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High Court of Australia Transcripts |
Last Updated: 21 March 2018
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M141 of 2017
B e t w e e n -
CHETAN SHRESTHA
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Office of the Registry
Melbourne No M142 of 2017
B e t w e e n -
BISHAL GHIMIRE
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Office of the Registry
Melbourne No M143 of 2017
B e t w e e n -
SHIVA PRASAD ACHARYA
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
Office of the Registry
Sydney No S1 of 2018
B e t w e e n -
SORWAR HOSSAIN
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
KIEFEL CJ
GAGELER J
KEANE J
NETTLE
J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 21 MARCH 2018, AT 10.22 AM
Copyright in the High Court of Australia
____________________
MS G.A. COSTELLO: May it please the Court, I appear for the appellants, Mr Shrestha, Mr Ghimire and Mr Acharya (M141 to M143/2017), with MR M.W. GUO. (instructed by Da Gama Pereira & Associates)
MR G.O’L. REYNOLDS, SC: If the Court pleases, in the Hossain matter (S1/2018) I appear for the appellant with my learned friends, MR B.M. ZIPSER and MR D.P. HUME. (instructed by Mooney & Kennedy Solicitors)
MR C.J. HORAN, QC: May it please the Court, I appear with MR T. REILLY for the first respondent in matter S1 of 2018, the Hossain matter, and I appear with MR A. ALEKSOV for the first respondent in matters M141 to M143 of 2017, the Shrestha and other matters. (instructed by Sparke Helmore Lawyers and DLA Piper Australia)
KIEFEL CJ: Thank you. There is a submitting appearance for the second respondent in each matter. I believe you are speaking first, Mr Reynolds.
MR REYNOLDS: Yes, your Honour. Can I just indicate briefly what I understand be the arrangements. The Hossain matter is going to be dealt with subject, of course, to any directions from your Honours, between now and a quarter to one and my learned friend for the Minister and I are going to split that time between us and, just to be clear, that gives me or would have given me an hour and 15 minutes to deal with my submissions in-chief and in reply, so I am going to try and complete my submissions in under an hour if I can. My learned friend has the same time that I do, approximately an hour and 15 minutes or so in order to respond to me. So, I need to, American style, keep a little bit of room for reply if I can.
That is going to mean that I am going to have to get a bit of a wriggle on. I mention that because that may necessitate a certain kind staccato presentation on my part, for which I apologise and I probably will not mention again.
Your Honours have a copy of our outline and, in the interests of conserving my time, I will move straight to paragraph 2(c), which is the matter of common ground between the Minister and my client – that is, that there was an error of law in that the Tribunal asked, in relation to what I am going to call the time-limit criterion, whether there were compelling reasons at the time of application which was 21 May 2015 rather than the time of decision which was 25 February 2016. So your Honours can assume that we are proceeding on the basis of there being an error of law.
A matter I did not mention a moment ago, although it was implicit I guess in what I said, is that notwithstanding that there is a notice of contention, I am going to address all issues in the usual order and skate over, to some degree, the question of who is the proponent or opponent on a particular point.
So dealing then with what is actually technically a matter of notice of contention, I am going to deal with jurisdictional error. The first issue I want to address – this is paragraph 3 – is to try to provide some assistance on the question of what that process is.
Your Honours will see that we take as our principal focus a decision that will be very familiar to at least three of your Honours, although only a decision of three Justices, and that is the decision in Wei v Minister for Immigration [2015] HCA 51; (2015) 257 CLR 22, at those particular paragraphs.
Now, again, in the interests of time can I focus on what we extract as the three principal points that we want to rely on in order to formulate what we submit is the appropriate process to be followed. The first is that “jurisdictional error” is a term of conclusion reflecting the results of a process of statutory construction and that appears in those paragraphs, I think, at least twice.
The second proposition is that central to that process is the question whether the purposes of the scheme – that is, the statutory scheme – would or would not be advanced by holding an exercise of power to be invalid. Thirdly, we pose the ultimate question as being whether the duty breached was an express or implied condition of the valid exercise of the power.
Now, your Honours, only have to look at those three paragraphs to see that in formulating those paragraphs we have skated over what your Honours may think is the principal issue in this case, namely, the question of materiality, to use a shorthand expression, and what the role is for that concept in this process of determining whether the relevant error of law is jurisdictional.
What is the relevance of materiality? We submit the following. The first is that we submit it is not a sine qua non of a jurisdictional error and by materiality I mean, in general terms, whether there was a real possibility of a different result. So that, we submit, is not a sine qua non of jurisdictional error.
The second proposition is this, that it will, we concede, often be relevant, that is, that concept at least to some degree on the issue of whether there is a jurisdictional error and the third proposition is that whether materiality, as I am calling it in shorthand, is relevant and the extent to which it is relevant will depend upon the construction of the relevant statutory provision.
In order to make good that final point which is, in effect, a test, can I give some examples of statutes which either expressly or impliedly would make, as a matter of construction, materiality irrelevant, to underline the proposition that I am putting. To take first as an example of a statute which expressly makes materiality irrelevant, take a section which said that a breach is a jurisdictional error even if it is not material to the decision. It said that in terms. We would submit that framed in those terms there could be a jurisdictional error without the error being material to the decision. Of course that is the easy case but at least it helps to establish the baseline proposition which I am trying to persuade your Honours to adopt.
Can I take a couple of examples from the more difficult situation, that is, where a statute, as a matter of construction, implicitly makes materiality irrelevant. The first example that I would rely on is a statute which said that the Minister must provide reasons for decision within, say, seven days.
Now, we submit - and there are examples of this Court as I understand it, finding that provisions in that or similar form are jurisdictional. We submit that could be a jurisdictional error even if the breach of that provision could not possibly have affected the decision. That is one example.
Another example, perhaps a better one, is to assume a statute which says that an application for a visa must be made say within a 28-day period, which I will call a “sudden death” provision, and assume that the relevant application was made on the 29th day which would mean it was invalid. Assume, however, that the Tribunal made a decision on the application for a visa and determined to grant it and the Minister then challenged it and said that there was no valid application therefore the Tribunal lacked jurisdiction. In that example we submit that that could be jurisdictional even though it could not be asserted that the decision could have been different even if it had been made within time.
So those examples and the matters of general principle which we have attempted to extract from Wei we submit make it clear, tolerably, that the issue of materiality, that is whether it is required and the relevant extent of the materiality, are fundamentally matters of construction.
Now, I need then to move to the application of that test to the circumstances of the case before your Honours. That is dealt with, albeit in summary form, in paragraph 4 of our synopsis of argument where we have submitted for a number of reasons that the relevant error here should, in accordance with the process which we have formulated for determining jurisdictional, why that relevant error should be held by your Honours to be jurisdictional.
We start - and this is proposition 4(a) – with the point that whether there were compelling reasons - that is a quote from the relevant criterion, those two words - was a central issue for the Tribunal. So this is the notion of centrality, in short, and to make good that point we point to a number of things – this is (i) through to (iii).
The first is that the function of the Tribunal was a review of the delegate’s decision, and there will not be any dispute about that; (ii) that ordinarily - and this is established by the authority to which we have referred - the issues arising in relation to a review are those which were dispositive before the delegate, that is, the person making the original decision.
The final point is that the issue here, that is, the issue which was dispositive before the delegate, was the issue of compelling reasons. The delegate did not consider at all the other criterion, that is, Criterion 4004, which is the debt criterion.
So that is the first thing that we underline in the present case but also, for that matter more generally, is a matter which will be relevant to the appropriate exercise of statutory construction.
The second matter that we point to, and this is paragraph 4(b), is that we say that the consideration of compelling reasons had a measure of connection with the Tribunal’s decision and affected the exercise, it should read, “of the power”.
Now, your Honours will notice there is a measure of finessing in that formulation, that we are talking here about a fairly broad omnibus concept of connection and affection, one that is broad enough to include relevantly two things. The first is this notion of whether there was a possibility of a different result and I make the point that that does come within this formulation although it is obviously a narrower aspect of it than the particular criterion that we have formulated there at (b). But because - and this is the second point - that criterion as we have formulated is broader than that it therefore follows from a formulation of that criterion that materiality in the sense of a real possibility of a different result is not a sine qua non the ultimate of a jurisdictional error.
The real question, the ultimate question, under this relevant factor is the degree of connection between the error and the exercise of the power and we pick up - and your Honours will have seen this in the judgments below, the cases of Craig at page 179 and Yusuf at page 182 and your Honours will have noticed that there is a quote from the relevant passage of Yusuf of the appeal book at page 228 at line 58. Can I also refer your Honours - and I will not go to it - to a decision in SAAP v The Minister [2005] HCA 24; (2005) 228 CLR 294 at paragraph 77.
So, that is – we are here looking at the degree of connection in this particular case and we say two things. The first is - and I am going to be putting this in detail later on but I will not elaborate on it now - the first is that there was a real possibility in this case of a different outcome and I will be coming to that probably in about five or 10 minutes.
The second point, though, is that whether or not that is the case – in other words, even if your Honours are against my client on the proposition that there was a real possibility of a different result then we submit that the relevant error had what I will call a substantial degree of connection with the decision, albeit not amounting to an effect that there would have been a possibility of a different outcome.
There are a number of things I would stress there. One is that it was one of the two reasons, on any view, why the visa was refused by the Tribunal. Second, that it lay right at the heart of the exercise of the Tribunal’s reviewing function, which we discussed a moment ago, and also that it was not a matter that was peripheral to the decision or inconsequential to that decision.
So that is probably the kind of central – the legal axis, if you like, of the case is our attempt to formulate a test of jurisdictional error which, as I have said, does not bite off the necessity for establishing the possibility of a different outcome, accepts that that will be relevant but places that undoubtedly relevant factor under a more general rubric which is broad enough that it can be satisfied otherwise than by someone in my client’s position establishing that there was a real possibility of a different outcome.
GAGELER J: Mr Reynolds, does the privative clause feature in your construction argument? Do you grapple with it in any way?
MR REYNOLDS: Not really, your Honour. I know it has been touched on in the submissions, but that is not the way that I am formulating it. Obviously, underlying any debate about that and these other issues is the question of statutory construction which looms so large in this area. But no, I was not intending to make that a - - -
GAGELER J: You rely on the passage in Wei, which begins with the statement which is quite specific to the statutory context, the jurisdictional error in the sense relevant to the availability of relief under section 75(v) of the Constitution in the light of the privative clause consistent with material breach.
MR REYNOLDS: Yes, and I accept that in the formulation that I have put to your Honours, that I am being a little eclectic in my treatment of the passage from 23 to 26 and if I was not trying to move quickly over it, I think I would have been more candid in saying that, but let me try and remedy the matter. As one looks at paragraph 23, it does mention the word “material”. It suggests that at least a measure of materiality is necessary. It begs the question of course, of what material means as your Honour appreciates, but except to that extent, we would submit - and that is a possible rather than a necessary caveat - we respectfully submit that these passages in these paragraphs are consistent with the approach that we have adopted and depending on what “material” means, we would submit, entirely consistent with the approach, but again I am making an assumption which may not be warranted from the text of that.
I have mentioned two matters, then what I have called centrality, and second of all, degree of connection. There is a third matter that we would mention which we have referred to in paragraph 4(c) is the seriousness of the error in the context of the decision-making process and we say that we rely in that regard on a passage - this is at the top of our outline on page 2 - in Minister for Immigration v SZIZO [2009] HCA 37; (2009) 238 CLR 627. Your Honours need not get it out. The relevant passage is at 35 and it refers to the extent and consequences of the error.
Now, here, we say it was, and there is a measure of assertion here, a significant and important error in the context of the decision and it was a decision which was apt to have an effect whether direct or indirect on the making of the decision.
EDELMAN J: I suppose you would link that factor (c) back to a meaning of materiality - - -
MR REYNOLDS: Yes.
EDELMAN J: - - - by saying, for example, that if there were, say, a fundamental denial of natural justice in relation to the whole of the party’s case that it would not matter.
MR REYNOLDS: Yes.
EDELMAN J: The result might not have been any different.
MR REYNOLDS: Exactly, and that really underlines it. Obviously the graver it is - and the example your Honour posits is a very grave one - then the more that helps the argument but it also tends to underline the proposition that your Honours should not adopt as a sine qua non of jurisdictional error the necessity for showing the possibility of a different outcome. There will be some errors, as in the one your Honour posited, that are so grave that it necessarily follows that the error is jurisdictional, notwithstanding that there may not exist a likely possibility of a different result.
GAGELER J: Is not that exactly what Stead’s Case addressed, the fundamental failure of procedural fairness? Counsel was not heard on the point but still it would have made no difference.
MR REYNOLDS: The second submission that I will be making will be to pick up, in effect, the Stead test – this is the alternative – and submit that that also is satisfied. The position in Stead, as I recall, focused on a slightly different issue, of course. It was an appeal in a civil case where the relevant issue was whether there was a miscarriage of justice - that is my recollection of it – rather than the precise issue that your Honours are dealing with today.
To that extent it would not, obviously, bind your Honours in the consideration of this issue, although we accept that it is a case which might be brought in against us on a matter of analogy, but I do submit, with the weakness of all argument by analogy, and in that regard we do rely on the fact that it is a different context in which that arose.
EDELMAN J: I suppose you could contrast, for example, the facts and circumstances of Stead’s Case with a case like DWN042, where the denial of natural justice was in relation to the entirety of the case.
MR REYNOLDS: Yes.
