits of both sides of the argument – can I properly discharge my mandate without getting it in.

Similarly, under DD, where the question is a little narrower, when you are deciding whether there are exceptional circumstances and whether the applicant could not have provided the information you would have attend to all the circumstances which could be said to justify taking it outside the norm and to indicate where the applicant could have provided it and come to a reasoned conclusion and, perhaps if I can add to those two, if you are required to provide some opportunity to the person you would then have to have a reasoned basis for deciding how far that opportunity should go in writing, interview and so on.

If we could come to the present case, paragraph 16, we would submit on the facts the Authority was aware of three key matters. The first, which emerged from reading the delegate’s decision, was that the delegate had placed vital reliance on the Reverend Brown information, acquired under section 56, and never put to the plaintiff the comment by the delegate. That, we submit, emerges from any fair reading of the delegate’s decision.

Now, pausing at that point, the Minister appears to make a submission, “Well, that’s not relevant because the applicant didn’t sufficiently make a complaint about that to the Authority and if the applicant didn’t put its complaint in a perfect fashion, the Authority didn’t have to worry about these matters.” We would submit that is no answer. As to paragraph (a), a reading of the reasons makes perfectly clear a central reason that the applicant was refused the visa was the Reverend Brown information.

The second thing the Authority knew was that the plaintiff had information which, by definition, it could not have put to the delegate and which it now wished to have considered. That second round of information is what is referenced in the page of the Authority’s decision I have been to and the information itself is found between pages P363 and P373. The third key feature was that that information was at least capable of showing that the delegate had reached the wrong decision on a matter where the regulations permitted a remitter.

Now, if those three matters arise on the material before the Authority, the first strand of our reasonableness argument is that you cannot find any square recognition and consideration of those three matters in the reasons of the Authority. A failure to give any recognition and weighing to those matters rendered the decision unreasonable. In Minister v Li, in your Honour Justice Gageler’s judgment there is a reference on the facts to the failure to see a weighing of merits on either side of the argument and you do not see a weighing of those matters in the question whether to allow the new information in.

In paragraph 17 – if I could advance this by reference now to the Authority’s reasons – what the Court will see on pages 376 to 379, they are the key pages, there is first a proposition in various places, such as paragraph 6 that to the extent I read your new material and it is no more than an explanation or a refining of your earlier claims, it is not new information and I can consider it. That, we submit, is not permitted by the Act. You cannot just say because this looks similar to something you told the delegate, I can receive this new version of it. Everything has to go through the exceptional circumstances test. So that is one problem.

Then when we come to paragraph 11, the Authority here is dealing with the letter from Reverend Brown dated 10 May. That is part of the new material and that is at page 369, and the Authority appears to put this material in different categories:

In so far as it reiterates evidence . . . the information is not new information and I have had regard to it.

We submit that is not open. There is then a curious sentence:

It contains the further information that the applicant attended church “occasionally” over the period from 2014 to 2016. To the extent that the letter refers to the applicant’s church attendance in 2016, this is new information which was not before the Minister and which may be relevant –

and what seems to happen is so far as Reverend Brown is speaking about the position post the applicant’s interview, it will be taken into account, but so far as he is speaking pre the interview, it will not.

NETTLE J: But is it any different? I mean, the Minister knew from Reverend Brown that the applicant attended occasionally in 2015 after going away at the end of 2013 to Pascoe Vale or wherever it was. All this adds correctly according to the fact that he also came in 2016. Is there any disconformity?

MR GLEESON: Well, the Minister seems to have reasoned the last time you attended was July 2015 as a fraudster to get a letter and you are not - - -

NETTLE J: Well, put aside the qualification, the last time you attended was 2015 to get the letter before you came to the hearing.

MR GLEESON: In July, in June, yes. Now, the further information – it is not pellucidly clear, but the further information from the reverend is a statement that it is more occasional over the whole period since. Now, precisely what that amounts to, it may be conformance, it may be minor, but let me get to the real point.

NETTLE J: That is skilfully drafted, it is almost settled by - - -

MR GLEESON: Where this goes wrong is that the key distinction the Authority is drawing is I will allow in anything post your interview but I will not allow anything which relates to the period pre your interview, even if it is part of the material which answers these adverse findings that have been made on your claims. So whatever is done with Reverend Brown, what happens in paragraph 12 is that the letter from the Andrews is rejected. In 13 the letter from Mr Zimmer is rejected and in 16 there is no interview allowed.

So what has happened is that although he has been denied the chance before the delegate to fully answer the Reverend Brown information, what is happening before the Authority is not by any means a full substitute for that. He is being allowed some partial process to put some material in and he is not being allowed to put in other parts of his material which are designed to answer that problem.

The final step, just to show it got a little worse, is when we come to the Authority’s reasoning at pages 387 to 388, the Reverend Brown information is being referenced in paragraphs 51, 54, 56 and 57, and the Authority has now come up with a new proposition in paragraph 57, which is that the finding that he was a fraudster is over the top but the overall conclusion he is not a genuine Christian is true for a different reason, namely the only reason he is attending the church is because he is lonely and he wants some social contact. That is in paragraph 57, and 58 says therefore he is not a Christian and 61 says:

I do not consider that the applicant is committed to Christianity such that he would seek to pursue any interest in it, or attend Christian worship in Iran. I find that this is not because he would be afraid to attend church . . . but because he is not really committed to Christianity. I find that the conditions that have led to his interest in it in Australia – loneliness and social isolation – will not exist in Iran.

So the ultimate reason for the decision has been affirmed and the ultimate issue which emerged before the Authority was never one raised or decided by the delegate. A totally different strand, “the reason you are not a genuine Christian is you only went to church because you were lonely and socially isolated, if you go back to Iran, those conditions will not exist; therefore, you will not need to be a Christian; therefore, you will not be persecuted”.

What has happened in terms of the unreasonableness is not only are they the matters we have in paragraph 16 of our outline but in the manner in which the Authority has chosen to deal with not only the material before the delegate, plus the new material it is letting in, but excluding the whole of the material and excluding the interview, a new issue has been emerged in this case. That new issue has never been put to him and the powers under DC and DD, including an interview, have never been exercised.

There has been no weighing in this set of reasons as to why he would not be allowed the opportunity to address the proposition that he is not a genuine Christian because he only attends church out of loneliness and social isolation.

GAGELER J: Does that really fall within the scope of question 3? You seem to be challenging the ultimate decision of the Authority on the grounds of Wednesbury unreasonableness.

MR GLEESON: I cannot do that because that is not within 3. What I can do is to say, once the issue had apparently crystallised in the Authority’s mind, that the reason you may not be a genuine Christian convert is not the one the delegate had, which was you were making it up, but a different reason, namely there was some attendance but only to make some friends, one has then departed from the 5J(6) finding. We cannot exclude your conduct in Australia but we have a different case. You are only attending out of friendship. The proposition in question 3 is, if that is what the issue is, it is now crystallised. It was legally unreasonable to do two things: firstly, to not let him put in letters such as the letter at page 370 from Mr Zimmer - - -

GORDON J: It is really a complaint about the failure to undertake the exercise in 473DE, is it not, that is that there is new information?

MR GLEESON: I cannot put it as a DE.

GORDON J: No, that is why I am asking though.

MR GLEESON: I cannot put it as a DE because this is in the category where, in assessing the information that is before the delegate plus the limited amount he is allowed to put in, but declining to allow him to put in letters like the Zimmer letter and declining him an interview - it is not that there is some new information in the hands of the Authority which he is not allowed to comment on but it is put as a DC and a DD issue.

If the central issue has now become your attendances at church should be given no weight, not because they are done for what I call the fortunate purpose, but because they do not demonstrate genuine Christianity, they are just an attempt to overcome loneliness and if you go back to Iran those circumstances will not exist, if that has become the central issue, what ought to have happened under DD was two things and that is the conclusion of our case.

The first is that the information he was seeking to put, particularly from Mr Zimmer at 370 and from his other referee at 372, should have been allowed in and secondly, the only reasonable way to resolve this question was to allow him to address in an interview this new proposition and taking up your Honour Justice Edelman’s question, one way of doing that would be to say this decision cannot stand. It ought to have been remitted for proper consideration via an interview of his statements in the light of the fact that the reason he is now going to miss out is the loneliness theory, or the Authority should itself have got in the information which it could have done under DD.

NETTLE J: Would the Authority still be bound by the requirement that it be fresh evidence in 473DD(b)(1)?

MR GLEESON: Yes, and to satisfy that limb the plaintiff would have to be able to say the reason that this material was not before the delegate - I mean in one sense, perhaps in theory, it could have been obtained but it did not appear to be necessary then but when the theory is now, I am only attending to make friends and I am not Christian, you would think that evidence from the two closest people he attended with in the church, to speak of whether he was attending for religious reasons as opposed to loneliness reasons, would go squarely to an assessment of that question.

NETTLE J: Well, you would but the issue before the delegate was whether he was truly a Christian and one might have thought that those letters from Zimmer and so forth went squarely to that and could be seen to.

MR GLEESON: That is a possibility, your Honour. I have to accept that. The question is whether - none of this undercuts the 57 argument. That is at the earlier stage.

NETTLE J: I follow that.

MR GLEESON: This is at the stage where, your Honour is correct, one has to look backwards from the Authority and say even it is exceptional - - -

NETTLE J: Is it fresh?

MR GLEESON: - - - could you have provided this. Now, I think all I can say is that in one sense, yes. In a perhaps more relevant sense, the ability to identify evidence as relevant depends upon one’s appreciation of the issues as they have crystallised at a particular point and certainly before the delegate the social isolation theory was not the issue. So that was not the case.

So one can only assess it as how obvious was it that he should have got Zimmer at the time; that is all I can say on that, your Honour. Your Honours, in our outline then we have indicated in paragraphs 20 to 22 the way in which we would see the relief playing out and particularly in paragraphs 20 and 21 the relief ultimately is effectively the same, whether the plaintiff succeeds on question 1 plus either 2 or 3, or succeeds only on question 1 and that is for the reason I mentioned at the outset about this scheme not giving the statutory effect to an affirmation of turning the underlying decision into a lawful decision when it is a nullity. Unless your Honours have questions, they are our submissions.

GAGELER J: Thank you. Mr Solicitor.

MR DONAGHUE: Your Honours, can I start just with a preliminary point about the matter that has been the subject of the exchanges in the last couple of minutes and ask your Honours to turn to page 8 of the book, where you will see a ground of review directed to a complaint that the Authority departed from the delegate’s findings of fact and failed to seek submissions and consider whether or not it should seek submissions about its intended departure from the delegate’s finding. Now, that is particularised in a different way to the way that Mr Gleeson just particularised it.

But that ground very deliberately is not before this Court because it was discussed at early directions hearing, it can be dealt with in the Circuit Court and the questions that were stated in the special case pick up the other grounds but do not pick up that ground and, in my submission, that issue is not before your Honours and you should not address it.

The four questions that are before the Court identified at pages 16 and 17 of the book raise a number of issues by far the most important of which, and the question that justifies the reference of this proceeding to the Full Bench of the Court, in our submission, is question 2, being the question whether the Authority has jurisdiction under Part 7AA to review a decision whether or not that decision of the delegate involved a jurisdictional error.

The reason that that is a point, we submit, of great systemic significance and public importance is, as your Honours will have seen in the book, there are nearly 12,000 decisions by fast-track applicants who will potentially be the subject of review under this regime. So the question that is important is, when people seek judicial review of decisions of the Authority in those 12,000-odd cases can they, by ignoring the decision of the Authority but focusing just on decisions of the delegate, knock over the review process such that it needs to start again?

So is it permissible in proceedings of that kind to review the delegate’s decision for error knowing that if you do so you can thereby vitiate the Authority’s decision, or do you have to in a judicial review proceeding of that kind, demonstrate error by the Authority? That is the issue lying at the heart of question 2 and that is the issue that we submit is the reason that this proceeding warrants the consideration of the Court, because otherwise the natural justice-type issues are the very kinds of issues litigated on a day-to-day basis in the Circuit Court and could have been litigated – well, certainly question 3 could have been litigated in the Circuit Court.

