BYE17 v Minister for Home Affairs & Anor [2019] HCATrans 208 (18 October 2019)

Last Updated: 24 October 2019

[2019] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2019

B e t w e e n -

BYE17

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 OCTOBER 2019, AT 11.03 AM

Copyright in the High Court of Australia
MS G.A. COSTELLO: May it please the Court, I appear for the applicant. (instructed by Asylum Seeker Resource Centre)

MR R.C. KNOWLES: If it pleases the Court, I appear for the first respondent. (instructed by Clayton Utz Lawyers)

NETTLE J: Yes, Ms Costello.

MS COSTELLO: Your Honours, I propose to address three things in asking you to grant special leave. Firstly, what is wrong with the Tribunal’s decision? Secondly, what is wrong with the judgment of the Federal Court below? And, thirdly, why is this case important? Before I do address those three things – just to set the framework – there are some forensic issues in this case and that will become important at the third part of my argument in describing why this case is important.

But, to be clear, this case concerns three notifications and those three notifications are in the court book. One of them was found to be invalid by the court below, and that is at application book 72. The other two, which are at application book 71 and 73, were not found to be invalid by the court below. But, nonetheless, the treatment of all three notifications is relevant in looking at the forensic impact of those three notifications on the case before the Tribunal. The second framework matter is that the case before the Tribunal concerned two dispositive issues relating to section 91W of the Migration Act. You can see 91WA of the Migration Act at application book 215.

To summarise, those two dispositive issues were whether there had been a bogus document provided, number one. And, number two, whether, even if there had been a bogus document provided, the Minister was satisfied that the applicant had a reasonable explanation for providing the bogus documents. This applicant was found to be a refugee. The only thing standing in the way of the grant of his protection visa was the application of 91W, regarding bogus documents.

So, having set that framework, I will now turn to why the Tribunal’s decision was wrong. The 2014 notification – that is the one at application book 72 – was found to be invalid by Justice Besanko at paragraph 52 of his judgment. All three notifications triggered an obligation of procedural fairness upon the Tribunal to disclose the fact of the notification to the applicant. As your Honours are familiar with these cases from the recent case SZMTA, those dual issues arise – the fact that there is an invalidity because of an invalid notification, number one, and then, number two, there are issues around procedural fairness obligations, whether the notification is valid or invalid.

The procedural fairness requirements upon the Tribunal in respect of the notifications require the Tribunal to tell the applicant of an event – that being the existence of notifications – that altered the procedural fairness. In the case of SZMTA, both the plurality, at paragraphs 2, 29 and 30, and also your Honours at paragraph 115 referred to these notifications altering the procedural context in which the Tribunal operates.

Your Honours, also in SZMTA, as well as the plurality, referred to the necessity of looking at those procedural obligations in the context of the Tribunal’s task under Part 7, particularly in respect of section 438, section 425 and section 424A. So, the Tribunal is obliged to invite the applicant to give evidence and make submissions and is obliged to put adverse information – to paraphrase – adverse third‑party information to the applicant in particular ways under section 424A.

In this case, what we have is both the fact of an invalid notification in respect of the 2014 certificate but also we have the fact that in respect of the three certificates, the procedural fairness obligations arose. And, that what the Tribunal did, in the presence of the three certificates, was unfair procedurally because the Tribunal was confused about what material was covered by the certificates. That confusion on the part of the Tribunal, led the Tribunal to say, wrongly, to the applicant during the hearing, that the first and second notifications – those are dated 2013 and 2014, at application book 71 and 72 – covered, substantially, the same material. In fact that, in my submission, is wrong and I have argued that all the way from the Federal Circuit Court to the Federal Court and here. At the Federal Court level, Justice Besanko did not make a decision either way on that but engaged in some analysis of whether that mattered either way.

But, in my submission, when you take the forensic approach that must be taken in assessing jurisdictional error or materiality – depending on whether it is the plurality’s approach in SZMTA or your Honours’ approach in SZMTA which requires then a next step of a futility analysis ‑ if you are looking at whether it mattered, a forensic approach is needed. The Tribunal erred in its procedural fairness obligations in the manner in which it conveyed information about those certificates to the applicant by saying, certificates 1 and 2 cover, substantially, the same material. You can see that in the transcript of the Tribunal’s hearing at application book 36, at line 18, and you can also see that mistake, on the part of the Tribunal, in thinking that the first two certificates covered, substantially, the same material in its decision at application book 6, at paragraph 13.

