CNY17 v Minister for Immigration and Border Protection & Anor [2019] HCATrans 202 (16 October 2019)

Last Updated: 16 October 2019

[2019] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M72 of 2019

B e t w e e n -

CNY17

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 OCTOBER 2019, AT 10.04 AM

Copyright in the High Court of Australia
MS L.G. DE FERRARI, SC: If the Court pleases, I appear with MR M.W. GUO, for the appellant. (instructed by Estrin Saul Lawyers)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR A.P. YUILE, for the first respondent. (instructed by Australian Government Solicitor)

KIEFEL CJ: Mr Kennett, I think you have a summons in relation to a notice of contention.

MR KENNETT: Yes, your Honour, our learned friends in their reply suggested that we needed to ‑ ‑ ‑

KIEFEL CJ: It was necessary.

MR KENNETT: It was necessary and I have come to the view that they are probably right, somewhat later than I should have, for which I apologise.

KIEFEL CJ: Is there any objection to ‑ ‑ ‑

MS DE FERRARI: Your Honours, there is. We have set it out in the three‑page outline of submissions right at the end, if your Honour pleases. The first point is that we say the court below cannot have erred as is alleged, that is failed to decide, because the issue just was not one for its determination. The position below was that the Minister accepted the correctness of AMA16 and what they are seeking to run now runs directly contrary to the position they took below.

The second point is that even with the lateness and accepting the lateness there is still no explanation whatsoever for non‑compliance with the rules, not a word in the affidavit. My learned friend says we brought it to their attention, that might be so, but we brought it to their attention two months ago.

KIEFEL CJ: Has that affected you, your position?

MS DE FERRARI: Well, we just do not know how it is going to be put. I mean, there is nothing in the written submission. They have not given us any indication at all about how they are going to run the argument. All we can say is we can guess that the – it is intended to develop the argument ‑ at respondent’s paragraph 28 ‑ but we note at that paragraph the assumption is that the material is properly, and I stress properly, before the decision‑maker that that brings into question a very large issue about why is it properly before the decision‑maker, why is the Secretary decision to give
those materials not one that was not made reasonably and in accordance with a correct understanding of the law?

And the final point, your Honours, is that really, with no excuse, no submissions, this is just going to encourage the same sort of conduct issue to cases. We just do not know what they are going to say, your Honour.

KIEFEL CJ: Thank you, Ms De Ferrari. Yes, Mr Kennett.

MR KENNETT: Your Honours, the notice seeks to crystallise the argument in our written submissions which starts at paragraph 28 and culminates at paragraph 32. It, we accept, goes beyond anything that was said below.

GORDON J: Sorry, I missed that. Could you say that again please, Mr Kennett. I could not hear what you said just then.

MR KENNETT: I am sorry, your Honour. The point which we seek to crystallise by the notice of contention is the one which starts at paragraph 28 of our submissions and culminates at paragraph 32. We accept that it was not put in this way below. We, in the Court below, did not suggest that the decision in AMA16 was wrong. I think the argument we are now putting would have that consequence.

There is in the argument and the judgments below, particularly paragraph 161 of Justice Thawley’s reasons, some indication of an acceptance that there was a body of material necessarily before the Authority and it being necessarily before the Authority, the Authority had to consider it.

Now, we have taken that ‑ and his Honour said that in relation to material caught by section 473CB(1)(a) and (b) and we have essentially taken that a step further and said that it must also relate to material provided under subsection (c) because it all comes into the review material. That is the point and we do not seek to go beyond or any broader than we have put it in the written submissions.

It was a point which was foreshadowed, at least, at the special leave stage as well. The argument does, as my friend indicates, involve a premise that the material was properly provided by the Secretary, consistently with the Secretary’s obligations. That is a point which our friends themselves seem to have put in issue by their ground 4. It is one which the parties are, one would think, on top of.

So we accept that of course that it would have been much better had we filed our notice much earlier but the content of it really does not go beyond anything that has been articulated in the submissions.

KIEFEL CJ: The Court will adjourn briefly to consider the course that it will take.

AT 10.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.17 AM:

KIEFEL CJ: In relation to the summons for orders that compliance with the time limits to file and rely on a notice of contention, it is the view of the Court by a majority that the summons should be dismissed. The point was not taken in the court below. The Court has not had the advantage of reasons to reconsidering the decision of AMA16. The application has been brought very late and without explanation. Yes, Ms De Ferrari.

MS DE FERRARI: Thank you, your Honour. Your Honours will have the outline of oral submissions. I propose to start with, in a sense, some factual matters and they are under the heading of the materials were irrelevant and prejudicial and the Authority had regard to them. Now, the first point that the Authority had regard to them is uncontroversial. It is set out in the reasons of the Authority. It is said that it did and the Minister accepts that the Authority had regard to all the materials that we call the extraneous material.

The second point is that the court below found that the materials were not relevant to the Authority’s review task and we set out at paragraph 19 of our submissions all the relevant references for that. Your Honours can delete what is in parenthesis there. The third proposition is that the court below found materials were prejudicial and there is a dispute about this. The reasons of her Honour Justice Mortimer are lucidly clear. The reasons of Justice Moshinsky and Justice Thawley require a little bit of unravelling to see why they did accept that the materials were prejudicial where the question was, effectively, how prejudicial.

KIEFEL CJ: Ms de Ferrari, are you intending to go through the material in some detail?

MS DE FERRARI: I was just about to do that now. Your Honour, I might come back to the reasoning of the judges and my next proposition is that as I say, as we say, all the judges below consider them to be prejudicial and the question was how much. Consideration of the materials show that they clearly were prejudicial and the Minister’s submissions should not be accepted.

KIEFEL CJ: All the judges below agreed that the material was irrelevant to the issues before the decision‑ maker.

MS DE FERRARI: They did.

KIEFEL CJ: But you say the question is one of degree.

MS DE FERRARI: They all agreed that they were irrelevant. There were no ifs or buts that they were wholly irrelevant. The question was whether, on one view, how prejudicial did they have to be before a reasonable apprehension of bias would arise? I will come in more detail to the reasoning of their Honours, but the point I was seeking to make is that it cannot be disputed, in our submission, that every one of the judges found that the material was prejudicial to some extent.

I will be making the submission later that, in the context we are looking at, the material is either prejudicial or is not and that is the end of the matter, we say, if it is prejudicial, then for the reasons we go through in terms of how the Act operates and the test.

GAGELER J: What do you mean by “prejudicial”? Are you going to unpack that?

MS DE FERRARI: Yes. What I mean by “prejudicial” is that it was such that painted the appellant in a particular way in the view of the officers of the Minister who, it must be said, also were ones who had an interest in having the decision under review affirmed by the Authority. Perhaps it might be clearer if I go to the materials.

GAGELER J: If you could just articulate what it is that you say has the potential to impact upon the perception of bias. Somehow, you have to relate this word “prejudicial” to the reasonable apprehension of bias. I just want to understand its content.

MS DE FERRARI: Yes. “Prejudicial” in this context means that it sought to convey to the Authority the views of the Department about the character of the appellant.

EDELMAN J: The essence of your submission is that it is character, is it not? The prejudice works in the same way as it would work with impermissible material going to a jury about an accused person’s character.

MS DE FERRARI: Very similarly, yes, your Honour.

KIEFEL CJ: Would you go so far as to say that it conveys opinions about his credit?

MS DE FERRARI: It does not directly have a statement which says that the appellant does not tell the truth, if by “credit” that is what understood. Really, the question before the Authority ultimately – and I will come to that – is the central issue in these kinds of cases is always whether the claims that are made by the person can be accepted. And in terms of actually how one looks at how do I look at this person who is telling me those things? What do I think about whether I can accept, and to that extent, his credibility? How do I look at him? Well, I look at him ‑ ‑ ‑

NETTLE J: As an evil and undesirable person and therefore I am less inclined to accept his word.

MS DE FERRARI: That is correct. “Undesirable person” in the way that it is described by the Minister.

NETTLE J: Yes.

GORDON J: It is the last bit that adds to it, is it not? There are two aspects to it.

MS DE FERRARI: It is two aspects.

GORDON J: It is the content. “Evil and undesirable”, to adopt Justice Nettle’s words, and then it is the views of the Secretary.

MS DE FERRARI: Yes. And the two, in a sense – they are obviously two different aspects – cannot be divorced because the appellant has actually been in detention since he first arrived in Australia, so it has been the officers of the Minister, save perhaps for the periods where he actually spent in actual gaol in WA, who have always had the oversight about what they thought about the appellant. He has always been in their custody. So, in a sense, yes, it comes with the imprimatur and I will come to that later, but also it is the circumstances in which it occurs.

GAGELER J: Could I just take you back to your first proposition before you move on, and that is that the Authority had regard to the material. What does that mean?

MS DE FERRARI: Well, what does it mean? Having regard to the test in the statute – if your Honours go to the legislation, which is behind tab 3. Your Honours have looked at these provisions in some detail, both in Plaintiff M174 and, most recently, in BVD17. But the entry point for the question that your Honour Justice Gageler has asked me, section 473CC and 473DB(1), considering the material under what your Honours have described as the primary rule or the primary principle is what happens under 473DB in order to discharge the task in CC and that is the Authority is under a duty to consider the review material, and the review material is defined in 473CB, and that is everything that the Secretary gives to it.

GAGELER J: So the statement by the Authority in its reasons that it had regard to the material ‑ ‑ ‑

MS DE FERRARI: Yes, it considered it.

GAGELER J: ‑ ‑ ‑ reflects the fulfilment of the duty under section 473DB(1) ‑ ‑ ‑

MS DE FERRARI: Yes.

GAGELER J: ‑ ‑ ‑ and nothing more?

MS DE FERRARI: Nothing more. It does not reflect that it considered that it was – nothing more. That is all it says. But, as I will elaborate, in a sense, as her Honour Justice Mortimer has noted and also Justice Griffiths in AMA16, that is really the entry and, in a sense, all that is necessary because you have to read the materials. Any authority discharging its duty diligently would, at least, to be able to consider, read the materials.

That is the point, we say, and Justice Mortimer says, at which you look at what the reasonable person, not the observer because we say this is not even in private, like your Honours have noted in Re Refugee Review Tribunal; Ex parte H, this is not even a hearing at all but the reasonable person would know that the Authority is going through its duty diligently and in order to consider the review materials it would first look at everything that it got and read it. Can I go to the materials as your Honour the Chief Justice was asking and – if your Honours go to the book of further materials ‑ ‑ ‑

EDELMAN J: Just before we go to these documents, just so I understand the prism through which we are looking at them, as I understand your submissions it is that prejudicial irrelevant material can cause an apprehended bias and it can do so in one of two ways: one is by impermissibly leading to findings about credit or taking this material into account in a way which impermissibly affects a finding as to credit but also that it could be directly an improper influence potentially and a subconscious influence upon the ultimate decision to be reached.

MS DE FERRARI: Yes.

EDELMAN J: Is there any other way that this material could affect a conclusion of apprehended bias?

MS DE FERRARI: No, your Honour. In relation to the first proposition we say, of course, that one would not expect to see anything in the statement of reasons by the Authority that sort of says I have read the material and for that reason I have taken a very dim view of you and this is what I find about you. One just does not find that kind of ‑ ‑ ‑

EDELMAN J: No, but particularly if the material was extremely prejudicial and also irrelevant one might expect to see a statement that it has not been taken into account.

MS DE FERRARI: One might. One might say – the Authority might say this is out of all bounds of what I could possibly expect the Secretary to have considered relevant. I cannot possibly think that this was given to me lawfully and I make a note about that. But that might engage other questions in terms of – even if the Authority says that, as Justice Griffiths noted in AMA16, and I think Justice Mortimer did in this case, the Authority does not say that – did not say that in AMA16, does not say that in this case, would that suffice – would a statement to sort of say, I have noted it and I just propose to put it out of my mind, would that suffice? That is not this case but even then it might be so prejudicial ‑ ‑ ‑

EDELMAN J: I realise it is not this case, but in most circumstances one would usually expect that it would suffice, would not one?

MS DE FERRARI: To say I put it out of my mind?

EDELMAN J: The zero element material before me I have considered it and I have not placed any weight upon it.

MS DE FERRARI: Your Honour, that may be so. I think it is in some tension with what the Court has said, at least in Applicant VEAL as we apprehend it. What happened in that case was that there was this disclaimer of giving no weight to a dob‑in letter, prejudicial material, in that case arguably relevant, and I think the Court queried whether, if that is said, it can be put out of subconscious the effect that it had ‑ ‑ ‑

KIEFEL CJ: When you say you effectively query whether it would suffice, is that because statements such as this take the courts into the territory of the actual subjective thinking, the process of reasoning by the Tribunal and what was actually taken into account?

MS DE FERRARI: Yes.

KIEFEL CJ: So there is potentially some elision between actual bias and apprehension of bias?

MS DE FERRARI: That is so. In all these cases it is obviously a question where it is not hard to find the Court dividing in its opinion. An example is the case of Webb v The Queen. The Court there divided three/two and the majority thought that the juror just could not continue to be part of the jury, even with everything that the judge had done in terms of addressing the transgression that had happened. On the other hand, the minority thought that the judge was right not to discharge the juror.