This is an issue as to question 1 because question 1 is an attack deliberately on the delegate’s decision. That is an attack of a kind that can only be brought directly in this Court but, if we are right in what we say about question 2 and question 4, it is an attack that would be pointless because there would be no reason why the Court would grant relief in relation to the delegate’s decision if the Authority’s decision is the decision that validly determines the rights of the applicant.

So, if we are right about questions 2 and 4, we submit that your Honours do not actually need to answer question 1 and that that would establish that in future proceedings involving judicial review of Authority decisions one must focus on the Authority decision, not on what the delegate did or did not do. For that reason, differently to our friends, I propose to address your Honours on questions 2, 3 and 4 first, and then Mr Wood will address your Honours on question 1, if the Court pleases.

EDELMAN J: You just said that there would not be any jurisdiction for the Federal Circuit Court in relation to question 1.

MR DONAGHUE: Yes.

EDELMAN J: Will you be addressing or will Mr Wood be addressing the section 476 point?

MR DONAGHUE: I can do that now, your Honour. The reason is, if your Honours go to 476, that the scheme is the Circuit Court’s jurisdiction exactly mirrors this Court’s jurisdiction under 75(v), subject to certain exclusions. One of those exclusions is an exclusion in relation to a primary decision – “primary decision” defined in 476(4) as, relevantly, a decision that has been or may be referred for review under Part 7AA.

So the delegate’s decision, where the decision relates to a fast-track applicant, is a decision that has been or may be referred under Part 7AA and so it does not fall within the jurisdiction of the Circuit Court. Because it does not fall within the jurisdiction of the Circuit Court, it cannot be remitted by reason of 476B of the Act.

If the Minister loses on question 2 such that the Authority’s jurisdiction depends on the delegate having made a valid decision, then you could go to the Circuit Court on review of the Authority’s decision where ground number 1 is the delegate. I do not deny that. But what you cannot do is just attack the delegate’s decision, in our submission.

GAGELER J: All of that sits in the background in terrorem; it is not a question that we are addressing in this case.

MR DONAGHUE: No. I am raising it only to explain why we focus the argument as we do in relation to question 2, but I accept that that is so. In terms of the legal issues, the first very obvious threshold point, if I may perhaps point out the obvious, there is no challenge to the validity of Part 7AA. What your Honours are concerned with here is nothing more or less than the construction of the scheme that Parliament has enacted and to identify from the terms of the Act how it is that Parliament intended that scheme to operate.

It is obviously the case that this scheme is different to the AAT review, RRT review, MRT review with which your Honours are familiar and it is different in a way that confers more limited rights on a review applicant than the rights with which we are all familiar in the context of that scheme. But the difference in itself, in our submission, tells you little, if anything, that is relevant to answering the questions that are raised by the case because Parliament - and Mr Gleeson took your Honours to it - in section 473FA has identified that the objects of this part, in terms that I think he identified as stark and confronting, and there is some evident force in that – but the object of Parliament, as recorded in the text, was to create a mechanism for limited review that is efficient, quick, free advice and consistent with Division 3.

Now, one should not, in our submission, ignore the words “consistent with Division 3”. Parliament is saying this is the scheme of review that we consider sufficiently fair. This is what we are prepared to provide to applicants in the class who we, the Parliament, consider should be subjected to this kind of review rather than a different kind of merits review.

The ultimate question that underlies question 2 is did Parliament intend, on a proper reading of Part 7AA, to create a scheme where the only decisions that could be the subject of the fast-track review process are legally effective decisions of the delegate, meaning not just decisions where the delegate complied with procedural provisions like section 57 but also decisions where the delegate did not make an error in the construction of the legal criteria, because an error in the construction of the legal criteria would likewise on the authorities in this Court and the Federal Court be a jurisdictional error that would vitiate the decision.

So the question comes down to: did Parliament, notwithstanding that it provided that every negative decision must automatically be referred into the fast-track review regime, actually mean only those decisions should be referred into that regime where someone, presumably the Minister, unassisted by submissions from anyone, has determined that the decisions are valid and has correctly determined that the decisions are valid because if the Minister thinks the decision is valid and refers it into the fast-track review then that whole process will miscarry.

Our submission is that, for reasons I will develop, that would be a quite remarkable construction of the regime in the context of a regime that is intended, avowedly, to be fast, cheap and efficient, to condition the whole thing on a threshold judgment as to the validity or otherwise of the delegate’s decision.

Can I ask your Honours to go to Part 7AA and just note a couple of things about the framework. If you start at 473BB, which is the definition section, you see that there is a definition of “fast track reviewable decision”. There are a lot of interlocking and very similar definitions in this part. So a “fast track reviewable decision” means:

a fast track decision in relation to a fast track review applicant -

Both of those terms are defined not in Part 7AA but in section 5 of the Act. A fast-track decision which, if your Honours have the same print of the Act as I do, is on page 15, means:

a decision to refuse to grant a protection visa -

So that is all we are talking about, decisions to refuse to grant protection visas –

to a fast track applicant, other than a decision to refuse to grant such a visa –

for particular reasons – character reasons, 5H(2), 36(1)(b), which is adverse security assessments. So there are a number of kinds of bases upon which someone might be refused a protection visa that, if that is the basis of the delegate’s decision, means you are not in the fast-track regime and the normal review mechanism will be available. So, for example, character refusals are usually reviewable in the AAT. That would be the same. But if the decision to refuse to grant a protection visa is not made on one of those excluded bases, then it is a fast-track decision. The fast-track review applicant is - a little further down that page:

a fast track applicant who is not an excluded fast track review applicant –

and for that one goes back to page 13 and there are a list of reasons why someone might be an excluded fast-track applicant, in which case they do not fall within the merits regime at all.

So one goes then from those definitions to 473CA which is the obligation on the Minister to refer and, as has already been noted, that is referring all fast-track reviewable decisions, so that is all protection visa refusals except on the excluded grounds. But not only must they be referred to the Authority, they must be referred for review as soon as reasonably practicable, after the decision has been made, so the process is supposed to start quickly. The documents are passed under CB as has been explained and then one gets to 473CC, the obligation on the Authority to review the fast-track decision.

There has been a little debate in the Full Federal Court of late in relation to what that word “review” means in this context and they are decisions that were decided since we filed our written submissions in this matter. I think our friends have given one of them to your Honours - The Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136.

The most recent word was only a week or two ago in a case called BMB16 v The Minister [2017] FCAFC 169. I will not take your Honours to it but the debate is, is it right to say that function is correct and preferable review in the familiar sense or should it be described in some different way and different views have been expressed by different judges in the Federal Court on that question.

Ultimately, in our submission, is that little turns on the label. The question is, well, what does the statute actually require on a review of this kind and bearing in mind that the decision is a decision to review a refusal of a protection visa, the focus is on the decision made under section 65 of the Act to refuse that visa which is not a discretionary decision. It is a decision which turns on the application of the visa criteria - if you meet them you are entitled to a grant; if you do not, the visa must be refused.

So, the word “preferable” is not really a particularly useful one in that context, that normally picks up the preferable decision out of a range of discretionary outcomes and the question is, in our submission, on a review to the Authority, was the decision of the delegate correct in refusing to grant the protection visa. So, looking at why the visa was refused on the criteria for the grant of a protection visa, did the delegate get it right.

If the Authority affirms that decision under (2)(a), it will do so because it concludes that the decision – that is, the refusal of a protection visa – was right, which might be for the same reasons as the delegate had or might be for different reasons because the review is not of the reasons of the delegate, it is of the decision of the delegate.

GAGELER J: So it is de novo review?

MR DONAGHUE: De novo review, not exactly; de novo review on the criteria for the grant of a protection visa on the material that is before the Authority, which will be the material that was before the Minister plus anything that comes in under CD and DD and perhaps the submission question to which I will come. That question, whether it is de novo or review for error, was one of the issues that was looked at in the BMB16 Full Federal Court case I mentioned a moment ago, and all of Justices Dowsett, Besanko and Charlesworth in separate judgments said it was not limited to review for error.

So that is the Full Federal Court’s understanding of the kind of review that is being contemplated. So it is not dependent upon identifying an error in the delegate’s decision and is not limited to review of the material before the delegate because of the statutory means to supplement. So irrespective of the delegate’s reasons, if the Authority thinks the decision to refuse was correct it affirms.

If the Authority thinks that the decision to refuse the visa was wrong, then the Authority has the power under 473CC(2)(b) to remit for directions and, as Mr Gleeson has already pointed out, the directions unsurprisingly in reg 4.43 of the regs are directions about satisfaction or otherwise of visa criteria, so it exactly marries up with what I have just put to your Honours in that if the Authority thinks that a visa criteria was incorrectly applied, the Authority can send it back saying actually, this person is a refugee, or actually this person – you were wrong in saying this person is not a refugee because of this particular criteria. The error is corrected and then the decision has to be remade on all of the other criteria that remain. Both are available.

So that while it is true that that list of powers does not in terms include a power to set aside, it is also true, in our submission, as Justice Besanko held in the BMB16 Case at paragraph 33 that it is implicit within the power to remit with directions that the decision has been set aside, otherwise the regime does not make sense.

Now, from there, of course, your Honours have already seen 473DB and its presumption in favour of review on the papers as it is put in the heading to that section, but of course your Honours will have noted in subsection (1) that that presumption is subject to this part, which of course includes Subdivision C, the getting of additional information. So while one does start with the proposition that the review will occur without accepting or requesting new information and without interviewing the applicant, that starting point is subject to alteration. The starting point is, we submit, relevant when one gets to the legal reasonableness questions, but plainly enough the review is not strictly limited to the material that was before the original decision-maker.

Now, the argument on question 2, as we understand it, put against us is that the combination of 473CA and 473CC, both of which refer to a fast-track, reviewable decision, is such that if the delegate made a jurisdictional error - and here the only such error alleged is breach of section 57 – then because that decision is a nullity there is no fast-track, reviewable decision and so the power conferred by 473CA and CC is not enlivened and you cannot have review under Part 7A in that situation.

So ultimately your Honours are concerned, in resolving this argument, on the construction of the words “fast-track, reviewable decision” and whether that means a legally effective decision or whether that means a decision in fact, whether or not legally effective. That, we submit, is the ultimate constructional question, being the same question that underlies Brian Lawlor.

EDELMAN J: Mr Solicitor, having regard to that constructional question, would the Court consider the same principles of what might be described as restrictive or constrained construction that apply generally in relation to privative clauses where what is occurring here is really a scheme rather than a particular clause?

MR DONAGHUE: Certainly, your Honour, I accept that you can look at the scheme in answering a constructional question. In my submission, the question is a little different from the question that would be asked in a privative clause context because that is about confining the jurisdiction of a court and in the case of this Court there is an obvious constitutional underpinning in relation to 75(v), none of which is present here because it is open to Parliament to give you no merits review at all.

In fact, not only is it open, it happens under this Act all the time. It happens not just in relation to excluded applicants but if, for example, you apply for a visa offshore, you do not fit within any of the merits review regimes under the Migration Act. So this is an Act that gives different merits review rights to different people, including no merits review rights to some people and that is, we submit, a perfectly reasonable decision for the Parliament to make and not constrained by the kinds of consideration that constrain an approval clause.

But we do accept that your Honours can look at the whole scheme but the question that your Honours are asking when looking at the whole scheme is did Parliament intend to allow limited merits review of all negative decisions or only of legally effective negative decisions, and when one looks at the scheme - - -

EDELMAN J: It is more than just a restriction upon merits review, is it not, because if the decision of the Authority can, in effect, cure a jurisdictional error but cure it in the context of a much more constrained hearing, then to some extent the ability to judicially review has been cut back?