Not only did the Tribunal mislead the applicant about what those first two certificates covered, but the Tribunal also said to the applicant that the third certificate covers, quote:

the document examination process which is discussed in the Delegate’s decision record in relation to the Document Examination Unit findings.

That is in transcript at application book 36, line 53 to 60. In fact, that third certificate covered an identity assessment and one of the Document Examination Unit reports. There was another important Document Examination Unit report in respect of the Shenasnameh ‑ an identity card ‑ so, in respect of another two documents that were, in the end, found to be bogus.

The Tribunal’s findings, ultimately, were that the Shenasnameh and the identity card were bogus documents but there was no such finding that the school certificate was bogus. The Tribunal, in the hearing, said the third certificate covers, quote, “The document examination process that is discussed in the delegate decision record in relation to the Document Examination Unit findings”. That is wrong because the certificate only covers the Document Examination Unit finding in respect of the school leaving certificate – a report. That was found by Justice Besanko, as you will see in application book page 144, at paragraph 85 – that that third certificate only covered the school certificate DEU report.

The intersection of the two errors, in relation to section 424A and 438, gives weight to my argument, in my submission, that an error was made. Because what has happened here – if you look at the decision made by the Tribunal, together with the documents covered by the certificate and all the evidence in this case – you will see that in an effort to sidestep its procedural obligations to disclose adverse information under section 424A or because the Tribunal thought that valid certificates covered all Document Examination Unit reports, age assessment information and identity reports and, therefore, all that material was non‑disclosable – so there was a carve‑out to 424A – so either to sidestep 424A obligations or because the Tribunal thought “valid certificate” covered everything, the Tribunal contrived to state that it relied on conclusions about evidence stated in the delegate’s decision and not the evidence itself.

Where the two dispositive issues in this case were document fakery, and an explanation for that fakery, and the Tribunal had an obligation to review the evidence – not merely to rely on the delegate’s conclusions – the court below ought to have concluded that adverse material not covered by the certificates comprised information that would be a reason for affirming the delegate’s decision and that the Tribunal breached section 424A when looking at the intersection between the certificates, 424A, and forensically analysing the material before the Tribunal and the material before the court.

NETTLE J: Could you just tell me this? Rightly or wrongly, the Tribunal reached the view that they would, as it were, put out of their minds this supplemental material and rely solely upon the delegate’s decision and the documents before the delegate. You say it erred in that because it either misconstrued its function or because it was doing something else. I follow that. But, nonetheless, it is to be inferred, in accordance with what they said, is it not, that they made their decision on the basis of what the delegate had? Therefore, they left out of account prejudicial material which might have been included amongst the supplemental stuff.

MS COSTELLO: Your Honour, I do not adopt that inference. Rather, I submit that, in fact, given the central relevance and importance of the material before the Tribunal in respect of whether the documents were bogus and how old the applicant was it should not be concluded by this Court – and should not have been concluded by the Federal Court – that the Tribunal actually only looked at the delegate’s conclusions and did not review the evidence.

NETTLE J: That is what they said.

MS COSTELLO: The fact that a tribunal says they have done something, is not the end of it, in my submission, your Honour. A strong inference ought to be drawn, given the Tribunal’s mandatory obligation to review the evidence and not merely to read the delegate’s decision, that the Tribunal actually looked at the evidence.

NETTLE J: I think it could be safely assumed that they probably did look at it but then they put it out of consideration for the purposes of their determination – at least, they said so.

MS COSTELLO: They did not, your Honour – the Tribunal did not go so far as to say, I looked at the material and I put it out of my head for consideration. The Tribunal instead contrives to say, I have reached these conclusions based on the delegate’s conclusions. That might seem all right until you consider, your Honours, that the Tribunal is labouring under the misapprehension that the non‑disclosure certificates cover all the Document Examination Unit reports. Based on such a misconception, the Tribunal would be thinking – or could be thinking – the Tribunal is not obliged to comply with section 424A because it is non‑disclosable information.

GORDON J: So, your complaint is a complaint about the method of review and, you would say, they proceeded on a false understanding, or misunderstanding, of the facts.

MS COSTELLO: Yes, your Honour. If I could move now to what is wrong with the judgment of the Federal Court below ‑ ‑ ‑

NETTLE J: Of course.