So it can reach that level of effect where even a disclaimer in the case of a single decision‑maker or even the instruction of the judge bringing the episode to the open and giving strict instructions about what needs to happen from then on might not suffice.

KIEFEL CJ: You have mentioned the jury. I think it was Justice Dowsett in AMA16 who pointed out the difference between viewing apprehension of bias from the perspective of a jury and from the perspective of a reasonable decision‑maker.

MS DE FERRARI: Yes. I think the authorities in this Court are all to the effect that the same test, which is the test in Ebner, arrived at after Livesey, Re JRL and Webb – that is, reasonable apprehension of bias as an objective possibility, not probability – the authorities are that it applies in all contexts, but it becomes very difficult when one moves from the typical context of a judge.

So when I was talking about the juror I was not trying to suggest that the test is whether the ‑ how the juror would apprehend it, the test is still the reasonable observer, if there can be one, or the reasonable layperson with knowledge of the relevant matters that need to be taken into account depending on a particular case. So in this case it is difficult, this is, this case ‑ ‑ ‑

KIEFEL CJ: I suppose the question, though, is how the reasonable person would consider the jury may have been affected by the material as compared with how the reasonable person would consider a professional administrative decision‑maker makes a decision. Is there a point of difference, that is the question. I mean, is this one of the factual circumstances that the reasonable observer would take into account. I suppose the likelihood of a rational decision with knowledge of the limits of what is relevant and not relevant.

MS DE FERRARI: Certainly, who is the decision‑maker is a relevant matter. This was considered in some details detailed by the Full Court in AMA16, including dealing with some authorities that the Minister sought to rely upon but, ultimately, and coming back to the two ways that your Honour Justice Edelman put to me, even with a professional decision‑maker like an employee of the public service who was assigned to the Authority we say that the risk of prejudicial effects, subconscious effect, just cannot be ruled out unless one is prepared to sort of say I can vouch for this person, thinking that, if I can look in the mind of this person, it just would not have had any prejudice, it would not have caused any prejudice, whether that person realises or not, whether the decision‑maker realises or not.

Your Honours, I will develop the submissions in more detail, but can I show the Court the materials so that your Honours appreciate what the court below was considering. Now, they are found in the appellant’s book of further materials. If I can start from the materials that were provided by the applicant to the delegate, and that is the application for a visa, it starts at page 71, but the relevant pages ‑ what I am going to do is take your Honours to everything in what was given by the appellant that could be said to have provided the launching pad for considering the other materials. At page 73, if your Honours go to the column 1 at the bottom of that column 1 your Honours will see that the appellant said:

Awaiting trial on charges of spitting at a guard –

Et cetera. Then, if your Honours go to page 87 in response to question 34 the appellant says ‑ ‑ ‑

EDELMAN J: Sorry, which page?

MS DE FERRARI: Page 87 of the further materials. In response to question 34, your occupation, he says:

Prisoner (formerly self‑employed) –

Then, if your Honours go to page 102, this page of the application is asked for:

Convictions, charges, investigations or crimes committed –

Your Honours will see under the heading at about point 3 “Crime/Offence” he said:

Breaking window – in prison and has 6 month good behaviour bond –

Et cetera, he says:

There may be further updates on the cases.

GORDON J: That bit was relied upon against you, that line.

MS DE FERRARI: Yes, I do not know how but I am drawing it to your Honours’ attention. At point 7 under:

Criminal charges pending

Please give details –

and your Honours will see that it repeats what he already said but then says that it:

occurred in November 2015 (approx) –

Then, the only other thing is at pages 112 and 113 in response to the question “Previous addresses”, there are a number of addresses disclosing that he had been in prison, Casaurina, Albany, Casaurina, Casaurina, and that is it.

If your Honours now go to the materials that were provided by the Secretary, they start at page 5 of this book of further materials. Your Honours will see at page 7 at point 5 someone advising TPV that the appellant had:

today been transferred from Christmas Island to a WA Correctional facility, following his participation in the recent incident at Christmas Island.

Then page 14 there is a request by someone to Rebecca ‑ ‑ ‑

GORDON J: Sorry, what page are we on now, Ms de Ferrari?

MS DE FERRARI: Page 14, your Honour, there is a request to someone called Rebecca ‑ providing to Rebecca:

a brief background regarding –

the appellant. And then there is an immigration history – it starts at about point 9. The second last line:

took part in peaceful process –

in 2014. Then, over the page – some of these abbreviations; I do not know what they mean:

SLO advised that [he is] no longer of interest to Det Intel. Escalated to [some other] team.

Then the next one is an:

interview with National Security Monitoring Section ‑

Then, on 26 October 2015:

Esc to [someone else] re on‑going investigations.

EDELMAN J: That is “escalated”, is it?

MS DE FERRARI: Well, your Honour, I am assuming that “Esc” means “escalated”. Then at about point 5:

Key reasons for continued detention:

Under AFP investigation for CI –

that is, Christmas Island – “riot” and it gives a date. So the Minister says that the materials do not say that he is under investigation – well, that is plainly wrong. And then, again, it is repeated at about point 8. Then, at the end of the page, his behaviour is described and it is said he has:

a history of aggressive and/or challenging behaviour when engaging with the department –

And then someone proposes reasons for that. And then there are other materials to do with this Court but if your Honours go to page 35, this is in the 30 March 2016 – all of this material predates his application for a visa, I should say. At point 5 someone notes that he is “still in Albany Prison” and, apparently, it is because a:

Superintendent from ABF has recommended that he remain at Albany Prison until AFP finalise their investigation into the Christmas Island riot.

And then the next page again is email chains. Page 36, point 5:

Please find attached an email from the CDPP with an update [on his] criminal matters.

If your Honour goes to page 37, at the top:

The criminal matters are in relation to involvement in rioting on CI –

and then noting that a sentence had been passed down. The writer says:

we are mindful that records . . . notes multiple incidents occurred.

And then there is a query about what is happening. A similar request in the other pages – if your Honours go to page 42, at point 2:

I understand that he is currently facing criminal charges in relation to a riot he partook in on CI –

so suggesting he did it. Then, page 46, again at the top:

He has a number of matters relating to damage of Commonwealth Property as a result of rioting on Christmas Island.

Then, if your Honours go to page 55, this is a Case Review made on March 2016. Page 55, which is part of this Case Review, at point 5 in landscape says he:

has been considered on several occasions for release from detention –

but then goes on to say:

He has been involved in many incidents while in detention and will be considered as a Cat 2 BVE consideration.

Whatever that means. Again, on the next page, your Honours will see the Case Review repeats some of the things that I showed to your Honours before about “escalating” and “de‑escalating”. Page 57 point 5:

He has been involved in many incidents while in detention –

again. Then, at page 58, top of that page, he:

was transferred from Christmas Island IDC to a correctional facility . . . His placement in a correctional facility will continue to be monitored by Australian Border Force.

Then CM, “CM” is case manager:

CM recommended review of placement since AFP has not placed any charges.

However:

Superintendent from ABF recommend detainee to remain at Albany until AFP finalize their CI riot investigation.

So, we say, and we have said in the written submissions, this is not background, this is not some small elaboration of what he said in his application. This is consistent.

KIEFEL CJ: If you had to summarise what this material conveys that was not conveyed by his own information, could you assist us with that?

MS DE FERRARI: Yes. Persistently involved in incidents while in detention, difficult to manage in his behaviour and someone that has to be kept in detention, according to the superintendent of ABF, instead of being – detention in gaol instead of migration detention.

KIEFEL CJ: That is pending an investigation outcome.

MS DE FERRARI: Of riots. In one sentence, someone was basically conveying his belief to have done it. So, there is no doubt about, you know, any of this expressed in terms of he might not be guilty of what he has being charged with and which is, frankly, disclosed.

Your Honours, if I can move now to the next topic.

NETTLE J: You place no reliance upon the reference to his medical condition?

MS DE FERRARI: In terms of his ability ‑ ‑ ‑

NETTLE J: The prejudicial effect of the disclosure ‑ ‑ ‑

MS DE FERRARI: I think he does disclose it in one of the submissions that he has problems with his mental wellbeing.

KIEFEL CJ: I do not think you have referred to that in the material that he put forward.

MS DE FERRARI: Yes. The submissions are not included, but your Honours, all I can say is that it does not surprise me if someone has been in detention for over six years that one might develop mental health problems.

GAGELER J: What weight are you putting on the references to his mental health problems in the material you have just taken us to?

MS DE FERRARI: I am not relying on that at all. I just took your Honours to the materials to show that someone’s opinion was that his difficulties were because of mental health problems, may have been by mental health problems.

GAGELER J: I am just trying to understand where it fits into your submissions.

MS DE FERRARI: I do not place reliance on the fact that he had mental health problems in terms of the arguments that I am making about apprehended bias.

KIEFEL CJ: Or that people were giving as an opinion for his conduct that he had mental health issues? You are not relying on that either?

MS DE FERRARI: That is different.

KIEFEL CJ: That is what I am trying to understand.

MS DE FERRARI: The assessment that was made, whether it is true or not, nobody knows. That is just a statement that is made out of the blue by this person that he has this difficult behaviour and I myself think that it might be due to these matters.

KIEFEL CJ: So you are relying upon that as conveying something about him that is prejudicial.

MS DE FERRARI: Yes. It is conveying the – what I wanted to say is that it is not my submission that the fact that someone has mental health problems is something that necessarily should be taken to stand against someone’s character. We should be past those days, but the problem is ‑ ‑ ‑

NETTLE J: It could be.

MS DE FERRARI: It could be, depending how it is put, yes.

GORDON J: Your complaint is that there was an opinion expressed by an officer about his or her views of the reasons why your client is alleged to have behaved in a particular way. That is your complaint.

MS DE FERRARI: That is correct.

GORDON J: Which is where we got back to, I think, at the beginning about the two aspects which you say are the flipside of the one coin ‑ material itself, you would say, is prejudicial, either individually or cumulatively, together with the expressions of these opinions.

MS DE FERRARI: Yes, by people who have been keeping him in detention effectively for whatever time it was, by then two or three years. So one might read into that the frustration of people not being able to manage someone they had to keep in detention for such long periods of time and wanting to express that.

Your Honours, if I can move to the next topic, and that is very briefly touching on the statutory context, which is obviously a relevant matter ‑ apprehended bias. The way we approach this is, if we may, by reference to what your Honour Justice Gageler has said in Isbester at paragraph 55. It is stating the orthodox position of this Court as we apprehend it, namely, that there are implications ordinarily drawn that condition the exercise of a statutory power in terms of the two rules of common law natural justice or, as was referred by the Privy Council in Kanda, the “two pillars” language that is then picked up by this Court in Re JRL.

Now, the recent decision of this Court in BVD17 holds that section 473DA(1) precludes an implication being drawn that relate to the hearing rule and I know that your Honour Justice Edelman was in dissent on that point. However, there is the implication of:

absence of the actuality or the appearance of disqualifying bias –

which, we say, conditioned the exercise of the power which is found in 473CC, I took your Honours to it before, that is not affected.

Now, that is plain from a number of features of the Act. The first one is that Division 3, your Honours will see is headed “Conduct of review” and bias, actual or apprehended, we say, can clearly arise outside of conduct of review. For example, there can be a disqualifying association that exists before the decision‑maker starts embarking on the conduct of the review.

Further, 473DA(1) is clearly expressly limited to the hearing rule. Section 473DB(1) which feeds into the duty as I submitted before commences by saying “Subject to this Part”, and section 473FA is in this Part and if your Honours go to that provision, it is in Division 5 and it provides that the Authority:

in carrying out its functions –

all of its functions must:

pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 –

which your Honours are familiar with.

GAGELER J: What do we take from section 473FA?

MS DE FERRARI: Confirmation that the implication in respect of the second pillar, the one that has not been cut down, clearly arises in the exercise of all of the powers and functions of the Authority.

GAGELER J: Thank you.

MS DE FERRARI: So the rule against bias, we say, has not been affected at all. Now, the question is: what is the content of the bias rule? I am on proposition 9. It must have some content ‑ and, again, picking up what was said by your Honour Justice Gageler in Isbester but, again, it is orthodox ‑ the content must accommodate the statutory framework and the particular factual context of a particular exercise of the power.

Chief Justice Barwick in Stollery, at page 519, said something to the same effect, we say. We say that, in the context of this Act the content of the bias rule does include authority to the Authority to permit a person such as the appellant to comment on prejudicial information which is not known to him to exist, not known to him to have been provided to the Authority.

NETTLE J: That sounds more like the hearing rule than the bias rule.

MS DE FERRARI: Well, your Honour ‑ ‑ ‑

NETTLE J: The bias rule, surely, is taking into account that which should not have been taken into account, whereas the hearing rule is giving him an opportunity to meet something which might be regarded as pertinent.

MS DE FERRARI: Your Honour, we say that it really is implied as part of the content to give this division a safety role.

EDELMAN J: Your submission is that it is more a circumstance from which one might infer an apprehension of bias rather than as a factor which directly itself leads to a conclusion of apprehension of bias. In other words, as I understood your submissions, the effect was really that the failure to invite comment by the parties, particularly by the appellant, might more readily lead to a conclusion that the matter had been taken into account and was not thought to require any submissions.