EDELMAN J: It was said that Stead’s Case did not apply there.
MR REYNOLDS: Yes. With respect, we would adopt exactly what your Honour says. Once one takes, to test the proposition, a fairly strong or even extreme example, it does, we submit, give the lie to the proposition – I should not put it that high. It is inconsistent with the proposition that you would, in the jurisdictional error context, necessarily have to show a real possibility of a different result.
I have mentioned the SAAP Case at paragraph 77. There is also another decision I give your Honours a reference to - this is in paragraph 4(d) – Minister for Immigration v Li [2014] FCAFC 1; (2013) 249 CLR 332, particularly at paragraphs 85 to 86, which we respectfully commend to your Honours, but in the interests of time I will move to the next issue which is – other than to make the point, sorry, before I leave that, that the effect, at least in substance, of the Full Court’s reasoning – I am talking particularly at paragraphs 29 to 30 of the judgment – is to treat materiality – that is, the necessity for a possibility of a different outcome – as an essential element of jurisdictional error. To the extent that that is adopted by their Honours, we respectfully submit that it was erroneous in law.
Could I move then to the next issue, this is paragraph 5, that if the materiality test is required, I need to deal with two issues. The first is the formulation of the relevant test as a matter of law. Again, this is by way of fall-back or alternative. Secondly, I have to try to make good the proposition that on the facts here my client comes within that test.
What is the test? As your Honours see in paragraph 5(a), the first point that we make is that that is a test which should focus on possibilities, what the decision could have been, rather than what it would have been. Your Honour Justice Gageler has already touched on that matter and there are other cases which either directly or analogically would support an approach of that kind.
The one passage I might take your Honours to is the FTZK v Minister for Immigration [2014] HCA 26; (2014) 88 ALJR 754. It is really only one sentence at paragraph [97] that I take your Honours to and that is where Justices Crennan and Bell, in the final sentence, say:
It is impossible to state that this failure or flaw in the reasoning could not have materially affected the decision.
They footnote also the passage in Peko-Wallsend - I think it was by Justice Mason – which is also to similar effect. As a matter of principle, we submit that the requisite degree of materiality will be low and as a matter of principle that is supported by a couple of things. The first is the well-established proposition that the merits of decision-making are matters for the repository of the relevant power, not the courts.
It is obvious that the higher the level of possibility that one posits on this test here, the greater the risk that the courts will be trespassing on the merits of the decision. The second matter - again, we submit, a fairly obvious point – is that the court’s role is to determine the legality of decisions, which is a reflection obviously of the rule of law, and we submit that the lower the test of possibility that is adopted the more likely it is that the court’s role will remain confined within that particular ambit.
So, that is a couple of points as to the appropriate test as a matter of principle. There is another point, though, that we would make which is in paragraph 5(c). I would like to elaborate on this a little. It is the proposition that the court would – I think I would change that to should be cautious before finding that there was no real possibility.
What I am getting at here is that obviously I accept if this is the test that is adopted, that my client, as part of establishing jurisdictional error, is the proponent and bears the onus of establishing that there is a jurisdictional error - that is obvious - and needs to satisfy the court on the balance of probabilities. But your Honours would recall, and I think I can even remember talking to your Honours previously about the – in other cases about the – particularly the judgment of Sir Owen Dixon in the Briginshaw Case and one of the important aspects of that is the proposition that establishing something on the balance of probabilities is not just a mechanistic process where one weighs things up in the scale.
What Sir Owen pointed to in that and in other cases was the importance of another requirement, namely, satisfaction. So just underlining that, that notion of satisfaction it is trite law is a protean one and what the degree of satisfaction, if you like, depends upon - again this is trite - the nature of the issue which is being considered.
So to take perhaps the best known example, if a court is considering the question of satisfaction, vis-a-vis the issue of fraud, then your Honours know what the dicta say, you need exact proof, sure proof et cetera, and that sometimes contrasts - and I think Sir George Rich in a judgment referred to the converse of that, namely, in exact proofs pointing with a wavering finger to an affirmative conclusion.
The point that I am making is this, that we submit that the relevant degree of satisfaction that is necessary on this issue of possibility of a different result is, and your Honours ought to hold, a matter which is fairly easily established.
It is, for example in a rough sense, the opposite of a fraud matter and that the – although again we retain the onus of proof, your Honours - I withdraw that - that your Honours should with respect state that this is not a matter on the court’s part for hand wringing anguish, there is no necessity for exact proof and that the same factors to which I pointed a moment ago also point in the direction of the courts being cautious before finding that there was no real possibility, or put more positively, not tolerably eager if you like in a rough sense to find that there was such a real possibility. I perhaps put that badly but I am sure your Honours understand the point that I am trying to make.
So, that is the question of – there is one final point and this is paragraph 5(d) - that the more serious the error then arguably we have said there the lower the requisite degree of possibility and also the lower the requisite degree of satisfaction. That notion of seriousness is also a factor here. I need though in order to make good - and this is the second part of the argument – my argument to deal with the application of that test to the particular facts here. That is, of course, important for both of the tests that I have attempted to formulate, both what I will call the principles extracted from Wei but also this test, the Stead test for want of a better shorthand.
We start here from the proposition that there has been no dispute in this case that if the Tribunal had asked the correct question in relation to compelling reasons on the time criterion it might well have found that there were compelling reasons at the time of the decision, that being the correct test.
Now, we submit that when one looks, therefore, at what I will call the possibilities, the counterfactuals proceeding therefrom, that there is at least a real possibility that the Tribunal would also have been satisfied in relation to the debt criterion, that is, to go back to the actual text of it is contained at page 212 at paragraph – it is about line 48:
The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.
Now, we are looking here in accordance with that criterion and whether there was a real possibility really of two main things. The first is whether the debt – this is not in the appeal books but I understand it to be a matter of common ground – the debt was $7,404. So we submit, first of all, that there is a real possibility that that debt would have been repaid before any - - -
KIEFEL CJ: On what basis do you say that?
MR REYNOLDS: I am about to elaborate in great detail on that, your Honour.
KIEFEL CJ: Good.
MR REYNOLDS: Secondly, there is a real possibility that the Tribunal would have found that using the expression in the criterion that quote “appropriate arrangements” had been made for payment of the debt. If I can start from some – and I will not be very long about this, from some basic facts; the first is that, as I have said, the debt was a figure of $7,404. The second matter is that it was repaid in May 2016 and that is a matter noted at page 119 in the paragraph numbered 15.
KIEFEL CJ: But the Tribunal does not know anything about this?
MR REYNOLDS: I am sorry, your Honour.
KIEFEL CJ: The Tribunal does not know anything; this is in the future, from the Tribunal’s perspective.
MR REYNOLDS: Yes, but we are looking – it is what Professor Wigmore would have called “retrospectant circumstantial evidence” – in other words, if you are trying to work out what was likely to happen before the Tribunal, then if you look at events which occurred thereafter then they may assist in determining the probability of whether, on a counterfactual, certain events would have happened as at the date of the Tribunal’s decision. But I do accept, obviously, that these are events thereafter.
Thirdly, there is not any actual direct evidence as to the source of the repayment or, put colloquially, where he got the money from. But, fourthly, there is evidence that his partner – his sponsor, as they call it – did have an income. And can I refer your Honours in that regard to appeal book page 87, at paragraph 15, and also appeal book pages 111 to 115, and also to the fact that she was a factory worker, which is pointed out at appeal book page 30, at line 11.
Now, if one looks, then, at what would have happened before the Tribunal where the Tribunal member at some point formed or was satisfied that the time criterion had been satisfied. That would mean, obviously, that the only thing standing between Mr Hossain and a visa was this debt criterion. And we make the basic point that if that was the case, then that is going to – and I will elaborate on this in a moment – mean that it is more likely that Mr Hossain, if he is able to garner the funds, will want to pay that money and to get those funds together.
Conversely, if one takes the situation that actually obtained before the Tribunal where he was faced with two possible adverse criteria against him, one can understand very easily in human terms without perhaps spelling out all the ramifications of this that, if you are dealing with someone in Mr Hossain’s position who owes money to the Commonwealth and has that criterion and another criterion currently potentially against him, that at that point he may well think, put bluntly, “Well, I do not really want to be paying off the debt if I am about to be deported on the other criterion”. Whereas if he realises that the only criterion between him and getting a visa is that this debt be repaid, then he will be far more eager since he can see it right there – that is the only thing that he needs to satisfy – to get this organised. So if one looks at what is likely to have happened if the - - -
GAGELER J: Why do we not just look at what the Tribunal said in paragraph 39 and look at the nature of the reasoning and ask first if the identified error impacts in any way on that reasoning on this public interest criterion?
MR REYNOLDS: Sorry, the public interest?
GAGELER J: Criterion 4004. Your counterfactual starts at a very high level. It seems not to actually engage with what the Tribunal actually did and the reasons it gave for doing what it did.
MR REYNOLDS: No, I start from the proposition that where one has an error of law and there is, I think, about a nine-month period between the time of the application, which is the time that was applied by the Tribunal, and, on the other hand, the time of decision. The Minister has not at any stage in these proceedings suggested that if that were the only criterion in this case then it would not be appropriate that the matter be remitted to be determined by the Tribunal. Why? Because it stands to reason that if you shift that yardstick some nine months or so then it will follow that there is a real likelihood or a real possibility of there being a different outcome if one applies the correct criterion of law rather than the incorrect one, because it moves the goalposts by a factor of nine months.
I do not understand that, your Honour, to be a matter of dispute. I do proceed from the basis that that is the first step in the argument that I am putting. As I say, I do not believe that – it has certainly never been suggested at any stage of these proceedings, on my information, that there is any doubt about that, nor would I respectfully submit your Honours proceed on the basis that there was any doubt about that. Again, we can hear from the Minister; he can defend his own corner.
That is the starting point that I have been looking at, and my submission does depend, at least at this stage – maybe there is something to be said in reply – on that as the first step in the reasoning process. But having, as it were, locked that in as a real possibility, I then proceed to try and look at what would have happened or what the possibilities are as to what would have happened, on the assumption that the Minister had made a decision in my client’s favour on that time criterion or, to put another way, that there is a real possibility that the Tribunal member would have found that there were compelling reasons within that criterion if there had been a full examination of all that would be necessary to look at in order to take account of everything that happened in that nine-month period rather than simply positing a test that focuses only on the date of the application nine months earlier.
NETTLE J: Mr Reynolds, can I just ask you one question, please, on the very point. I understand the argument that if a decision had been made that the time criteria had been met, the delegate or the Tribunal might have been the more anxious to find that the satisfactory arrangements for payment criterion had been met, but is there anywhere at all, any evidence upon which either the delegate or the Minister could have based a finding that an arrangement had been made for payment?
MR REYNOLDS: No, other than his statement which is recorded somewhere, I will have it fished out - - -
NETTLE J: Yes.
MR REYNOLDS: - - - I hope quietly, but that he intended to repay it. What I am looking at is not that, but the question of whether there is a real possibility either that there would have been a repayment of the debt or whether there is a real possibility in the alternative, that the Tribunal would have found that appropriate arrangements had been made for the repayment of that debt.
NETTLE J: It is only the latter that is relevant, if that is the criterion; preparations had been made.
MR REYNOLDS: Well, but no, there is a - - -
NETTLE J: It is 4004 - - -
MR REYNOLDS: The criterion is at page 212 and talks about whether the applicant has outstanding debts to the Commonwealth.
NETTLE J: Yes.
MR REYNOLDS: So, my point is, if it has been repaid at the point of the decision, then - - -
NETTLE J: No problem.
MR REYNOLDS: - - - there is no need to look at appropriate arrangements. So that is why I look at not one possibility but two, namely, whether the possibility that the debt would have been repaid before the decision was handed down and the second possibility is where there is a real possibility of appropriate arrangements having been made for payment.
I can give your Honour perhaps a more practical example. We are looking here at what would have been likely to happen if you have a tribunal member who, either at the hearing or soon thereafter, in which case the matter could have been relisted, forms the view that the time criterion is satisfied.
Now, such a member is obviously going to realise, as would anyone, that the only thing standing between this man and getting a visa was this question of this debt criterion and that would raise two possibilities in that Tribunal member’s mind. One is the possibility that the debt would be repaid, as we just touched on. The other is the possibility of whether or not appropriate arrangements could be made for the repayment of that debt.
So what we are looking at is, on the evidential materials, whether or not there is such a real possibility that my client has established, the onus being on him, but again asking your Honours to assume a certain measure of satisfaction. What is the argument about that?
KIEFEL CJ: Mr Reynolds, just in that regard, the Tribunal at paragraph 39 acknowledges that the applicant said that he intended to repay the debt but is not convinced about that.
MR REYNOLDS: Yes.
KIEFEL CJ: In answer to an inquiry from it he says he has not made any arrangements for doing so. How do you overcome this evidentiary problem? It is one thing to say that the Tribunal might have been more motivated to find out what plans he had but are you not driven to have to say that his evidence might have been different?
MR REYNOLDS: Sorry, this is page - - -
KIEFEL CJ: Paragraph 39 of the Tribunal’s reasons.
MR REYNOLDS: That is appeal book at?
EDELMAN J: Page 8.
MR REYNOLDS: Thank you.
GAGELER J: It is page 9, line 12.
MR REYNOLDS: Yes. Your Honour, subject to one matter I will have to check with my learned juniors, but there is no altering that - there is a statement apparently been made that he did intend to make the debt, that he had not made any arrangements for doing so.