MS COSTELLO: ‑ ‑ ‑ because it refers ‑ to refer back to your question just now, your Honour. The issues that arise in what is wrong with the judgment below are methodological in the way of assessing materiality, if that is the test, or assessing jurisdictional error if the law changes through, for example, the granting of special leave in this case and arguments about what the test should be if that happened. Either way, the Tribunal’s errors were wrong methodologically.

In SZMTA at paragraph 95, your Honours described the difficult consequences of the materiality analysis that the plurality decided upon in SZMTA because it requires a form of merits review in determining the materiality of what would otherwise be a jurisdictional error in that it is a decision made not within the boundaries of power given to that decision‑maker.

This case exposes the difficult consequences of the plurality’s judgment in SZMTA. This case exposes that the consequence of requiring a materiality assessment such as their Honours require in the plurality’s judgment, necessitates a forensic evaluation of the merits and the judge, in trying to do what the High Court told him to do in SZMTA, erred, and he erred because it is a very difficult thing to do. This case is a good vehicle because it presents to the Court a case where the forensic difficulties in looking at the possibility of a different outcome, on the facts and evidence in this case, expose how this judge went wrong and also why the test is very difficult in SZMTA and warrants revisiting.

NETTLE J: Whether or not one does it as part of the exercise of determining whether an error is jurisdictional or one does it, having jurisdictional error but in the exercise of the discretion not to grant relief, a decision still has to be made whether or not it could possibly have made a difference, does it not?

MS COSTELLO: Yes, your Honour. But, if you recall Aala, which touched on futility, the language used, if I recall correctly, by Chief Justice Gleeson in that case, is that when you get to the question of futility, having found jurisdictional error, it should not be lightly found that a procedural fairness error did not make a difference. If you take the analysis at that point and say, the analysis of whether this error mattered is one that affects futility, then that finding that it did not matter should not be lightly made, and it is only is there a possibility that it did make a difference?

On the other hand, if you bring forward that analysis of practical impact of the procedural fairness error to the jurisdictional error analysis and take the approach in SZMTA’s plurality judgment, then what we have at the moment is judges saying, I have to find that there is a realistic possibility that this could have made a difference. This case illustrates that that test is resulting in consequences that are wrong when a more thorough and accurate methodological approach to materiality occurs.

So, if this case is given special leave, there are two levels at which arguments could occur. One is, was the methodology right, in this case, on the materiality analysis that the judge undertook? But, second is, should the analysis be a different one? Whilst practical impact may have to be assessed, either at jurisdictional error or at futility, depending on what the law is, there may be a difference in the approach, depending on which is taken.

The last – the third thing I wanted to talk about is why this case is important. I have spoken about the need for development of the law in respect of materiality. But, what I have not yet spoken about is the interests of justice in this particular case. This particular case involves consideration of 91WA. To date, there has been no High Court consideration of that section. It considers the operation of evidence findings in 91WA in interaction with non‑disclosure certificates which, in my submission, are very likely to arise because determining whether there is a bogus document would usually involve forensic document analysis and usually forensic document analysis attracts non‑disclosure certificates. You may have seen that in court books you have looked at.

So, non‑disclosure certificates are going to arise in the context of 91W bogus document situations. This particular case involves one where the applicant claims to have provided a bogus document as a minor. So, you have someone who is found to be a genuine refugee, claims to have been a minor at the time that he provided the bogus documents, and is then not given the visa because of a finding that even though there has been an error in respect of an invalid certificate, it did not matter.

So this person should instead have won the appeal on the basis that he has a reasonable – or, he should have been able to have a decision made in his important case given his claims and the acceptance that he was a refugee in which the law was properly applied, in which the power was applied correctly, rather than in breach of procedural fairness and in breach of inviolable limitations imposed upon the methods with which the Tribunal was supposed to conduct the case.

So, it is in the interests of justice in this case, but also in cases like this where the dispositive issue involves the interaction between 91W
certificates and materiality, that this error should be corrected and this High Court should analyse the appropriate methodology for determining whether the decision should be quashed.

The Federal Court erred in finding that the documents were of indirect relevance. That is not the correct test. Something could be indirectly relevant but, nonetheless, important enough to have maybe made a difference. The Federal Court only analysed the impact of the documents on 50 per cent of the dispositive issues – only analysed the impact of the documents on whether the documents were bogus and not on the explanation for the documents being bogus – for the bogus documents being provided.