MS DE FERRARI: That is certainly the case in accordance with all the authorities that have looked at the way in which this type of situation occurred. I go back: it is Webb, it is Re JRL and so on. And all of these cases – I hear what your Honour Justice Nettle has said – in particular Re JRL, go back to Kanda and I know that his Honour Justice Dawson, I think, in Re JRL said, Kanda is only about the hearing rule and not about bias. But they all go back to Kanda and accept that, in a sense, the two rules are two sides of the same coin.

What happens when one completely obliterates one side of the coin, which is what happens in this case, at least at common law? We say that the implication in terms of the content is that there must be a safety valve at common law and, if we are wrong about that, then we say that it is something that would engage the new information provisions. We say that with some hesitation because as we have said ‑ ‑ ‑

GORDON J: Do you need to go that far? I do not quite understand that. Justice Edelman put to you ‑ if one steps back and says, what is it that might, by reference to the observer, lead a person to think that the decision might be made upon extraneous material? Yes, you have taken us to that material, but then the question is, building the logical connection which Justice Gageler asked you about and, once you have that logical connection, assuming it is accepted, then is that not the end of the inquiry?

MS DE FERRARI: Your Honour is probably correct. We were trying to elaborate what the content of “apprehended bias” might actually mean but in this case it might be that the question is just simply answered by the fact that in the case in question, once you satisfy the facts of the case of the material having been before the decision‑maker, then it is just the connection in terms of the two tests and that is all that there is to it.

GORDON J: Then one of the ways is to say why is it that that connection is drawn and it is because you might have said they had mechanisms available to them to address the issue and the mechanisms may be what the Chief Justice was asking you about, the inclusion of the statement, that we have looked at it and it is not appropriate, or they might have adopted some other mechanism.

MS DE FERRARI: But it did not do that.

GORDON J: But it did not do it.

MS DE FERRARI: Yes. I accept what your Honour is putting.

NETTLE J: Is your concern, which drives this latest submission about giving the man an opportunity to respond to it, at all driven by a perception that because the material might arguably have been lawfully provided in accordance with the terms of the Act there would not be the bias within the confines of the statutory framework?

MS DE FERRARI: If the argument did arise, then that would enliven that argument as well.

NETTLE J: That is what you were driving at with this submission.

MS DE FERRARI: Yes.

NETTLE J: It is prophylactic in a case that is ‑ ‑ ‑

MS DE FERRARI: It is prophylactic, yes. Can I move then to the test for apprehended bias and its application? Your Honours, we say that the test requires two steps and that is uncontroversial. It is in Ebner and in Isbester, but the two steps are more limited than the Minister seeks to make them out. The first is just identification or what it is said may lead the decision‑maker to decide the case other than on its merits and that, we say, is obvious.

And the second is the connection between that matter and the feared deviation, and the feared deviation is the two ways in which the Court has been putting to me, and at a minimum it is the second way and namely the effect on the authority, even if only subconscious, in respect to whether the appellant should be believed in respect to what we say is almost invariably a central issue in protection visa applications.

GAGELER J: It should not be believed because he is a troublemaker, is that the way the subconscious mind works.

MS DE FERRARI: It is more than just a troublemaker, it is someone who is involved in many incidents, breaking ‑ ‑ ‑

NETTLE J: He has been convicted of indictable offences, repeatedly.

MS DE FERRARI: Yes. He has been convicted once, but the material presented as if ‑ ‑ ‑

NETTLE J: I am sorry, I thought you took us to the prison reviews going back to Baghdad to suggest that he may have been convicted repeatedly of offences.

MS DE FERRARI: No, no, the Casuarina and Albany prisons are just prisons here in Australia where the superintendent or others kept moving him to.

NETTLE J: And Baghdad?

MS DE FERRARI: Baghdad, that was part of his claim about why he was in detention in Baghdad, to do with his refugee claims and statelessness claims, not in terms of had he committed any offences.

NETTLE J: So, it is only one offence, then, that the IAA has been apprised of by this material.

MS DE FERRARI: It is only one offence that he has been convicted of, which he disclosed in his application, yes, but ‑ ‑ ‑

NETTLE J: So what is the prejudice over and above what is disclosed by him in his application?

MS DE FERRARI: Well, your Honour, for a start he is a repeat offender, many times repeat offender, not just the one that he has disclosed, and is effectively assessed to be someone that in one case was involved in the riot, whereas on the rest of the material is that he has been charged and he is awaiting ‑ ‑ ‑

NETTLE J: So a repeat offender without conviction therefore, is that it?

MS DE FERRARI: Well, yes, and also not controllable, involved in many incidents, all of those matters. And the other matters as well, that we do not know anything more, but all the escalation and de‑escalation to national security, Debt Intel and so on.

GAGELER J: Part of your case, that those references have some subconscious effect on the ‑ ‑ ‑

MS DE FERRARI: Yes.

GAGELER J: ‑ ‑ ‑ or can be perceived to have some subconscious effect, and what is that subconscious effect? I am sorry, you are going to have to spell it out for me.

MS DE FERRARI: Well, the escalation to those teams could convey the fact that he is suspected of more serious offences outside of Australia, there is constant ASIO investigations in terms of where people come from and whether they are disqualified for that reason. Det Intel suggests intelligence considerations. We do not know. I mean, why was he escalated to that? Why was it national security level? We just do not know.

EDELMAN J: That is really the core relevance, you say, of the failure to seek comment from the parties because without any invitation for comment or clarification of these matters, there remains these lurking allegations.

MS DE FERRARI: Yes, combined with the fact that, as your Honour Justice Gordon put it to me a number of times, it is considered by the Secretary relevant that all of this should be conveyed to the Authority.

KIEFEL CJ: But if the decision‑maker had asked for comment, that would have been taken as an acceptance that the matters were relevant.

MS DE FERRARI: Well, not necessarily, your Honours. In terms of – I have now moved to the discourse that is more usually invoked in terms of the hearing rule, but in terms of when the assessment is to be made about information that is credible, relevant and adverse, then the developments is not decided. You do not decide that it is relevant until you are given invitation to comment. The test is whether it might be relevant. You need to establish whether it is relevant, but it is still credible and, prima facie, adverse. Then the question becomes, well, is it relevant, how is it relevant and what is the explanation which might make it completely irrelevant.

EDELMAN J: I do not propose to take any of this material into account, is there anything that you want to say about it.

MS DE FERRARI: Yes, and, your Honour, to put it bluntly, one submission that he might have said is, well, I think that in all fairness the case should be assigned to another decision‑maker.

GAGELER J: Ms De Ferrari, you skipped over your submission on section 473DC(1). I just have one question to ask you about it.

MS DE FERRARI: Yes.

GAGELER J: Paragraph (b) refers to what the authority considers making relevant. Is there any authority on what “relevant” means there? Does it cover what might be adjectively relevant or is it just concerned with what goes to the merits of the decision to be made?

MS DE FERRARI: Yes. I was going to take it on notice. I am not aware of any authority and my learned junior is not aware of any authority, but if we may take it on notice.

GAGELER J: Thank you.

MS DE FERRARI: Now, your Honours, we say that accepting those two tests, in some cases the connection between the matter and the feared deviation can be obvious. This was the case in Isbester, as the plurality noted at 49, and we say the same is here. Ebner of course developed a two‑step – in a context of an interest, where it was said by this Court that it was not sufficient to just sort of say interest as one of the four categories in Webb. You have to identify more specifically the feared deviation created by that interest, but in some cases it is obvious. I did want to take the Court to the passage in Webb.

KIEFEL CJ: That might be a convenient time for the Court’s morning break. Thank you, Ms De Ferrari.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ: Yes, Ms De Ferrari.

MS DE FERRARI: Thank you, your Honours. I wanted to briefly take the Court to what was said by Chief Justice Mason and Justice McHugh in Webb v The Queen – that is at tab 7 of the folders of authority – at page 53 of that judgment. This is on the topic that in some cases the connection between the matter and the feared deviation is obvious. It is notable, we say, that their Honours, at page 53, about point 3, put it this way in terms of the broad public interest of public having confidence in the administration of justice:

The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias.

So the absence of prejudice is noted and we say that when there is prejudice, when the material is prejudicial, then the connection is obvious.

The next question is the reasonableness of the asserted apprehension. Now, we are aware that there has been a recent, before the High Court, note by Professor Groves and in part it notes a number of decisions in courts below that have considered whether there is a three-step test or not. We make these submissions not because we think it matters to our case but, in our submission, the third step is nothing more than having done the first two steps then looking at the abstraction of the fair-minded layperson and that is where the reasonable comes into it and basically applying the double might test at that stage.

The test we have set out in the following paragraph and that is just extracted from Ex Parte H, but of course similar terms have been stated by the plurality in Isbester and by Justice Gageler as well in Isbester, in fact citing Ex Parte H. The important point, though, is that the reasonableness of the apprehension is there precisely to rule out an inquiry into the actual state of mind of the decision-maker. Now, there is ample authority for that proposition and we have cited there some of the decisions of this Court where that is made perfectly clear.

Again, in Isbester ‑ and I am using that case because I believe it is still the most recent decision of this Court ‑ your Honour Justice Gageler put it extremely plainly at paragraph 61, which is on page 156. The test:

necessarily involves no inquiry into the actual state of mind of that person or of any other person involved in the decision‑making process.

Here, in a sense, we are not saying we want to look into the state of mind of the Secretary but the Secretary is part in the discharge of its duty of this decision‑making process because what the Secretary does give to the Tribunal absence application of the new information provisions constitutes the four corners of the jurisdiction of the Tribunal. We say, however, that inquiring into the mind is, in effect, what both Justice Moshinsky and Justice Thawley did do.

GAGELER J: Ms De Ferrari, does the time of the inquiry matter for your purposes? Are you standing back after the event and looking at the entire process that has occurred and asking whether there was retrospectively an apprehension of bias or are you asking us to put ourselves at some particular point in the process?

MS DE FERRARI: Yes, we do not think it matters but we do think that probably the correct analysis when one looks at the statute and how it works and following from what is said, that is, that the four corners of the jurisdiction are, effectively, the provision of the materials by the Secretary that her Honour Justice Mortimer’s analysis that probably you put it early on in terms of the person knows that the Authority has just received all this material and is going through it diligently and at that point in time starts to form views about who is this person and why do I have this material and what does this say about this person. But we do not think that it matters.

Her Honour Justice Mortimer said that if you had to look at the end in terms of what the reasons of the decision‑maker disclosed which this Court in Michael Wilson at least suggested that ordinarily it is the wrong test to do but if you had to look at it in terms of at the end of decisions, then what you would conclude is that there was no doubt about what the authorities thought of him and that is that he was a person who could not be trusted with his evidence.

We have given in the authorities there the citation where her Honour Justice Mortimer sets out why that was the conclusion based on a central aspect of his claim which was that of statelessness. So, that is a long answer and we do not think it matters for our case but, obviously, this needs to be applied to other circumstances and we think that having regard to the statute the test will be in the simple case of provision of materials and nothing else happens you would look at it at the time when the materials are provided.

GAGELER J: The consequence of that would mean that it would be impossible for the Authority to overcome the bias? Would that be the consequence of that argument or not?

MS DE FERRARI: Well, save for the possibilities of safe valves, escape clauses, which we have been considering, your Honour, which might be that the Authority might be able to say in its reasons, I have considered it, I realise it is completely irrelevant, I have put it out of my mind. That might work, but ‑ ‑ ‑

EDELMAN J: Why would you not look at all of the circumstances during the process of the hearing as well? They could go both ways. Circumstances during the course of the hearing, things said by the Authority might reveal an apprehension of bias.

MS DE FERRARI: Yes, of course. The primary rule is that there is no hearing.

GORDON J: The test is dealing with the case on its merits. Now, that may involve, as Justice Edelman has put to you, matters beyond the first point in time.

MS DE FERRARI: It may.

GORDON J: Does that mean anything more than one has to apply the test to the circumstances of the case?

MS DE FERRARI: Well, the circumstances of the case is there is no hearing. There is obviously ‑ there was no hearing here, but that is a primary rule, there is no hearing. There is no provision of new information, save for the limited matter that is envisaged by the provisions and save for the opportunity to extend it at the beginning by the authorities in terms of the practice direction that goes out to applicants. I do not disagree with looking at all the circumstances, but the reality is that in this case and in a typical case there is little more than the reasonable person observing such as he or she might, knowing that the materials are received and they will be read and a decision is eventually produced.

KIEFEL CJ: What you are saying, I think, is that in reality, given that it is an objective standard, there will be little that a decision‑maker can do to overcome the appearance of bias, and I would add to that, largely because you are moving into the area of actual bias.

MS DE FERRARI: Yes, and that is because ‑ ‑ ‑

KIEFEL CJ: Once you start having discussions about what the decision‑maker is saying about what they have not taken into account you are not in the realm of apprehended bias at all.

MS DE FERRARI: Yes, we do not shy away from the proposition. As the statute has set up the scheme, there might be very little that can be done.

KIEFEL CJ: Can be done.

MS DE FERRARI: Your Honours, the reasoning of his Honour Justice Moshinsky is at paragraphs 134 to 136. That is in the core appeal book, at pages 99 and 100.