KIEFEL CJ: The Tribunal is not convinced about the first statement at all, if you read on.
MR REYNOLDS: Yes. It says at about line 13:
The Tribunal is not convinced that the applicant had any intention –
It says “had”. That is, I suppose, at the date of the hearing. I am, as it were, accepting that all of these statements have been made, as I probably must, in the judgment and that they reflect what occurred at the hearing and the decision that was made. I do not believe I can go anywhere else and I am not trying to evade that.
What I am looking at is the counterfactual which proceeds on the assumption that the Tribunal member did not make an adverse decision against my client on the time criterion, that he has found that there were compelling reasons. So that then means that the Tribunal member would have needed to consider the question of this debt criterion in a situation where that was the only criterion which remained to be satisfied.
EDELMAN J: Does it come down to this, that you read Public Interest Criterion 4004 as effectively meaning that the applicant will not have any outstanding debts to the Commonwealth or that the Minister is satisfied that appropriate arrangements will be made for payment rather than have been made and does not have?
MR REYNOLDS: I think that is right, your Honour. The gist of it is, yes, he can get his visa if I can put it for myself a little more simply, he can get his visa if he pays the money. He can get his visa if he makes appropriate arrangements for repayment. So, I come back again to whether or not I can demonstrate a real possibility of either of those two things happening.
Now, we do and your Honour Justice Nettle appreciates this from something your Honour said to me earlier. We have to reconfigure analysis of the probabilities albeit we are talking here possibilities by reference to that new counterfactual. So it would follow if we are looking at there only being one criterion that remains to be satisfied, namely, whether he can pay off this debt of $7,000 then you are going to have, it is likely at least three things.
One is that the Tribunal member as a matter of common experience is going to be more likely to want to accommodate this man in terms of giving him what the Tribunal member regards as an appropriate arrangement to repay the debt and also because the time of decision can be deferred, also more likely to – at least to the level of possibility to defer the handing down the decision if he said that he is able to pay the money as he says.
NETTLE J: Is that feasible? He could have made a conditional order or said look we will defer the decision until you pay in – or 30 days in which to pay in or something?
MR REYNOLDS: Yes. Your Honour is, with respect, asking the wrong person in terms of the practices of the Tribunal but I have asked about it and my understanding is that the way they work is that in this situation they could have said to Mr Hossain, well, look, Mr Hossain, if I were to defer for 21 days, register the matter then, is there any possibility that you think that you could get the funds together and that is something that that is done as a matter of practice. The other possibility is that, of course, we can deal with some other form of arrangement, for example, a time to pay, a set of orders whereby particular amounts would be made by way of periodic payment with a timetable.
We have three actors here. We have the Tribunal member, we have Mr Hossain who is, as we have said in discussions amongst ourselves, like the person at the auction when the property comes on the market, you know you are – only one thing needs to be done to get the prize and that is that one criterion needs to be satisfied.
We have three actors. He is more likely in that situation to want to pay off the debt or make arrangements for the payment of it. He will be necessarily more eager than he would have been if he was dealing with a possibility where his visa would have been refused on the basis of another criterion that would mean he would not be likely to want to pay it before he was deported, in effect.
The other actor who is looming here of course is his sponsor, his partner and this woman had an income. We do not know exactly where the funds came from but that is a possible source of funds and in human terms, if someone is your partner and you have an income and it is possible for you to pay some money, either periodically or otherwise in order to keep him with you in Australia, then it follows as a matter of common sense that you are more likely to want to do that.
The third actor is the Tribunal member who, if only dealing with this surviving criterion, is, I submit, going to be again, as a matter of human experience, more likely to explore this option, more likely to look at whether there is any other possible appropriate arrangement, whether there is any possibility of deferring the decision to enable some or all of the debt to be repaid, either as a vouchsafing the man’s intention to repay or otherwise.
One is dealing necessarily with a lot of possibilities and a lot of counterfactuals there, but the bottom line is it is a very different situation that we are dealing with so far as all of these actors are concerned. If it be the case that there is only one criterion that remains left for consideration - and we do know this much for certain and that is that that money was paid, the whole of it, and it was paid at a time before Judge Street’s decision at a point in time where there were both criteria that were currently against Mr Hossain and notwithstanding that both criteria were against him at that point. At the time he sought review of the Tribunal members’ decision before Judge Street, the whole of that amount had been paid off.
Now, I mentioned Professor Wigmore earlier. That is some material which necessarily and evidentially impacts upon the likelihood of the possibility of that money having been repaid in whole or alternatively the possibility of a periodic regime being instituted. We do know, and this is a certain fact, that somehow from somewhere he got the whole of that money and we also know as a certain fact that he did in fact pay it at a point in time when both criteria were against him.
KIEFEL CJ: Was he legally represented at the point when he paid?
MR REYNOLDS: That I do not know. I will have to have that checked.
KIEFEL CJ: You have two juniors; perhaps one of them could answer it for you.
MR REYNOLDS: Your Honours, at the risk of appearing overbold, I am prepared to put the submission reasonably high or at least this high, that your Honours would be comfortably satisfied as to the existence of a real possibility as to the repayment of this debt or as to the possibility of an appropriate arrangement having been entered into, bearing in mind particularly what we know did happen, namely, that the whole of it was repaid.
KIEFEL CJ: Of course, if you are talking about using your Professor Wigmore method of retrospective fact finding – if you were looking at the question of whether or not time might have been allowed by the Tribunal, it did not hand down its decision for some eight or nine days - - -
MR REYNOLDS: No.
KIEFEL CJ: - - - and payment was not made in that period.
MR REYNOLDS: No. That is a fact, but what I am saying is that there are two main possibilities. If one assumes that the decision would have been in his favour on the time criterion, one is that the Tribunal Member would have made that determination, as your Honours no doubt sometimes do, during the hearing and say, “Well, I’m satisfied” or “I’m not satisfied” on a particular point.
The other possibility, obviously, is that within that eight to nine day period there would have been satisfaction reached by the Tribunal member as to that criterion in which case there could obviously have been a relisting of the matter, in effect, to say to Mr Hossain, “Well, Mr Hossain, look, I’ve reached this point; I don’t think you have a problem with the time criterion and I want to have a look at this other criterion to see if there is any possibility that we can put in place a regime for repayment or whether or not you are able to garner those funds and whether you need time to do that and whether I need to defer my decision”.
The principle that is in part relied on, your Honour, is just the normal principle of circumstantial evidence, that is, if one is determining what the likelihood is of a particular event occurring on a particular day, then some events which occur after that date can impact on the probability or likelihood of the event occurring on the earlier day. That is the only proposition I am relying on, relevantly, which I respectfully submit is trite.
If I can move, then – and I will need to deal with this very quickly because I am running out of time very quickly – on discretion, can I just make these points. The first is that - - -
KIEFEL CJ: Are you going to say anything further, Mr Reynolds, about your point at 6(c)?
MR REYNOLDS: At 6(c)?
KIEFEL CJ: That there was an error, that:
(c) The Full Court erred in finding that Public Interest Criterion 4004 was separate and discrete - - -
MR REYNOLDS: Yes, it follows from what I have said that because there was a real possibility of the decision on one impacting on the other that they were not separate and discrete, that is, you have, at least in this case - if I can deal with discretion – I will just make a few points because I am in grave danger of running out of time already – first, we have submitted that this point not having been taken previously, the Minister should not be able to run it now in the High Court for the first time.
The second point we would make is that the Minister needs to assert House v The King error in relation to Judge Street’s exercise of discretion, and has not done so. In formulating a House v The King error, the Minister would be, in effect, putting it for the first time in oral address in a few minutes. The reason we say that House v The King error needs to be established is that, had the matter been properly pleaded by the Minister in the Full Court, the Minister would have needed to assert both that Judge Street erred in his discretion – that is, on House v The King grounds – and, secondly, that the Full Court, in the exercise of its discretion, should decline to issue relief.
In this Court, it would follow that the Minister needed to contend that the Full Court should have found that Judge Street erred in the exercise of his discretion on House v The King grounds and that the Full Court, in the re-exercise of its discretion, should have refused relief. That would be the proper structure of the argument as it ought to have been presented to the Full Court. But the notice of contention is, we submit, defective because it proceeds on an altogether different basis.
The third point that I would make about discretion is that the Minister’s argument depends on this Court holding that the Tribunal’s error
in relation to compelling reasons on the time criterion could not possibly have affected the decision to refuse the visa. For reasons that I have given earlier, there was such a real possibility.
The fourth point is that, if this Court finds that the Tribunal’s decision was vitiated by jurisdictional error and was invalid, this Court would not decline to issue relief of the kind that is sought, for a number of reasons: one, that the Tribunal had a duty to conduct a review; two, that if this Court finds jurisdictional error the Tribunal has failed to conduct a review in law; three, that the Tribunal has constructively failed to exercise its jurisdiction and has an undischarged legal duty to conduct a review; and, fourthly and finally, in those circumstances this Court would not decline to confirm that the decision of the Tribunal is and remains invalid. If the Court pleases, those are my submissions.
KIEFEL CJ: Yes, thank you. Yes, Mr Horan.
MR HORAN: May it please the Court. The questions raised by this appeal concern the consequences on judicial review where a Tribunal decision is based on or supported by two separate findings, each of which provides an alternative basis for the decision, only one of which is affected by error. Now, I assume couching that question for present purposes that the findings are properly regarded as separate or separate and discrete, and that is a matter of controversy on the appeal and will need to be addressed.
But the Minister submits that the question is where there are two or more adverse findings, each of which could have independently supported the decision in this case to affirm a refusal to grant a visa and the decision-maker makes an error of law affecting one of those findings, the question is what effect does that have on the power or authority to make the decision that the Tribunal made which was to affirm the refusal to grant the visa and, alternatively, is it relevant to whether relief should be granted or refused on discretionary grounds, for example, because the applicant cannot overcome each of the adverse findings or bases for the decision and to adopt what this Court said in SZBYR in those circumstances can it be said that no useful result would flow from the grant of relief.
Now, those questions do not arise in the abstract, they have to be answered in the specific statutory context and the specific factual context of this case. The statutory context is of the Tribunal exercising its powers on a review of a decision whether to grant or refuse a visa under section 65 of the Act and the factual context is that the two findings in question in relation to the first are the compelling reasons requirement in clause 820.211.
It is conceded – and has been conceded throughout these proceedings that the Tribunal erred in law in finding that the appellant did not satisfy that criterion and it was not conceded at any stage by the Minister that that necessarily amounted to jurisdictional error but it has always been conceded that there was a misconstruction or misapplication of that requirement.
Conversely, it is also common ground that the Tribunal found without any error that the appellant did not satisfy clause 820.223 in conjunction with PIC 4004 at the time of its decision. It should also be noted just when looking at the specific factual context, although this might not have much bearing upon the issues in the appeal, but it is not the case that these two alternative criteria were the only things standing between the application for a visa and the grant of the visa on satisfaction of all of the prescribed criteria.
There were other substantive criteria that also needed to be satisfied about the spouse relationship, other time of decision criteria which were not addressed by the Tribunal, and the Court will see that at paragraph 19 of the Tribunal’s reasons at appeal book 5 that the - - -
GAGELER J: Why does this matter?
MR HORAN: It does not. It is just that when it comes to the counterfactuals that my learned friend was putting it was not ever a question that the appellant would have been able to pay the debt. If he could achieve a different outcome on the compelling reasons criterion, then he would have been able to obtain the visa by discharging the debt.
NETTLE J: Could have been. For all one knows, he could have satisfied all the other criteria.
MR HORAN: He may have, but it would remain then for the Tribunal to address those. That is the only point I am making.
GAGELER J: It is a point that goes nowhere, is it?
MR HORAN: I introduced the point by saying it may have little or no bearing on any of the questions that I have outlined.
GAGELER J: Is it little or no bearing?
MR HORAN: I will accept that it is no bearing and move on.
GAGELER J: Thank you.
MR HORAN: The other point in answer to your Honour Chief Justice Kiefel’s question about representation if it becomes relevant, and we would say again this is of little or no relevance, is that it appears the appellant was legally represented at the date the debt was paid and that can be seen from appeal book 11, which is the application filed in the Federal Circuit Court, in which the appellant was represented by Parish Patience Immigration. So he was represented. Whether that was legally I am not sure.
NETTLE J: What possible relevance could that have?
MR HORAN: I think again it is only on the various counterfactuals that were put, which, on the Minister’s submission, have no relevance because they - - -
KIEFEL CJ: It goes to the counterfactual of intention to pay.
MR HORAN: Yes. We say that what was known was the date of the Tribunal’s decision and the facts at that date and it is really not necessary to go beyond those two reference points when looking at the discretion.
Now, if I could address first the question of the power or authority of the Tribunal, we submit that it is necessary to focus on an identification of the limits on the powers exercised by the Tribunal. The reason for that, as the Court well know, is that the jurisdiction exercised by the Circuit Court and the Federal Court is equivalent to the jurisdiction of this Court under section 75(v) and as a result of section 474 of the Act, which validly excludes review for non-jurisdictional errors of law, it is necessary for the appellant to establish jurisdictional error.
I note in passing, in answer to your Honour Justice Gageler’s question, that the privative clause may also be relevant to the construction of all of the statutory requirements in the Act in determining whether or not a consequence of any breach of those requirements leads to invalidity, and that is the process of reconciliation of limits against the intention in the privative clause, but if a conclusion is drawn that a requirement is imperative in the sense that non-compliance leads to invalidity, then section 474 does not immunise it from judicial review.