NETTLE J: I see you are out of time.

MS COSTELLO: Yes.

NETTLE J: Thank you. Mr Knowles.

MR KNOWLES: Thank you, your Honours. Perhaps if I might first deal with the materiality question, your Honours, subject to your Honours’ views otherwise.

NETTLE J: It seems to be the go, Mr Knowles, does it not?

MR KNOWLES: Yes, I understand it has been recently occupying the Court’s time yesterday as well. In terms of looking at materiality, it is important to consider the decision‑making power that is involved in this case. Obviously, that arises under section 91WA which is set out at pages 215 to 216 of the application book. As your Honours will be well aware, subsection (1) requires that the decision‑maker must refuse the protection visa application in certain circumstances. The one that is relevant here is set out in paragraph (a) and that is where there is a bogus document provided by the applicant in connection with nationality, identity, or citizenship. In that regard, the provision of a document is elaborated on in subsection (3), which is not relevant for present purposes.

What is relevant, though, is the definition of “bogus document” which is set out in section 5 of the Migration Act, which is reproduced in his Honour’s reasons for judgment at page 128 of the application book. I will not go to it, but as your Honours will recall, for present purposes what is relevant is whether there is a reasonable suspicion of a document being counterfeit or altered by a person who is not authorised to alter the document. So that is the question that goes to the question of bogus document – that goes to the question of paragraph (a) – that goes to the question of whether or not there is a duty to refuse ‑ pertinent to the present case.

I should say, at this juncture, all that is required by paragraph (a) is that there be a single document of that kind. As long as there is one document that is correctly described as a bogus document provided as evidence of identity, nationality or citizenship, the requirements of the paragraph will be met.

Obviously, subsection (1) is conditioned by subsection (2). There are two paragraphs in subsection (2). This is critical to the materiality point, your Honours. They are cumulative, as plainly indicated by the existence of the word “and” between them. In other words, they must both be satisfied in order for subsection (1) not to apply.

In this case, the Tribunal made a decision in which – obviously, it made a finding for the purposes of paragraph (1)(a). It also made findings for both (2)(a) and (b). What we have here, though, in terms of the arguments that are put by my learned friend, are matters that go to (1)(a) – which I will come back to in a moment as to why we say those arguments are not made out. In terms of subsection (2), though, there is no argument put to your Honours – certainly as I understand it – that is put now or has ever been put – in respect of paragraph (b), that second cumulative requirement of subsection (2) that would need to be met in order for subsection (1) not to apply.

That is a fundamental problem that arises, in my respectful submission, in relation to the issue of materiality – that the only errors that are asserted go to (2)(a). There is no error asserted in respect of (2)(b). There is nothing said as to how age – information about age – in the age determination document, which is the subject of the second ground, would conceivably be relevant to the matters set out in (2)(b).

In fact, when one looks at the Tribunal’s decision – when the Tribunal refers to the submissions that were made at that time – there was certainly nothing said then in respect of age as to why since not being able to provide a genuine document earlier – maybe as a minor – since then, now much older, there had not been provision of a genuine document going to identity, nationality or citizenship.

GORDON J: Or (b)(ii)?

MR KNOWLES: I beg your pardon?

GORDON J: Or the second part of that either?

MR KNOWLES: Yes, indeed, in terms of reasonable steps, yes. There is no reference to how age played a part in that at all.

NETTLE J: So, he did not attempt to satisfy either of those tests?

MR KNOWLES: He certainly tried to satisfy them but they were not accepted and nothing was put then as to how age could have been relevant to either of those tests.

GORDON J: Could you just take me to the part where I find that in the reasons?

MR KNOWLES: Yes. In the Tribunal’s reasons, your Honour, it is at paragraphs 39 to 41. Perhaps, going back a paragraph, your Honour will see that there is a reference at paragraph 38 to the submission in respect of a reasonable explanation. That submission, plainly, raised the question of age and being an unaccompanied minor at the time. In terms of ‑ ‑ ‑

GORDON J: Sorry, I do not read 39 to 41 as giving rise to ‑ ‑ ‑

MR KNOWLES: (2)(b)?

GORDON J: ‑ ‑ ‑ (2)(b)(i) and (ii), is it?

MR KNOWLES: So, 39 goes to a submission that the applicant has taken reasonable steps to provide evidence of his identity, nationality and citizenship.