KIEFEL CJ: Is not his Honour at those passages concentrating on the extent to which the material could be said to be prejudicial? I do not quite understand how you say that his Honour was inquiring into the decision‑maker’s mind by reference to those passages.

MS DE FERRARI: Because at paragraph 135, as we read it at least, his Honour came to the view that the Authority would put the information aside as irrelevant and the question is how is the Authority able to do that and how is the reasonable layperson able to think that the Authority is going to be able to do that, including in the way that we have been articulating and it has been accepted in AMA16, that it is in the subconscious prejudice that it engenders.

KIEFEL CJ: Is not the question that, what his Honour says at that paragraph 135, the question posed is whether or not the fair‑minded lay observer is entitled to take into account whether a decision‑maker will discern relevance and irrelevance. That is really where his Honour is putting it, is it not?

MS DE FERRARI: At the conscious level that might be something that the decision‑maker can do.

KIEFEL CJ: Or I think, as his Honour is really putting it, it is an assumption that a fair‑minded lay observer might have about someone in the position of a decision‑maker of this kind, conscious of the limits of their role.

MS DE FERRARI: Yes, and in terms of working consciously about how to put this information as going to one particular issue, is the person one to whom Australia owes a protection obligation because of this particular thing happened to him. That might be something that can be done. I cannot see the relevance of what has happened to him in Australia in terms of assessing the well‑founded fear of persecution. But in terms of actually putting it in different compartments ‑ relevant, not relevant – having absorbed it in terms of what it says about the person and whether anything that he says – how do I look at anything that he says ‑ not in person or on paper, the assessment that I make about the credibility of what he says, that cannot be ‑ ‑ ‑

KIEFEL CJ: If one takes the example of a judge in a civil matter where the issues are clearly defined upon the pleadings and some material is put before the judge that has nothing to do with those issues, is the fair‑minded lay observer entitled to consider that a rational judge would simply put that to one side? Is this a matter that one can talk about? I know it is hard to speak in the abstract about these matters.

MS DE FERRARI: Yes, it is hard to speak in the abstract. It depends. The example seems to envisage, just looking at the pleading and then at some document that is a copy of the ‑ ‑ ‑

KIEFEL CJ: Well, judges are meant to know when documents are irrelevant just like that.

MS DE FERRARI: Yes. Well, I think in one of the judgments, his Honour Justice Madgwick expressed a note of reservation about the accepted wisdom of anybody really being able to do that task so easily. I will find it in a moment.

EDELMAN J: Is this submission closely interlinked with your submission that there is no threshold for prejudice?

MS DE FERRARI: Yes.

EDELMAN J: So, in effect, what you say the error by Justice Moshinsky and Justice Thawley was was that one cannot even descend into asking what the fair‑minded lay observer would consider once you determined that information is, in any degree, prejudicial?

MS DE FERRARI: In the particular – it is irrelevant, it is prejudicial ‑ ‑ ‑

EDELMAN J: And irrelevant, yes.

MS DE FERRARI: ‑ ‑ ‑ and has been given by the Secretary with that imprimatur, yes.

EDELMAN J: Would that then mean that suppose the only irrelevant, slightly prejudicial, information that had been provided in a case like this was that the appellant had been convicted of a driving offence of driving one kilometre above the speed limit, would you still maintain then that any degree, no matter how slight, of prejudice leads to subconscious bias and one cannot really even apply the fair‑minded lay observer test in the way that the majority did?

MS DE FERRARI: Well, the question, I think, necessarily devolves into one of two things, either an inquiry into what actually went through the decision‑maker or substituting really a test by what the Court thinks, with respect, rather than objective possibilities rather than a double might. In this kind of context we say it is a low threshold, the material should never have been there. It is the will of the Parliament that there is no escape mechanism, seemingly, to deal with this if we are wrong about the fact that there should be one as a matter of implication of the content of the bias rule. All that it means in terms of the administration of this particular system of decision‑making is that the Secretary is required to discharge its duty with some care.

EDELMAN J: So, the answer in my hypothetical example, then, is yes, is it?

MS DE FERRARI: The answer is yes.

NETTLE J: In this context.

MS DE FERRARI: In this context, yes.

NETTLE J: Surely that one k above the speed limit you would regard that as immaterial.

MS DE FERRARI: Well, your Honour, immaterial to what? Why was it being provided?

NETTLE J: Well, quite, but looking at it objectively it is inconceivable, is it not, that a decision‑maker would regard that, or be affected by it in determining whether the man should be permitted to stay.

MS DE FERRARI: Well, your Honour ‑ ‑ ‑

NETTLE J: I am not suggesting we are anywhere near that line now, but just to pick up Justice Edelman’s example. There must be cases where it is immaterial, albeit theoretically prejudicial.

EDELMAN J: In a way, it might not be asking any different a question to the question that is asked in the context of the hearing rule for procedural fairness that there is some practical unfairness that is required or there has got to be some practical apprehension of bias.

MS DE FERRARI: That might be what it comes down to, we have been thinking about how, if at all, that line of development of jurisprudence fits into apprehended bias.

GORDON J: There are two questions, I think. One is to pick up that analysis ‑ Justice Gageler in Pompano talks about the inquiry directed not to the correctness of the outcome but to the fairness, the process question.

MS DE FERRARI: Yes.

GORDON J: And so, that then does ‑ and I think links back to the first step in this. You are required two steps. You have got to identify a matter upfront; this task, you undertook it in great length when you opened your submissions, take this idea of it is one kilometre over the speed limit. It may very well be taking both those aspects, the test in the context in which one is thinking about it, you will never get any further.

MS DE FERRARI: Yes, that might be.

GORDON J: So, in other words, it is not everything that is handed over to answer, I think, which is what I think you agreed to, one has to understand what we are dealing with here, we are dealing with process and fairness of process, and one of the things, one of the gateways in this is to identify the matter.

MS DE FERRARI: Well, it might be that the inquiry at that point in the matter, it comes down to the fact that the answer is not prejudicial.

GORDON J: It is not even prejudicial, it is not even that. Whatever character it is given, it is not a matter which would lead to the decision‑maker to decide the case other than on its merits.

MS DE FERRARI: Yes. Your Honour, that might be right, we have tried to follow the steps and articulate it as we see it and on the facts of this case. We do say that what Justices Moshinsky and Thawley did was effectively try to unravel the effect in the mind of the decision‑maker by this attempting to see how, if at all, anything went further than what the applicant ‑ the appellant had said in his application. We say that is the wrong test, you look at everything that was put in its totality, and there being no relevance whatsoever to putting that material, and you do not salvage the whole operation by saying, “Well, it is background”, or it does not‑ ‑ ‑

KIEFEL CJ: Is not the key passage in Justice Moshinsky’s judgement paragraph 136 where he distinguishes AMA16 by saying the same inference is not open in the present case, because:

much of the information was before the Authority in any event; and . . . the documents . . . additional information ‑

as far as it went:

did not have the same prejudicial quality ‑

Is not that the ‑ ‑ ‑

MS DE FERRARI: Yes. It is the test or threshold of prejudicial quality of the material which we say was not open to be made, and also factually it is wrong to say that much of the material was before the decision‑maker, in any event; it just was not. Nor was it there presented by the Secretary as considered to be relevant.

KIEFEL CJ: Where do you say Justice Thawley ‑ ‑ ‑

MS DE FERRARI: Justice Thawley’s reasons start at paragraph 162. He starts:

The mere existence of irrelevant material provided under s 473CB(1)(c) cannot give rise to an apprehension of bias.

Well, irrelevant materials is one thing, but irrelevant and prejudicial, which is the debate, is another thing. Then his Honour goes on to say:

a fair‑minded observer would not conclude that a “Reviewer” –

and here there is the linking to the quality of the decision‑makers that are reviewers –

is (as an absolute proposition) unable to disregard irrelevant material.

Well, that might be so, but it does not deal with prejudicial material. His Honour then goes on to say, correctly:

It is sometimes difficult to identify with certainty matters which might influence the making of a decision, consciously or subconsciously.

And then there is elaboration of that. But then he says, it:

depends on all the facts and, in this context, particularly on the nature of the prejudicial material, its prominence and the nature and content of the material which was otherwise before the decision‑maker.

At paragraph 169 he then accepts that the irrelevant material might have gone further, but then says it was not such that would offend against a double might, and that effectively is because of the view, again, that substantially the matters of prejudice – effectively, there was no more poison to be had. The prejudice was already all there in what the applicant had put before the decision‑maker.

Then at 171, the conclusion is that the material is “not sufficiently prejudicial”. In our view, that can only be a conclusion drawn about having regard to the effect that it had on the mind of the actual decision‑maker if you are able to disregard as well the subconscious prejudice that we say is engendered by this material.

GAGELER J: So the fact that the material is provided by the Secretary is critical for this argument, is it?

MS DE FERRARI: Like all cases of apprehended bias, all the relevant facts and circumstances by which the decisions are made, if they are relevant, are critical and if one was absent, it is likely that the apprehension of bias might not be there. But certainly it is a central feature of the scheme that it depends on the Secretary having considered, rightly or wrongly, that the material is relevant. And for that reason that should be all that the Authority should consider.

GAGELER J: Well, the Authority is given, under section 473CB(1)(b) the material provided by the applicant, which contain statements which, using your terminology, are prejudicial, correct?

MS DE FERRARI: Well, there are statements that are disclosures that are required by the Act in terms of what can – making a valid application for a visa. So, they are not prejudicial in that sense, they just describe the reality as to what has happened. But the material that is given by the Secretary is not describing the reality, it is describing all sorts of opinions that the Department has about this person. So, in a sense, everything can be said in a particular context to be prejudicial of a view that one takes about a person. If one says I live in a particular part of town, one might, in a particular context, take a dim view about the person because of that fact. So, everything in context might be, but in the context of this case the appellant was complying with what was required to make a valid application.

Those were facts. The Secretary was giving gratuitous opinion about him. But, yes, to answer your Honour’s question about the Secretary, we say – and that is at paragraph 16 – that it is relevant to ascribe to the lay person so as to make him or her properly informed, apart from the matters that are in the first two steps – and we have identified that above – the following matters: at least so much knowledge of the statutory scheme that goes to the fact that the materials that the Authority has are under the primary rule only what is provided to it by the Secretary, and that includes under paragraph (c).

Now, paragraph (c) is different from paragraphs (a) and (b) because it does depend on the Secretary’s state of mind, a point that I will come to in a moment. But paragraph (a) is effectively the delegate’s reasons, paragraph (b) is the material that was the application, so what was given under Part 2, including any further materials given after the application was made, but paragraph (c) is broader. First of all, it extends to material that may have come into existence or in the position of the control of the Secretary after the decision was made. It might be even old material but it includes material after that time. Then it depends on the Secretary’s consideration of it to being relevant, not relevant in a generic sense like the Minister would have it, but relevant to the review.

Your Honours, we say that on the proper application of the test of apprehended bias the double might – the lay person properly informed would not consider that the materials that I have taken your Honours to, given by the Secretary, travel no further than what the applicant has said. Nor would it consider that they are just “background” and nor would it exclude the possibility that it might have had an effect on the Authority even if only subconscious.

The final topic, your Honours, going back to the section that I was on, namely 473CB, the duty of the Secretary. The first proposition is that the implied condition on the exercise of that part of the duty and power in paragraph (c) is that the state of mind be formed reasonably and on a correct understanding of the law.

Now, in the court below, four judges adopted a test of something along the lines of, well, the Secretary forms a view. That test, we are not saying that it is correct in relation to Part 7 but it has come about in relation to a similar provision in Part 7, and that is section 418, but there are clear differences between that provision and this one. First of all, there is no hearing under Part 7AA in the primary rule and relatedly under the primary rule, as I have already submitted, what the Secretary gives effectively is the four corners of the Authority’s jurisdiction.

So we say that this former view or, as the Minister would put it, try to have a go having regard to the fact that it has to be done quickly and if in doubt overprovide materials, is incorrect. I will not take your Honours to it but the acceptance of the proposition I have just made in terms of the implied condition and exercise of the power has now found its way in the decisions of the court below. This was after the decision in this case. Your Honours, that is in EMJ17 v The Minister, which is actually a decision of Justice Thawley himself, and in the Full Court’s decision of EVS17. I will not take your Honours to it; we have given the reference to it.

Now, in this case we say that on a correct understanding of the law the materials could never have been relevant, and we have developed that reasoning why, having regard to the Act, in the written submissions at paragraph 37. It is notable that the Minister has never contended at any stage that the materials could be relevant. It has never come up with a way of arguing that the materials could be relevant, save for attaching the label of it, background.

Now, if, as we say, in this case there was a breach of the duty of the Secretary, the question is whether it had a material effect on the decision
of the Tribunal. His Honour Justice Thawley in EMJ17 analogised these type of cases because of the particular statutory context similar to the situation of what is sometimes described as a “fraud on the Tribunal” type scenario.

The Authority may well be entirely innocent, but the anterior breach by the Secretary has that effect of excessive jurisdiction by the Authority. We say that in this case, having regard to the fact that the Authority did not disclaim having regard to the materials, did not attempt to say, I have put them out of my mind, even if that attempt could be done, did not provide any opportunity to the appellant to know of their existence or comment upon them, then in this case it had a material effect on the Authority’s decision, the breach by the Secretary, that is.