MR DONAGHUE: Well, your Honour, we would answer that by saying that there is no cutting back of the judicial review of the delegate’s decision. What there is instead is a statutory regime that makes it pointless to review the delegate’s decision because the delegate’s decision is no longer the legally operative decision. So it is replaced by something else, and what it is replaced by is what Parliament chose to replace it by, which is a decision of the Authority made in accordance with the particular procedure and on the basis of particular material.

So you could still come to the Court seeking judicial review of the delegate’s decision. The question would just be how would you overcome the discretionary objection that would be raised to saying there is no point in granting relief in these circumstances because, unless you can set aside the Authority’s decision, your position would be legally unchanged.

GAGELER J: Mr Solicitor, I wonder if there is a middle argument that has been partially articulated perhaps by Mr Gleeson, and that is rather than putting it in terms simply where a fast-track reviewable decision is on the one hand a legally effective decision or, on the other hand, a decision in fact. The middle ground might be that it must be – it is a decision in fact that is legally compliant with the procedural provisions of Subdivision, I think it is AB of Division 3, which may be a way of harmonising section 69, which you will take us to in due course, with section 473DA(2), which at least on one view might be taken to be framed on the assumption that there will have been procedural compliance at that earlier stage.

MR DONAGHUE: I accept, your Honour, the possibility of that middle ground and, indeed, the DA(2) point that your Honour made and the explanatory memorandum reference, to which Mr Gleeson took your Honour’s point somewhat in that direction. What we submit points strongly against it is that if that be the way the regime was intended to work, it still conditions any referrals and decisions made under it upon a judgment being made by someone as to whether there was or was not legally effective compliance with that suite of procedural provisions, including in particular section 57.

That is an issue that occupies the time of the Federal Court and the Circuit Court on a constant basis because of the legal contestability of that very question as to whether or not there has been compliance in circumstances where the legal questions can be difficult. And there is not any real way in which the Minister or the Minister’s delegates, when seeking to comply with their obligation under 473CA not only to refer it but to refer it as soon as practicable, to know whether or not they are under that duty or not if the duty is conditional upon effective legal compliance with 57.

So while I accept that there is a theoretical possibility of that ground being there, we submit it would undermine the fast and efficient review that the scheme as a whole contemplates and that the way to deal with, at least the large majority of possible problems, is through DC and DD which, in my submission, do allow a working out that will remediate that kind of issue. Can I come to section - - -

NETTLE J: Just before you do, for my benefit, if that is right, that there has been a failure to comply with 57 at the base level, it is treated as a valid decision for the purposes of review, let us say for argument’s sake the reviewer upholds the decision, for the same reasons as were given by the delegate, where then would lie effectively any right of review for the applicant.

MR DONAGHUE: Against the Authority’s decision.

NETTLE J: On what basis would it be put?

MR DONAGHUE: Well, sorry, your Honour’s hypothetical is there has been a breach of 57 and the Authority has affirmed.

NETTLE J: Has affirmed, notwithstanding that there was that failure to comply with 57.

MR DONAGHUE: Yes, well, in my submission, there would no effective review against the Authority’s decision if the only ground was the delegate had failed to comply with section 57 but if it could be said that it was apparent to the applicant from reading the delegate’s reasons that there had been some fundamental breach of section 57 and the applicant had then sought to rectify that problem by the provision of material to the Authority, then the attack would have to be on whether or not the Authority erred in responding to that attempt to rectify the issue and there are a number of ways one can imagine that that attack might be framed but it would depend on what the person submitted, what material the person submitted, what they said as to whether or not one could make good, for example, the kind of unreasonableness challenge that Mr Gleeson is advancing here.

NETTLE J: Thus, as Mr Gleeson says, it would depend in part on whether the applicant knew of enough to know that there had been a breach of 57.

MR DONAGHUE: It may, in that scenario, but one does have to bear in mind that the person does have the delegate’s reasons so that if the material has been relied upon against the applicant in making the ultimate decision, then that is likely to be exposed and we say that is one of the things that happened here. It was quite plain from the delegate’s reasons that the Reverend Brown information had been relied upon in the way that it was and so that the unfairness of that which our friends complain is rather overstated because not only was it revealed but they did then seek to put forward information to deal with the problem and I will come to that material when I can.

NETTLE J: Thank you.

GORDON J: Is another way of looking at it – to view it not so much as two separate decisions but one decision process? So you have the delegate, the Authority and then sending it back to the delegate, so that when one comes on review one is entitled to look at, contrary to your submission, a complaint about things like 57 to the extent to which they have made a difference or affected the ultimate result.

I say that for this reason. If you look at the powers of the Authority, notwithstanding the decision which I will look at over lunch by reference to the Federal Court, then it is a decision to send it back to the delegate for them to affirm or otherwise deal with on remitter. I mean, ultimately that is where the decision has its impact.

MR DONAGHUE: Well, the Authority can itself affirm the decision; it does not need to send it back to be affirmed by anyone else. So if the visa is correctly refused for whatever reason, then the Authority affirms that decision and it is the Authority’s decision under the Act that is then – indeed, I will take your Honours to some cases after lunch to the effect that even a decision of a delegate that is plainly invalid – these are decisions outside the fast-track regime, I acknowledge, but in the context of an ordinary merits review regime, a decision that is known to be invalid can nevertheless ground a valid merits review decision that when made gives life to the earlier invalid decision that is affirmed. There is a series of Full Federal cases to that - - -

GORDON J: They are dealing with a different regime.

MR DONAGHUE: They are, I - - -

GORDON J: I am dealing with this regime.

MR DONAGHUE: I accept that, your Honour, but the – our point is that ultimately the question is what was Parliament’s intention in creating this regime, and it was, we submit, a regime that contemplated a particular style of review as the ordinary review with a particular outcome quickly and efficiently and it is difficult, we submit, to reconcile that with the idea that it is a necessary part of the Authority’s function in exercising the jurisdiction it has been given to conduct a quasi-judicial review of what the delegate did.

Normally one would not require a merits review body to form a judgment about the legality or otherwise of the decision that it is reviewing. It just looks at the substance of it and says is the decision right or wrong, but if one construed it in the way that your Honour is putting to me one would have to read part of the Authority’s function as requiring it to form a judgment of that kind.

We do not think that the plaintiff is putting that against us. We do not think it is suggested that the Authority has to – in fact, I think they may concede that this is not the case - the Authority does not have to form a judgment about the delegate’s 57 decision. They make a much harder line point. They say if there was a breach of 57, the Authority cannot do anything. Not that it has to try to reach a correct judgment about section 57. Their question 2 point is, is the Authority out of court completely, unable to do anything at all because of the error made by the delegate and that is what I am trying to meet at this juncture.

GAGELER J: Would that be a convenient time to adjourn for lunch.

MR DONAGHUE: Yes, your Honour.

GAGELER J: The Court will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MR DONAGHUE: Your Honours, if I could continue our submissions directed to question 2 on the special case by coming at once to section 69 of the Act, before going to the text of it our learned friends observed that the provision commenced in 1992 at the same time as mandatory detention was introduced into the Act. It is true that both section 69 and the provision that is now section 189 of the Migration Act were enacted at the same time. Both were found in Act 184 of 1992.

Act 184 of 1992 is the Migration Reform Act of 1992, which made sweeping amendments to the Migration Act introducing very many of the provisions now found in that Act. So, in our submission, one cannot immediately draw any particular inference from the fact that they were both found in that Act, that there were such extensive amendments to the Act at that time that it is difficult to know whether there was any causal relationship.

We do observe, though, that it might be doubted that there is a causal connection between the sections because, as your Honours will recall, 189 of the Migration Act authorises detention based on a reasonable suspicion that the person is an unlawful non-citizen. So whether or not the decision is valid or is given some interim validity by force of section 69, one would expect that the making of a decision that has not been set aside on the face of things would be sufficient to generate a reasonable suspicion that would enliven 189 and that is so whether or not you have a provision in the form of section 69(2) to give it some interim legal effect until set aside.

GAGELER J: There is case law on that, is there not?

MR DONAGHUE: There are many cases, I think, your Honour, where invalid decisions have been held to support the reasonable suspicion. A good example is Re Ruddock; Ex Parte Taylor where the Court held that hundreds of days of detention were valid on the basis of some decisions that were subsequently set aside but they still grounded the reasonable suspicion.

So turning then to section 69, it is, we accept, a somewhat curious provision but we do make three particular points about its text. First, the section provides that a particular kind of error, non-compliance by the Minister with Subdivisions A or AB - and Subdivision AB relevantly includes not just section 57, the statutory procedural fairness provision, but also some other procedural obligations in 54, 55 and 56, which I will come to a little later - but non-compliance with any of those obligations in relation to a visa applicant does not have one identified consequence, the identified consequence being that the decision is not a valid decision – that is the first point – but that it only has a different identified consequence, the only identified consequence being that it might have been the wrong one and might be set aside in review if reviewed.

In our submission, that positively evinces a legislative intention that non-compliance with Subdivision AB does not itself mean that the decision is not a valid decision. That is what the text says. Third, it clearly implies in our submission that a decision made contrary to Subdivision AB does at least have sufficient legal effect to enable it to be what the section calls reviewed. So it has enough legal consequence to ground a review of some kind.

Now, Mr Gleeson has already taken your Honours to Miah (2001) 206 CLR 57 and in fact we agree with much of what he had to say about that case, but I would ask your Honours to go briefly back to it to Justice Gaudron’s judgment at page 86. At the bottom of page 86 in paragraph 100 you will see recorded the argument that the Minister there advanced, which was the proposition that the effect of section 69 was that:

a failure on the part of the delegate to accord Mr Miah procedural fairness –

was excused by section 69. That is the argument that was rejected by the Court to the extent that it was reached. As your Honours will see, the alleged breach at issue in Miah was procedural fairness meaning common law procedural fairness. So on the face of it it was a difficult argument the Minister was advancing, given that it refers to contraventions of AA and AB in its terms in section 69 and the alleged error was not the contravention of AA or AB.

GAGELER J: That seemed to be enough for Justice Kirby to say go away with this argument.

MR DONAGHUE: Exactly, and on one reading of it, likewise for the Chief Justice and Justice Hayne, so that they did not need to engage with the meaning of the section whereas Justice Gaudron did and Justice McHugh agreed with Justice Gaudron’s reasons in that respect. But all members of the Court in a subsequent decision in Ex parte Palme treated the cases – treated Miah as authority concerning section 69 for what Justice Gaudron said about it. So the Court, in effect, treated its decision in Miah as having decided as to section 69 what Justice Gaudron said. I will not take your Honours to Palme, but it is paragraphs 36, 56 and 125 are the relevant provisions.

GAGELER J: Were those parts of the reasoning in Palme ratio or - - -

MR DONAGHUE: I do not think they were, your Honour, no, because Palme was about non-compliance with an obligation to give reasons; so, we say an obligation that was subsequent to the validity, the making of a valid decision, so it is hard to see how there could have been ratio in Palme but that was how their Honours treated it. Your Honours mentioned Justice Kirby. At paragraph 204 in the reasons, Justice Kirby regarded it as plain, in the middle of paragraph 204 on page 120, his Honour said:

Obviously, this is a provision designed to limit judicial review of the delegate’s decision and to channel disputes about such decisions to the Tribunal.

But then, as your Honour observed, he said it had no present application. But that identified effect about channelling decisions to the Tribunal is the effect that we rely upon in this case because whatever else section 69 may or not do, in our submission, it operates to ensure that a decision has sufficient legal effect to ground review and by review we submit that the section captures judicial review as Justice Gaudron expressly held it does in the last line of paragraph 103 of her Honour’s reasons and also merits review.