Now, the consequence of those cases is that jurisdictional error is a conclusion that an error involves a transgression of limits on authority or power and that was established in Aala and then applied in Plaintiff S157. But most recently those propositions are expounded and applied by the majority in Graham v Minister for Immigration and Border Protection which is not in the list of authorities but it is [2017] HCA 33; (2017) 91 ALJR 890 and the discussion is at paragraphs [38] to [48] which emphasises that the jurisdiction under section 75(v) is concerned with the enforcement of the legal limits of the decision-making power conferred by the Parliament in the sense of the legislatively imposed conditions of and constraints on the lawful exercise of powers.
So when one turns to the present case, the relevant statutory power which was the subject of review by the Tribunal was the power conferred by section 65 of the Act. Now, that is not to ignore the fact that the Tribunal was not itself directly exercising that power, was exercising powers conferred by section 349 to review the decision and exercise powers on that review.
But insofar as the power – the decision subject to the review was made under section 75 – section 65 of the Act, that is not a discretionary power, it is a binary power which is conditioned on two mutually exclusive circumstances. On the one hand, satisfaction of all of the prescribed visa criteria in which case the decision-maker must grant and, if not satisfied of any prescribed criterion, then the decision-maker must refuse, and that binary distinction between mutually exclusive states of affairs was picked up by the Court in S297 at paragraph 34 which is at [2014] HCA 24; 255 CLR 179.
Now, we say when one then applies that to a situation such as the present case it may be accepted, as was accepted in SZMDS by each of the Judges, that satisfaction of the Minister of each of the prescribed criteria is a condition precedent to the obligation to grant or to refuse a visa.
So it is each of those states of satisfaction is a jurisdictional fact, but it essentially works in a two-sided fashion, that there is a jurisdictional fact for any grant but there is also a jurisdictional fact for refusal. So that if the Tribunal is not satisfied of any prescribed criteria for the purposes of section 65(1)(a)(ii) and that finding of non-satisfaction is not affected or infected by any jurisdictional error, then the jurisdictional fact required for the grant of a visa under section 65(1)(a) is not established.
Rather, the Minister submits, and in those circumstances the Tribunal is obliged by section 65(1)(b) to refuse or, in this case, to affirm the refusal of the visa and Justices Crennan and Bell in their judgment in SZMDS at paragraph 120 encompassed this with the concept that it is a jurisdictional error to entertain a matter in the absence of a jurisdictional fact. So, in other words, to grant the visa in the absence of satisfaction of any of the prescribed criterion, or more accurately in this case in the face of a finding of non-satisfaction which is not affected by error, will itself be beyond jurisdiction.
So, in those circumstances, the Minister – the essence of the Minister’s submission in the courts below and here is that the Tribunal had no alternative option - that being the case here but to affirm the refusal - and in those circumstances cannot be said that the Tribunal lacked authority to make the decision that it made when in fact it was the only decision that was open on the factual findings that it correctly made at the date of its decision. When I say correctly, lawfully and without error.
EDELMAN J: That is just another way of putting the materiality point about whether the result would have been any different, is it not?
MR HORAN: It is very similar.
EDELMAN J: Does it not still beg the question as to whether there could be exceptions where a jurisdictional error will nevertheless exist or that an error might be sufficiently material, even if the result would not be any different? This case may not be the right vehicle to explore that, but, as I understand it, your submission is that that possible extreme circumstance cannot exist.
MR HORAN: In this circumstance it cannot because, in some senses, no matter how egregious the jurisdictional error is in relation to criterion A, if it only affects that criterion and can properly be said not to affect the alternative finding, then in fact it would not be material to the decision. But in the particular statutory context here, the Tribunal would be obliged under the Act to affirm the refusal. It may be that this particular case, which has the binary grant or refuse power, is in a different position to many other exercises of power.
But we say that the critical issue does therefore become whether the finding in relation to the outstanding debts and appropriate arrangements was in fact properly regarded as separate and discrete from the other findings, because if it was itself affected by, or perhaps infected by, the other error, then the Minister’s submissions would probably need to be rejected. In a sense, that is the critical issue for determining whether or not that fundamental error that was made in relation to the compelling reasons requirement was something which took away the authority of the Tribunal to make the decision that it did, based upon a different and alternative criterion.
NETTLE J: You do not accept that it would be enough to show that it could have affected the way in which it approached the answer to the other question?
MR HORAN: That is the way in which it is put, but in one sense, as I said earlier, we know the date of the Tribunal’s decision and we know the facts of that date, and we know that at that date there was an outstanding debt and there were no arrangements to repay.
NETTLE J: All of that is just to come to the point, which is really Mr Reynolds’s submission that if the Tribunal had come properly to the view that the time criterion had been satisfied, it might have said, “Now listen, Mr Hossain, you are right to go on everything but the money. We give you 20 days, or can you enter into the following arrangement?”
MR HORAN: It might have said that, but we say that that is not legally relevant to the question of jurisdiction, at least. Whether or not it is relevant to discretion might be a different matter.
NETTLE J: But would it not mean at least possibly that it could have come to a different conclusion as to what you describe as a jurisdictional fact; namely, the satisfaction of the debt criterion?
MR HORAN: That would be to accept that in fact there was an interrelationship between its approach and its conclusion on each - - -
NETTLE J: Or just could have been is enough, surely.
MR HORAN: If the test here is based on speculative counterfactuals of what the Tribunal could have done, it certainly cannot be said that it could not have done any of those things.
EDELMAN J: Your submission then effectively is that the question about whether the result could have been different is a question about whether the result could have been different on the facts that actually occurred.
MR HORAN: Yes, and also - - -
NETTLE J: Even though those facts were informed to some degree, at least conceivably, by an error as to the time criteria.
MR HORAN: We say they were not because - it is perhaps useful to look at the dissenting judgment of Justice Mortimer and the reasons for her Honour’s conclusion that – which was in the alternative, but that the findings were not entirely independent of each other and that is at paragraphs 76 to 77 at appeal book 232 to 233, and essentially to paraphrase the two reasons that are advanced there which, to some extent, have been canvassed in my learned friend’s submission, one was that appropriate arrangements involved in evaluative or discretionary assessment, so that might have been differently exercised if the Tribunal had been in a situation where hypothetically it reached a different conclusion on the time of application – the timing of the application and the compelling reasons.
The second reason was that the Tribunal had control over the timing of its decision and could have waited in order to give the appellant a further opportunity to pay the debt or make arrangements for repayment or perhaps could have raised it further with him. As to the first of those, as I have said before, it was a fact that there was a debt at the time of the decision and that there were no arrangements made at all or had been no arrangements made for repayment and that was the appellant’s evidence to the Tribunal. That situation had prevailed for the better part of 10 years since the debt arose. Now, in those circumstances, at the time of the Tribunal’s decision because no arrangements had been put, the question of whether any arrangements might have been appropriate did not arise.
As to the second, whether the timing of the decision could have been deferred or the Tribunal could have taken any other steps to solicit further information about arrangements for repayment, it should be noted that the appellant had not requested any adjournment in order to make arrangements for repayment and that is in contrast to a specific request that he was given in relation to further time to put on medical evidence – further medical evidence which is referred to at appeal book 7. The second point is that the appellant has not ever raised any allegation of error in relation to the finding in relation to outstanding debts and that includes any argument that the Tribunal, for example, acted unreasonably in a legal sense or denied procedural fairness by failing to defer its decision.
So, one can imagine the clearest case would be a request for adjournment which was refused which would then be dealt with squarely within the Li line of authority about whether that refusal to adjourn to give further time to pay was a jurisdictional error or it could be that circumstances were so clear that the Tribunal really should have itself initiated some consideration of the exercise of that power.
But firstly, it has never been contended that the Tribunal was under any obligation to do so and even Justice Mortimer in her dissenting view accepted that the Tribunal’s approach in making its decision some nine days after the hearing without reverting to the appellant was quite reasonable in the circumstances.
GAGELER J: Mr Horan, can I just seek to understand your primary position? You have two criteria, A and B. There is a conceded error in failing to be satisfied as to criterion A and the question is, what is the effect of having not been satisfied as to criterion B. Do you say that the error in respect of criterion A needs to lead as a matter of law to error in relation to criterion B for there to be a material error giving rise to jurisdictional error or do you say that it is enough that the error in relation to criterion A, if not made, may have had a different result in relation to criterion B? You seem to be slipping between the two.
MR HORAN: No, I think I say the latter, but when looking at effect on power and authority it is “would have had”, I would say. It is not the Stead test of, could that finding have been any different. The question is whether there was, in effect, an interrelationship, whether the findings were not in fact independent, so that the problem has arisen in other cases where there is an error of procedural fairness or misapplication of asking the wrong question in relation to a finding of persecution or serious harm.
But there is a separate finding that there is no Convention nexus in any event. Now, in some cases of course, that might enter into the territory of discretion to refuse relief but it could also, as I think in WZAPN, go to whether or not there was in fact a denial of procedural fairness leading to jurisdictional error.
That question really has to be one of, did the relevant error, whether it be a misconstruction, wrong question or a breach of procedural fairness leading to the impugned finding somehow have an effect on the other finding or was the other finding totally separate and discrete. Now, if it was separate and discrete in the sense that it was not affected and would have been made in any event, then we say that in terms of the powers and authority of the Tribunal to make the decision, it does not deprive the Tribunal of the authority or power to decide the case on the alternative point.
Now, I think in answer to your Honour’s question that does not go so far as to say that one needs to establish reviewable error in relation to each of the alternative findings. By all means, an applicant can do that and often does confront it with two or three separate findings that were adverse, might launch separate challenges in relation to each of them and that is one way of approaching it, but I do not say that is necessary.
It would be enough if the error in relation to one had some consequential impact on the other finding or findings and it might be a case, as your Honour Justice Edelman raised, where effectively the denial of procedural fairness affected the entire case and in that case the findings would not be separate and discrete so that even though the procedural fairness was in relation to one aspect of the case, you could not rely upon a finding that was really connected to the unlawful finding.
GAGELER J: I have a follow-up question. If the true test is Stead, do you have a fallback argument based on that test?
MR HORAN: Well, our argument in relation to that test is that the – and I will come shortly to whether there is any utility in backward-looking or forward-looking approaches, but we would say that applying Stead, as it has been applied in judicial review contexts, that because of the separate and discrete finding on 820.223 the decision could not have been any different. It was the decision that the Tribunal was legally required to make and at the time of its decision there was no possibility of a different outcome.
One can test that in a way and, again, the facts of this case might not be an ideal test for this, but if the Tribunal had just determined the case on the outstanding debts criterion – and it is hard to imagine it would ever perhaps do that and had not considered the compelling reasons criterion at all – then at least you could challenge that finding for some error. Then the decision would be a valid one within authority and power.
So the fact that it is also separately made an unlawful finding in relation to a different criterion, again, on the premise that the findings are separate, the result could not have been any different and the - - -
NETTLE J: But in the example you give, there could be no possibility of the error affecting the sole decision that was made, by contrast to here where it is conceded properly to be a possibility, at least theoretically, of the error, one, affecting the way in which the approach was made to the other criterion.
MR HORAN: Well, we concede that there are a range of hypothetical things which the Tribunal could have done, but that it did not do any of those. It made its decision so that at the time of its decision that criterion was not satisfied.
KIEFEL CJ: Well, the other fixture in all of this, of course, is the evidence before it.
MR HORAN: Yes.
KIEFEL CJ: So its findings are limited to what was put before it, regardless of what options were open to it.
MR HORAN: There may be cases in which a Tribunal could be challenged for unreasonably failing to wait or for refusing a request to wait or if there had been an arrangement put and it had said well, this is not an appropriate arrangement given, amongst other things, the lack of compelling reasons, you would have that bridge between the two findings. But here it was a fairly sterile examination of the debt question, quite separately from compelling reasons.
So we say at the time of the decision, whatever the Tribunal could have done hypothetically, what it did do was make the decision at that date and, as at that date, there was no way in which the appellant could have satisfied that criterion. Now, if the debate - - -
NETTLE J: It is not enough that, had it been otherwise advised, it might have allowed time or offered a time payment arrangement? I ask it on this basis - - -
MR HORAN: It has never been challenged that it was legally required to do that.
NETTLE J: No, I do not suggest that.
MR HORAN: That is the first proposition and secondly, insofar as it is relevant to consider the realistic possibilities, even Justice Mortimer specifically found that in the circumstances it was quite reasonable, after 10 years, to proceed.
NETTLE J: I do not suggest it is unreasonable but I just take it on this basis. The 7004 criteria is discretionary in the Avon Downs sense. It is not impossible, at least conceptually, that the exercise of discretion in relation to that criterion was informed at least to some extent by the erroneous decision that had been made in relation to the time criteria.
MR HORAN: We say it was not discretionary unless and until an arrangement was put forward.
NETTLE J: That is the point I am trying to get to.
MR HORAN: The discretionary aspect, if at all, was the timing of the Tribunal’s decision, the control over the date of its decision and the options available to the Tribunal to explore other possibilities with the appellant or put to him directly, “Why don’t you repay?” As your Honour the Chief Justice has pointed out, the Tribunal did put this directly to the appellant at the hearing and got a response which was quite clear that there had been no arrangements made and led to a finding by the Tribunal that he had no intention to repay.
I accept, as my learned friend says, that is expressed up to that date. His intention clearly subsequently changed once the matter was before the Federal Circuit Court because the debt was paid. Ultimately, it really turns on whether those possibilities are enough to deprive the Tribunal of the power or authority to rely on that alternative criterion as a basis for its decision.