GORDON J: Sorry, I understand – where is the finding of the Tribunal in relation to (2)(b)?

MR KNOWLES: Pardon me, that is in paragraph 52, your Honour. So, there are two components to that paragraph.

GORDON J: I see, I understand.

MR KNOWLES: Yes. And, the second finding is in the second part that goes to (2)(b).

GORDON J: Thank you.

MR KNOWLES: That is one thing that I wish to mention right at the outset in terms of subsection (2) and questions of materiality there. I should say, as your Honours will have seen – and it is a minor issue but before the Federal Court – we say that, as we understood it, arguments about subsection (2) had been not pressed. That is set out in his Honour Justice Besanko’s reasons for judgment.

Another thing that I should say, by way of those sorts of parameters, is that my learned friend’s submissions about the factual question going to what certificates do and do not cover is a matter which is disputed and it is a dispute that, as your Honours will have seen from Justice Besanko’s reasons, was not resolved by his Honour but, rather, his Honour approached it looking at two alternative assumptions, one in which the invalid certificate and the documents it covered was the same as a valid certificate that covered the same documents. So, that is a disputed matter and that is a matter that goes to whether or not this is a suitable vehicle for consideration by the High Court.

In terms of, though, materiality, if I can just return to the terms of section 91WA(1)? Again, what is put is that the document – the age determination process document – contained some information – somehow if there had been access to it – that would have been relevant to submissions that might be made by the applicant in respect of the existence or otherwise of bogus documents. In my submission, with respect, that is not correct, and plainly so. On the basis that when one looks at what a bogus document is, it just goes to whether or not there has been unauthorised alteration of the document.

The information that went to that, was the information which was contained in the delegate’s decision, which was the information recording the findings made by the Document Examination Unit as to alteration of age – sorry, date of birth – so that goes to age – but location of the – perhaps, of the birth – issue date of the certificate. So, there were three alterations to the document.

Now, even on the age alteration, it is not an alteration that it matters what the applicant’s actual age is, one way of the other. The fact is the document was altered. Even if it had been altered and he was younger than what he said and his age had been altered up, it does not matter. The fact is the document was altered and that is the basis for it being bogus, not his age, one way or the other.

In any event, it only takes one alteration that is unauthorised for the document to be bogus. As the Tribunal found, there were other alterations to the document, alterations going to, in particular, the issue date which has absolutely nothing to do with a person’s age, in my submission, and could not possibly have anything to do with a person’s age.

NETTLE J: Is it not said, though, that demonstration by some of the documents not disclosed to him that he was, in fact, young – a minor – may have assisted him in demonstrating that there was a good excuse for providing the bogus documents because he might have accepted them as being valid as supplied to him by an adult?

MR KNOWLES: That is the argument and, obviously – there are two things I would say about that. The first thing that I would say is that that argument was made and it was taken into account. The Tribunal, as your Honours will have seen, took into account I think at paragraph 49 of its decision that he was relatively young and that he had simply relied on others in terms of provision of the documents. So, the Tribunal accepted those circumstances.

GORDON J: Your answer is, he could then have explained it. The explanation is not proffered and then could have put forward additional material otherwise.

MR KNOWLES: Yes, yes. But, in addition to that, might I say, there is the initial hurdle that I have referred to which goes to the cumulative requirements of subsection (2). The fact is, even if I am wrong in relation to paragraph (a), my learned friend – I should say the applicant – has not put forward any argument thus far in respect of paragraph (b).

GORDON J: So, in Justice Besanko’s judgment at page 140 of the application book, at paragraph 72, that ground 3 is the ground dealing with (b)(ii)? Is that right? I reference back to page 138, I think.

MR KNOWLES: Yes, thank you, your Honour, yes, in the sense that ‑ ‑ ‑

GORDON J: It is not pursued and not challenged.

MR KNOWLES: That is right. At 134, your Honour will see that, in paragraph 39, Justice Besanko refers to the two elements of section 91WA, subsections (1) and (2) and refers to the fact that:

The Tribunal dealt with both elements as it was required to do.

But:

only the first element remains the subject of challenge –

on appeal. There was:

An unsuccessful challenge in the Federal Circuit Court in relation to the second element –

and that was:

not pressed on the appeal.

Does that address your Honour’s query, in that regard?

GORDON J: Thank you.