That is how the section has been treated in authorities in the Federal Court and if I could ask your Honours to turn to just one of those cases, SZGME v Minister [2008] FCAFC 91; (2008) 168 FCR 487, in the joint judgment of Chief Justice Black and Justice Allsop. If your Honours could turn to page 495 of the report, paragraph 24, your Honours will see there is a discussion in this case about whether or not an - attempt to reconcile lines of authority in the Federal Court concerning the effect of invalidity on the delegate’s decision on the availability of subsequent merits review and at paragraph 24 their Honours observe that:

The debate that was settled in Yilmaz [2000] FCA 906; 100 FCR 495 (by majority) was whether an application that was invalid at the time it was made because of incompleteness –

So it is a visa application that was invalid at the time that it was submitted:

could be rendered a valid application by the later provision of the additional and necessary material –

in circumstances where the additional material was not provided until after the delegate’s decision was made. So the delegate’s decision was clearly invalid at the time that it was made because the relevant material was not there. The subsequent material was provided and the question was: does the Tribunal have jurisdiction to review a decision in those circumstances, the answer given being yes and that answer was based in part upon section 69 of the Act:

preserved the validity of the delegate’s decision at least to allow merits review, notwithstanding the clear terms of s 47.

Their Honours then in paragraph 25 pick up the familiar Brian Lawlor analysis, including five lines down:

It is the decision that has in fact been made that is reviewed . . . The fact that some defect (even one leading to jurisdictional error) can be ascertained in the decision subject to review, does not prevent a review body exercising the powers and discretions of the person who made the decision -

Over in paragraph 30 on page 497, their Honours return to section 69, four lines down:

Section 69 does not validate what the Tribunal does without statutory authority -

which is the same point that Justice Gaudron made in Miah. But it does at least allow merits review. The plaintiff in this matter has not challenged the correctness of SZGME but they have sought to distinguish it on three grounds. I am referring here to the written submissions. The first ground was that it was said that because the Tribunal in this case does not have a power to set aside decisions that in some way the language of section 69 is not engaged on the facts.

The first point we make about that is that, as an ordinary matter of language and as Justice Gaudron accepted in Miah, “set aside” includes set aside in the exercise of judicial power as well as set aside in the exercise of merits review. It is central to our friend’s case that the delegate’s decision can be set aside at least in the exercise of judicial power and the susceptibility to being set aside in that way therefore engages with the operation of section 69 of the Act. This is a decision, a decision of the delegate is a decision that is not invalid but able to be set aside on the plaintiff’s case in the exercise of judicial power.

GAGELER J: How does that work? At least in light of the privative clause, it can only be set aside for jurisdictional error.

MR DONAGHUE: That is so.

GAGELER J: Ordinarily equated with a decision that is null or void or invalid – all of those words used interchangeably – but here you get a provision that says the consequence of breach is still a valid decision, one that can be set aside on judicial review.

MR DONAGHUE: That is why I said it is a curious provision, your Honour.

GAGELER J: You have another provision, the privative clause provision effectively saying judicial review is only available for jurisdictional error.

MR DONAGHUE: That is a reason why there is a difficulty treating the provision as a Project Blue Sky-type provision because if it is a Project Blue Sky provision, then the consequence should be that breach of the provision does not affect the validity of the decision and if it does not affect the validity of the decision it should not be able to be set aside in judicial review. Yet Miah says it can be set aside on judicial review and that decision has not been challenged and I am not instructed to challenge it. The Court in Palme appeared to accept it.

So if one accepts that the matter can be set aside in judicial review that seems to run against the idea that one can rely on section 69 to suggest that a breach of section 57 has no legal consequences, which is an argument that would otherwise have been available. So we are not putting that proposition, but we are putting that it has an effect, at least, to answer the Brian Lawlor concern – I withdraw that – to answer the Bhardwaj-type proposition that the decision is a total nullity.

So to pick up your Honour Justice Edelman’s comment about Kable (No 2) it is, we submit, a provision that demonstrates – or that for a decision of this kind it has such legal effect as the statute gives it and that effect is enough to mean there is something there upon which the review regime can bite, albeit something that is liable to be set aside either by the Authority or the Tribunal or by a court.

GAGELER J: So you have to read the word “valid” in a restrictive sense?

MR DONAGHUE: You do.

GAGELER J: It is not valid for all purposes; it is valid for some purposes. I suppose we are here looking - - -

MR DONAGHUE: How many of those purposes - - -

GAGELER J: How many of those purposes are in play.

MR DONAGHUE: Indeed. But our reliance on section 69 is, in some respects, rather unambitious in that we are not trying to use it to detract from the force of section 57. We are using it simply to say that the heart of the question 2 answer our friends give, which is a nullity answer, depends upon ignoring – or depends upon reading section 69 as giving no effect at all to the decision and that is where we say they go wrong, with respect.

EDELMAN J: Well, it would not be no effect at all. On their submission; it would have effect, for example, to protect an official from an action for false imprisonment.

MR DONAGHUE: Until the decision was set aside.

EDELMAN J: Yes.

MR DONAGHUE: Perhaps, your Honour, perhaps.

GORDON J: Do you not say you do not need it when you have got 189?

MR DONAGHUE: Yes, I do say – exactly. But what I say, your Honour Justice Edelman, is that at the heart of their argument is that there is no reviewable decision. That is their case, and there can only be no – in circumstances where there is plainly a decision in fact, the only way there can be no reviewable decision is if you need a legally effective decision and we say, well, 69 suggests that even though the decision can be set aside one cannot otherwise disregard it. One cannot entirely disregard it; it has to be treated as valid, whatever that means in a section 69 context.

So we say, well, this is a decision that can be set aside on judicial review as Justice Besanko held in BMB16 at 33. It implicitly can be set aside on merits review, so there is no textual reason not to rely upon 69. The argument against us seems to us to require your Honours to read a decision made under section 65 that – I will start that again.

If we forget about the fast-track reviewable regime under Part 7AA and think about the old merits review regime, or the merits review regime in the AAT under Part 7, no one suggests that a decision made by a delegate in breach of section 57 does not have sufficient legal effect to enliven merits review under that regime. There is just no authority at all in 25 years of the operation of that regime that would suggest that you cannot get RRT review of an invalid delegate’s decision.

If that be right, then a delegate’s decision made under section 65 must have enough legal effect to be a reviewable decision under Part 7, but somehow not enough legal effect to be a reviewable decision under Part 7AA. Textually there is nothing in the Act that would support that distinction, and certainly if one looks at section 69, there is no basis to read section 69 as giving legal effect to decisions that are reviewable in the AAT but not giving legal effect to decisions that are reviewable in the Authority. So our friend’s case on question 2 requires a distinction to be drawn that finds no grounding in the legislative text.

GAGELER J: Now, if you just take a case of the delegate of the Minister asking the wrong question, a straight sort of legal error case, section 69 does not in terms apply, but you say that you apply Brian Lawlor, in any event - - -

MR DONAGHUE: We do.

GAGELER J: - - - in the same way to whatever form of review is available under the Act.

MR DONAGHUE: We do.

GAGELER J: So what does section 69 - - -

MR DONAGHUE: Why do I need section 69?

GAGELER J: What do you get out of section 69?

MR DONAGHUE: Your Honour, I do not need it for that very reason because I do say exactly what your Honour just put to me, but what section 69 does do in its terms is engage with a breach of, relevantly, section 57 through Part AB and says that a breach of section 57 does not mean that a decision is not a valid decision. So Brian Lawlor requires an active interpretation of the Act, and so section 69 is an indicator not essential to the argument but nevertheless available that the decision – a decision in fact is sufficient to engage the review regime.

But even if your Honours were completely against us on section 69, that would not mean that Brian Lawlor was unavailable and we would submit that it is. That question perhaps takes me back to two middle ground options that your Honours put to me before lunch, one by your Honour Justice Gageler and one by your Honour Justice Gordon, and if I could just make a few more submissions in relation to those. The middle ground option I think your Honour Justice Gageler put to me was that “reviewable decision” means a reviewable decision that is made in conformity with the procedural obligations under Parts AA and AB, intersecting in that way with the operation of section 69.

Can I ask your Honours to turn to sections 54, 55 and 56 of the Act, all of which are also found in Subdivision AB? So, these are all obligations that were applicable to the delegate in this case, in a decision reviewable by the Authority but would be equally applicable to a delegate making an AAT reviewable decision and they essentially have this operation that the Minister has to:

have regard to all of the information in an application.

That is 54(1). That means the information:

(a) set out in the application -

in attached documents are “given under section 55”, and that if further information is given, which the applicant has a right to do under 55(1), then that is information that has to be considered by reason of 54(2)(c) and that if the Minister seeks further information, then “the Minister must have regard to that information”; that is 56(1).

So, there is a series of procedural obligations in Subdivision AB that the delegate might breach, so that the Minister might, for example, get information but then fail to have regard to it or overlook something that is attached to a visa application. In our submission, with respect to all of those obligations, if one then sought review in the Authority, the Authority’s obligation under 473DB is expressly to:

review a fast track reviewable decision referred to it under 473CA by considering the review material provided to the Authority under 473CB -

which was all the documentary material that was before the Minister. So, in our submission, on review, not only could the Authority cure a failure by the delegate to have regard to that material, the Authority would be obliged to cure that error and, in those circumstances, we submit, it is difficult to construe the regime as not intending to apply to a decision made in breach of one of the procedural obligations one finds in AB because many of those breaches would be breaches readily addressed in the context of a review under the regime that Part 7AA creates, not only able to be but having to be.

Similarly, if the error were to be an error of the kind your Honour Justice Gageler put to me a moment ago asking the wrong question, misconstruction of the criteria, when the delegate is reviewing the decision, the delegate will be looking, as I submitted earlier, at how the facts before the Authority intersect with the visa criteria and there is no reason to think that any error that the delegate made of that kind would be an error that could not be addressed on the review.

If the delegate were biased, there would be no reason to think that the bias that the delegate would infect the decision of the Authority to be made. So really, this case throws up the issue in a particular way because it is really section 57 alone, as far as we can identify, that generates the problem that your Honours are now confronting.

That, we submit, raises the question: is it possible to read Part 7AA as intending a difference in relation to the character of a fast-track reviewable decision such that it is possible to get review for all decisions made by the delegate except decisions that are made in breach of section 57.

In our submission, it is not possible to read it in that way, which drives one back to the question that says, well, what Parliament has done here, no doubt it has enacted a regime which anticipates that a person will have had the rights that Subdivision AB gives them, but that ultimately if that has not occurred, the remedy is not to say, well, there is no reviewable decision with all of the difficulties that would create for the operation of the fast-track, review regime; it is to focus upon what is able to be done by the Authority to address any such problem.

EDELMAN J: Is it really right to say that the Authority’s review really cures any jurisdictional error because the Authority can affirm the decision on completely different grounds and thereby ignore the jurisdictional error entirely, could it not?

MR DONAGHUE: It could, your Honour. “Supersedes” is a better word, rather than “cure”.

EDELMAN J: Supersedes without any of the procedural protections like section 57 that would have applied at the first instance.

MR DONAGHUE: It supersedes by reference to a different set of procedural rights.

GORDON J: Do you by that mean 47DC, DD and those other provisions?

MR DONAGHUE: I do, yes. I acknowledge it is different, I acknowledge it is narrower but, nevertheless, that is the regime that Parliament has erected and the existence of a different set of procedural rights on review rather than originally is not an unknown phenomenon. I will give your Honours an illustration in a moment but that is our submission.

In relation to the middle ground model your Honour Justice Gordon put to me before lunch, which, as I understood it, was that one should view this as a composite decision-making process or a - - -

GORDON J: Or a continuum.

MR DONAGHUE: Or a continuum, we submit that the model should not be viewed in that way in light of this ultimately being a question of statutory interpretation as to how the regime should be characterised, in part because when one looks at Part 7AA, as with Parts 5 and 7, one sees what appears to be a self-contained regime that defines the character of the decision that is able to be reviewed and that reposes that review in a different decision-maker, in both cases being a decision-maker that is separate from and independent from the Department.