GAGELER J: Is another way of putting your argument that the possibilities Mr Reynolds throws up are bare possibilities, abstract probabilities? There is no evidentiary toehold for them becoming real possibilities in anything that the Tribunal did or said in its reasons?
MR HORAN: Yes, I would accept that, your Honour.
KEANE J: Mr Horan, in the Stead line of cases, is there any case that suggests that a possible alternative with a possibly different result can be established by referring to the possibility that a different case might have been made?
MR HORAN: Certainly, yes, in the context of denial of an opportunity to be heard and in a sense that is what Stead was concerned with. It was a denial of a fair trial and other cases, including Giretti in the Federal Court, are also concerned with situations in which a hearing has not been had. So it certainly is the case there that - - -
KEANE J: Or they are cases where there has been a failure of a hearing.
MR HORAN: Yes, so what the person might say, what case they might make out if given a hearing is not relevant to whether or not there is a denial of procedural fairness of whether or not discretion should be exercised to withhold relief. But although the principle that is applied is not necessarily different, when applied to the context of other jurisdictional errors, such as asking a wrong question, it may be easier to isolate the error from some other part of the case and say that on a backward looking approach, if that terminology is appropriate, that the same result would have been reached regardless.
Justice McHugh in Aala, in the context of protection obligation findings, more or less adopts that approach of saying, well, even if a mistake had not been made, first the Tribunal would have made the same adverse findings as to credit. Second, that even if the findings as to credit had not been made it would have made the same findings as to lack of nexus. So, in a way, it would not have mattered what case would have been put in response to the denial of a hearing because that issue did not go to other discrete issues which were adverse. But in many cases of procedural fairness you will not be able to – and, in fact, in Aala itself, the majority did not accept that. That was the case in which discretion was not exercised against relief because there was – it could not be said with confidence that there was no possibility of a different outcome.
But in cases such as SZBYR and a different result has occurred and, I think, WZAPN, again, a similar situation that a breach of – I cannot remember whether it was a section 424A or a procedural fairness obligation – I think it was a misconstruction in that case of 91R in relation to serious harm which did not overcome a finding in relation to 91R(1)(a) in relation to convention nexus. So, in that case, rather than discretion, the majority said – the Court said, it was not a denial of procedural fairness at all because – so, there are various levels at which one can deal with it but in some cases the possibility of making a different case will demonstrate the effect on the decision and the materiality of the error but in other cases it will be irrelevant because regardless of what might have been said, the same decision would have been reached.
In this case, where it is not a denial of procedural fairness, it is a wrong question, it can be easier to ask, well, what would the Tribunal decision have been if it had asked the right question under compelling reasons and the Minister’s submission below and here is that it would not have made a difference to the findings on outstanding debt. Justice Mortimer dissented on the basis essentially that while it might not have made a difference to the findings, it could have led to a different course of action in the Tribunal but we say that that is not legally relevant to jurisdiction.
NETTLE J: Is that because of the bare possibilities point that Justice Gageler made?
MR HORAN: Yes, and that it – one has to start with the facts that are known in relation to the time of the Tribunal’s decision which is when the criterion applied and the evidence and findings as at that date and not speculate in this context where there has not been an error shown in that finding, it is not relevant to speculate about what could have been done differently. It is really just a question of looking at whether the error in the other finding was separate or connected – whether it was on the one hand separate or on the other hand connected to the finding on outstanding debt.
Just while I am here, could I just as a matter of housekeeping just correct – there are some references in paragraph 9 of the first respondent’s written submissions to the wrong paragraph of the majority’s judgment. For the benefit of the transcript, it is paragraph 9, lines 8 and 10, there is a reference to paragraph 27. The correct reference should be paragraph 32.
Now, turning to the notice of contention – so we say that that supports essentially the decision of the majority in determining that there was power or authority in the Tribunal to make the decision it did based on the outstanding debt criterion, notwithstanding the error in relation to the other criterion.
The notice of contention raises two alternative arguments. The first is that it was wrong in those circumstances for the majority to characterise the error in relation to the compelling reasons criterion as jurisdictional error at all, at least in relation to the Tribunal’s ultimate decision on the review. It may be that one can rationalise their Honours’ approach. I think it is at paragraphs - I will perhaps return to the relevant - - -
GAGELER J: This is a quibble about assigning the label “jurisdictional error” to “non-material error of law”, is it not?
MR HORAN: It is in a way. Can one say that a finding in relation to one particular criterion is affected by jurisdictional error in circumstances where their Honours conclude that it did not have an effect on an alternative basis which supported the Tribunal’s ultimate decision? In a sense, it would be a quibble and perhaps, if it meant only that the Tribunal did not lawfully form its state of satisfaction in relation to the first criterion so that that particular finding was beyond its authority or power, then really that would not be objectionable, but it would not say anything about the jurisdictional authority or power to make the decision the subject of these proceedings which is made – in other words, the decision to affirm the refusal, which is the decision in relation to which the appellant seeks relief in these proceedings.
In essence, without perhaps spending too long, because the points overlap to a large degree and the submissions I have made earlier about the fact that the findings were separate and that the Tribunal had authority to consider alternative findings as separate bases for its decision, the only point here is really whether or not it is correct to call the conceded error as jurisdictional in circumstances where there is still authority to make the decision.
This might become more relevant in the other matters to be heard today but it was accepted in Kirk that there is no rigid taxonomy of jurisdictional errors. The analysis and the list given in cases such as Craig and Yusuf is not exhaustive but we say that both Craig and Yusuf contemplate that a decision-maker will accede authority or powers if there are three things: one, an error of law; two, the error of law causes one of several things to occur, asking a wrong issue or addressing a wrong question, ignoring relevant material, relying on irrelevant material, are some examples; and then, thirdly, the Tribunal’s exercise of power is thereby affected.
So we say that there is contemplated in those formulations, the formulation in Yusuf is largely the same, although it perhaps inverted the first two so that perhaps the error of law flowed from the wrong question rather than the other way around, but the consistent between those two cases is the requirement for an effect on the exercise of power.
Of course, that requirement, to use a shorthand of materiality, is reflected in the substantive principles for many grounds of judicial review that an error must be material and not merely inconsequential. The case that my learned friend took the Court to this morning of Wei is, we say, supportive of that distinction in the context of breach of statutory requirements because the two questions that were involved in the formulation that the Court made at paragraph 23:
Jurisdictional error . . . consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act.
The first was that the relevant statutory provision would have to be construed as a condition on the valid exercise of power which would result in it having the label of an imperative duty but the second is that it would be a material breach of that imperative duty.
So that in circumstances where there was an error but it was inconsequential to the outcome, we say there is scope for holding that jurisdiction is not exceeded in those circumstances.
EDELMAN J: Except that criterion is not quite the same as the Stead criterion, is it?
MR HORAN: No, your Honour.
EDELMAN J: One could have, for example, an exercise of power that is affected in a way which caused a fundamental departure from the presuppositions of a fair trial and still reach the conclusion that the power had been thereby affected, even if the court were satisfied that the result might not be any different.
MR HORAN: Generally, Stead is, for reasons my learned friend has outlined, needs to be taken in context because it was dealing with appellate jurisdiction. Generally speaking, in judicial review, a court will not be able to form a review that the result would not have been different on the merits so that, generally, if there is a fundamental denial of a fair trial it probably would lead to a conclusion that it affected the decision and the result could have been different.
The requirement for materiality is more concerned with, for example, in the context of relevant considerations in Peko-Wallsend, whether the consideration, although mandatory, was so insignificant as to not be material to the decision. In the context of Project Blue Sky or SZIZO, it looks at whether the legislative purpose of the Parliament was that a non-compliance of that provision would lead to invalidity, including having regard to the extent and circumstances of the non-compliance.
EDELMAN J: The point is that your primary submission is that materiality is not coextensive with – would have led to a different result?
MR HORAN: That is correct, and I think that was the way in which my learned friend used the term. At the start of his submissions he used the term to mean that there was the possibility of a different outcome and we do not use it in that way. But there certainly is scope in the substantive principles for many grounds of review to conclude that the ground is not made out – the ground of jurisdictional error – on the basis of the error being immaterial to the decision, and whether or not the formulations in Craig and Yusuf were simply reflecting that or were adding it as a separate requirement is probably too large a question for any of the appeals being heard today. But it has certainly been accepted in the Federal Court that effect on the exercise of power is one factor, if not necessary, in order to demonstrate that the exercise of power has exceeded the authority conferred on the decision-maker.
And the two decisions which we rely on are VCAD, Justice Gray, at paragraphs 22 to 23, and SZMCD, in the judgment of Justices Tracey and Foster, at paragraphs 120 to 122. And we say that those cases, cases like that, cannot be distinguished on the basis that they were dealing with one single criterion, which is the basis on which Justice Mortimer sought to reconcile those cases and distinguish them from the present.
There is a decision in the list of authorities of Lesianawai, a decision of Justices Buchanan, Perry and Gleeson in the Federal Court. And at paragraph 60 of that decision Justice Buchanan, after referring to Craig and Yusuf, says that, or took it to be established therefore that:
in order to find jurisdictional error it is necessary to find not only an error of understanding or approach, but also a discernable effect on the exercise of power -
which points to a conclusion that the decision was made without authority because there had been a jurisdictional error. And it comes back to the point I commenced with, that the jurisdiction conferred by section 75(v), particularly in the light of section 474, is concerned with enforcing limits on authority or power to make a valid decision.
Finally, the second limb of the notice of contention is to re-enliven in this Court the discretion to refuse relief, which was a point taken at first instance before Judge Street but was not argued before the Full Court. The first point is that there is no reason not to permit the Minister to rely on this contention before this Court, firstly, because it is closely related to the arguments about the effect of the error on the Tribunal’s authority and powers and is really another way of putting almost the same point.
Also noting that in SZBYR, which was a case in which, although perhaps obiter, the discretion to refuse relief was addressed at paragraph 29. It is noted in the Court’s judgment in that case, at paragraph 27, that the point was raised by the Minister for the first time in that court by notice of contention and was not raised at all in the courts below. We say this case is stronger because the point was directly raised at first instance and so the considerations that might otherwise arise in cases such as Coulton v Holcombe and Water Board v Moustakas apply with far less force.
Turning briefly to the principles applicable in relation to the discretion; in short terms we adopt the approach of Justice Lindgren in Giretti at pages 165 to 166 where his Honour concluded that it was permissible to apply either a backward-looking or a forward-looking test depending on the circumstances, and there really may be different ways in which it can be said that there is no useful result in the grant of relief, or that a decision either could not have been any different or would not be any different on remittal.
Now, of course, that can arise because, as in this case, the finding – the decision was based upon multiple findings, only one of which is impugned, or as in many of the cases involving protection obligation criterion, it was based upon a finding which itself had many strands, one of which was affected by error. But in circumstances where looking backwards it can be said that whatever the error was, it did not knock out all of the bases for decision and it can then be said with the necessary confidence that the result would have been the same and that the appellant was not deprived of the possibility of a different outcome.
A forward-looking approach - that is not to deny that that might not be appropriate in other cases, for example, if the cases that are mentioned are that if the error relates to a point of law which the appellate court or the judicial review court can decide is clearly adverse in any event, and there is no factual merits or residual discretion, then that might be a case where even though the decision-maker got it wrong, that the application would be bound to fail on a legal point in any event, or it could be a supervening factual circumstance like a criterion that requires a person to be below a certain age at the time of decision when the uncontroverted evidence is that the appellant no longer satisfies that criterion.
So those might be cases in which relief is refused because remittal serves no purpose as a result of what would be the decision on remittal, but that is not to deny that there can be cases where it can also be said that the decision would not have been any different and applying Stead there was no possibility of a different outcome, accepting that that has to be done with caution and a finding - a conclusion reached with confidence.
The point that was raised by Justice Lindgren – if I could just take your Honours briefly to that, in Giretti, the relevant passage is at – the reference is [1996] FCA 807; (1996) 70 FCR 151 and at pages 165 to 166, after discussing the question on which there were different views between his Honour Justice Lindgren and Justice Merkel about whether Stead in fact was talking about a backward-looking test, could have made no possible difference or a forward-looking test, his Honour says at just below point D:
No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result –
Then skipping down to the last two sentences:
At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been.
Now, that point about the windfall gain, if you like, of establishing error in relation to one finding and bringing down the whole decision including any separate or independent findings, that was addressed by Justice Merkel who looked at this issue at pages 175 to 179. Relevantly, if I could just refer the Court without reading through it to the discussion toward the end of that analysis, his Honour prefers the forward-looking test but notes at paragraph E on page 179 that:
There is attraction in the argument that a backward-looking test ensures that a person who has been denied procedural fairness is not placed in any better position than that person would have been in if procedural fairness had not been denied.
Then his Honour gives a range of reasons in rebuttal to that proposition, most of which are concerned with the denial of a right to a fair hearing. So that it does not necessarily gainsay the situation where there is a jurisdictional error established on the basis of a wrong question or a misconstruction of a legal point where it only affects part of the decision and not an independent basis.