MR KNOWLES: So, they are the matters, chiefly, that I wish to deal with in respect of materiality. Just briefly, there are complaints made about the reasons of Justice Besanko in terms of the materiality test. In my submission, they focus on the use of the word “would” instead of “could” at one point in the reasons. That would not, in my submission, be a fair reading of the reasons overall to suggest that that led to a misapplication of the test in some way. I have made submissions in the response as to why that is so. But, obviously, one looks at the language that is used across Justice Besanko’s reasons for judgment and from paragraph 90 onwards his Honour consistently refers to a “realistic possibility” that the breach in question could make a difference to the outcome. In that regard, the fact of the use of the word “would” on one occasion does not represent some misunderstanding of the principles set out by the majority in SZMTA.

If I can then, briefly, turn to the other ground, the ground relating to section 424A? In that regard, that is focused on another document that was the subject of a valid section 438 notification. As I understand it, there is no issue taken in terms of the validity of that notification. The notification, as my learned friend indicated to your Honours, is set out in the application book at page 73. Your Honours will see that it applies to information in folios 189 to 198. I am not going to go to that information in detail but in terms of what that marries up with in the application book, it is at pages 106 to 118.

There is a document headed “Document Examination Report” starting at 115. But, there is another document headed “Identity Assessment” starting at 106. That second document, starting at page 106, sets out, at 112, the matters from the Document Examination Unit report that are pertinent in this case in terms of the Tribunal’s decision. As I say, the Tribunal did not rely on this information insofar as it appears here – that is, at the middle of the page. Your Honours can see some information there which I am not going to go to. But, it relied on such information from that, as is reproduced in the delegate’s decision.

So, here we have – and just to be clear because I think there might potentially be some misunderstanding – that is what is being referred to both by Justice Besanko and the Tribunal, that that document, as the Document Examination Unit report, relating to the birth certificate. Yes, there is another document, the one that I first took your Honours to at page 115, which relates to a school certificate. That is separate and it is not the subject of, as I understand it, this matter. That was an inconclusive certificate which, despite that, the delegate found the relevant document to be invalid – sorry, bogus. But, the Tribunal departed from the delegate’s view and made no finding as to the bogus nature or otherwise of the school certificate.

But, I put that to one side. I just wanted to deal with that at the outset in terms of clarifying what the relevant document was and what the information was that is then the subject of what was reproduced in the delegate’s decision and the fact that those things marry up and that that was all that the Tribunal relied upon for the purposes of its consideration in respect of section 44A. That is all that one can say that the Tribunal considered would be a part of the reason for its decision.

The reason I say that is not just the Tribunal’s reasons itself – which I should say, they consistently refer in their references in the response to where this occurs – but they consistently refer to the fact that, insofar as there is reliance on information, being the findings made by the Document Examination Unit, that reliance depends on the information as reproduced in the delegate’s decision.

Despite, perhaps, some minor suggestions otherwise – I think my learned friend points to paragraph 44 of the Tribunal’s reasons – overall, read fairly, clearly those reasons indicate that all that the Tribunal has had regard to – and not in terms of an effort to sidestep section 424A but just in terms of what it thought would be the reason, or a part of the reason for its decision – is what is contained in the delegate’s decision.

That is supported, I should say, on a close examination of the transcript. The transcript shows that the Tribunal only referred to matters that were set out in the delegate’s decision and, in that regard, actually said as much late in the hearing transcript at page 36, at the bottom of the page ‑ 36 in the application book – the Tribunal says that its:

preliminary view is that this certificate appears valid, but I’ m happy to take submissions in relation to that. . . . I note that the information that it covers relates to the document examination process which is discussed in the Delegate’s decision record in relation to the Document Examination Unit findings.

So, again, I think the information being covered is referred to in the delegate’s decision record. So that is clearly an indication that this was all that the Tribunal considered would be the reason – or a part of the reason – for its decision.

There are other difficulties with the section 424A argument. One is the fact that if this document – the DEU process document – was subject to a valid section 438 notification, then the 424A obligations were truncated, as described in SZMTA at paragraphs 24 and 30. I am mindful of the time.

NETTLE J: I see you are out of time, Mr Knowles.

MR KNOWLES: I have nothing further to add, thank you, your Honours.

NETTLE J: Thank you. Ms Costello, anything in reply?