So that one sees, for example, in 473JA and following a suite of provisions about how the Authority is to be constituted. It is set up as a division within the AAT. There are provisions about the appointment. The President, of course, is ordinarily a serving Federal Court judge and the appointment of senior reviewers and matters of that kind. So the way that that regime is constituted, we submit, makes the better reading of the Act with separately defined decisions, separate procedures and independent decision-makers, a different decision rather than a continuum of a decision made by a departmental delegate.

I do not think, your Honours, I need to take you back to Brian Lawlor itself. We rely on the same parts of that case as Mr Gleeson has already taken your Honours to, but I do note on page 314 that Chief Justice Bowen made a point of emphasising in that case that the word “decision” “refers to a decision in fact made”, and his Honour thought the issue with an invalid decision was not so much that it would not be a decision within the meaning of the Act. He said:

The difficulty lies in interpreting the words “made in the exercise of powers conferred by that enactment”.

So the difficulty in fitting an invalid decision within the regime was in bringing it within that language “made in the exercise of powers” rather than in characterising it as a decision. There are some parallels there with the way this Court in Plaintiff S157 dealt with decisions affected by jurisdictional error. It was not suggested they were not decisions. The focus of the reasoning in S157 was that they were not decisions under the Act.

So when one sees the definitions here that are operative, 473BB in particular defining a fast-track reviewable decision, one sees no language of an equivalent kind. A fast-track reviewable decision is not a decision made under the Act, it is just a decision. That, on all of the authorities that we have been able to locate, is language that is treated as referring to the factual existence of a decision and saying nothing about its legal operation one way or the other.

The references that one does see in Part 7AA under the Act, and there are a couple that our friends have identified, none of them are in the provisions that go to the definition of the jurisdiction of the Authority to conduct a review. Can I ask your Honours now to turn to one of the Federal Court authorities and there are many dealing with the kinds of issues that the Brian Lawlor principle can throw up. The case I am taking your Honours to is Kim v Minister for Immigration [2008] FCAFC 73; (2008) 167 FCR 578, and this is a case, as your Honours can see at paragraph 18 on page 582, where the argument was advanced that in circumstances where there were:

orders of a court that demonstrate the invalidity of a delegate’s decision . . . it was not open to the Tribunal to affirm the delegate’s decision because to do so would render operative a decision which the Tribunal knows or should know is invalid.

So it squarely threw up the question of circumstances where there could not really be any doubt about the invalidity of the delegate’s decision, and then the question was, well, what ramifications does that have for how the Tribunal should – or whether the Tribunal can exercise its merits review function and then affirm the otherwise invalid decision. The answer given by the court is that the Tribunal properly could still exercise jurisdiction and could still affirm the previously invalid decision.

Your Honours see the discussion of this commencing on page 583, paragraph 21, with a reference to Brian Lawlor and decisions in fact made, even though not authorised by law. At paragraph 23 their Honours – this is Justice Tamberlin, with whom Justice Besanko agreed:

It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision –

that being of course the invalid decision of the delegate, given life by the subsequent affirmation. At paragraph 24, there is a long quote from Ahmed where, near the bottom of the page, there is an emphasised passage where their Honours stress that the role of the Merits Review Tribunal is not to consider the validity of the delegate’s decision:

Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal.

That point was also made by Justice Smithers in Brian Lawlor and we submit it is important in considering the plaintiff’s argument in this case because, in our submission, it is no part of the Authority’s role in exercising the jurisdiction Part 7AA gives it to turn its mind to whether or not the delegate did or did not comply with the delegate’s legal obligations. The Tribunal’s task is to make the correct decision on the visa criteria.

If one gets to, then, 29 to 30 you will see that, having reviewed a number of authorities, these were authorities concerned with the failure to comply with section 119 of the Act. That was the statutory procedural fairness provision, the equivalent to section 57.

failure to comply with s 119 of the Act does not deprive the Tribunal of jurisdiction to review the decision of the delegate on the merits. In other words, such a failure to comply does not compel the Tribunal to recognise the delegate’s lack of power and therefore set aside his or her decision.

It is pointed out that Federal Magistrate Smith had made orders before the Tribunal came to make its decision, demonstrating the invalidity of the original decision and noting that the case therefore brought the hypothesis discussed in some of the earlier cases to reality. Then the conclusion their Honours reached is at 33 and 34 that it was open to the Tribunal to affirm the previously invalid decision and that when that was done from the date of the previously invalid decision, that decision became effective and operated in place of the original decision.

Now, I accept, as I said to Justice Gordon before lunch, that this is a different review regime to the Part 7AA regime. But the question, we submit, is whether the difference is relevant to the conclusion that in circumstances where a merits review authority has power to affirm a decision, when that power is exercised – or can that power be exercised in relation to an invalid decision and we say there is no reason textually in the Act or otherwise that your Honours should conclude Part 7A is any different from Part 7. Both are regimes where, as a matter of statutory construction, the better reading by far, in our submission, is that Parliament did not intend to distinguish between valid and invalid decisions in defining the review jurisdiction that it had conferred upon the Tribunal or Authority respectively.

If it be otherwise, if our friends are right, then a number of consequences would follow. One is that one would expect that the Minister’s delegate would need to decide before referring every decision to the Authority whether or not the decision of the delegate was valid or not because – and one then asks oneself what happens if that person gets it wrong?

So if for the sake of argument, the Authority has no jurisdiction when the delegates breach section 57, someone within the Minister’s Department asks themselves was there compliance with section 57 and concludes that the delegate breached section 57, one would assume therefore that contrary to the apparent command in the statute, that decision never gets referred to the Authority. It probably gets referred back to the delegate to treat as a nullity on a Bhardwaj-type basis to make the decision again.

So then a second delegate makes a decision and somebody else within the Department, all pursuant to no evident statutory process again forms some judgment about the correctness or otherwise of these decisions. The potential for administrative chaos in that regime, we submit, cannot be overstated because if at any stage of those internal departmental deliberations the delegate or the person deciding whether to refer to the Authority gets it wrong, then every subsequent step that is taken will be likewise invalid.

So that it would be very difficult to identify which decisions are the legally effective and operative ones, whereas if one says, well, whether valid or not the decision can be referred to the Authority, there is no confusion of that kind. The Authority will review the decision whether valid or invalid and will then make a decision that can if appropriate be reviewed in the Federal Circuit Court in the ordinary way.

Similarly, if our friends are right, if a matter goes on review to the Authority and the Authority looks at the decision and says I think this delegate misconstrued the visa criteria and so made a jurisdictional error, on our friend’s case, the Authority does not fix it and make the correct decision. The Authority says the consequence of that conclusion is I have no jurisdiction, because if the delegate has made a jurisdictional error, the Authority having identified that jurisdictional error is then without jurisdiction. That, in our submission, cannot be right. The regime cannot have been intended to operate in such a way that the identification of an error by the Authority of that kind thereby deprives the Authority of capacity to complete the review.

GAGELER J: Just applying Kim to the provision in issue, what do you say precisely is the effect of the Authority affirming a decision of the Minister?

MR DONAGHUE: The decision must by definition have been a decision to refuse a protection visa.

GAGELER J: Yes.

MR DONAGHUE: The affirmation of that decision is – the effect of it is that the visa application was refused on the basis identified by the Authority. So that if one is then to seek judicial review of that decision, one needs to show jurisdictional error by the Authority.

GAGELER J: So is it a substitution of a later decision for the earlier decision? I actually have difficulty reading Kim; there seem to be two inconsistent propositions in the judgment.

MR DONAGHUE: The way we understand Kim and the other cases in the same general line of Federal Court authorities is that the decision, separated from its reasons, is the decision to refuse the visa and that that decision, while it may have been invalid up to the date of the review authority making its decision, is from the date of the review authority’s decision affirmed such that it is legally effective from the time it was originally made. So the delegate’s decision to refuse the visa is legally effective on the basis that it has been given that effect by the Authority. That is how we read paragraphs 33 and 34.

NETTLE J: It is just the same as an appeal court substituting its own verdict for that of a court below, speaking from the original date.

MR DONAGHUE: Yes, from the original date, exactly. That is the effect that we submit that it has and that is really why we submit that there is no utility in quashing the delegate’s decision because all you do when you quash the delegate’s decision is identify that the delegate made an error but that does not matter because the decision is not having effect because of the delegate’s reason; it is having effect because of the Authority’s reasons.

NETTLE J: Let us assume that the Authority discerned an error by the delegate in the administration of section 57, a jurisdictional error in the relevant sense. How would you go about rectifying the problem?

MR DONAGHUE: Your Honour, in our submission – and I am not seeking to avoid your Honour’s question – the Authority’s task is not to rectify the problem. The Authority’s task is to make the correct decision on the visa application in accordance with the procedural framework that Parliament has specified for the Authority to exercise.

So if within that procedural framework an applicant says to the Authority these are exceptional circumstances because of the unfairness that attended the process below and you should allow me to provide this new information, then the Authority will have to deal with that request legally, appropriately, and if the Authority fails to do so then the Authority will err.

If one can come up with a case – and it is not straightforward to do so – where there was a breach of section 57 where it never gets relied upon, in our submission the effect of it is not that one cannot obtain review for that decision; it is that there is no purpose in doing so because it is overtaken by events, it is superseded.

EDELMAN J: How does that fit with statements like the statements in the explanatory memorandum? The reason why you do not have the application of section 57 to the Authority is because you have been given it at first instance.

MR DONAGHUE: Your Honour, I frankly acknowledge that that provision in, I think it is 473DA(2), and the explanatory memorandum that relates to it, does anticipate that there will have been compliance with section 57 generally. The question is, as I endeavoured to pose it earlier, whether one can go from that proposition to the proposition that the Authority only has jurisdiction if the delegate made a valid decision.

That is where we submit one runs into difficulty as a matter of construing this regime because it is, in our submission, not able to be interpreted as a regime that is limited for the review of valid decisions and if I am right about that, then in our submission one cannot translate a breach of section 57 into an absence of jurisdiction at all for the Authority to conduct a review. That is what your Honours are being asked to do.

Your Honours are being asked to say this fast-track Authority has no jurisdiction at all where the delegate made a jurisdictional error. For the reasons I have tried to identify, that in our submission just cannot be right as a matter of construction and it is not a submission about validity.

GORDON J: So, if you put the propositions into three forms - the first is, as I understand, you can have a breach of section 57 by the delegate, you have a hearing de novo of this peculiar kind by the Authority, you could have an application for addition of new information within the exceptional circumstances which may address some aspects of a 57 breach but not others and if it does not address it because it is not within that catch-all, then it is too bad.

MR DONAGHUE: If it does not address it because it is not within that catch-all, the Tribunal has done what Parliament required the Tribunal to do on the review and so it has not made a jurisdictional error and because that decision that has then been made is the effective decision, the prior breach is overtaken. In exactly the same way as in Kim and the other cases discussed in it, no one cures the section 119 breach. The section 119 breach happened; the delegate’s decision was invalid because it happened but it is overtaken by the Tribunal’s decision made in accordance with the Tribunal’s procedures as mandated by Parliament.

GAGELER J: If you had an applicant for a visa who sought and obtained judicial review of a delegate’s decision before the Minister was able to refer it to the Authority, what happens?

MR DONAGHUE: Well, that is Kim; not squarely, but principally that is Kim. Our primary submission, your Honour, is that because the Authority’s jurisdiction does not depend on the delegate having made a valid decision it would not matter and that is what Kim holds; that is our primary submission.

Our alternative submission, and this really goes to what we say about Part 4, if your Honours are against me on that, is that the circumstances in which one might as a matter of discretion, when this Court might as a matter of discretion grant relief, may be enlivened by the kinds of considerations that your Honour just identified, so that one might in that scenario, find that there was utility in quashing the decision so as to try to generate an unflawed decision that would then go through the merits review regime.

Indeed, it might be said, to try to engage with your Honour Justice Gordon’s question that the only circumstances in which as a matter of discretion relief should go is if it can be demonstrated that one has an un-curable error. So then if one could get to the stage of an un-curable error, the Court might say, okay, it is appropriate to quash the delegate’s decision in that circumstance but not otherwise. That is not my primary submission because the logic of our primary submission is that the Authority has jurisdiction irrespective of any flaw in the delegate’s decision.