GAGELER J: The material effect being the same subconscious effect that you spoke of earlier?

MS DE FERRARI: Effectively, yes, your Honour, yes, that is so. We have not found any cases so far, in answer to your Honour Justice Gageler’s question, but we will do some more research. Unless there are any other questions, your Honours.

KIEFEL CJ: Yes, thank you. Yes, Mr Kennett.

MR KENNETT: Your Honours, in connection with apprehended bias, I do not propose to say anything about paragraphs 1 to 3 of my outline because they relate to the point that was covered by the Court’s ruling earlier, although I will need to circle back to paragraph 3 to some extent when I deal with the last ground that my learned friend articulated.

My starting point therefore is that material provided to the IAA by the Secretary pursuant to, or at least in attempted compliance with, 473DC(1) is capable of attracting the description of “extraneous” or “inadmissible”, words used by Justice Deane in Webb’s Case.

The next step would be to identify the connection between that material and a feared deviation from neutral determination of the issues on their merits and we would say that that analysis would have to include analysis of the reasonableness of any apprehension said to be raised in the mind of a well-informed observer by that connection. I will come in a moment to passages in Isbester which are useful in this respect.

It is important to note a couple of things before I get to the cases. The identification of the logical connection proceeds, of course, through the medium of a hypothetical, fair-minded observer, an observer who is taken to be aware of the statutory framework within which the decision is made and aware of a factual context within which the decision is made.

Much depends, it appears from my learned friend’s argument, on two terms which need some unpacking – “irrelevant” and “prejudicial”. It is, as we understand it, an important part of our friend’s case that the material that is complained about was not capable of being relevant to the decision which the Authority had to make and yet it is also put, as I understand it – and may I say hitherto we have accepted that description of “irrelevance” and proceeded from there.

In light of what fell from my friend today and particularly in dialogue with your Honour Justice Nettle, it seems that the asserted prejudice is put in two ways. One is that the material simply gave a bad account of the appellant’s general character and might have led to the view that because he was a bad person he should not get a visa. We understand or have always understood that to be a vice contended to exist in the material. But the other way that it seems to be put is that the material was logically capable of going to the appellant’s credibility, a chain of reasoning which might – and I am not suggesting for a moment it is a good chain of reasoning – but an apprehended chain of reasoning which might go along the lines that the man is a serial troublemaker and has committed indictable offences therefore he is not to be believed.

Now, I certainly do not suggest that the Authority proceeded in that way, nor do I suggest that it would have been necessarily a sound way to proceed, but part of the case, as I understand it, is that the material is important and prejudicial because it might have had that consequence. But if that is a consequence of it, then the description as “irrelevant” appears to us to collapse. If the material is capable of being probative of something in the review, even if that is whether the referred person’s claims are to be believed, then it is much harder, we would say, to say that it is irrelevant.

EDELMAN J: One could comfortably say it is irrelevant, but that there is a danger that they would use that irrelevant material in the course of reasoning in an impermissible way, in the same way as juries are directed, commonly, “You have this material before you. Do not pursue a process of reasoning that, just because this accused person is said to be of bad character in the following way necessarily means the following consequences arise”.

MR KENNETT: I am glad your Honour has reminded me of juries, because it was a point that I needed to make in this connection. There are a host of rules in relation to what can go before juries, which flow from the fact that juries are comprised of lay people who are deciding matters of criminal guilt. And the criminal law is of course absolutely vigilant to protect the reasoning processes of juries by preventing things from going before them and by requiring judges to give directions. Now, none of that panoply of rules applies to an administrative decision‑maker under this statutory regime.

NETTLE J: Surely the same principle does ‑ the decision‑maker’s mind should not be affected by irrelevant but prejudicial material.

MR KENNETT: The decision‑maker is, as my friend has noted, obliged by law to consider everything that is within the review material as defined. Now, that may, as your Honour Justice Gageler noted, include things that the referred person, him or herself, has disclosed which could be said to go to character in a prejudicial way.

NETTLE J: So be it in that case. We are talking about something additional to that.

MR KENNETT: We are, but my point is that the statute must be taken to assume in a capability of the decision‑maker to sort the wheat for the chaff.

GORDON J: And they did not. That is the point here. You accept that this material is extraneous?

MR KENNETT: No. Well ‑ ‑ ‑

NETTLE J: You are not persisting in the contention that it was relevant? If so, in what way could it possibly be relevant to whether he was entitled to protection?

MR KENNETT: We do not suggest it has any bearing on that matter directly.

GORDON J: Directly or indirectly?

MR KENNETT: Well, we do not suggest that – the reason I qualify it is because of the suggestion that has been made that it could in some way have gone to his credibility.

NETTLE J: Only by a specious process of reasoning.

EDELMAN J: Which is the danger that apprehended bias is concerned with.

MR KENNETT: Well, that may be so, your Honours, but it at least makes more complex our friend’s proposition that the material ‑ ‑ ‑

NETTLE J: I do not think it does. Just because human beings are, being what they are, prone to engage sometimes in specious processes of reasoning when subjected to highly prejudicial material does not mean that it makes it relevant.

EDELMAN J: You may be right, that a specialist tribunal might be afforded greater latitude than a jury of lay persons, but that is a question of threshold or degree, not a question of principle.

MR KENNETT: That may be right, your Honour. I am sorry, I have a build‑up of questions here ‑ ‑ ‑

KIEFEL CJ: You have a number of things to answer. Perhaps you might like to take your time, without interruption, to answer them.

NETTLE J: Or on relevance.

MR KENNETT: The description “irrelevant”, as we understand it, is absolutely essential to our learned friend’s last ground and to the proposition that it was improper for the Secretary to provide this material. Now, that is difficult to maintain, we would say, if there is also a contention put that the material was capable of being seen as going to credibility. Now, the chain of reasoning involved may be a specious one and may be one that ought to be protected against, as to which, and that really feeds into the question of prejudice, which is the next loaded term that I need to come to.

To come back to your Honour Justice Gordon, if I remember the question correctly, it is not established here on the evidence, which consists of the Tribunal’s reasons that it gave any weight to this material and the suggestion is that it was done subconsciously but one cannot prove that either way, and that really serves to emphasise something I was going to mention later which is the question of apprehended bias is really a question of appearances rather than actualities.

GORDON J: It is about process and not outcomes.

MR KENNETT: Processes, yes.

GORDON J: So here, I am just not quite clear where you have got to, Mr Kennett, I know you have had lots of questions on this issue of relevance.

MR KENNETT: Yes. I thought your Honour put to me that when I said that ‑ ‑ ‑

GORDON J: Well, I was trying to put a different term, rather than “relevance” to say, do you accept it is extraneous to the issues before the Tribunal, and I think you got interrupted, so I was trying to take away this term of “relevance” to say that none of this material, this extraneous material or whatever label you put on it, was relevant to the issues before the Tribunal.

MR KENNETT: Yes. The fact, if it were the fact, that the appellant was a troublemaker in detention could not itself have any bearing on whether he is a person to whom Australia has protection obligations. Of course, I accept that. One can imagine, not that I would endorse it, a chain of reasoning which said the fact that he is a troublemaker and a serial offender detracts from his credibility. Now, if that were the reasoning, and I were here defending that, then I would have some difficulty, but one can imagine that chain of reasoning being drawn. Is it extraneous? We understood Justice Deane in Webb to be using “extraneous” in the sense of things which should not have been put before the decision‑maker.

GORDON J: So I put my question again ‑ do you accept it satisfies that descriptor?

MR KENNETT: Well, we do not, although, if I were to expand on the consequences of that I would be into the territory of the notice of contention, which the Court has decided not to hear. Can I just expand on that without wasting too much time on it? If one looks at Webb and then if one looks at JRL, for example, the concept that is in play appears to be information that has come before the decision‑maker in some way which is either improper or outside of the statutory process and it is when information ‑ ‑ ‑

GORDON J: Is it limited to those categories?

MR KENNETT: We would say it is, your Honour. If a person in an open hearing says something highly prejudicial, it is out there and it needs to be dealt with. If the person says something highly prejudicial behind the scenes to the judge, for example, then that is an improper communication ‑ ‑ ‑

EDELMAN J: It is your words “needs to be dealt with” that is crucial, is it not, because if something highly prejudicial is said during the course of the proceedings, something needs to be done about it? The difficulty here is that nothing was done about it.

MR KENNETT: Something needs to be done about it in the sense that it is there for the parties involved and they have to, in order to protect their interests, do something about it.

GORDON J: That is the problem here, though, with the statutory scheme you have got. You have a statutory scheme where the materials provided by a Secretary on the basis that they consider it relevant to the review, the Tribunal is obliged to consider that material. The applicant does not know about the provision of this material which, on its face, contains items which are – I think you have accepted – not relevant to the question before it in the sense of not determinative of the issue about whether or not someone owes protection obligations and there is no mechanism to correct it, other than by the Tribunal itself, and there is nothing on the facts to suggest that the Tribunal did.

MR KENNETT: Your Honour is right. The problem here is not so much that the Authority got to see this material because, of course, the Authority also got to see what was in the appellant’s application to the effect that he had been convicted of one offence and charged with another. The problem is not so much that the Authority got to see that, but the appellant did not know and that is what immediately raises in a policy or due process sense that something must have gone wrong but the something that has gone wrong is a hearing rule issue.

NETTLE J: No, it is not; it is the possibility that the Tribunal might have taken this irrelevant material into account.

MR KENNETT: That is the way it needs to be framed by our friends and is framed.

NETTLE J: Yes.

MR KENNETT: But what I am addressing in relation to Justice Gordon’s question is yes, it strikes one or may strike one as unsatisfactory that the material that is given to the Authority, which could conceivably be used in a decision, and the person whose interests are at stake may never get to know about it until the decision comes out or perhaps not even then. That is an arresting feature of the scheme, but that cannot be claimed about, at least in that way, because of 473DA, as construed by the Court in the case decided a couple of days ago, whose name I have forgotten for the moment.

NETTLE J: Provided it could reasonably be considered to be relevant by the Secretary within the meaning of 473CB(1)(c).

MR KENNETT: In the procedural fairness sense, yes, or in the bias debate, yes.

NETTLE J: Yes, in the procedural fairness sense, and both in fact. If it is relevant, it is relevant. The statutes provided that they have it – that is, provided it is reasonably relevant within the perception of the Secretary under that provision.

MR KENNETT: Yes.

NETTLE J: If it is not, and I thought it was agreed on all hands that it is not, then it is extraneous.

MR KENNETT: If it is not provided under CB(1) ‑ ‑ ‑

NETTLE J: And ex hypothesi it would not be on this basis, if the Secretary could not reasonably consider it to be reasonable.

MR KENNETT: To be relevant.

NETTLE J: To be relevant.

MR KENNETT: That would be right. If it is provided outside the scope of CB(1), then it is not part of the review material as defined. The argument that the Tribunal is obliged to consider it to the extent that we both rely on that rhetorical point, falls away and it is just a piece of ‑ ‑ ‑

GORDON J: I do not know that it does fall away. If you get to that point, then the lay observer steps back and says, “Having got this extraneous material, what was the Tribunal obliged to do?” It was obliged to read it because it had attached to it a label which said the Secretary thought it was relevant and therefore not only were they obliged to read it, they were obliged to consider it. That is the logic in both the test and the process question and that is why I said to you before we are looking at a process, not at an outcome.

MR KENNETT: Yes. In a practical sense, at least, your Honour is right. The Tribunal ‑ ‑ ‑

GORDON J: And legally I am wrong?

MR KENNETT: The Tribunal might open the document and say, “For heaven’s sake, this could not possibly have been relevant. The Secretary has committed an error here and I am not going to treat that as before me”. But to do that, the Tribunal would at least have had to see what the document was. So in the end I am agreeing with your Honour.

Now, the other problematic term which lies at the heart of this case is “prejudicial”, of course. Your Honours have seen in the reasons of the majority below a deployment of that term which allows for gradations and in a sense an acceptance that the material was prejudicial but a view that it was not sufficiently so or sufficiently gravely prejudicial to lead the reasonable, fair‑minded observer to a certain conclusion.

The way we understand our friends to put the point uses that word “prejudicial” in a way which packs into it essentially all of the core questions in the case so as to say it is prejudicial and therefore gives rise to a reasonable apprehension of bias. It is automatic or inevitable, in our friend’s argument.

That really serves to indicate that the label “prejudicial” itself does not help us very much in the debate because if all it means is our friends have won, then it does not add anything to the analysis. I just wanted to note that and I will be steering away, to the extent that I can, from any statements that particular material was or was not prejudicial.

The final preliminary point, your Honours will be glad to hear, and your Honour Justice Gordon has touched on this, so has my friend, was to mention the Michael Wilson Case, which is not in the materials, but the reference is 244 CLR 427, where the Court – that was a case where a judge had heard various interlocutory applications ex parte and the question arose about whether he should have disqualified himself, and in the course of that decision this Court said that the reasons that his Honour published at the end of the process were irrelevant to questions in relation to apprehended bias.