MS COSTELLO: Yes, your Honours. In answer to Justice Gordon’s question to my learned friend with respect to page 140 of the application book, you will see that Justice Besanko, at paragraph 70, referred to the appellant’s argument:

that the documents the subject of the Certificates were relevant, adverse and helpful –

and this part of the judgment is in the introductory part of the reasons under a heading “The Certificates and the Notification” on page 134 and then “The Notification dated 3 January 2017” on 137, then under “The Decision of the Federal Circuit Court” at 138.

It is not only in respect of a particular argument. Your Honours, the argument here as to why the error mattered – that is, the error of there being an invalid certificate and the error in the way in which the Tribunal dealt with certificates, both valid and invalid – relies on the fact that the documents the subject of the certificates were relevant, adverse and helpful. They were relevant, adverse and helpful not only to the question of whether the documents were bogus but also to that second part of 91W which is the reasonable explanation for providing the documents.

The notice of appeal, which is at page 63, had four grounds. One was 424A, the second and fourth concerned certificates and then the third one, which had been argued below – I did argue it before Justice Hartnett but was not pressed on appeal – was a discrete argument that:

The Second Respondent erred in applying s.91WA of the Migration Act 1958 by failing to consider the explanations proffered by the applicant.

While that ground was not pressed, it was argued below by the appellant that the errors in respect of the certificate, the invalidity of the certificate and the handling of the certificate, meant that the procedure unfolded in, potentially, a different way but because of the error.

If you look at the way that his Honour below summarises the arguments that were made on the point of materiality, towards the end of the decision at page 147, you will see at 99 that, on the materiality argument, the argument put by the appellant in respect of why the error which his Honour had found to be made mattered, included that:

the age determination process contained information which was favourable to the appellant in that some of the assessments suggest that he was under the age of 18 years –

So, your Honours, the fact that “discrete ground” in respect of the handling of his arguments about the reasonable explanation was not pressed does not mean that the forensic argument was abandoned – which it was not – which was that the deprivation of potential access to the material in order to bolster arguments about his age had an impact on him that made this a material error.

As you observed, your Honour Justice Nettle, you asked my learned friend whether the documents, subject to the invalid certificate, could demonstrate that he was young and that may have given him a good excuse. I respectfully adopt your observation in that question that the documents covered by the invalid certificate – which included the details that you can see yourselves when you look through the material, particularly at page 84 through to 96 ‑ contain matters that could have bolstered the applicant’s claim to be the age he said he was. If he was the age he said he was, then that undermined the documents being bogus because it undermined the reason for giving a bogus document. It was not bogus because it was his true age.

But, even if losing on that point and going to that alternative basis which is, even if the documents are bogus, I ask you to consider my explanation as to why they are bogus, then it is clear from the Tribunal’s own reasons that his age was relevant to that explanation. If he could have – if a different pathway had been followed procedurally that had enabled him to have access to the documents covered by the invalid certificate, he may have made arguments that bolstered his submission that he was the age he said he was which could have impacted the Tribunal’s satisfaction as to his reasonable explanation.

Referring to my learned friend’s submission on that second part of 91W, the (2)(b), in relation to whether the school certificate was provided, and that was a document that the Tribunal did not find to be bogus, and yet you can see from the Tribunal’s reasoning that my learned friend took you to in response to the question from Justice Gordon that at paragraphs 51 and 52 there is an overlapping analysis about his explanation for providing the
documents – whether they are bogus and whether he has taken reasonable steps to provide evidence.

The matters overlap forensically and the documents covered by the invalid certificate could have bolstered his case and that is why there is a possibility that a different outcome may have eventuated had the Tribunal not been given an invalid certificate and had the Tribunal not acted incorrectly in procedural fairness in relation to those certificates.

NETTLE J: Thank you, Ms Costello.

The Court is of the view that despite the questions of principle advanced by counsel for the applicant we are not persuaded that on the facts of this matter that an appeal to this Court would enjoy sufficient prospects of success to warrant the grant of special leave. Accordingly, the application for special leave is refused. Do you seek costs, Mr Knowles?

MR KNOWLES: Yes, in accordance with what is set out in the response. Yes, indeed.

NETTLE J: Ms Costello?

MS COSTELLO: As the Court pleases.

NETTLE J: The application for special leave is dismissed with costs.

MR KNOWLES: If your Honours please.

NETTLE J: The Court will now adjourn to 10.00 am on Tuesday, 5 November in Canberra.

AT 11.51 AM THE MATTER WAS CONCLUDED