NETTLE J: But even so, accepting that is so for argument, that in no way precludes prerogative relief against the primary decision before the secondary decision is made, does it?

MR DONAGHUE: It does not preclude it, but it might deprive it of utility because even if the delegate’s decision was invalid, it would still be a decision in fact.

NETTLE J: Would not the utility be manifest in that the ability to cure the defect is ex facie complete?

MR DONAGHUE: The situation your Honours are putting to me is, I think, the very argument that was advanced in Kim in that it was said, well, once the Tribunal knows the delegate’s decision is invalid, how could it possibly affirm it and the answer that was given was it does not matter that it knows the decision was invalid because its affirmation - all that it needs to have jurisdiction is a decision in fact and it then makes a decision according to its own decision-making processes.

NETTLE J: Well, a full suite of ability to reconsider the whole issue rather than what you have here.

MR DONAGHUE: Well, that is true and a possible basis to distinguish the Authority so the reason that we put in the alternative, the submission that I did put, is that I appreciate that possible distinction and that it might be that if the application came before the Court in that time period, that that would intercept the ability of the Authority, if your Honours are against me on my primary submission.

NETTLE J: It is not an attractive prospect but it sounds just.

MR DONAGHUE: Well, your Honour, probably only for section 57 breaches because, as I endeavour to identify, most other things will be able to be properly reviewed and in some respects the case that has been put against us, even though it has come up through a section 57 vehicle, the proposition is much wider and because it is much wider it highlights, in our respectful submission, the error because as a matter of statutory construction why would you create a review regime where legal errors by the delegate in construing the criteria cannot be corrected? It just does not make sense, in our submission, for Parliament to have created a regime of that kind, and if it did not, it must follow that a jurisdictional error by the delegate does not deprive the Authority of jurisdiction.

Now, if I am right to that point, one then gets a question: well, how do you deal with the 57 case? How do you deal with the potential hard case and maybe you deal with it in the way your Honour Justice Nettle has put to me by intercepting the decision. Maybe you deal with it by granting relief only in the un-curable error cases. They are two possible ways of dealing with it.

In relation to that last point, the un-curable error, I should make one point that requires some adjustment of our written submissions because since – in our written submissions we emphasise the operation as a hurdle of section 473DD(b). So this is the consideration of new information in exceptional circumstances. Your Honours will have seen there are two limbs. Limb 1, “exceptional circumstances” and then limb 2:

the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant –

and then there are two limbs:

(i) was not, and could not have been, provided . . . or

(ii) is credible personal information which was not previously known –

Now, when we filed our submissions we were reading that phrase “was not previously known” as meaning is not previously known to the applicant, to the visa applicant. The Full Federal Court has now held in another case we have given your Honours, Minister for Immigration v BBS16 [2017] FCAFC 176 – this is the decision made on 10 November – at paragraph 106 that the words “was not previously known” mean was not previously known to the Minister or the applicant.

That is how their Honours have read it, endorsing the judgment of Justice White in an earlier judgment called BVZ16 v Minister. Justice White gave a number of reasons for that, one of which was that the legislative history shows that the early drafts of this provision just had (b)(i) in them; (b)(ii) was added, according to the supplementary explanatory memorandum, to add a new category of information and the supplementary memorandum explained that the extended category was a reference to information known by either the Minister or the applicant. So in light of the legislative history, their Honours read the provision in that way. Read in that way, the hurdle that paragraph (b) poses is very low. There will not be very many cases that do not meet paragraph (b). So the hurdle that one sees in DD is principally the exceptional circumstances hurdle.

So when asks the question, “What errors are curable?” the answer is ordinarily going to distil to the proposition, “Can one demonstrate exceptional circumstances?” and that is understood in the same judgment as meaning essentially unusual circumstances. So that one would – I am trying to get the phrase exactly right. The practical effect of it, in our submission, is to lower the bar quite considerably with respect to the circumstances in which the Tribunal could properly have regard to new information as defined.

Can I move from there to the legal unreasonableness ground, question 3, and, unlike our friends, start with the facts rather than the law because while the legal issues that might arise in relation to the operation of unreasonableness with respect to paragraphs DC and DD, 473DC and DD are quite interesting the factual foundation for those issues to be engaged in this case is so weak that, in our submission, almost whatever the law means in relation to the operation of theses grounds must fail.

If your Honours go to the application on pages 6 and 7 - or the pleading, rather - you will see that the case as pleaded in ground 2(c), which is then particularised in the paragraphs that begin at the bottom of page 6 and run over to page 7 of the book, identify two different bases upon which the unreasonableness ground is put. One relates to DC, the getting of information, and the other relates to DD, the consideration of the new information.

The thing that it is said it was unreasonable not to do was to interview the plaintiff and the other persons who provided information and support. That is the only thing that is identified as unreasonable and the thing that it is said it was unreasonable not to consider is quite considerably more confined than some of the oral submissions that your Honours heard this morning. It was a failure to consider additional information about the plaintiff’s church attendance in 2014 and 2015, being information from two identified persons, Reverend Brown and Mr Ray Zimmer.

If your Honours go to 365 in the book, you will see the letter to the Authority that was written by the legal adviser who was acting for the plaintiff in the Authority proceeding and at the bottom of 364 there is a list of enclosed documents. There was a statement from the plaintiff and letters from Reverend Brown, Mr Zimmer and three other letters there identified.

It was submitted that they were all new information, that there were exceptional circumstances, and it was then put in the second half of page 365 that procedural fairness required that, before the Authority made a decision, both the applicant and the individuals who provided evidence, presumably all of them, had to be interviewed, either in person or by telephone.

So the asserted legal unreasonableness is the Authority’s failure to comply with the request to interview all of those people. When one then looks at some of the people it is said that it was legally unreasonable not to interview, you see the letters in question at – I will start at 371. The letter at 371 is not about religion at all, so it just does not relate to the asserted unfairness.

The letter at 372, which is the Andrews’ letter, has no date on it. It refers to the plaintiff:

attended quite regularly.

We got to know him better over the weeks –

So, if anything, suggesting quite a short period of time, and no temporal idea at all when that attendance was supposed to have occurred.

Similarly, on the next page, 374, the Authority was apparently supposed to conduct an interview with the author of this letter which, likewise, says nothing going to the question of the attendance in 2014 and 2015 at the Syndal Church. So, in our submission, the proposition that it was legally unreasonable not to interview those persons is manifestly without foundation. With respect to - - -

GORDON J: Does the same apply to 370, which is the Zimmer - - -

MR DONAGHUE: I was just coming to that, your Honour. When one gets to the Zimmer letter one sees, in the second paragraph, that Mr Zimmer was the gentleman with whom the plaintiff resided for a period of six months, it seems, from the end – sometime late in 2012 through to 2013. So that is the very period that the Brown letter was originally dealing with. That is the focus - he stayed with him for six months, he attended church with us very often. The middle paragraph on the page, the plaintiff:

regularly attended Syndal Baptist Church before and during the time he lived with us.

So this is evidence about early 2013:

after he moved across the other side of town it was difficult to get there via public transport on a Sunday. It often took over two hours each way, so unfortunately he could not get there as regularly –

In our submission, he still made the effort when he could. It would, we submit, be a very generous reading of that to read it as giving evidence about attendance in 2014 or 2015 at all. But, even if one did read it generously in that way, the proposition that it was legally unreasonable for a body that is constituted principally to conduct reviews on the papers and to get additional information and consider it in exceptional circumstances, that that information got over that sort of threshold is, we submit, untenable.

So, they are the people who were supposed to be interviewed, other than the plaintiff himself, and the plaintiff himself one sees at 366, a statutory declaration that was provided to the Authority. Now, I should note, it seemed to us at one point, well outside the boundaries of any of the grounds in the case, that our friends were complaining that the Authority had received information from the plaintiff that it should not have received. It was suggested that the Authority might have been getting information of a kind that went outside the statutory framework.

That is, of course, not a ground of review in this case. It would be a strange ground to be raised by the plaintiff in circumstances where the information that was taken into account was information that he had himself advanced and this case, in our submission, does not call for any decision by your Honours about how the practice direction that the Authority’s issue intersects with the powers in DC and DD because it is not raised by the grounds that are before you. In the statutory declaration that was submitted by the applicant, there is information in paragraph 3, again of a singularly vague character:

I continue to attend the Syndal Baptist Church (my church) whenever I can. I have been continuing to do this since the time of my department interview . . . It is hard for me to go every Sunday because I live a long way away from my church and because I have not been working it is difficult to be able to travel to my church every week.

In paragraph 4, he explains why he did not want to go to any other church. Notwithstanding the very vague character of that evidence, it is apparent from the Authority’s decision that it did take into account - and you see this at 377, paragraph 11 - that it did take into account information in relation to his attendance in the period following the protection visa interview in late 2015 and that, no doubt, is the reason why the particularised grounds that I took your Honours to earlier complains only about the failure to take into account additional information about 2014 and 2015 attendance.

So, what is being said is that it was unreasonable not to consider new information about 2014 and 2015 attendance, in circumstances where the Tribunal did consider more up-to-date information about church attendance to the extent that the applicant had provided it but where when you look at the statutory declaration you see, notwithstanding that the applicant knew exactly what the original delegate had done with the Reverend Brown information, the information that he chose to provide in response to that was of the vague, I attend whenever I can, but with no particulars of when or of regularity but admitting that he finds it difficult because it is a long way away.

Your Honours, it is not possible, on any fair evaluation of that material, to say that it was legally unreasonable for the Tribunal not to do the very thing that Part 7AA contemplates will be the ordinary way that a review will be carried out on the basis of the material before the delegate.

The Authority did consider whether or not that material met the exceptional circumstances threshold with respect to the material since the interview it said that it did with respect to the material. Prior to the interview it did not see anything exceptional in the circumstances relating to that information that I have just taken your Honours to and in my submission that decision is hard to impeach.

That is particularly true if your Honours bear in mind that the review that the Authority was conducting was a review on the material that had been before the delegate and the material before the delegate contained quite some information as to his church attendance. I will take your Honours through this quite quickly, but if you could to go to page 100 of the book, paragraph 32, this is a claim made in the statutory declaration to the delegate and your Honours will see the date on the next page, 101. This is August 2015. The applicant is making a claim at that time that he still attends every Sunday. That was his evidence in the statutory declaration to the delegate.

At 102, one then has the original Reverend Brown letter. The evidence that he chose to submit with this visa application was evidence from Reverend Brown focusing on the – where the reverend focused and he must have known this obviously – on the 2012 and the 2013 period and he had sought there to get information from the reverend that took things up to the date in late 2015 when this material was being provided.

He did swear – I will not take your Honours to it – on both 39 and 64 of the book, he signed declarations on the visa application form where he declared that the information was complete, correct and up to date in every detail that he had provided, that was what the form required.

But then one gets to the interview at 199 that was conducted by the delegate, and the transcript of this was before the Authority, and there is an explanation at 198 to 199 that the applicant is in the fast-track regime and there is a summary of the difficulty the applicant may have in providing new information later if he does not give a complete account to the delegate at that stage.

Then through a series of pages commencing really at 230 the delegate is plainly very sceptical as to the applicant’s evidence in relation to his church attendance. So at the top of 230 he asks what the name of the senior pastor at the Syndal Baptist Church is and the applicant cannot answer, and he is questioned about that and whether that is very credible.

Then over at 232 there are some conflicts between his evidence and the letter that are identified to him and at 233 in the middle of the page it is explained that that impacts on his credibility. He is asked about reading the Bible and he says he does not at the bottom of 234.

So it is quite clear from the interview that the delegate conducted that the applicant was confronted with the question of whether or not he was being believed in relation to his claim of Christian faith and had an opportunity in that context to explain to the delegate why he should be believed in relation to the claims about his belief. He is asked at the middle of 237:

Have you had any breaks in your attendance? Long breaks?

