Minister for Immigration and Border Protection v BYA17 & Ors [2019] HCATrans 165 (16 August 2019)

Last Updated: 20 August 2019

[2019] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A10 of 2019

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

BYA17

First Respondent

BYB17

Second Respondent

BYC17

Third Respondent

BYD17

Fourth Respondent

BYF17

Fifth Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Sixth Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 AUGUST 2019, AT 3.06 PM

Copyright in the High Court of Australia

____________________

MR G.T. JOHNSON, SC: May it please, your Honours, I appear with MR D.F. O’LEARY for the applicant. (instructed by Sparke Helmore)

MR P.H.C. BARNES: May it please the Court, I appear for the first respondent. (instructed by MSM Legal)

GAGELER J: Thank you. I notice that there are submitting appearances for the second to fifth respondents and no appearance for the sixth respondent who has been served.

MR JOHNSON: Indeed. Thank you, your Honours. Your Honours, this matter falls within a relatively short compass. Your Honours, the special leave questions which have been posed, arising from the judgment of the Full Court, have to do with the circumstance that the Immigration Assessment Authority did not mention in its reasons the six hyperlinked articles – that is hyperlinked to a submission – that your Honours see at pages 145 to 161 of the book.

GAGELER J: Mr Johnson, it does seem like this is a fact case.

MR JOHNSON: Your Honour, the case inherently does involve looking at, on the one hand, what these documents went to and then also whether it could – whether there is any realistic possibility that it could have affected the decision of the Authority given the findings that were made by the Authority to the effect that the man would not be targeted in the first place.

GAGELER J: People can take different views on materiality in the marginal case. Is this not just a marginal case?

MR JOHNSON: In our submission, no, your Honour. Although the case does focus very much on that question there are also some elements of principle that are important insofar as the court does not fully and accurately state the majority outcome of SZMTA and does not apply it. So putting it very, very shortly, there is a question as to misunderstanding or misstatement and misapplication of the majority test in SZMTA. There is also a question as to what are the principles applicable in relation to inferring from non‑mention of a document in connection with a preliminary procedural decision such as whether to accept it under section 473DD – what are the principles involved in concluding from that that it has not been considered.

Also, there are aspects of the judgment which give rise to the proposition that their Honours have found, or assumed, some obligation in Part 7AA, if not in section 473DE, in Part 7AA to explain whether or not these documents were or were not regarded as passing 473DD.

EDELMAN J: Mr Johnson, on your headline point about an error in application of materiality, can I ask about page 73, paragraph 60, the last sentence which appears to be the core of the reasoning or the core conclusion, beginning with “Here”. Is there anything wrong with that statement?

MR JOHNSON: What is wrong with the statement, your Honour, is that the element of “realistic” is missing. When one reads that statement, together with some others ‑ ‑ ‑

EDELMAN J: So when you say “missing” you say that the error was failing to say “the realistic possibility of a successful outcome” rather than “the possibility of a successful outcome”?

MR JOHNSON: There, your Honour, yes. Also, your Honour, there is not any clear statement that the applicant carried the onus of establishing materiality as well as that the documents were not considered. Certainly, the Full Court accepted that there was an onus on him in relation to whether or not the documents had been considered, in paragraph 35, and, indeed, they said that it was well established that the onus lies on the appellants to establish jurisdictional error. So that is the first line. Then the third to sixth lines:

It follows that the appellants bear the onus of establishing the factual foundation from which it can be inferred that the IAA failed to consider whether the information in the news reports was new information –

So, there are elements that are accepted but nowhere does the Full Court clearly state that the onus was on the appellant to establish jurisdictional error, including materiality, and that that involved establishing that not only that the documents were not considered but also that as a realistic possibility that that could have affected the result in the sense of producing a different outcome. There are some statements that would seem to, in fact, be inconsistent with that approach in SZMTA. If one goes to the first sentence of paragraph 59, their Honours hold:

It follows for the reasons given at [52] – [54] above –

We will squabble with those later:

that it cannot be said that the IAA’s error in failing to consider whether the news reports satisfied the criteria in s 473DD could have had no impact –

So in that sentence they are looking at the opposite. They are looking at whether or not they are satisfied that it could affect the decision, as opposed to whether they are possibly satisfied that it did.