The final case we rely on, which I will just, in view of the time, refer the Court to, is Kabir [2010] FCA 1164; (2010) 118 ALD 513, which is a decision of Justice Siopsis. The relevant paragraphs are at paragraphs [52] to [53] and his Honour there, when dealing with misconstruction of visa criteria concludes that even on the correct construction the Tribunal would have been obliged to refuse the visa in any event so, in those circumstances, relief did not flow. I have referred to Aala and I will not go back to that decision, other than to say, it stands for the established proposition that there is a discretion to refuse, even in cases where a body has acted in want of or in excess of jurisdiction and refers to some of the circumstances in which the discretion may be exercised, including by reference to Ozone Theatres.
The most relevant discussion is in the judgment of Justices Gaudron and Gummow at paragraphs 52 and following, through to 59, but also contrasting in that case Justice McHugh who reached a different outcome on the exercise of discretion and concluded that there was no effect on the Tribunal’s decision and at paragraph 104 his Honour noted that:
Not every breach of the rules of natural justice affects the making of a decision.
For example:
the decision may have turned on an issue different from that which gave rise to the breach of natural justice.
But his Honour notes that one needs to be confident that the decision would have been no different. In WZAPN [2015] HCA 22; (2015) 254 CLR 610, which I have mentioned, the Court at paragraph 78 to 79, pages 637 to 638, refers in passing to SZBYR and concludes that there was no denial of procedural fairness in that case. So, in a sense it is not dealt with as a discretionary matter there but is one going one going to the existence of error.
So, for those reasons, we say applying those cases to the present, essentially for precisely the same reasons that I have traversed in relation to the first two contentions, the question of whether the Tribunal had authority or power, whether the error was properly regarded as jurisdictional, we say all of those things, if those two submissions are not accepted, for the same reasons essentially, one, this is a case where looking backwards, it can be said with confidence that the Tribunal was required to reach the decision it reached and that even if it had applied a correct construction of the compelling reasons criterion, it would have reached the same result and so the appellant was not deprived of the possibility of a successful outcome. For those reasons, we say if there was an error and it was - or if the error was jurisdictional, then the Court should nonetheless refuse to grant relief in the present circumstances. If your Honours please.
KIEFEL CJ: Yes, Mr Reynolds.
MR REYNOLDS: I have no reply, your Honours.
KIEFEL CJ: The Court will adjourn to 2.15 and continue the - - -
MR REYNOLDS: Would your Honour excuse counsel for Mr Hossain from further attendance today?
KIEFEL CJ: All counsel?
MR REYNOLDS: For Mr Hossain.
KIEFEL CJ: Yes, but all counsel? Are you asking for yourself to be excused?
MR REYNOLDS: Mr Hume, Mr Zipser and myself.
KIEFEL CJ: As long as it is appreciated that you take your chances if something occurs. In that case, the Court reserves its decision in this matter and adjourns to 2.15.
AT 12.34 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
KIEFEL CJ: Yes, Ms Costello.
MS COSTELLO: Your Honours, the context of the Tribunal’s decision in these three appeals is a student visa cancellation. The appellants were granted student visas based on their enrolments in a particular type of course, both a Bachelor course and a Diploma with particular kinds of education providers giving them access to a fast-track student visa process.
After arriving in Australia, at the end of their first semester, having not passed the course, they each ceased enrolment in the Diploma course but remained enrolled in a Bachelor course for some time. The appellants also enrolled in other courses but they were not the fast-track kind. So, that is the context of this case.
The appellants submit that the Tribunal’s decisions were affected by jurisdictional error because the Tribunal asked the wrong question. Simply, as I have said in paragraph 3 of our outline of oral argument, the Tribunal asked whether the discretion to cancel the visa arose because the appellants ceased to meet the definition and ceased to satisfy the definition of eligible higher degree student rather than whether a circumstance that had permitted the grant of the visa no longer existed. There is - - -
NETTLE J: It sounds like a rose by any other name, Ms Costello.
MS COSTELLO: If it walks like a duck and talks like a duck it is a jurisdictional error, your Honour, in our submission. It is a mistake of the power that was central to the exercise of jurisdiction in this case. It is a classic jurisdictional error to mistake a question of law, and that is what this Tribunal did. It is a jurisdictional error in fitting with the nature of the court’s supervisory jurisdiction to quash decisions made beyond the limits of the decision-maker’s power.
In our submission there is an implied statutory requirement that the Tribunal can validly exercise its review and cancellation powers only on a correct understanding of the law applicable to the decision to be made. That was a recent observation made by Justice Gageler in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd & Anor [2018] HCA 4, at paragraph 75.
In our submission the Tribunal did not have jurisdiction to ask the wrong question, and that proposition is uncontroversial in the well-known case of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at paragraph 35. The error is a jurisdictional error based on an orthodox application of Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at pages 177 and 178, and as set out in our written reply.
If it is necessary to look at whether the error is material - and that is often a word used in context of identifying a jurisdictional error, then the error here was material and I will go to some aspects of the facts that show that. Materiality in relation to jurisdictional error in our submission is not just about whether the error made a difference to the outcome. It can be material in the sense of showing a failure to exercise the power – the only power that it was authorised to exercise.
Here, we say the error was jurisdictional because it was a misconstruction of essential provision unlike the Hossain appeal that your Honours have heard this morning. This was not a case with two alternative bases and one arguably unaffected by the error and one was agreed by both sides to be affected by the error.
The error was inextricable from the eventual exercise of discretion because when the Tribunal came to evaluate the nature of the change of circumstances it did so on a wrong basis. So the Tribunal saw the enlivenment of its discretion through the wrong lens. Now, it may not be possible to show how that error made a difference in the exercise of the discretion and the reason for that is because it was a discretionary one with an unpredictable sequence of decision-making.
But if your Honours look at the Tribunal’s reasons, and they are substantially the same, so I will take you to the Tribunal’s reasons in relation to Mr Shrestha which starts at appeal book 15, you can see the way that the error arose under the heading, “Does the ground for cancellation exist?” on appeal book page 21.
GAGELER J: Did you want us to look at a particular passage?
MS COSTELLO: Yes, I do, your Honours, I am sorry. What the reasoning shows on page 22 is that the Tribunal concluded in the ultimate three paragraphs of its consideration of “Does the ground for cancellation exist?” that the appellant did not provide - at 50 – the appellant:
did not provide any evidence to show that he currently meets the definition of an eligible higher degree student.
So it is looking at that time at continuing eligibility and preceding that, at paragraph 46 on page 21, the Tribunal considered that the applicant had “ceased to be enrolled in the Diploma of Computing” and therefore ceased to satisfy the definition of an “eligible higher degree student”.
Now, at paragraph 50, I have taken you to, the Tribunal looked at current eligibility rather than current factual circumstances and at paragraph 51 the Tribunal used the word “Accordingly” and found that the appellant was:
not an eligible higher degree student -
and then used the conclusory language:
therefore does not satisfy the requirements of –
the relevant clause and therefore:
a circumstance which permitted the grant of the visa no longer exists.
GAGELER J: So if the Tribunal had said nothing more than that the applicant has ceased to be enrolled in the Diploma of Computing at MIBT, that would be enough, I take it, on your construction, to say that a ground for cancellation existed.
MS COSTELLO: Your Honour, it may be that a ground for cancellation could have been found to exist on a proper application of law based on a change of factual circumstances on the facts as found but we will never know what that decision would have looked like because that is not this decision. Instead, this decision went a step further and asked the wrong question which was whether the circumstance, wrongly construed as eligibility as a higher degree student, had changed.
EDELMAN J: But even if that is right, eligibility as a higher degree student must carry with it the circumstances that are referred to and the circumstance referred to is the reasons why the eligibility ceased.
MS COSTELLO: A finding, your Honour, at the beginning of the process for visa grant – a factual finding permitting the grant may have been enrolment in a particular course and that was a fact relevant to the visa grant but the question that the Tribunal should have asked was does that fact continue or has it changed, not does eligibility continue. Whilst the Tribunal could have made a lawful decision, exercising the power it had been given to review this decision in accordance with law, by considering that factual change, that is not what this Tribunal did.
EDELMAN J: The only difference could be one which presumably could have worked in favour of the applicant, for example, if the change were one, say, from a master’s degree to a bachelor’s degree so that the eligible – the definition of an “eligible higher degree” would still have been met but the circumstances would have changed.
MS COSTELLO: I am not sure that I follow the question, I do apologise, your Honour.
EDELMAN J: The degree - suppose the circumstances changed so that there had been a change in the enrolled degree, say, from a bachelor’s degree to a master’s degree but still a degree which met the conditions of eligible higher degree, your submission, as I understand it, is that the test that is being applied is at that higher level of asking whether the eligible higher degree is met, not at the lower level of asking whether the particular circumstances have changed.
MS COSTELLO: Yes, your Honour, so in fact, a student could continue to meet the definition of “eligible higher degree student” and yet the circumstances to enliven the discretion may arise through a factual circumstance change.
GAGELER J: Well, for example, the student could complete the Diploma course.
MS COSTELLO: Yes, your Honour.
GAGELER J: You would say simply by completing the diploma course, passing every subject, circumstances have changed and the student could be kicked out in the exercise of this power to cancel. It is the logical consequence of your argument.
MS COSTELLO: Yes, but perhaps that is why Parliament rested here upon a discretion and so the particular section of the Migration Act which is section 116(1)(a) enlivens a discretion to cancel where circumstances which permitted the grant of the visa have changed, but the fact that it is a discretion enables mercy to be applied in exercising the discretion in such circumstances as the one you have identified.
NETTLE J: Ms Costello, forgive my obtuseness, but as I understand your submission the question the Tribunal ought to have asked itself was whether the circumstance permitting the grant of the visa no longer existed?
MS COSTELLO: Yes, your Honour.
NETTLE J: That is what it should have asked itself?
MS COSTELLO: Yes, your Honour.
NETTLE J: Had it done so would it not have answered necessarily “It no longer exists because they have ceased to be enrolled in the required degree”?
MS COSTELLO: It may have, but - - -
NETTLE J: But it could have possibly been anything?
MS COSTELLO: A factual circumstance permitting the grant of the visa did change and so the answer to the question did a factual circumstance permitting the visa change, being enrolment in the course has to be yes, it did change, but the issue is that by asking the wrong question in a discretionary context the Tribunal looked at this through the wrong lens. So if it had asked the correct question, which was has the fact of enrolment changed, then the Tribunal’s attention would have been upon factual issues.
The factual issues here were that at the time of cancellation they remained enrolled in a bachelor’s degree and that, as is made clear in each decision and I have cited the particular parts at 8 of this oral outline – they are at AB 21 to 22 - it is in paragraph 2 - at AB 21, paragraph 46; AB 30 at paragraph 22 and in paragraph 46 of the Acharya decision at AB 40 - each student not only remained enrolled in a bachelor’s course at the time of cancellation each student also, while switching out of the diploma course, enrolled in a different kind of course, being a VET course or what we commonly understand to be a TAFE course.
So if the Tribunal had looked at what were the factual circumstances at the time of grant and have they changed then relevant questions in that hypothetical counterfactual would have been are they still students, are they genuine students, are they enrolled in anything? What does it matter if the kind of course they enrolled in, which enabled their visa process to happen more quickly, being enrolled in this particular kind of course enabled their application to be processed faster, but they remained students, so what does it really matter.
So if they asked the right question, which is have the facts changed, then more likely the Tribunal would take a more sensible approach to the kind of scenario that arose in the observation in the question of Justice Gageler.
KEANE J: No, the question is never so broad as that. The question which would have produced the right answer is have the circumstances which permitted the grant of the visa – do those circumstances no longer exist? The Tribunal actually answered that question at paragraph 51. They concluded:
a circumstance which permitted the grant of the visa no longer exists.
Then they considered the discretion in paragraphs 53 to 61 at pages 22 and 23. What considerations of discretion have they not referred to which they would have referred to if they had actually been looking at whether a circumstance which permitted the grant of the visa no longer exists? What consideration have they not referred to that they should have?
MS COSTELLO: Two answers in respect of your question, your Honour. First is that whilst there was a finding that they were no longer enrolled in the course, that was not the only finding and other findings that were not the right findings that were beyond power were made. Secondly, the difficulty with considering whether the decision could have been different is acute in this case where it is a discretion and where it is not – where the court is not able to say that the court can be satisfied there is no possibility of a different outcome upon looking at the discretion in view of the correctly answered question.
Now, that may be different where it is a binary paradigm, where someone is or is not over or under a certain age, for example. But here where it is a discretionary decision, it is not predictable what the cognitive process of a decision-maker is in considering whether or not to exercise that decision in – that discretion in a merciful way or not.
So the error which is looking at the question at a higher level of abstraction than was correct, looking at it on the basis of eligibility – satisfaction of eligibility for the visa infects the discretion. We may not be able precisely to say how, but it is not possible to show that it could not have changed the way the thinking occurred.
So the error, in our submission, was capable of affecting the exercise of the power and we respectfully adopt that formulation in the minority decision of Justice Mortimer in the Minister for Immigration v Hossain [2017] FCAFC 82 at paragraph 71 and also, as came up this morning, the decision of FTZK v the Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 where their Honours found that it was impossible to say that the error had not materially affected the outcome.
Before the Full Court the leading case on this was Minister for Immigration and Multicultural Affairs v Zhang [1999] FCA 84; (1999) 84 FCR 258. Before the Federal Court the Minister and appellants contended as a chorus that that was a correct decision. The Minister’s position departs from the position before the Full Court and that is addressed in our reply submissions at paragraph 14 because below the Minister and the appellants contended for an interpretation of section 116(1)(a) at the lower level of abstraction, had there been a change in the facts, whereas here the Minister’s argument before this Court is that looking at whether the appellants were satisfied the criteria – satisfied that part of the criteria being eligible higher degree students continued to exist, adopting the dissenting judgment of Justice Bromberg.