He denies it and he says:

No, I went every Sunday.

NETTLE J: He says both. I do not go every day and then I go every Sunday.

MR DONAGHUE: There are a lot of contradictions of that kind. At one stage he says at 237, for example, I think he says - - -

GORDON J: “it has been a long time I haven’t . . . gone”.

MR DONAGHUE: Exactly, “long time I haven’t . . . gone . . . I don’t go every day”. Then a little later he is saying he went every week. But my point is that he was plainly confronted with the doubts the delegate had in relation to this and given an opportunity to answer them, and that, we submit, is relevant when one comes to the reasonableness or otherwise of the Authority making a judgment about whether it needed to interview the applicant, because it was making that judgment in a context where it could see on the material that the applicant had been confronted with these doubts and had an opportunity to answer them.

So, in our submission, there is so little factually in the unreasonableness case that your Honours really need never get to the more difficult questions as to the operation of legal unreasonableness in relation to this regime. In that context, your Honours, all I want to say about that is that it is quite clear from the judgments in Li that the Court accepted what Chief Justice French called the “framework of rationality provided by the statute”, what Justices Hayne, Kiefel and Bell called the “standard of reasonableness” indicated in the statute, and what your Honour Justice Gageler referred to as:

reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context –

All of those judgments recognise that a judgment about legal reasonableness needs to be made bearing closely in mind the statutory framework within which that judgment is to be made. Here, that statutory framework is one which places limits on the circumstances in which one needs to go beyond the papers, expressly contemplates that ordinarily there will not be interviews, which bears on the question of whether it was unreasonable not to interview, and when one contrasts the purpose of the provision in 473FA – this is the efficient, quick and free advice consistent with Division 3, when one contrasts that with the Part 7 equivalent, fair, just, economical, informal and quick, one sees that Parliament was placing a higher priority on fast and efficient review, fair according to the standards that Parliament has specified, than in the more familiar review mechanism.

All of that, we submit, means that one would not readily conclude – not easily conclude that a decision not to get information was outside the standard of rationality specified in the Act.

GAGELER J: Did the applicant ever get to see the file note at pages 280 to 281 in the course of the review process?

MR DONAGHUE: I am reminded that the answer to that question is no, but the delegate’s reasons that the applicant did get to see substantially replicate the contents of that file note. As a matter of substance, the information from the file note was available. It is at the bottom of 296 in the book, your Honour.

GAGELER J: I am just wondering how much the question of reasonableness is to be judged in light of the argument put to the Authority on behalf of the applicant and how much it is to be judged simply in light of the material that is transmitted to the Authority and what is revealed about the process.

MR DONAGHUE: In my submission, your Honour, in a process where the Authority is reviewing a decision the reasons for which are required to be produced and are available to the applicant for review, if the reasons, as they did here on page 296, plainly set out the relevant information, so that on receipt of the reasons the applicant has the information in question, it would be difficult to conclude that it was unreasonable not to get that same information, which is the substance of what occurred. Particularly in circumstances where, obviously enough, whether the Authority gets the information or it is a passive recipient of it – and one then gets to the DD question – it must be possible for the Authority to look at the information for the purpose of deciding is it exceptional or not.

In that circumstance, when one looks at the very vague character of the information that was considered here, one could move immediately to the conclusion that there are no exceptional circumstances because the probative value of the material is so weak.

The final thing I need to address is relief, although I think I have probably said most of what I need to say in relation to it. Our primary submission is that if the Court answers questions 2 and 3 favourably to the Minister, the Court should not grant any relief, regardless of the conclusion that it reaches in relation to question 1, and indeed that it does not need to reach a conclusion in relation to question 1 because the Authority’s decision is the decision that determines rights. I have developed what I need to say about that.

The alternative submission I think I have probably also sufficiently addressed is that if your Honours were to find that a jurisdictional error by the delegate by reason of a breach of section 57 or otherwise might have an effect despite the affirmation of the Authority’s decision, perhaps, for example, in the case of the unfairness that cannot be cured, it is only in that

rare category of case where the Authority both did not and was incapable of curing the error that your Honours might grant relief in relation to the delegate’s decision.

We submit that this has not been shown to be a case of that kind, having regard to the fact that we know that the applicant was aware of the substantive content of the Reverend Brown information and we know what he did in response to that information, so it is not a situation where, in our submission, it can be demonstrated that the Authority was incapable of curing any unfairness that arose.

Indeed, we submit that, having regard to the material I have just taken your Honours to, there is no reason to conclude that there is any enduring consequence of a breach of section 57, even if your Honours found one to have occurred in terms of any consequence that affected the decision that the Authority made. Having said all that, we submit of course that there was no breach of section 57. If the Court pleases, I would ask Mr Wood to address that.

GAGELER J: Thank you.

MR WOOD: Your Honours, if it is convenient I might start with a threshold issue that arose on the plaintiff’s reply submissions but was not addressed orally, so we are not sure if it is still an issue or not. In paragraph 3 of the plaintiff’s reply submissions it was asserted that:

s 57 of the Act is expressed in different terms from ss 359A and 424A of the Act, and is directed to a different decision-maker and a different kind of decision. It cannot simply be assumed that the construction of [359A and 424A] can be transposed directly to the construction of s 57.

That reply submission responded to a detailed set of propositions advanced by the Minister in paragraph 22 of the Minister’s written submissions which candidly transposed a volume of learning about the operation of relevant parts of sections 424A and 359A to the context of section 57. The basis upon which that transposition was made was that the text in relevant respects between the two sets of provisions is relevantly identical.

Now, the plaintiff has not articulated in writing and has not addressed this topic orally but has not explained in what respect the construction of section 57(2) is relevantly different from 424A and, indeed, this morning Mr Gleeson took your Honours to a set of authorities all about 424A with no apparent identification of qualification to the principles coming out of those cases about 424A. So we are not entirely clear whether the point advanced in paragraph 3 of the reply is continued or not.

Can I make the simple point that, although the structure of section 57 differs from the structure of 424A, not the content of the text as relevant? So, both sections require the decision-maker, be it the Minister or the Tribunal in the case of Part 5 and Part 7, to give to the applicant in the way the decision-maker considers appropriate in the circumstances particulars of information that the decision-maker considers would be the reason or a part of the reason for - in the case of the delegate refusing to grant the visa, in the case of the Tribunal for affirming the decision under review which, of course, has the same effect as refusing to grant, that being the premise of the review being conducted under Part 5 or Part 7.

There is a slightly different structure because in section 57 the definition of relevant information is contained in subsection (1) and the operative requirement is in sub (2). Whereas in 424A, both the, in effect, definition and operative requirement are in sub (1), paragraphs (a) and (b), but the text in relevant respects is the same.

Sections 359A and 424A, of course, were enacted after 57. The legislative history and, indeed, the very question of whether there is a relevant difference between the two sets of provisions, was considered by the Full Court of the Federal Court in NAMW [2004] FCAFC 264; (2004) 140 FCR 572, which I believe is a case we have provided loose this morning. There is discussion in the judgment of Justices Merkel and Hely at paragraphs 127 to 132.

I will not take your Honours to it, given the time, but we commend the conclusion in that case, that there is no relevant difference in the text of the provisions that I have identified to your Honours. Of course, there are some differences in the exceptions to the operation of the requirement, bearing in mind we are at the review phase but they are not relevant for present purposes.

Now, to complete the point, in the reply submissions the plaintiff says in paragraph 4, purports to identify two distinctions – sorry, paragraph 3(a) and (b) of the reply submissions, two distinctions. The first, it is said that the Tribunal’s role and obligation only arises when there has been an anterior decision by the Minister under section 65.

That is obviously so but it is very hard to see why that is relevant given the text of the requirement substantially reflects and what we are looking at in both 57, 359A and 424A, as this Court explained in Saeed, by reference to 57, is an aspect and, indeed, a codification, bearing in mind 51A and 422B and so forth, a codified aspect of the natural justice hearing rule. And seen in that light, it is very hard to see why the fact that the aspect of the hearing rule that is expressed and codified in 424A, but also in the same terms in 57, is any different, bearing in mind that one decision is made at the primary stage and one at a merits review stage.

They are both concerned in substance with the opportunity to be given to an applicant, being a person whose rights or interests are affected by the decision of certain adverse information, and the purpose of the provision being, at least principally, to define precisely what the scope of adverse information that needs to be put and thereby set to one side the common law that has slightly different requirements and contours.

In paragraph 3(a) of the reply submission, the plaintiff refers to paragraph [17] of SZBYR and a particular quote coming out of paragraph [17] which we think is really out of context or does not support the proposition being advanced.

I do not want to belabour the point I am making at the moment but we need to look at SZBYR anyway. So if your Honours do not mind, I might invite your Honours to call up that judgment that Mr Gleeson took the Court to this morning.

The paragraph that the plaintiff focuses on in the reply submission is paragraph [17], which is indeed I think probably the most important paragraph of this judgment and I will focus on it at little. The sentence that the plaintiff picks out is about nine lines down where it said:

The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administration decisions upon criteria to be found elsewhere in the Act.

What is significant about that is that it is sandwiched between the sentence which comes before and the sentence that comes after and the two critical features that the Court is pointing out in SZBYR is in the earlier sentence:

The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision -

Bear that in mind and then look at the sentence subsequent to the one identified by the plaintiff:

The use of the future conditional tense (would be) rather than the indicative –

could be:

strongly suggests that the operation of s 424A(1)(a) –

equivalent to the definition in 57(1) of “relevant information”:

is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.

As the Court go on to explain towards the end of that long paragraph in the final line on the page of the ALJR reports, it says:

Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims -

The logic of the analysis, in our submission, is that because the operation of 424A is to be assessed independently and in advance of the Tribunal’s particular reasoning on the facts of the case, that information does not get over the hurdle of information that would be the reason for affirming the decision under review unless the information in itself has the quality of rejecting, denying or undermining the claim. I will come back to that in a moment but that is the essential elements of the analysis in paragraph [17].

None of that depends on the fact that the Tribunal is doing this in a merits review capacity, in effect standing in the shoes of the delegate applying the criterion as compared to the delegate doing it the first time around, which is the distinction sought to be made in paragraph 3(a) of the reply submission - to suggest that somehow the principles that we invoke and summarise in paragraph 22 are to be distinguished in some unspecified way.

GAGELER J: “In its terms” means standing alone and without reference to any other material, does it?

MR WOOD: That appears to be so, yes.

GAGELER J: Is that part of your submission?

MR WOOD: Yes.

GAGELER J: Is it essential to your submission?

MR WOOD: It is part of our submission.

NETTLE J: Because it is only when it is combined with his own statement that he did not attend any other church that it assumes significance?

MR WOOD: Precisely. Even if we are wrong about that, we have an answer. But here the conclusion by the delegate that the plaintiff had only irregularly attended was, as your Honour Justice Nettle indicated, clearly the products of two pieces of information. One, the information from Reverend Brown, be it written or oral, that he attended only in certain periods of time, principally 2012 and 2013, and information that the delegate separately confirmed from the plaintiff at around the same time, in November, that he had not attended any other church. It is only when you combine those two things together that one concludes that he has irregularly attended church. But when one focuses on the information that came from Reverend Brown, in its terms – to adopt the phraseology of the High Court in SZBYR – nothing that Reverend Brown said involved a rejection, a denial or undermining of the plaintiff’s claim to be a Christian, to have converted to Christianity or indeed to have regularly attended church.

Because, as Reverend Brown said, he stopped attending regularly in 2013, when he moved to a different suburb. Reverend Brown said nothing about his attendance at any different church, at any different location, being a subject about which, presumably, he knew nothing.