GAGELER J: Mr Johnson, we seem to be reading the judgment of the Full Court in the way this Court has said repeatedly we should not be reading reasons of the Tribunal. I mean it is a very fine‑textured analysis, I must say.

MR JOHNSON: Indeed, your Honour. The core point, your Honour, might I say, is that whereas the argument was put to the Full Court on behalf of the Minister that the articles in question were immaterial and there was no possibility that the evidence could have produced a different result – that argument is over at the top of page 68 in paragraph 43 – the Authority – the Full Court in the course of its reasoning did not grapple with the fact that whereas these particular documents all link to, at the highest, the ability of drug gangs to harm and reach people in whom they were interested or the lengths to which they might go in relation to people in whom they were interested, in this particular case the Authority had found that there was no real chance of the applicant being targeted in the first place.

These articles did not bear on him in any way and the question – the proposition that a drug gang, without the assistance or co‑operation in some way of the authorities, would be able to harm somebody in a prison environment in whom they were adversely interested really goes nowhere in the face of – can go nowhere in the face of findings to the effect there is no adverse interest in the first place.

GAGELER J: Mr Johnson, just taking the submission that you have drawn our attention to in paragraph 43, and looking again at the last sentence of paragraph 60, with the addition of the word “realistic” the sentence at the end of paragraph 60 would be an answer to that submission.

MR JOHNSON: That is true. The submissions in this case, your Honour, went on before SZMTA.

GAGELER J: Yes.

MR JOHNSON: Then when SZMTA was handed down the court was referred to that judgment.

GAGELER J: Yes.

MR JOHNSON: But, your Honour, that failure to mention “realistic” is not the only reason we are here, or indeed the major reason we are here.

GAGELER J: What is the major reason you are here?

MR JOHNSON: Your Honour, the examination of whether or not the Authority could be found to have not considered the application of section 473DD to the articles in question was conducted without confronting the fact that these articles would have been immaterial for the reason that I have described.

EDELMAN J: It is a question of drawing an inference from findings of fact. That is not really a special leave point, is it?

MR JOHNSON: Well, no, your Honour.

EDELMAN J: One could dispute almost every inference that is drawn from basic findings of fact, in every case.

MR JOHNSON: But the problem, your Honour, is not simply the drawing of an inference. It goes to how the inference was drawn. The inference was drawn in circumstances where it had been held that there was no – that the obligation and reasons provisions such as 430 of the Migration Act, in relation to the Refugee Review Tribunal, or section 473DE here, attaches to the final decision, rather than to interlocutory decisions along the way. There are cases, of course, including in this Court ‑ ‑ ‑

EDELMAN J: Is it not really paragraph 55? Paragraph 55 is the reason why ‑ ‑ ‑

MR JOHNSON: Well, paragraph 55, your Honour, in our submission, contains an error very much the same as the error that was made in SZGUR. In paragraph 55, they say that the failure to make any inference – so any reference to the news reports in its reasons, coupled with its detailed consideration of the new information on which the appellants sought to rely, entitles an inference to be drawn that it did not consider the news reports either in exercise of its functions under 473DD, or in arriving at its substantive decision.

Then they quote Yusuf at [69]. But Yusuf at [69] said that if the Refugee Review Tribunal does not mention something in its reasons under section 430 that might justify the inference that the Tribunal did not regard that matter as material. But it does not enable the inference that it was not considered.

EDELMAN J: But that is not what they are saying at 55. Paragraph 55 - they are also saying it is coupled with the detailed consideration of all the other new information.

MR JOHNSON: There is only one other piece of new information in fact, which is the court document which did – that is the court document that the Authority considers towards the beginning of the reasons - that did have a particular bearing upon the applicant, whereas these particular articles did not. Nowhere, your Honour, there in that paragraph, or indeed in any of the various points that are mentioned – or various paragraphs between pages 68 and 72 does the court grapple with the fact that what they found to be the possible usefulness of these documents was something that did not even arise, given the findings that the Authority had made, to the effect that he would not be targeted in the first place.

GAGELER J: Would you be asking us to say anything in a judgment different from what we have said in Hossain and SZMTA?

