BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCATrans 13 (15 February 2019)

Last Updated: 18 February 2019

[2019] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S219 of 2018

B e t w e e n -

BVD17

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 15 FEBRUARY 2019, AT 10.35 AM

Copyright in the High Court of Australia
MR A. ALEKSOV: May it please the Court, I appear for the applicant. (instructed by Australian Presence Legal)

MR G.T. JOHNSON, SC: May it please your Honours, I appear with MR N.D.J. SWAN for the first respondent. (instructed by Minter Ellison)

GAGELER J: Thank you. Mr Aleksov, just stay seated for a moment. The parties will be aware of the Court’s very recent decision in SZMTA and related cases.

MR JOHNSON: Yes.

GAGELER J: We incline to the view that leave should be granted in this matter to allow the principles identified in that case in their application to Part 7 of the Act to be explored in their application to Part 7AA of the Act. It occurs to us that the proposed ground of appeal may not adequately capture those principles but with some amendment to the proposed ground of appeal, perhaps some expansion – we can discuss that in a moment – our inclination is to grant special leave to appeal.

MR JOHNSON: Thank you, your Honour. Your Honours, I would seek in the light of that not to take a great deal of time addressing your Honours, but simply to flag what would have been the heads of opposition - I think that will only take about five minutes - just in the event that any of that is significant to what your Honours are inclined to do.

GAGELER J: You can go ahead, Mr Johnson, yes. A reformulated ground of appeal on the procedural fairness point would look to the failure to disclose the fact of certification rather than the contents of the material, of course.

MR JOHNSON: I understand, your Honour.

GAGELER J: Mr Johnson, while you are taking the five minutes, there may be some utility in the “failure to consider” ground and the “unreasonableness” ground which were rejected in the Full Court being brought up to us to allow a full consideration of the issues.

MR JOHNSON: Thank you, your Honour. Firstly, we would seek to distinguish SZMTA and the other two cases decided with it on Monday of this week. I will come back to that because that is the most important thing. Secondly, particularly in relation to the special leave ground as formulated, there is a real issue of materiality and the Court was split on Monday in relation to the role of materiality and the stage at which it comes into play.

GAGELER J: It does seem that the material that was covered by the certificate was actually taken into account in the reasoning of the Tribunal.

MR JOHNSON: The material which was covered by the certificate was in effect a file relating to claims made by the brother and what the IAA took into account was that the claims did not include X in relation to this particular applicant and that negative was taken into account. The applicant at the time of the hearing before the Full Court had the certificate and also knew the way in which the Authority had used the material.

The special leave question is formulated in terms of whether or not there was a breach of procedural fairness as a result of the fact of notification, or the fact that there existed certificated material not being disclosed. What we say in that respect is that if that was the breach, merely knowing that it was certificated material, material the subject of a certificate, would not have improved the applicant’s ability to deal with the particular negative in this case because merely knowing that would not have alerted him to that negative which featured in the Authority’s reasons in the passage emboldened by the Full Court. Your Honours, can I come back to the legislative differences because that is important and I think the critical can be shortly stated.

GAGELER J: Well, 473DA is the critical one, is it not?

MR JOHNSON: Section 437DA is critical, yes, and 473DA differs from section 422B that your Honours were concerned with in the cases before.

GAGELER J: Yes, we follow that.

NETTLE J: That is what makes it a point worth attention.

MR JOHNSON: Worth exploring whether or not those differences produce a different result.

NETTLE J: Yes.

MR JOHNSON: If your Honours have formed that view that the differences themselves are worthy of consideration, in effect, regardless of the result of the case, I will not go any further on that.

NETTLE J: I would not say regardless of the result of the case, but regarding the possibility that they might be productive of difference.