So the essential quality of the information that came from Reverend Brown was objectively supportive, corroborative, of the plaintiff’s claim, so far as it went, which reflected the scope of Reverend Brown’s knowledge of the plaintiff’s own behaviour. It certainly did not have the quality which we submit it would need to have in order to attract the operation of 57 of being information that, in its terms, contained a rejection, denial or undermining, nor – which I will come to in a moment – was it considered by the delegate to have that effect. And I will come back to that point.

EDELMAN J: You will deal with the point, then, as well that the information was such that it established that the letter of support itself that the applicant had tendered was, effectively, tendered on a fraudulent basis.

MR WOOD: I will come to that towards the end but, in short terms, my answer to that is that section 5J(6), which is the subject of later paragraphs in the delegate’s reasoning, is not a section that intersects with the obligation in section 57 but I will explain that submission in due course.

Now, to complete – although I think I have said a few things I was going to say anyway – but to complete the answer to the reply submission about the supposed distinction between sections 57 and 424A, the only other distinction identified by the plaintiff is that the Tribunal is subject to a range of other obligations in Part 7, Division 4, such as section 425, to conduct a hearing, and the delegate is not and we cannot see that the existence of other requirements reflecting other aspects of the hearing rule on a de novo merits review body has any bearing on the content of one obligation that it does have under 424A which is expressed in relevantly identical terms to section 57 that applies to the delegate, being the puttage of certain adverse information.

So, I have taken the Court already to SZBYR. The next case I would take your Honours to is the second High Court judgment dealing with 424A which is SZLFX [2009] HCA 31; 238 CLR 507 which Mr Gleeson took the Court to. The relevant discussion is paragraphs 21 to 25 and that starts at page 513. In paragraph 21 the joint judgment cites a quote from SZBYR. In paragraph 22 the Court states that it was emphasised in SZBYR:

that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim –

and it is noted that the Federal Magistrate had erred in effect by concluding that a file note “could or might undermine” rather than “would”, that being something that had been emphasised by the Court in SZBYR and that was said in 23 to be flawed. Then in 24, distinctly but relatedly, the Court approved the conclusion of the Full Court in SZKLG that 424A also:

depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review.

Now, reflecting back on SZBYR, we know that that conclusion must be one that is reached independently and in advance of the reasoning on the particular facts of the case, and Mr Gleeson is correct, and we do not disagree, that one can look to the reasons to see evidence that that opinion which is necessary to form was formed in the past, but that does not deny the proposition that the engagement of 424A does not depend on how information is ultimately used in the reasons for the section to be engaged. The opinion has to be formed independently and in advance of the reasoning, which is why the information does in its terms need to undermine, deny or reject the claim.

So it is important to identify the claim. What we say the claim relevantly was was a claim to fear harm in Iran as a result of having converted to Christianity, because the plaintiff had become, in effect, a Christian. If that is the correct way to understand the claim, then evidently nothing that Reverend Brown said in its terms undermined it. As I noted a moment ago, rather, it supported it so far as it went, which presumably reflected the limits of Reverend Brown’s own knowledge.

GAGELER J: Do you accept as a fact that the delegate’s reasons disclosed that the delegate used what has been described as the Reverend Brown information as part of the reason for rejecting the claim you have identified?

MR WOOD: Yes. Can I take the Court then to the delegate’s reasons. We start at paragraph 47.

GAGELER J: What are you trying to get out of the reasons at this point in your argument, Mr Wood?

MR WOOD: What I am trying to get out of the reasons at this point in the argument is picking up the conclusion of this Court in SZLFX, that for the section to be engaged it needs to be demonstrated that the decision-maker formed the necessary opinion in advance and independently of the reasoning that the information would be the reason. One can look at the reasons for evidence of whether or not that opinion was formed. We look at the reasons and we see that the foundation of the delegate’s finding about irregular attendance was the letter of Reverend Brown that the plaintiff himself gave, combined with the plaintiff’s own evidence.

I took the Court to 47 because there the delegate described Reverend Brown, characterised his information as speaking positively about the applicant’s time as a member of the congregation. We then come to paragraph 52, where, in the fourth line towards the right, the delegate characterised the statements by Reverend Brown, which might include perhaps both written and oral, as corroborative of attendance at least in 2012. It is information that appears to be perceived by the delegate as supportive of, not adverse to, a claim.

Then we come to 54. Weighing certain matters addressed above, what the delegate says is this:

When assessing the applicant’s claimed interest in Christianity –

that being what we say is the relevant characterisation of the claim:

I find the following factors outweigh the above:

• The applicant provided a letter in support . . . which conflicts with his claimed length/frequency . . .
  
• The applicant has claimed to love attending church however, based on the . . . support letter submitted –
  

so that is the letter in June:

he ceased regularly attending sometime in 2013.

And some other matters are referred to. Now, in 55, the delegate says “Based on the above” the delegate was “not satisfied the applicant has participated in regular outward practice” or would be “identified by the Iranian authorities” as claimed. When we come back then to Reverend Brown in 56, in the fourth line the delegate says that she took into consideration the “submission”, which is the letter.

The “statements support the applicant attended in 2012 and 2013”, but the statements do not satisfy the delegate “that the applicant has a continued genuine interest”. Then skipping a few lines “I am not satisfied irregular attendance” supported the claim that the plaintiff had, in effect, converted. So what we take out of that is that the way that the delegate perceived the information from Reverend Brown, which was similar in the letter as it was in the call, was that it corroborated, it supported the claim, so far as it went, but it was insufficient to satisfy the delegate in light of a range of other concerns that he had converted to Christianity.

But none of the information was regarded as adverse. It did not get the plaintiff over the line because of insufficiency and a number of other concerns, but that did not give it the quality of information that, as this Court said in SZLFX, the decision-maker had formed the opinion, in advance and independently of the reasoning, that the information in itself contained a rejection, denial or undermining, we say did not.

I think my leader reminds me that in that context the Court ought to consider carefully in particular paragraph 18 of SZBYR, which is that part of the Court’s judgment which drew a clear distinction between information, that in itself contains rejection and so forth, and evaluative conclusions including about inconsistency and so forth that might be drawn from information.

Now, we said the claim is properly identified at the level I have described. It is arguable, or we anticipate it would be submitted, that the claim is more particular, that the claim was to fear harm in Iran as a consequence of attending the Syndal Baptist Church every week. If that is the right way to understand the claim, then one would generate an inconsistency, a denial or an undermining, because Reverend Brown indicated that was not the case.

Reverend Brown indicated both in writing and orally that there had been a gap. But we say it is not the right way to understand the claim to engage in the reasoning in SZBYR. The applicant did not claim to fear harm in Iran because of his frequency of attendance at a particular church in Melbourne. He claimed to fear harm in Iran because he had converted, because he was a Christian. His evidence about the frequency of his attendance was evidence in support of the claim.

It was not, however, the claim itself. It is for that reason that whilst the written letter of Reverend Brown formed part of the analysis of the delegate ultimately as to why it was not satisfied that the plaintiff met the criteria in combination with, for example, the plaintiff’s own evidence that he did not attend any other church. That involves analysis and use of information in the manner that this Court said in SZBYR is not the right lens to look at the operation of 424A which is independently of the reasoning.

So an applicant in a different case might give evidence that some is believed and some is disbelieved because of some other information. The fact that an applicant is disbelieved for certain reasons does not mean that information that caused that disbelief is information of the kind to attract the operation of 424A.

GAGELER J: Mr Wood, at page 323, about line 18, there is a reference to an earlier finding. I just cannot pick it up but it is recorded as being to the effect that the applicant only returned to the Syndal Baptist Church in June 2015 to seek a letter of support. What is the evidentiary basis for that finding?

MR WOOD: The delegate, I think, drew that inference from the letter. The oral information was also consistent with the letter but if you look at paragraphs 54 and 55, in particular the second dot point at 54, the delegate appeared to infer from the June 2015 letter from Reverend Brown that the plaintiff had:

ceased regularly attending sometime in 2013.

The inference of returning in 2015 arose because he got the letter from the reverend in June. I do not have too much more to say, but a couple of points – first of all - - -

EDELMAN J: Just so I understand your point about characterisation, if the claim is characterised as being a claim of essentially a fear of persecution at that very high level, does that mean that the only information that would be part of the reason for rejecting that claim would be information that itself directly established that there was no such fear?

MR WOOD: Not established but undermined. I think there is a slightly lower threshold.

EDELMAN J: They could not undermine any step towards that conclusion. It would have to undermine that conclusion directly, otherwise it does not relate to the claim.

MR WOOD: It is not that it – I do not think that it might not just undermine a step. That might fall within the concept of undermining but the information in itself needs to be of the character of that which would undermine and that flows from in particular the words “would be” and the conclusion that the operation of the provision is assessed in advance and independently of the reasoning. So it might be, and was the case here, that the information from Reverend Brown was referred to, not in the sense that it was adverse.

So in certain cases a process of comparison between an applicant’s evidence and third party evidence might, as the Federal Court has explained, give rise to intermediate factual findings and a chain of reasoning that ultimately leads to refusal but that in itself is not the condition for the enlivenment of 424A or of 57.

I will not take the Court to the cases but I will mention two of them that support that proposition - first of all, the decision of the Full Court of the Federal Court in a case SZJBD [2009] FCAFC 106; (2009) 179 FCR 109. We draw support also from the decision of Justice Heerey that Mr Gleeson took the Court to this morning, in the case of MZBXQ at paragraphs 27 to 29.

Now, the next point I would like to make is a retreat from a submission that we made in writing. In writing, at paragraph 28, we advanced an additional basis, independent basis, to reject the contention that 57 had been breached. The contention we made at paragraph 28 was that by implication, the plaintiff by giving the June 2015 letter from Reverend Brown, had given the information that he only attended the Syndal Church in 2012 and 2013. That implication was resisted in writing by our opponents and, therefore, to engage the exception in section 57(1)(c) where the obligation in 57 is not engaged if the information was given by the applicant.

We accept that the information which Reverend Brown gave orally in November was greater in scope than what was contained in the letter. That is a function of chronology because, when the plaintiff gave Reverend Brown’s letter dated June 2015 to the delegate he gave that on 1 September 2015, whereas Reverend Brown’s oral information was given two months later, on 13 November 2015.

GAGELER J: Does this come down to just withdrawing a submission?

MR WOOD: It does.

GAGELER J: What are you withdrawing?

MR WOOD: Paragraph 28.

GORDON J: The whole of paragraph 28?

MR WOOD: Yes. The final point, to respond to Justice Edelman’s question earlier more fully about section 5J(6), Mr Gleeson this morning focused the Court on those parts of the delegate’s reasoning set out towards the end, on page 323 of the court book. Justice Gageler referred a moment ago particularly to the reference in the fourth line of paragraph 148 that:

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.

This discussion comes under the heading 5J(6). Subsection 5J(6) is not concerned with a visa criteria but a process matter in that, when the Minister is not satisfied that a person has engaged in conduct otherwise than for the purpose of strengthening their claim to be a refugee, the conduct is to be disregarded in making the decision.

But then when one turns to 57, it is difficult to see how section 57 intersects with that because the information to be relevant information needs to be information that the Minister considers would be the reasonable part of the reason for refusing to grant a visa and conduct might be disregarded but the visa granted. Indeed, there are ample cases that show that a strong adverse judgment might be made on adverse credit but the visa might be granted including on the claim on the basis, for example, that conditions in a country are such that a well-founded fear exists.

GAGELER J: So, exactly what is the submission you are putting?

MR WOOD: That any opinion that is formed, that information would be the reason for engaging the operation of 5J(6), therefore requiring certain conduct to be disregarded does not fit within the scope of the requirement for 57 to be engaged, which is that the opinion is the information would be the reason for refusing to grant the visa which is a different - - -

EDELMAN J: Even where that opinion is part of the reason for refusing to grant the visa?

MR WOOD: Well, it might - - -

EDELMAN J: Part of the reason for refusing to grant the visa is the consideration that the information is disregarded.

MR WOOD: Well, the disregard of the information means the information is not taken into account in deciding whether the visa criterion is met. That is why I described it as a process.

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