Now, that is a change in the position of the Minister before this Court and requires a departure from the case that has been the leading authority on section 116(1)(a) for many years. In Zhang, particularly at paragraph 54, the court made some observations about the constructional difficulties that would be presented by an approach to section 116(1)(a) that looks at satisfaction of the criteria rather than facts that constitute circumstances that permit the grant of a visa.
GAGELER J: This was a case where nothing changed on the ground - the Minister just changed his mind – was it not?
MS COSTELLO: Yes, your Honour, in that the facts and circumstances remain the same but the Minister was no longer satisfied that the criteria was met. Yes, your Honour.
GAGELER J: It is rather a different case.
MS COSTELLO: It is a different case. At paragraph 104 of the court’s reasons below, in the judgment of Justice Charlesworth, her Honour applies Zhang and says:
The power will be enlivened even if the visa holder satisfies (and even has continued, without interruption to satisfy) the criteria . . . notwithstanding the change in his or her original factual circumstance.
GAGELER J: You have to tell us what is wrong with Justice Bromwich’s construction, do you not?
MS COSTELLO: Justice Bromwich at paragraph 54 of his reasons takes the approach that an interpretation of section 116(1)(a) such that a circumstance can be a visa criterion, and in finding that a circumstance can be fulfilment of a visa criterion, there is, in our submission, no distinction between that and the proposition that satisfaction of the visa criterion is the thing that is said to change.
In our submission the correct interpretation is to look at what were the facts that permitted the grant at the time of the visa grant and have they changed. Justice Bromwich’s approach is to say that satisfaction of the visa criterion has changed and that can be the relevant circumstance that has changed, so it is at that higher level of abstraction.
GAGELER J: What is wrong with it? I am just trying to understand what you say is wrong with this approach. Is it a textual problem? Is it a problem in principle?
MS COSTELLO: Well, Justice Bromwich’s approach was looking at whether continuing eligibility for the criteria – looking at that question that the Tribunal had asked was correct, whereas we say that the correct question was only to look at whether a fact permitting the grant of the visa had changed and the fact permitting the grant of the visa was enrolment in the course. It was not satisfaction of the definition of “eligible higher degree student”.
EDELMAN J: Should the difference be put in this way that Justice Bromwich and the Tribunal speak in terms of whether the applicant satisfied the definition of an “eligible higher degree student” whereas your submission would be that they ought to have said – the question was whether the applicant satisfied any of the factual matters underlying the definition of an “eligible higher degree student”.
MS COSTELLO: Yes, your Honour.
EDELMAN J: But, in this case, is there any difference between the factual matters underlying the definition and the application of the definition itself?
MS COSTELLO: The difference is that looking at the factual circumstances underlying satisfaction of the visa is a different perspective than looking at eligibility for the visa and the satisfaction of that.
EDELMAN J: There might be a difference, for example, as I said to you earlier, if you switch from a master’s degree to a bachelor’s degree - there has been a change in the underlying factual circumstances but no change in the ultimate definition but there is not in this case, is there?
MS COSTELLO: In this case the eligibility for the visa did have – one way of obtaining this visa was to satisfy that definition and if they had not had one or both of those enrolments they may not have satisfied the visa. That, I cannot deny, on the facts. But because this is a discretionary decision with unpredictable cognitive processes, directing to the higher level of abstraction rather than the lower one, asked the wrong question.
While it might be hypothesised that on these facts it would not have made any difference to this Tribunal, such an analysis verges towards seeing the Tribunal’s mind as made up rather than considering what power Parliament gave to the Tribunal to exercise its review of the discretionary power according to law.
The second part of this case is the appeal of the appellants whereas to this point I have been addressing the jurisdictional error which is the subject of the Minister’s notice of contention. In our submission, the Federal Court having found that there was jurisdictional error in this case erred in refusing to grant relief.
By finding that there had been jurisdictional error but refusing to grant relief, the Full Federal Court gave continuing legal effect to a decision that was made beyond power. In our submission, that is not what Parliament intended to bestow upon the decision-maker. If a Tribunal makes a decision other than the one it has authority to make, then its duty to review the delegate’s decision and reach a correct and preferable decision is an unexercised power and, therefore, there has been no decision at all in the sense explained in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at paragraph [53], in the judgment of Justices Gaudron and Gummow and at paragraph [152] in the judgment of Justice Hayne.
As has already been the subject of addresses this morning, there can be either a forward-looking test or a backward-looking test in considering whether this could have made any difference or would make any difference. In our submission, where a decision-maker is found to have made jurisdictional error in exercising a general and unfettered discretion the correct test is forward-looking and that is because the outcome of a discretion is necessarily stochastic or not predictable. It is not capable of precise prediction.
Application of the forward-looking test in this case would mean that relief ought to have been granted because one can see how a different decision in future might be different from the one in the past because a discretion is one that is capable of being made differently even on the same facts.
If the correct test was backward-looking, then the refusal to grant relief in this case was still in error because it is not possible to conclude that the discretion would have been exercised the same way if the decision-maker had asked the right question. Reasoning that the decision would inevitably have been the same without the error, as I have said, verges towards assuming a closed mind on the part of the Tribunal and can easily descend into merits review, whereas the jurisdiction of this Court is the supervisory jurisdiction to check power is made within limits, not make the decision.
GAGELER J: Is there anything in the record that indicates that the decision might have been different?
MS COSTELLO: The decision is not a very long one and there is not very much in the part of the decision that addresses the discretion. In each case it is similar, if not exactly the same. At appeal book page 22 in relation to Mr Shrestha’s case, the Tribunal has finished setting out its reasons for finding that the ground for cancellation existed and, as we have said, that involved, in our submission, applying the wrong test. But then it goes on to consider the exercise of the discretion.
Now, in that point there is not much revealed about what the qualitative nature of the change of circumstance is other than the first sentence in paragraph 54, which says that:
The fact that the applicant was enrolled in a diploma and a bachelor degree with streamlined visa processing providers enabled him to satisfy the definition of an eligible higher degree student.
Nothing in their reasons departs from the prior reasons which indicate that the test that had been applied was to look at eligibility rather than a change in underlying facts. So there is not much else that the Tribunal reveals about what is influencing its decision. So there is not a perfect paragraph that I can point to, your Honour, in showing how it could have been different.
GAGELER J: Well, really I am asking are you just putting the in principle submission that any discretionary decision within the bounds of reasonableness, almost by definition, could go either way, therefore, materiality is made out or are you seeking to show that there is a basis for an inference that the decision made in the exercise of discretion might have been different. They are quite different things.
MS COSTELLO: The former, your Honour.
GAGELER J: All right. Well, you do not really need to say anything more do you, about the facts? It is up to you but - - -
MS COSTELLO: No, your Honour. There is nothing else, in our submission, apart from what was said in our written submissions.
KIEFEL CJ: Yes, thank you, Ms Costello. Yes, Mr Horan.
MR HORAN: If the Court pleases, as can be seen from our outline of submissions there are three relevant arguments. There is an anterior question concerning the construction and application of section 116(1)(a); there is an intermediate question as to whether any error of law should properly be characterised as jurisdictional error - that question was not addressed below by the Full Court; and then there is the ultimate question which is whether in the event that the error was made and amounted to jurisdictional error, there was an error in the exercise of the discretion to withhold relief.
I do not really need to say anything about the facts of each case other than to say that they are relevantly identical, save for one minor factual difference in the Acharya appeal which can be found at appeal book 39, paragraph 36 of the reasons and it is a potentially material difference for what I will address in relation to the application of the ground for cancellation.
There was a change in courses in relation to the appellant in Acharya between the grant of the visa and the commencement of studies so that the appellant in that case changed to a different primary and secondary course - a different bachelor course and diploma course, which enabled him to satisfy the definition of eligible higher degree student on a different factual basis but there was never any suggestion below or now that that has any material affect. It certainly was not relied upon by either the delegate or the Tribunal as giving rise to a ground for cancellation.
Now, in relation to the application of the ground and the construction of the term “circumstances which permitted the grant of a visa”, we say that that ground is directed to those circumstances which were material to the decision to grant the visa which must be identified, at least in the first instance, primarily from the terms of the requirements contained in the visa criteria.
So that in the sense that the decision to grant was permitted only if the Minister was satisfied of those prescribed criteria, so the application of the ground of cancellation contemplates an identification on the basis on which those criteria were satisfied at the time of grant and if the factual basis changes it may enliven a discretionary power to cancel.
Now, the point that was addressed by the decision in Zhang, that is different from a retrospective revisitation of the state of satisfaction that was formed at the time of grant. So if the only thing that has changed since grant is the Minister’s state of satisfaction in relation to a particular requirement, that will not give rise to or enliven the discretion to cancel and the key paragraph in – their Honours Justices French and North at paragraph 54 and his Honour Justice Merkel at paragraph 74 spoke of the relevant circumstances being the subject of the ministerial satisfaction not the satisfaction itself or, in Justice Merkel’s words:
the facts or circumstances in respect of which the Minister is to reach the requisite satisfaction . . . under s 65(1) or under any of the Regulations - - -
EDELMAN J: If that is right, though, the relevant circumstances are the subject of the Minister’s satisfaction, then the appropriate test should be whether the applicant satisfied any of the factual matters underlying the definition, should it not?
MR HORAN: Well, it can be characterised – there may be – his Honour Justice Bromwich essentially approached the matter as allowing some flexibility and characterisation so that his Honour decided at paragraph 28 below that it permitted the Tribunal to characterise that factual circumstance as being an eligible higher degree student which of course involves a range of factual requirements.
But if one of those facts changed, for example, if the person changed as the appellant in Acharya to different qualifying causes, or as Justice Gageler raised, if, since the grant the visa holder completed the secondary course and began studying the bachelor course, that would be a change in the factual circumstances on which the visa holder was granted the visa but it would have no effect at all on whether or not the visa holder remained an eligible higher degree student.
Now, that is not to say that that is suffering from the vice identified in Zhang because the subject of the ministerial satisfaction in this case was that the Minister or delegate had to be satisfied in order to apply the particular pathway that was relied upon. It only applied if the applicant was an eligible higher degree student, which is a legislative term but is nonetheless a factual circumstance. Just because it is a term of art or a defined term, does not make it any the less a circumstance that permitted the grant of the visa.
The Minister could not have granted the visa under that visa criterion unless the applicant was an eligible higher degree student as defined and satisfied each of the elements. But it is open to the Tribunal, when applying the cancellation ground, to look not just at the lowest possible level of abstraction as the appellant has it and to find any difference in the state of affairs that prevailed at the time of grant.
If there is any factual difference that was material at the time of grant but it is not material to the eligibility to hold the visa, then that would enliven the power to cancel and would be subject only to the power of mercy, as my learned friend puts it, as to whether or not delegates decided to cancel.
It would set a very wide power which would travel far beyond the intent of section 116(1)(a). So, in this case, whether or not it is the only way in which it could be looked at, it is certainly a permissible way for the Tribunal to have looked at - - -
EDELMAN J: So it is an underlying factual circumstance provided that that underlying change in factual circumstance has an effect on whether or not the person is an eligible higher degree student?
MR HORAN: Yes. So if, as here, ceasing to be enrolled in the diploma meant that each applicant was no longer an eligible higher degree student.
EDELMAN J: So what would you do though in cases of uncertainty because it is subject to the Minister’s satisfaction? So suppose the change is a change from an advanced diploma to a bachelor’s degree but it is not precisely clear whether the bachelor’s degree is one that will qualify for the Minister’s satisfaction because it might not be a fast-track bachelor’s degree.
MR HORAN: We would say that would be a change – if it was a change to something that did not qualify for the fast-track pathway.
EDELMAN J: Or might not, subject to the Minister’s satisfaction.
MR HORAN: The Minister would, in applying the power, have to determine that factual question. If applying the approach the Tribunal did, which was, in order to get a streamlined visa pathway visa and to be relieved of the onerous evidentiary requirements that would otherwise apply to demonstrating language proficiency and the like one has to satisfy this definition and that requires enrolment in certain courses or packages of courses.
Now, if there is a change of enrolment, as I think happened in several cases here, to courses at the Holmes Institute in cookery or the like which do not satisfy the requirement, that is a very material circumstance to the circumstances which permitted the grant of a visa on the streamlined visa pathway basis. But it is different if there is a change of enrolment to different courses which would also qualify within that definition. All the Tribunal was doing was saying, as the Full Court below observed in a way that was more favourable to a visa holder, “I have found that you ceased to be an eligible higher degree student when you ceased to be enrolled in the diploma”. It seems to be common ground that that would be capable of being a factual circumstance that permitted the grant of a visa that had changed.
But the Tribunal is saying, “Rather than looking at that as the relevant factual circumstance, the circumstances being identified as the consequential effect of that change on whether or not the appellant was an eligible higher degree student” – and the only relevance of that difference would be in a case where the appellant could say, “Yes, I have changed enrolment, but I am still enrolled in qualifying courses. I still meet the definition”, and therefore the Tribunal would then say, “There has not been a change in the circumstances which permitted the grant of a visa because you still qualify for that pathway”.
So the choice between, I think, subclause (1A) and subclause (2) is really the juncture that is being treated as the material circumstance by the Tribunal. Whether you go into one pathway or the other turns not on whether you are enrolled in a particular diploma at a particular institution but on whether you are, on the one hand, an eligible higher degree student or, on the other hand, not an eligible higher degree student.