That tends to suggest, as your Honour Justice Gordon put to me and I agreed, that it is a question of whether the process was fair, and appeared to be fair, and what the decision‑maker says about the process later is unlikely to be useful in – well, certainly what the decision‑maker says about his or her reasoning later is unlikely to be useful in resolving those questions. What seems to follow from that is that neither my friend nor I can take very much from the Authority’s statement of reasons.

NETTLE J: It would have to depend, though, on what the perceived prejudice was, would it not? I mean, it is one thing with Michael Wilson, it is another, say, if a judge hearing a civil cause has placed before him, purportedly by way of tender, irrelevant material, which she or he then rules to be inadmissible, and says so in final reasons for judgment. In such a case, one would have regard to that in determining whether the judge was prejudiced by that irrelevant material.

MR KENNETT: One would, yes, one would.

NETTLE J: It has got to depend upon what is the nature of the alleged prejudice.

MR KENNETT: That must be so.

KIEFEL CJ: And if one takes it a step further, if no reference is made to the material in the judge’s reasons, an inference is usually drawn that no regard was had to it.

MR KENNETT: Yes, and I would make the same point about the Authority’s reasons in this case, but against ‑ ‑ ‑

KIEFEL CJ: But is not this to get into the area of actual bias?

MR KENNETT: Yes. A point against me ‑ ‑ ‑

KIEFEL CJ: You keep trying to make the point, I think, that we are concerned with an appearance and once you have an objective test, you do not get into these questions.

MR KENNETT: Yes, that is right. I would like to say the Authority made no reference to this, but ‑ ‑ ‑

KIEFEL CJ: But that rather begs the question in relation to some decision‑makers about how the fair‑minded lay observer is to perceive their function of how – the parameters within which the expertise with which they bring to bear in relation to their particular function.

MR KENNETT: Yes, yes. Justice Mortimer made the point below, between paragraphs 14 and 17 and by reference to some authority, that this is a question of appearances and one needs to have regard to the impression that the lay observer would have during the process.

GAGELER J: At a particular point during the process? I am asking you the same question.

MR KENNETT: Yes, but ‑ ‑ ‑

GAGELER J: Or, yes, when?

MR KENNETT: We would say, at the end of it.

GAGELER J: Including the reasons?

MR KENNETT: If we had to pick a point in time, I think we would say the moment before the decision is made.

GORDON J: That is consistent with what was set out by – I think it was Justice Allsop in SZRUI, was it not?

MR KENNETT: Yes.

GORDON J: He identifies the point of being determined by a decision-maker before the final decision is made. It is the language use, is it not?

MR KENNETT: Yes, I think that is right, your Honour.

GORDON J: Do you accept that as ‑ ‑ ‑

MR KENNETT: Yes. It is referred to in her Honour’s reasons. But, we would not accept that one makes the judgement, as my friend I think suggested, at the moment the material is provided because of cases like JRL and like Webb where account was taken of the irregularities having been ventilated in open court afterwards. So in both of those cases the possibility at least was accepted that things done afterwards, but before the final decision, could alleviate the reasonable observer’s apprehension of bias.

GORDON J: I think I misled you. I think it was actually paragraph 17 of VEAL where the Court described that as the appropriate method and test.

MR KENNETT: Yes. Thank you, your Honour.

GAGELER J: In the application of that test, I take it that you accept that the content of the reasons can be probative of the position before they were given, or have I misunderstood your answer to Justice Nettle?

MR KENNETT: Yes, I do accept that, at least in principle. The content of the reasons can be probative of what went on beforehand, although, I might struggle to think of an example of that occurring in an apprehended bias situation. Now, with all of those rather convoluted observations in mind, may I remind your Honours of what was said in Isbester about basic principles. It is in the bundle of authorities behind tab 5.

The joint judgment of your Honour the Chief Justice and Justices Bell, Keane and Nettle discussed the principles at paragraph 20 and following, and there was reference to the two steps identified in Ebner and the second step – the first step is said to be the identification of what it is said might lead the decision‑maker to decide the case other than on its merits, and then the second step is described as requiring the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits.

Paragraph 22 notes, as has often been noted, that “the application of the principle to decision‑makers other than judges” necessarily requires recognition of differences between different kinds of proceedings. And then paragraph 23 makes the point that how the principle applies depends on:

the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision‑maker.

And then at the bottom of that page there is the observation that:

The hypothetical fair‑minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made –

Then where the plurality refers to two steps, your Honour Justice Gageler at paragraph 59 has three steps. We do not take there to be any substantial difference of view there, but we would note and respectfully endorse your Honour’s description of a third step. We understand that to be implicit in the second step, as articulated in Ebner, but it is as well to make these things explicit.

We would submit step three is said to be consideration of the reasonableness of the apprehension or the deviation being caused by that factor in that way, and that reflects the consideration that the hypothetical observer is not alarmed by mere theoretical possibilities.

EDELMAN J: It is the functional equivalent of a requirement of a practical unfairness when one is dealing with the hearing rule.

MR KENNETT: It plays the same sort of role, yes. Your Honour Justice Gageler at paragraph 57 on page 154 of the report also referred to a “fair‑minded observer with knowledge of the statutory framework and factual context” and referred to some authorities in that direction. So that makes it necessary to consider the material in question, which your Honours have been taken to, and the statutory framework within which the Authority is established and within which the Authority carries out its functions.

I do not want to labour over much, the material. Your Honours have been taken to that. Can I make some general, and I hope not excessively general, points about it.

GAGELER J: Are you going go to the statutory scheme that you have just mentioned?

MR KENNETT: Yes.

GAGELER J: Thank you.

GORDON J: Sorry, are we dealing with the statutory scheme now or the 6material?

MR KENNETT: The material, your Honour.

GORDON J: Okay.

KIEFEL CJ: Actually, that might be a convenient time.

MR KENNETT: Thank you, your Honour.

KIEFEL CJ: Adjourn until 2.15 pm.

AT 12:42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Kennett.

MR KENNETT: Your Honours, I was about to turn to the material, the factual material, in the present case that is said to be prejudicial, and I want to try to do this without taking your Honours back to all the same pages again. It involves to a large extent internal discussions in the Department concerning the process of inviting this appellant to make his visa application, who will be dealing with him and where he is being held or to be held in the light of his involvement in what is sometimes described as the “incident” and what is sometimes described as the “riot” on Christmas Island.

Those discussions, even allowing for the fact that sometimes the officers call it a “riot” and sometimes they betray a view of their own that he was involved in it, notwithstanding that he had not been convicted, those discussions do not add anything and certainly do not add anything of a prejudicial nature to the fact disclosed by him that he had been involved in that incident and faced charges as a consequence of it.

There are some other matters which do not come within the scope of what I have just said. In relation to those, could I take your Honours to pages 14 and 15 of the appellant’s book of further materials. The email that you see there, which is dated 12 January 2016, is – to give it its context, your Honours see just below line 20 the “Nature of the current issue”. So this is part of a process involving the obtaining of assistance to complete the visa application and in the context of that the writer of the email sets out a potted history of the appellant’s dealings with the Department and it is the same history which your Honours see again at page 56 in the same volume.

A couple of aspects of that have been referred to in submissions. Among them, at page 15, about halfway down we see once again the Christmas Island incident in November 2015 “currently under investigation”, and that comes under the grouping that I mentioned earlier. That is really in the category of natural outgrowths of the incident having occurred and the appellant having been connected with it.

Under a slightly different heading, towards the top of the page we see 5 February 2015, the appellant “no longer of interest to” – we think that is an area of the Department – “Intel.” One can surmise what “Intel” might mean or what the fair‑minded observer might think it meant. That, we say, has no prejudicial weight. That tells us that at February 2015, about a year before he made his visa application, it had been determined that even if he was of interest at some earlier point, he was not of any interest, and that element never returns to the narrative.

March 2015 he has an interview with the National Security Monitoring Section. That appears from the history we have seen to be the only interview, and there is no indication of why he was spoken to or what he was spoken to about.

NETTLE J: Presumably about national security.

MR KENNETT: He might have been spoken to as a potential witness to something. We just do not know. It could be completely anodyne. And the more opaque entry, I suppose, is 26 October 2015. Again, a considerable time before the visa application was made and before this document was written. “Esc” we agree probably means “escalated”, and your Honours will probably have seen that the officials tend to use that term for a matter being drawn to the attention of some other part of the Department.

“NSSCRT”, I have been instructed, is the – I have forgotten the acronym already but it is something to do with national security again and there is a reference to ongoing investigations. We do not have any instructions about what they were and the document does not indicate what they were. So the furthest that this aspect of the material goes is that in October 2015 it was recorded that there were investigations, and this is before the Christmas Island incident of November. So at that time there was something being investigated which had some connection with the appellant. There is no elaboration of what that is or any suggestion of its seriousness or otherwise.

The other heading, I suppose, or the other aspect of the material is at the bottom of page 15 where there is a statement that the appellant has a history of what is described as “aggressive and/or challenging behaviour when engaging with the department” and there is a piece of speculation about why that might be. That suggests that people in the Department at that time had the view that he was a difficult customer, although the writer of the particular note, perhaps sympathetically, indicated that there might be some understandable reasons for him being a difficult customer. That is a long way, we would suggest, from something of a prejudicial nature that would lead a decision‑maker on a different topic – and I will come to that – to regard the appellant as somebody who was undesirable or ought not be granted a visa.

The final aspect of the material, your Honours have been taken to this but I will mention it again, on page 55 just above line 10 there is a reference to “many incidents while in detention”. The same note is repeated on page 57 at about line 13. No discussion of the nature of those incidents, how serious they were, whether he was thought to be blameworthy in them and we would say nothing that rises to a level of something that would lead the fair‑minded observer to be worried that the Authority knew about this.

The vice in this, or part of the vice as I understood my friend before lunch, was that whereas the appellant had disclosed facts about the world, including facts about his criminal convictions and charges, what we were seeing in these documents was opinions. That, with respect, just cannot be the determinative factor. For one thing, much of what is in these documents is facts. There was investigation ‑ ‑ ‑

EDELMAN J: Except that the provision ‑ ‑ ‑

MR KENNETT: I am sorry?

EDELMAN J: Except that the provision of all of the documents reveals the opinion of the Secretary that they are relevant.

MR KENNETT: I have to come to that, I will come to that. But the contents of the documents are largely factual. There are some pieces of speculation and opinions, but largely factual. If one goes back to AMA16 in the Full Court, what was held to be highly prejudicial there was something very factual about an offence for which the applicant in that case had been convicted. So the distinction we would – my friend suggests that is not right, or maybe I am wrong about AMA16. But we would submit that factual material can be prejudicial just as much as opinions, and the vice, to the extent that there is one, in these departmental communications is not that they are opinion‑based, and to the extent that there are opinions in them, they tend to, at least in part, speculate sympathetically towards the appellant.

We would submit that when one looks at this material as a whole and in its context, when one notes the dates at which events described have occurred, considerable time before there is even a visa application, it is hard for anybody, or would be hard for anybody to make this relevant to the determination of whether he is owed protection obligations, even to make it relevant to credibility. I had some exchanges with your Honours before lunch about the potential for these matters to go to credit and I think the potential line of reasoning was described as specious and, with respect, that would be right. It would be drawing a very long bow to say that any decision‑maker was likely to treat those matters as going to the appellant’s credit, let alone as going directly to whether he is or is not a refugee.

Now part of the matrix here is that this material comes to the Authority from the Secretary and, thus, when the Authority receives the bundle it comes with an implicit representation that it is thought to be relevant, and some weight was given by Justice Mortimer below to the point that this is said to be relevant by the Secretary. Justice Thawley dealt with this issue at paragraphs 174 and following of his Honour’s reasons, and I do not propose to take your Honours through that, but it is important to bear in mind two things, we would say.

One is that the power of referral is of course delegable. There is no evidence in this case about who actually exercised the power, but if we put ourselves in the shoes of a hypothetical fair‑minded observer who understands the statutory scheme, one of the things the observer understands is that the power is delegable and is intended to be exercised as soon as practicable, making it unlikely that the Secretary himself or herself is sitting there grinding through refusal decisions and making decisions about what is or is not relevant.

So, in a formal sense, the material is referred by the Secretary but it is much more likely, as a practical matter, to have been referred by an official within the Department who might well be at a much lower level.

GAGELER J: Mr Kennett, maybe this does not matter at all, but just in relation to one of the things you have said about the facts in this case. At page 142 of the appellant’s book of further material is what seems to be a part of a document that accompanied the referral in this case. We were not taken to it by your opponent but at page 142 about line 12 there is a name that – at least it is the same first name as appears at page 136 ‑ am I right in linking those two names?

MR KENNETT: Well, I was quite excited by that, your Honour, when I saw it because I thought it might be relevant to exactly ‑ ‑ ‑

GAGELER J: It is a very small thrill, Mr Kennett.

MR KENNETT: One has to take one’s excitement where one can find it. And I also noted that at the top of the page it says:

This part of the form must be completed by case officers when finalising a fast track reviewable decision –

That would create a reasonable inference that the person who filled in this form was the same person as the delegate who made the decision. But I have been instructed that there is a process subsequent to this form where a different delegate makes the actual decision about what is to go to the Authority. So, I cannot rely on this particular document as evidence of who made that decision.

GORDON J: Is that why there is a checklist that follows? In a sense is it – it is not the decision‑maker who makes a determination of what material goes, is that the point?