MR JOHNSON: As to the test of materiality, we would not be asking your Honours to say anything different from what was said by the majority in SZMTA. But, your Honours, this judgment really creates some confusion as to what SZMTA stands for because one does not find in this judgment a clear statement, corresponding with say paragraph 48 of SZMTA – when I say a clear statement, one does not find a statement which picks up that there is an onus on a review applicant to show jurisdictional error, which also extends to showing materiality, and that materiality is a reasonable possibility of a different outcome. There is no clear statement about that. As I said before, there are some paragraphs which seem to take a very different approach.

EDELMAN J: Was that point in dispute in the Full Court? Was the issue of onus in dispute?

MR JOHNSON: I have to pause in relation to that, your Honour, because SZMTA did come down after, after the argument which took place in the Full Court. But the parties did, by consent, refer the court to SZMTA.

GAGELER J: That means, what, write a letter to the court drawing the attention of the court to the case?

MR JOHNSON: Yes. Yes, that is right.

GAGELER J: Without further argument?

MR JOHNSON: That is right. That is right. The judgment was drawn to the attention of the court, with reference to the particular paragraphs which bore upon this. The argument was put, certainly by the Minister at the hearing that the onus of proof was on the appellant, and that the appellant had to satisfy Hossain. The appellant had to show materiality, and the argument was that these articles could not - just could not have affected the result in circumstances where the Authority had made findings to the effect that he would not be targeted in the first place.

I am reluctant to read parts of the Authority’s reasons aloud, but if I could just show your Honours where those findings particularly are – there are not terribly many of them. They are in paragraphs 20 to 23, but I will just show your Honours in particular the following.

GAGELER J: You do not have to read, you can just point to it.

MR JOHNSON: Very well. If your Honours go to the end of paragraph 21.

GAGELER J: What page?

MR JOHNSON: Sorry, page 12. At the end of paragraph 21 “I am not satisfied” to the end of the paragraph.

GAGELER J: Yes.

MR JOHNSON: Then if your Honours also read the first sentence of paragraph 22 and then if your Honours read the last sentence of paragraph 22.

GAGELER J: Yes.

MR JOHNSON: If your Honours read paragraph 23 and then also, for completion, paragraph 36, which is really a wrap up, which includes those ideas that your Honours read, or most of them, perhaps particularly the second lengthy sentence in 36, and also the last sentence. So one has a clear argument put that these articles, which go only to the ability of drug smugglers, with the aid of some police co‑operation, perhaps, to be able to target people in whom they are adversely interested but the findings that there was no interest in the applicant makes those completely immaterial. That just was not dealt with at all in the course of the finding, that they had not been considered, or in the assessment of whether or not that was jurisdictional error.

GAGELER J: If you want to put this case into a pigeonhole, what is it? Is it a principle case or a visitation case?

MR JOHNSON: I could understand how it could be put as a visitation case. But it does involve principles in this way, if I could attempt to put it in a couple of sentences.

GAGELER J: Yes.

MR JOHNSON: Firstly, it tends to create confusion, misunderstanding in the wake of SZMTA. It does not really stand up as a proper application of SZMTA. Secondly, in relation to the question of whether or not the Authority had an obligation when setting out its reasons to deal with why it did or did not regard particular material as passing the criteria in 473DD, the Full Court appears to have found some sort of obligation. They have acknowledged what was said in BVD17. But they have also referred at the end of that paragraph commencing “Finally” to the applicant being left in the dark.

So they seem to see the nature of Part 7AA as imposing some sort of obligation to spell out what it did with this information it was being asked to be taken into account as new information when in fact there is not any obligation in Part 7AA to do that.

GAGELER J: Mr Johnson, you have had several sentences past your red light.

MR JOHNSON: That is right. But it falls within the area of misstatement or confusion about the effect of SZMTA, creating confusion about it and also ‑ ‑ ‑

GAGELER J: Mr Johnson, that is even more sentences now. Thank you.

MR JOHNSON: Thank you, your Honour.

GAGELER J: Mr Johnson, that means we need to stop at this stage.

MR JOHNSON: I know. Yes, all right. Thank you, your Honour.

GAGELER J: Thank you, Mr Johnson. Mr Barnes, we do not need to hear from you.

We are not persuaded that the case raises any question of principle suitable for the consideration of this Court, or that there is any reason in the interests of justice why special leave to appeal should be granted. The application for special leave is dismissed with costs.

The Court will now adjourn to 10.00 am on Tuesday, 3 September in Canberra.

AT 3.29 PM THE MATTER WAS CONCLUDED