In many respects, this was the most sensible, fair and purposive application of the ground of cancellation to circumstances like the present case. It gave the appellants the opportunity to demonstrate that they were still enrolled in courses which made them eligible for the visa as a way of meeting the case at the threshold point of whether there was even a discretion to cancel.
In any event, that difference is entirely hypothetical on the facts of these cases because there is no suggestion in the evidence below that there was any material distinction between ceasing to be enrolled in the relevant diplomas and ceasing to be an eligible higher degree student.
So, in that sense, if it is a distinction, it is a distinction without a difference on the facts of these cases. Notwithstanding that, our primary submission is that the approach of Justice Bromwich at paragraphs 23 to 33 was the correct one in identifying what the relevant circumstance was, and as his Honour noted at paragraph 28, but that leaves some flexibility to the delegate or the Tribunal because whether or not it required the Tribunal to take that approach, it certainly was an approach that was permitted.
The errors that were made by the other judges, Justice Bromberg and Justice Charlesworth, can be seen at paragraph – in Justice Bromberg’s judgment at paragraph 5 at court book 358 where his Honour relevantly concludes that:
satisfying the definition is [not itself] a “circumstance” -
and attempts to distinguish the constituent facts which make up the definition from the status of being an eligible higher degree student.
Now that in a sense is in tension with Zhang because both of those things are the subject of ministerial satisfaction. Both are constituent facts and the status of being an eligible higher degree student, but it is not, as his Honour says at paragraph 8 on the opposite page, an irrelevant – “entirely irrelevant and superfluous” question to look at whether or not each appellant was currently an eligible higher education – higher degree student because that was also a circumstance.
The main problem that Justice Bromberg sought to raise was the question of subsequent change to the visa criteria, like an amendment to the definition in question and we say that that was adequately answered by his Honour Justice Bromwich in noting that that would not be material – an amendment to the visa criterion would not – could not be relied upon as a change in circumstance.
So if the reason why – if the only reason why a visa holder no longer was an eligible higher degree student was because the definition had changed since grant, that would not be a change in the circumstances which permitted the grant of the visa and, moreover, as Justice Bromwich points out, in most of those cases the amendments will deal with transitional issues like the impact on existing visa holders.
It is not an inseparable obstacle to characterisation of the circumstance at a realistic level rather than atomising the facts down to the lowest common denominator so that any minor change in the facts, even though they may be facts which existed at the time of grant and were material to the findings that the criteria was satisfied, the change is not material in a sense to the ongoing eligibility of the visa holder to hold the visa.
I should just note in passing that some of the distinctions between the different possibilities were canvassed by his Honour Judge Riethmuller in the Ghimire Case at first instance at appeal book 244 where some of the alternatives were set out at paragraphs 24 to 27 and his Honour there looks at the different levels at which one might characterise the circumstance and what the consequences might be in each and, for example, noting the starting point that it is not just a change in the state of satisfaction - that is common ground, it is at paragraph 24 - but then goes on to say, well, the lowest level, which is the level for which the appellant contends is:
the facts as set out in the visa application . . . (rather like the facts and particulars pleaded in a court pleading) –
and notes that the inconvenience of that would be that even a change in courses at the same university or a transfer would potentially:
enliven the discretion –
There is then what his Honour calls a:
slightly narrower interpretation –
which is perhaps closest to the one for which the Minister contends or at least which was adopted by the Tribunal, and that is where one considers:
the circumstances of the student and determining whether they were still such as to being a student within the particular provisions upon which the student obtained the visa concerned, in this case criteria 573.223(1A) -
which only applies to an eligible higher degree student but then the third possibility is at paragraph 27 and this was actually advocated in the court below by the appellant, rather inconsistently with the ground that ultimately was successful, was in fact that the circumstances could look at whether you could satisfy any of the visa criteria. So the question would have to be, even if the person was no longer an eligible higher degree student that might not be a relevant change if they could show that they could have gotten a visa or could get a visa under the other pathway which requires submission of different evidence.
Now, that was rejected and it is not contested on appeal as being inconsistent with the evidence or the absence of evidence that they ever were capable of satisfying that pathway. So we say the correct approach - it is a question of characterisation but it is consistent with Zhang and consistent with the purpose of the provision to characterise the circumstances as whether the applicant or visa holder is currently, having been an eligible higher degree student at the time of grant, and that being a circumstance which permitted the grant of a visa under subclause (1A), has there been a change in that circumstance at the time of the cancellation decision in the sense that the person is no longer an eligible higher degree student.
In this case, that equated to the question whether they were still enrolled in the diploma and it is quite clear that the Tribunal says the status finished when - as and when that diploma enrolment ceased. The only additional question that was looked at was whether there was any evidence that since that time they had enrolled in other courses which might have qualified and we say that was a correct approach which did not involve an error of law in which case the other intermediate and ultimate questions about jurisdictional error and discretion do not strictly arise.
Going to the second intermediate question, I will perhaps not go into the detail – revisit the detail of the submission from this morning about the content of jurisdictional error but adopting that approach we say that in the present case, it being necessary to identify some discernible effect on the exercise of power, this is a case in which any mistake in relation to the characterisation of the circumstance made no difference at all to whether or not the power was enlivened and there is no basis on which to suggest it could have affected the exercise of discretion. So we say in those circumstances this is a case in which the mistake, if there was one, does not give rise to jurisdictional error.
We have drawn an analogy in our written submissions to the situation where a decision-maker mistakes the legal source of a power and having power to do an act under a particular statutory provision, for example, instead relies incorrectly upon a different provision which is not available, so there is a mistake in where the power comes from. There is clearer line of authority in those circumstances that the mistake in the source of the power, that error of law, if the conditions on each power are no different, does not result in any error or at least any jurisdictional error and that is the case of Johns v Australian Securities Commission which was applied in the Australian Education Union Case (2012) 248 CLR 1 at paragraph 34.
NETTLE J: Just so I follow this: I know this is an alternative submission premised upon the supposition, which you deny, that an error was made but what is the error that we are supposing was made for the purposes of this alternative?
MR HORAN: It was an error in treating the power to cancel as being enlivened on a change in the status of the appellant as an eligible higher degree student as a consequence of the cessation of the enrolment in the diploma rather than treating the cessation of the enrolment in the diploma itself as being sufficient to enliven the discretion. So perhaps putting that from the other end of the inquiry, the error was in going on, having found that the enrolment in the diploma had ceased, and then asking what Justice Bromberg calls the superfluous, unnecessary question of “Are the appellants currently eligible higher degree students on some presumably different factual basis?”
That was an unnecessary question to ask because it was sufficient to stop with the finding about cessation of enrolment in the diploma and then move straight to the discretion. So we say, well, it is not a case where that, even if that is assumed that that additional inquiry being one entirely favourable to a visa holder and one which was completely hypothetical on the facts and evidence of the case, had any impact at all upon the outcome of the decision because, firstly, it is an accepted fact that the appellants were not currently eligible higher degree students at the time of cancellation and it is not said that that is not relevant or would not be relevant to the exercise of the discretion.
So, in one sense, even if the lens or perspective might have broadened, it was permissibly broadened because if the Tribunal had put the heading “Exercise of discretion” three paragraphs earlier and put these findings in under the discretionary consideration it would have resulted in exactly the same analysis.
Now, returning just briefly to a question which was raised this morning about the Stead test and bare possibilities, I thought I would just very briefly for completeness because it is relevant to this case also just refer back to a subsequent paragraph in Giretti in Justice Lindgren’s judgment, which I intended to take the Court to. That directly addresses this point. The decision is Giretti v Commissioner of Taxation [1996] FCA 807; (1996) 70 FCR 151.
I took the Court earlier to the passage at page 165. At the top of page 166, his Honour went on to look at the forward-looking test on the facts of that case and said there, on those facts, that it would produce the same result. That was for the reasons that, even if the matter were remitted:
Mr Giretti would propound the same grounds of opposition and it would be a perverse exercise of discretion for the judge hearing the petition not to make a sequestration order. I do not think that the reference in Stead’s case to a “possibility” of a different result, although it imposes a test which very strongly favours the granting of relief, requires or admits of speculation or guesswork as to matters not suggested by the evidence or by the parties –
including mounting a new or different attack, which was your Honour Justice Keane’s question about changing the case that was put at first instance. Now, in some cases where their case has not been put because of the error, such as a denial of a hearing, of course the Stead test will be satisfied in the sense that there will be a possibility of a different outcome.
But when applying that test, one does not just look at any speculative bare possibility that the case might be run differently with a different outcome. To similar effect, I have handed up to your Honours an unreported, first instance decision of Justice Buchanan in SZIGH [2008] FCA 1885. I just want to take the Court to paragraph 44.
This was a case involving an alleged failure to take into account relevant material in the form of updated country information and his Honour Justice Buchanan, after referring to Craig and Yusuf, says that effectively it needs to be:
possible to say that the error has affected the exercise of power -
and then refers to the test in Stead and notes:
However, in that case the jurisdictional error, which was represented by a denial of natural justice, was clearly apparent. The question was whether a new trial would nevertheless be a futility. That is not the issue here. Here the error I have identified does not represent jurisdictional error unless it affected the exercise of power. That element is not supplied by assumption or the identification of mere possibilities. The High Court did not say in either Craig or Yusuf that there was jurisdictional error if the exercise of power might have been affected but is thereby affected (Craig) or in a way that affects it (Yusuf).
We would adopt the thrust of those observations insofar as it is necessary to look at the effect of an error on the exercise of power. One has to take account of the facts and the evidence at the time of the original decision and it is not sufficient to come up with speculative possibilities about the way in which the case might have turned if things were run differently.
In this case, there was never any evidence put that, for example, the appellants did satisfy the definition of “eligible higher degree student” on a different basis, apart from the arguments that were run in the courts below directed to that end, which were rejected and from which no appeal is made. So for those reasons, we say any error, if there was one, does not rise to the level of jurisdictional error and is at most a non-jurisdictional error of law, which is protected from review by section 474 of the Act.
The final and ultimate question, which is the question on which the decision of the Full Court below rested, is the discretion to refuse relief. Again I have touched upon most of those submissions in relation to the principles in the appeal heard this morning. The relevant passages in the Full Court, Justice Bromberg deals with this point at paragraphs 12 to 17, Justice Bromwich at paragraphs 41 to 48 and Justice Charlesworth at paragraph 126.
Each of them came to the clear and confident conclusion that the error which was characterised as jurisdictional would not have affected the decision. They essentially treated that error being one going to the construction of the ground for cancellation as asking the wrong question which would be necessarily demonstrative of jurisdictional error under Craig without appreciating or addressing any question about the materiality or effect of that error on the decision.
Similar considerations were essentially deployed in each judgment in relation to the discretion to refuse relief. We say that there is no error in the way in which all of the Judges exercised that discretion, having appreciated that the test required a confident conclusion and for it to be crystal clear that the result could not have been any different and that there was no possibility of a different outcome. As I have submitted earlier, there are authorities which support the availability of the discretion to refuse relief on that basis, notwithstanding what might happen on remittal, in a forward-looking sense, if the decision could not have been any different, then that is an appropriate basis on which the discretion may be exercised.
It is similar in some respects to the approach that was adopted by the Court in SZBYR [2007] HCA 26; (2007) 81 ALJR 1190, at paragraph [29], where their Honours talk about that situation where there was a confidence that the error would not have affected the finding as leading to a position where the grant of relief would serve no useful purpose. In some respects that must mean on the assumption that the findings of fact that were not challenged or impugned would remain the same because, in most cases, there would always be an argument that there would be some useful purpose in remittal if the appellant could reopen points that were lost the first time around and obtain different findings.
In this case we say that it is analogous to cases such as SZBYR, where the grant of relief would serve no useful purpose because the plaintiff or appellant is confronted by findings which would be fatal in any event, which in this case was the finding that the enrolment had ceased – so that it is undisputed by the appellants that there had been a change in circumstances since the grant of the visa, being circumstances that permitted that grant. So, in a sense, there is no dispute that the discretion on the Tribunal’s finding was properly enlivened. The only question is: on what basis? We say that the identification of the basis, at least on the facts of this case, could not have made any difference to the outcome.
The only thing to say in relation to other considerations about how clear that conclusion is is that, to the extent that there was any erroneous approach to the question of power, it was one that was more favourable to the appellants because it imposed a higher or more onerous standard before the power to cancel was engaged. That was a factor mentioned by Justice Charlesworth at paragraph 123. Ultimately, there is no suggestion that each appellant was given a full opportunity to be heard both as to the existence of the power to cancel and the exercise of the discretion. If there is an error in the characterisation of the basis on which the power to cancel arose, it was really no more than a technical legal error.
If that was such as to require a conclusion of jurisdictional error, it is nevertheless one which should not attract the discretion to grant relief under section 75(v) or analogous jurisdictions. I am reminded also that given that the point on which the decision below turned was the exercise of the judicial discretion in relation to relief then at the risk of adopting submissions made against me by Mr Reynolds before lunch, we would say that it is necessary to show some error of principle affecting the exercise of that discretion and not simply a disagreement with the outcome. If your Honours please.
KIEFEL CJ: Do you have anything in reply, Ms Costello?
MS COSTELLO: No, your Honours.
KIEFEL CJ: Thank you. The Court reserves its decision in each of these matters and adjourns to 10.00 am tomorrow.
AT 3.27 PM THE MATTER WAS ADJOURNED
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