MR KENNETT: It is not the – the delegate who makes the substantive decision, as we understand it, fills in this form but that is not the final say on what goes to the Authority.

GORDON J: I see.

MR KENNETT: The broader point remains, though, that it is a delegable power. The other aspect of this, of course, that the IAA is established as the reviewing body with a function of making up its own mind about the merits of particular cases and there is no reason why it should give special respect to the opinion of the Secretary or his delegate as to what material is or is not relevant.

So that leads me into the other aspects of the statutory scheme that I wanted to say something about, which are these. The Authority, of course, is a specialist administrative decision‑making body. Its members are, it is true, no more than ordinary APS employees in terms of their status and their tenure but it is a specialist body, established to make decisions of this kind and is to be distinguished in that sense from a body of lay people.

Next, the Authority is, as your Honours have seen, required by section 473DB to consider the review material. “Consider” is the word that the statute uses and the review material comprises everything that has been transmitted pursuant to 473CB, notwithstanding that some of it may be irrelevant and some of it may even be prejudicial. For example, in the present case the appellant disclosed, as he was required to, the fact that he had been convicted of certain offences. It is hard to see how that was relevant to the decision the Authority had to make. But that fact necessarily came before the Authority and it is clear that the relevance of particular material, in every case, must be a function of the substantive issues that the Authority has to decide and the particular lines of reasoning that the Authority pursues in dealing with those issues.

Notwithstanding that, there is on the face of the statute a requirement to consider the whole body of review material. What we take from that is that the statute assumes a capacity in the members of the Authority to put aside irrelevant material. One can postulate cases where something is included that is so prejudicial that the fair‑minded observer would, nevertheless, have a concern and the circumstances in AMA16 might be an example of that. But in circumstances of less significant or less adverse material, if it is irrelevant the statute proceeds on the basis that the decision‑maker in the Authority has the ability to sort the wheat from the chaff.

EDELMAN J: You accept, then, that the conviction information is irrelevant, in the sense of not capable of rationally bearing upon the material issues to be decided in relation to the protection application?

MR KENNETT: Yes. I suggested before lunch that drawing a long bow it might be possible for somebody to see it as going to credit but, in light of the discussion I then had with your Honours, I have to accept that that is a very long bow.

EDELMAN J: So where does the requirement come from for the information that the appellant includes in the form as to his conviction – is that from the regulations? Is this form prescribed by the regulations or do the regulations just prescribe a form of no particular nature and then the Department determines the nature of the form?

MR KENNETT: There is a reference in our submissions, your Honour, in paragraph 18, to some provisions in the regulations that require the form to be used. I am just not sure whether the form, itself, is prescribed.

EDELMAN J: Or whether they provide for a form and then the content of the form is, effectively, determined by the Department.

MR KENNETT: I would prefer it if we could come back to your Honours on that question rather than me ‑ ‑ ‑

EDELMAN J: You appreciate the relevance of the issue, because then, it may also bring into the equation, matters that the appellant himself has been required to disclose by the Department, albeit irrelevant matters.

MR KENNETT: The provisions that govern the Authority, of course, take as their starting point – or one of their starting points – the material that has been submitted to the Department. So, the Authority, necessarily, takes that as it finds it.

GORDON J: Did you say “binds it”? I could not quite hear you, Mr Kennett.

MR KENNETT: I am sorry, your Honour. Yes, the Authority, necessarily, has to take the material that – whilst submitted to the Department – as its starting point.

GORDON J: As the starting point, I just wanted to ask you about that submission. At page 147 of the applicant’s further materials, there is a letter sent by the Immigration Assessment Authority to the applicant. The second paragraph of that letter seems to – or I will ask you, is that consistent with your proposition that it takes the material as its starting point? I have in mind, in particular, the first and third sentences of that paragraph.

MR KENNETT: I do not think there is anything there that is inconsistent with what I was putting to Justice Edelman which really is ‑ possibly there might be issues to be raised about whether it is proper for the Department to require disclosure of particular things in an application form for a visa. That might be where your Honour’s question was heading – when they are not relevant to visa criteria.

EDELMAN J: And, potentially, not required by regulation.

MR KENNETT: One could have a discussion about that. But, so far as the Authority and its governing regime is concerned, the starting point is what actually has been provided.

NETTLE J: Can I just ask you about these last few submissions you have been making to the effect that a fair‑minded lay observer would, naturally, assume that these people – as opposed to, say, a lay jury – would have the capacity to exclude extraneous materials and would do so. That seems to run counter to the conclusions reached by Justice Griffiths in AMA16. His reasoning – especially at paragraphs 72 to 75 – is really to the contrary. That is at [2017] FCAFC 136; 254 FCR 534 at 551.

MR KENNETT: Yes, your Honour.

GORDON J: And that is the reason why I asked you – sorry, just while you are thinking about that – this idea of the starting point.

MR KENNETT: Well, that part of the reasoning in AMA16 is in part at least concerned with drawing a distinction between the Authority and the body that was considered in O’Sullivan’s Case, which was a more formal tribunal.

NETTLE J: Yes.

MR KENNETT: His Honour finishes that passage 75 on page 552 having regard to what he described as the highly prejudicial nature of the communications.

NETTLE J: I understand your submission about the degree of prejudice. It is just that paragraphs 72, 73 and 74, which I draw to your attention because they seemed to me at least at first instance to be opposed to the last three submissions you have just put.

MR KENNETT: I do not think I would accept that, with respect, and to the extent that we are inconsistent with Justice Griffiths, of course, this Court is not bound by anything said there. The overall submission is that the hypothetical fair-minded observer’s summation of the situation and potential apprehension that there might be a departure from proper decision‑making depends very much on the nature of the statutory scheme and the statutory scheme needs to be viewed as a whole. Certainly it does not go as far as creating a formal tribunal with legally qualified members and things of that sort, but it is relevant. We say that the Authority here has been set up as a specialist body with the characteristics I have so far indicted.

Another of those characteristics is that the Authority has specific and defined issues to determine which do not include any element of character or any discretionary judgment about whether the applicant before it is desirable. So the Authority’s mind is necessarily focused by the statute on quite narrow and well-defined questions in what is of course, to say the least, a frequently litigated area of the law, so that there is no shortage of guidance available as to what the concepts that the Authority has to apply mean.

What we say follows from that is that – and now I am talking about the mind of the hypothetical observer again – is that there is not a great deal of scope for the authority to be swayed in its decision‑making by a perception of bad character and, indeed, to be swayed in that way would at least be likely to constitute an error of law quite apart from any question of bias.

GORDON J: That is looking at outcome, is it not, rather than process?

MR KENNETT: It is looking forward to the outcome, but it is – this is the fair-minded observer speculating in effect about the nature of this decision‑making body and the likelihood or not of it being swayed from the proper path by a piece of prejudicial material. The other aspect, of course, is that there is a separate regime under the Migration Act for dealing with character concerns, section 501, which is no part of the Authority’s remit. The observer knows that and the observer knows that the Authority at least ought to know that.

The final aspect of the statutory scheme that may have some bearing on these matters is the duty to give reasons, and that was touched on in AMA16 and the passage to which your Honour Justice Nettle referred me a moment ago in paragraph 74(b). The obligation of the Authority to give reasons includes, as was noted there by virtue of the operation of the Acts Interpretation Act, the normal obligations to set out findings of fact and the evidence upon which they are based.

That discipline of having to write things down afterwards to articulate the findings of fact and to identify a basis for them we would submit further detracts from the practical likelihood of an Authority member being diverted, subconsciously or otherwise, by a piece of irrelevant material. Because whatever he or she does has to be reduced to writing and reduced to writing in a form that hopefully makes sense and sets out clear findings and a proper basis for them. So that once again the fair‑minded observer knows that about the Authority.

GAGELER J: Mr Kennett, just focusing for a moment on the process, if you take the scenario where the Secretary provides material under section 473CB(1)(c), believing it to be relevant to the review, the Authority in the performance of its duty under section 473DB(1) has a look at it, and takes the view that some of it has just got nothing to do with the decision to be made, but some of it might have a bearing on the decision to be made, that is, might be relevant to the review, either directly or adjectivally as bearing on an assessment of the extent to which the story will be believed. Does subdivision C have anything to say about the process to be followed by the Tribunal, in respect of that category of potentially relevant, add prejudicial, add unanswered material?

MR KENNETT: DE may, or would, to the extent that any of the information is within the scope of that, that is, would be the reason or part of the reason for affirming the fast‑track reviewable decision and that is a similar form of words to other sections in the Migration Act that have been considered by this Court. There is, beyond that, a question as to whether and how the Authority can seek reactions or comments on material that it has been given.

The Court’s reasons in M174, around about paragraph 71 or thereabouts, I think seem to envisage there would be a capacity of some kind, and that there could be circumstances where the failure to use it might be found to be legally unreasonable. There is some complexity in DC to 473DC, because it hinges on the notion of new information, which is new information that the Authority considers may be relevant. And in a case such as the present, where one has a body of wholly irrelevant but prejudicial material and one invited provision of information to rebut that, rebuttal would also be irrelevant in the mind of the Authority, so there is a conundrum there which we have not quite fought our way completely through.

But the Authority does have a practice direction under which it invites submissions, and so far as I am aware it feels no inhibition about receiving argument about the relevance or otherwise of material, and the reasons of the Authority in the present case give an illustration of how this process can play out. Sometimes the submissions include new factual assertions and, again, using this case as an example, the Authority tends to treat those factual assertions as new information and put them through the filter of 473DD. So, it is a complicated answer but it does seem that there is at least some capacity to seek views or submissions about material that the Authority has been given.

EDELMAN J: This would all be premised, presumably, on the material not having been available – not having been before the Minister or the delegate in the first place?

MR KENNETT: Yes, because if it was made known to the applicant in that process then the applicant is in a position to comment on it and can do so by making submission to the Authority which the Authority, at least as far as I am aware, will receive and consider.

NETTLE J: In this case there is no question – well, no suggestion, is there, that the additional material was not new material?

MR KENNETT: That is right, it was not – well, there was a ‑ ‑ ‑

NETTLE J: It was not before the delegate when he made his decision?

MR KENNETT: There was a factual contest below, ultimately unresolved about that. It is not in dispute that the appellant did not know anything about it.

NETTLE J: So, it may be that 473DC would have no application at all on the facts?

MR KENNETT: In the sense that the information is not new?

NETTLE J: Yes.

GORDON J: It is a prerequisite under (1)(a).

MR KENNETT: That it was not before the Minister, yes.

NETTLE J: You say it was, although it was not resolved, therefore 473DC would not apply on your version of the facts.

MR KENNETT: It would not be new information and that term is used also in DD and that is where it would become possibly significant.

GAGELER J: If you are looking at the response or potential response of the applicant to potentially relevant non‑new information provided by the Secretary then the response of the applicant that has not yet been sought or received would be new information, would it not?

MR KENNETT: To the extent that it contained assertions of fact, yes.

GAGELER J: So, the discretion – there may be a question as to the reasonable exercise of the discretion under section 473DC(1) where there is in the possession of the Authority through the efforts of the Secretary relevant and prejudicial and unanswered information.

MR KENNETT: There could be. Of course, it has not been put in that way here. There has been some argument directed to the extent to which there is a safety valve in the legislation and how that bears on the issues. I wanted to turn to that next and just say that if the Authority here had taken some step to reveal the information in question and seek the appellant’s response to it and perhaps reassure the appellant that it was not proposing to treat the material as relevant, that might – and assuming that but for this there would be an apprehension of bias – taking a step like that might alleviate the apprehension.

The reasoning in JRL and Webb are consistent with that notion. But of course it did not happen here and so it is really a wholly hypothetical inquiry. On the other hand, depending how the matter was handled, it might have created more concern if the Authority had just said, well, here is some material I have got, what do you say about it, that might lead the hypothetical adviser to think, heavens, the Authority is proposing to give some weight to this completely irrelevant information.

So whether it would work or not, help or hinder the situation, would very much depend on the facts and circumstances of the case. And, similarly, if the Authority made a conscious decision not to seek reaction to the material, once again that might add to the hypothetical observer’s concern or it might make the hypothetical observer think, well, that makes it clear that the Authority is not having any regard to this and I can relax. Again, it would depend very much on the circumstances of the case, and it is hard to say much more about it than that.

Just as to what constitutes new information, I am just reminded that your Honours dealt with this aspect of the statutory scheme, which was not easy, in M174 at paragraphs 24 and following.

EDELMAN J: That now has to be read in light of BVD17.

MR KENNETT: Yes.

EDELMAN J: It can only be done so long as it is found to be express and not implied.

MR KENNETT: Well, BVD17 would stand against any obligations stemming from a hearing rule ‑ ‑ ‑

EDELMAN J: Yes.

MR KENNETT: ‑ ‑ ‑ to utilise the power in that way. It may not answer every question about legal unreasonableness.

EDELMAN J: Yes.

MR KENNETT: I want to turn then, and hopefully briefly, to the other grounds. Ground 3, having heard our friends this morning, we understand to be a hearing rule ground, a separate question from questions about how seeking the response might have played out in the apprehended bias area.