MR JOHNSON: Yes, the question of whether or not they do in – the question of whether or not the differences between 422B and section 473DA lead to a different result as to the implication of natural justice in the equivalent of section 473GB, the certificate provision. Your Honours, apart from those legislative differences, which really relate to the fact that 422B is confined to matters which are dealt with by the procedural provisions and 473DA is more broadly drawn in relation to the review and also the absence of section 422B(3) or an equivalent of it in relation to Part 7AA, there are also the difficulties to which we pointed that the argument – or no natural justice argument was put to the Full Court at all, and in relation to the

GAGELER J: Are you prejudiced by that?

MR JOHNSON: It is not the kind of prejudice, for instance, where evidence might have been relied upon that is not available; it is not that kind of prejudice. But we would say that there is an unfairness to the respondent and indeed it is contrary to the public interest for a point not to be pressed, for a forensic decision to be made not to press a point before the Full Court and then to seek to raise it here for the first time.

Mr Aleksov has said in his response that the argument was raised in the Circuit Court. The special leave question that he formulates is whether or not procedural fairness was denied by not disclosing that part of the review material before the Authority was the subject of a certificate. That is different from the point which was raised before the Circuit Court, which is set out at pages 24 to 25 of the book.

GAGELER J: It might be, Mr Johnson, but if you are not pointing to any forensic prejudice, why are we going into it? There is an important question of statutory interpretation that you have already pointed to.

MR JOHNSON: Yes.

GAGELER J: It is squarely raised by the basic very simple facts in this case. It could not have been met by evidence, and I do not think you are suggesting that it could be.

MR JOHNSON: No, your Honour, I do not suggest that it could be.

GAGELER J: The issue has to come to this Court in some form at some time. Is this not a suitable vehicle?

MR JOHNSON: The two reasons why it might not be a suitable vehicle are that you do not have the benefit of any Full Court consideration of the question, so the Court would be looking at it afresh, and

GAGELER J: Of the consideration of the question in this case.

MR JOHNSON: Yes.

GAGELER J: There is other Full Court authority dealing broadly with the issue.

MR JOHNSON: Yes, particularly the two cases that we referred to. But it is not, for instance, a situation where the Court is being asked to grant special leave in a case where the Full Court is considering the matter in the wake of the judgments that came down on Monday and also there are no findings on materiality such - the Full Court touches on it subject to some degree, but there are no findings on materiality to the degree that you would expect if the matter was being looked at by the Full Court in the wake of Monday’s judgments. If your Honours please, that is all I wish to say to your Honours this morning.

GAGELER J: Thank you. Mr Aleksov, are you able to – I do not ask you to do it on your feet, but are you able to reformulate your proposed ground of appeal perhaps more squarely to raise the issue identified in SZMTA and also to supplement it by reinstating the “failure to consider” ground and “unreasonableness” ground that was actually considered in the Full Court?

MR ALEKSOV: Yes, your Honour. My first point today would have been that the proposed ground of appeal needs to be amended to better reflect the special leave question. I can take your Honours to exactly how that can be done, if it is convenient to do so now by reference to the grounds in the application book.

GAGELER J: We will trust you as a draftsman, Mr Aleksov.

MR ALEKSOV: Thank you, your Honour.

GAGELER J: We will grant special leave to appeal in this matter.

MR ALEKSOV: If the Court pleases. Can I just note – I am sorry to interrupt your Honour – ground 2 in the notice of appeal on page 48 of the book would simply be reinstated which would, in my respectful submission, properly raise the additional two points that your Honour has identified.

GAGELER J: Very well. As we said, we will leave the actual drafting to you.

MR ALEKSOV: If the Court pleases.

GAGELER J: The order we make is that special leave to appeal is granted in this matter. A halfday matter, gentlemen?

MR JOHNSON: I would have thought so, your Honour.

MR ALEKSOV: With the additional grounds, your Honours, I might have thought one day.

GAGELER J: Thank you. The Court will now take a short adjournment to reconstitute.

AT 10.47 AM THE MATTER WAS CONCLUDED