If it is a hearing rule ground, then it cannot succeed, we would say, in light of the confirmation in BVD17 about what section 473DA does. We would say in the light of that, there was no requirement for the Authority to give the appellant an opportunity to comment on review material or other material, for that matter. Indeed, if the material was truly irrelevant to the review, one might query how a hearing rule issue would arise, in any event, but it is enough, for our purposes, just to note 473DA.

Finally, there is ground 4 which makes some complaints about the Secretary’s decision to provide this material. In relation to that, it is perhaps worth noting in an introductory sense, that the ground does not really in itself appear to have utility unless the application for judicial review be amended. The amended application, which your Honours will see starting at page 29 of the core appeal book, seeks to quash the decision of the Authority but not that of the Minister.

So, if matters went back to the – if that relief were granted, the matter would go back to the Authority which would then, on our friend’s argument, be in an impossible bind because it would have a body of legally flawed review material before it. It would be unable to proceed with the Minister’s decision to provide the material not having been set aside. That can probably be remedied but it is appropriate to note it.

Turning to more substantial matters about 473CB(1)(c), their Honours in the Full Court held that it had not been established that there was an absence of subjective belief on the part of the Secretary or his delegate in relation to the relevance of the material. We have given the references in 3.2.1 of our outline. The question, though, is whether it was capable of being properly regarded as relevant and that really depends on, I suppose, two short points.

One is that paragraph (c) speaks of relevance to the review. The review is a process and it is easier to see why the notion of relevance would be intended to include adjectival as well as direct relevance and might be understood to include broader contextual relevance as well. It would be a strange result if the Secretary had to second guess the views of the Authority about what were the salient issues and what was the material that was worthy of consideration in deciding those issues, particularly in circumstances where the referral has to be made as soon as practicable.

It would be quite strange and possibly unworkable if the functionary in the Department whose job it is to get the material off to the Authority had to sit down and think carefully and correctly through every question of what was truly relevant to the Authority’s ultimate decision. So the notion of “relevant”, we would say, where it appears in CB(1)(c) has to be read with all of those things in mind.

The other point, and we set this out in paragraphs 59 and following of the submissions, and I am now back at paragraph 11 of my outline, is that what CB does in its terms at least is to specify what has to be provided. It does not in its terms set a limit on provision and apart from the particular circumstance of prejudicial material with which we are concerned here, as a general proposition one would think it was better for the Authority to be more fully informed rather than less. So we would not, with respect, accept what I think is the premise of our friend’s submissions that section 473CB defines both what has to be provided and what may permissibly be provided.

The next step that follows from that is to ask whether over provision by the Secretary, even if that be regarded as inconsistent with CB, vitiates the decision of the Authority, and one would ask, well why should it? Again, there might be particular circumstances where it would and provision of extraneous material leading to apprehension of bias would be one of those. But as a general proposition, if the Authority is amply informed rather than partially informed, it is difficult to see why that would be something that would lead to the Authority failing to exercise its power.

Now, there are cases, and our friends have cited them, of under provision, where the Secretary has left out material that should be provided. We do not to suggest that those cases are wrong and one can see why, if the Secretary fails to provide something that is required, that would be an error both by him and to the extent that it stultified the Authority process, lead to Tribunal’s decision being set aside.

GAGELER J: What do you mean by the qualification to the extent that it stultified? What does that mean? Does it mean anything other than a testament to reality?

MR KENNETT: That is a large question, your Honour.

GAGELER J: You used the words.

MR KENNETT: The answers to which are still emerging. But one way that it was described in a case to which my learned friend referred, a decision of Justice Thawley, was as something akin to a fraud on the Authority, which harks back, in a sense, to an old case, SZFDE, where it was a migration agent who withheld material.

If the process of a statutory decision‑maker is inhibited by a failure of somebody else, then there will often, at least, be grounds for setting aside that decision. Now, has that position altered since the judgments in Wei, and in Hossain and SZMTA, such that any mistake further back in the chain will vitiate the ultimate decision, subject to materiality? I am not sure about that.

It may do, but I am not sure that it affects my ultimate submission here, which is that under‑provision of material will often, perhaps always – well, maybe not always, but will at least often prevent the Authority from making a valid decision. Over‑provision – no, I am sorry, it does affect my submission. I just realised that mid‑sentence.

Our submission would be, firstly over‑provision by the Secretary is not a sin per se. Secondly, even if it is, it should not be regarded as something akin to a fraud on the Authority, and as something that per se vitiates the Authority’s decision, even if ‑ I have to say this ‑ even if it may be material, in the sense that it could have affected the result. I hope that is an answer.

GAGELER J: Yes, I am not sure. Mr Kennett, the only material the Secretary can provide to the Authority is the material under section 473CB, is it not?

MR KENNETT: Not necessarily.

GORDON J: Why “not necessarily”? You have got provisions 473CB, which set out, “must give”.

MR KENNETT: Yes.

GORDON J: (a), (b), (c), (d).

MR KENNETT: We say that puts a floor under it, your Honours, rather than a ceiling over the top of it.

NETTLE J: Is that right? It would mean that the only other information which could be given outside this section would be material which the Secretary does not consider to be relevant, which would be extraordinary.

MR KENNETT: If “relevant” were read in the way that – I appreciate the point, your Honour, and if “relevant” is read in the manner for which we contend, then there is a lot in that, with respect. If “relevant” is read in a narrower way, such as our friends contend for, then we would say that that ought to be regarded as the minimum rather than the maximum. I think I have retreated somewhat in the light of what your Honour Justice Nettle puts to me.

GORDON J: That is why we are asking. We actually want to know what your submission is.

GAGELER J: You have to read it with section 473DB(1), do you not? It is very hard to read that as contemplating that ‑ ‑ ‑

MR KENNETT: Yes, one does. Yes, one does.

GAGELER J: Well, is it not the case that the universe of material, the 473CB material, that is all the Authority is authorised to take into account absent the exercise of a power under Subdivision C.

MR KENNETT: Yes, on reflection.

GAGELER J: So let us spell that out a little further.

MR KENNETT: On reflection, yes.

GAGELER J: So the Authority’s jurisdiction, to use that time‑honoured language, is conditioned on the Authority looking only at the material lawfully provided by the Secretary under 473CB unless the Authority goes on to exercise one of those specific additional powers.

MR KENNETT: Yes.

GAGELER J: All right. So what that means, I think, is that if the Secretary has provided more material to the Authority than is authorised by section 473CB, then there is a flaw in the jurisdiction of the Tribunal – the Authority, I am sorry.

MR KENNETT: At least if the Authority has considered that whole body of material.

GORDON J: It must.

GAGELER J: It is required.

GORDON J: It is required to under 473CB.

MR KENNETT: One might say not if some of it was not properly provided but ‑ ‑ ‑

GAGELER J: That is the premise, that by being not properly provided – I am sorry, you were saying that the requirement to look at it does not apply if it is not properly provided.

MR KENNETT: Yes.

GAGELER J: Yes. It does not help you much here, does it?

MR KENNETT: No. So I think what that means is, so far as ground 4 is concerned, I fall back on the propositions in paragraph 3 of my outline, particularly in relation to how one understands the concept of “relevance” when the Secretary is making that decision.

GAGELER J: Mr Kennett, you are going to have to spell that out for us.

MR KENNETT: The requirement is that the Secretary provides other material in his or her possession that he or she considers to be relevant to the review. That is CB(1)(c):

considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review –

What is put against us is this material was not relevant and on a correct understanding of “relevance” could not have been thought to be so. That is the argument against us.

We have accepted that the material was capable of bearing on the question whether the appellant was a person to whom Australia had protection obligations, which indicates that it was not relevant in the sense for which our friends contend. We say that the language considered by the Secretary to be relevant to the review casts a broader net than our friends contend for and that it encompasses – it does not require the Secretary at the time of referral to have a fine‑grained understanding of the issues the Authority will be deciding, and permits the provision of material which the Secretary considers may be, firstly, adjectivally relevant and, secondly ‑ ‑ ‑

GAGELER J: Part of your submission here is that this material could not be even adjectivally relevant, is it not?

MR KENNETT: I have accepted that it would be drawing a long bow to regard it as such.

GORDON J: Is that not what 3.2.2 says, that it is relevant on this argument?

MR KENNETT: Well, 3.2.2 is attempting to indicate the breadth of the provision rather than saying something about the present case.

GORDON J: It says the appellant.

NETTLE J: The big money is potentially relevant to credibility, let us not beat around the bush. That is what it was provided for, one must assume, because it certainly did not go to the matters in issue as to whether he was entitled to protection. What else could it have been regarded as being relevant to?

MR KENNETT: Well, the way we put it – I think in the written submissions we referred to matters of context or background.

NETTLE J: It is a meaningless phrase.

MR KENNETT: It needs to be given some content, which is something I will try to do. Potential relevance to credibility might be part of that or aspects of the background that the Authority might wish to find out more about might be part of that. Even aspects of the referred applicant’s background that the Authority might want to know if approaching him or speaking to him might be part of that. All of those things potentially at least ‑ ‑ ‑

KIEFEL CJ: Do you mean background in the sense of explicating what he has put forward and therefore the discussions as between the departmental officers becomes relevant? Or his history?

MR KENNETT: I do not think so in his case, but the history of a person may be relevant if the Authority is considering speaking to the person or having some interaction.

KIEFEL CJ: Well, the information expands upon what he says. That is really your case. Is the highest you could put is that the additional – using that in a neutral sense – information explicates what he has put forward and gives a full history?

MR KENNETT: Yes.

NETTLE J: Your point about the mental state of the man – I take it to be that if the Tribunal – I beg your pardon – the Authority wished to speak to him, it might be desirable for them to know that he was fractious and, possibly, suffering from some sort of psychiatric condition.

MR KENNETT: Yes, that is what I was getting at. It is potentially relevant to the process, albeit not relevant to the substantive questions. Those are the submissions, if the Court pleases. I am sorry, I am reminded of your Honour Justice Edelman’s question about the form, would it be convenient if we put that on a piece of paper?

KIEFEL CJ: Would you put a note in ‑ you could provide a note within five working days.

MR KENNETT: Thank you, your Honour.

KIEFEL CJ: And, of course, the appellant respond within five working days. Yes, Ms De Ferrari.

GORDON J: Sorry, can I just ask one question about that mental health point?

MR KENNETT: Yes.

GORDON J: I knew I had read it somewhere and I was just trying to find it. At page 9 of the decision, it deals with his mental health condition, at paragraph 11.

MR KENNETT: This is the Authority’s decision?

GORDON J: Yes, in the context of new information.

MR KENNETT: Yes. The representative had sent in a submission to the Authority, as I recall it, which indicated something about the appellant’s mental state.

GORDON J: I see.

MS DE FERRARI: Your Honours, in respect of the reference to a paragraph of the judgment of his Honour Justice Madgwick that I referred to, to the effect that no one is actually very good at it, meaning putting prejudicial matters out of the mind, that is Crowley v Holmes (2003) 132 FCR 114, at paragraph 2, and that is behind tab 10.

KIEFEL CJ: Is that a case to which Justice Dowsett referred in AMA16?

MS DE FERRARI: Yes, it is, yes. But, his Honour Justice Madgwick notes that, effectively, the balance of authority in the Federal Court was to the effect that some people are not good at it and he was saying, if it was not for that balance, then psychology would suggest that, in fact, no one is good at it – lawyers, doctors, et cetera.

In respect of your Honour Justice Gageler’s question I took on notice, we have not found any authorities on 473DC(1)(b) and the meaning of “the Authority considers may be irrelevant”. What we do say is that it uses the word “may” and that consistently with the thrust of Plaintiff M174 and, in particular, paragraph 49, we say that it is to be read as an enabling provision, having regard as well to section 473FA(1) – by which we mean you read it broadly, meaning that “may” can be satisfied with relatively little.

The next point is about the specialised body question. I mentioned this morning that his Honour Justice Griffiths analysed both O’Sullivan and Crowley, and distinguishes those decisions, apart from going through the
factors as to why the Authority is actually just staffed by members of the APS. We say that, if anything, under the primary rule, which the decision is to be made on the papers, in fact it is actually a more difficult task for these types of decision‑makers than it would have been for the AAT that at least has the benefit of submissions and often is assisted by representations at the hearing.

The next point is that when one is looking at the application of 473DC(1), which is – there were a number of questions directed to my learned friend about that, and how it might operate. Part of the problem ‑ and we have put this in the written submissions ‑ part of the problem is that in the way that Part 7AA is actually administered, the Secretary does not tell the Authority what was and what was not before the delegate, so the Authority just does not know.

This is a point that was commented upon by Justice Mortimer in this case, but also the Full Court of the Federal Court in CQR17 v The Minister, a case that we referred at footnote 33 of our submissions, talk about the problems with how this part is actually administered. The final point, your Honours, my learned friend said that the situation is that the Authority is in an impossible bind if the remedy is just to quash the Authority’s decision without quashing the Minister’s decision to refer. That is wrong. Section 473EA(4) requires the Authority, after the decision, to return all the materials to the Secretary, so there is no hanging over of prejudicial materials that will forever poison any Authority coming to look at the decision again. Unless I can assist the Court, those are our submissions.

KIEFEL CJ: Thank you, Ms De Ferrari. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.

AT 3.29 PM THE MATTER WAS ADJOURNED