Minister for Immigration and Border Protection v CED16 & Anor [2019] HCATrans 246 (13 December 2019)

Last Updated: 13 December 2019

[2019] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S275 of 2018

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

CED16

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 13 DECEMBER 2019, AT 10.09 AM

Copyright in the High Court of Australia
MR G.T JOHNSON, SC: May it please your Honours, I appear with MR B.D. KAPLAN for the applicant. (instructed by HWL Ebsworth Lawyers)

MR J.F. GORMLY: May it please your Honours, I appear for the first respondent. There has been a submitting appearance for the second respondent. (instructed by Labour Pains Legal)

GAGELER J: Mr Johnson, at page 88 of the application book, paragraph 41 of your submissions, you say, the Minister does not seek to disturb the Full Court’s order as to costs in that Court and would agree to pay the respondent’s costs in this Court. Is the Minister prepared to give an undertaking to that effect?

MR JOHNSON: Yes, your Honour.

GAGELER J: Thank you. We might hear from Mr Gormly.

MR JOHNSON: Thank you, your Honour.

MR GORMLY: Well, the respondent’s position is that there are no questions of law of public importance that arise in the application, and that it is not correct to say that Justice Derrington’s judgment means that every invalid certificate given under section 473GB will amount to new information.

GAGELER J: Is it the certificate or the information to which the certificate relates that his Honour said amounted to the new information?

MR GORMLY: Only the certificate, the invalid certificate. So his Honour’s conclusion at application book 72, it is paragraph 58 of his Honour’s reasons, his Honour’s conclusion that the invalid certificate was subject to the provisions for new information in Subdivision C of Division 3 of the Act was upon the premise that the invalidity of the certificate meant that it did not engage section 473GB within Division 6 ‑ these are the disclosure of information provisions.

Now, it is upon this premise, which was submitted by both parties, that his Honour found the invalid certificate to be new information within section 473DC(1) definition because, as his Honour said at paragraph 57, the invalid certificate satisfied both limbs of the definition. Firstly, that it was not before the Authority, and secondly, that it was considered by the Authority “to be relevant”, and “was relied upon”. At paragraph 36 his Honour noted the Authority had said:

that it had “had regard to” –

the information provided to it under section 473CB. The respondent takes issue with the finding that the certificate was considered by the Authority to be relevant and relied on but not in terms that gives rise to a question of law of public importance. The finding was according to the facts of the case. The invalid certificate presents no difficulties to decision‑makers.

Your Honours will see the certificate in the supplementary application book at page 4, and the invalidity of the certificate is obvious from line 29, that its disclosure:

would be contrary to the public interest because it is a Departmental working document.

So this does not present any real challenge to decision‑makers who can simply recognise the invalidity, say they have had no regard to the document in respect to which the certificate was given, and that is the end of it.

GORDON J: Can I ask about paragraph 57, please, on application book 71.

MR GORMLY: Yes.

GORDON J: There, Justice Derrington described it as “new information” within the meaning of section 473DC(1). Where do we find consideration by his Honour of the second limb of that section?

MR GORMLY: That is to be found in paragraph 40. Now, that is in respect ‑ ‑ ‑

GORDON J: That is setting out the Minister’s argument?

MR GORMLY: Yes, well, and that the certificate was not before the delegate, so prima facie it falls within new information. Now, the second limb his Honour treats in relation to his consideration of ground 1 at paragraph 23, application book 60, and there his Honour noted that the Authority:

had stated in its reasons that it had considered the material before it and made no exception in relation to the s 473GB Certificate or the IA Form.

That is what the court was going from, and that can be found in the Authority’s decision at application book 6, paragraph 3, the certificate, having been given under section 473CB of the Act, not as material that was before the delegate but as other material, presumably with the intersection 473CB(1)(c).

So, these assessments are, of course, matters of fact according to the circumstances of the case and the facts of the case. Their assessment, it is submitted, does not give rise to a question of law of public importance. Likewise, his Honour’s treatment of section 473DE has flaws, but it was not necessary for his Honour to go as far as he did. It probably would have been better if he had simply stopped at paragraph 33 of his decision at application book 63, in which he quoted this Court as saying that:

given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE ‑

Even if it is found that section 473DE was not applicable – and that would be hard to argue that it was applicable in the circumstances of this case, having regard to the settled authority – nevertheless, there was no attempt by the Authority to comply with section 473DD, relating to the exceptional circumstances that it is satisfied exist before it can consider the new information.

Even if that part of his Honour’s judgment is hived‑off, nevertheless there remains a good finding that an invalid certificate, given under section 473GB, does not engage the disclosure provisions of Division 6. But, nevertheless, as it has been given under section 473CB, if it was not before the delegate and the Authority considers it to be relevant then it has to be treated as new information under Subdivision C.

But, to a decision‑maker, they recognise once it is recognised, there is an obvious invalidity, that can be the end of the matter. All the decision‑maker has to say is, I do not find it – I do not consider it to be relevant, therefore it does not satisfy the second limb and that is the end of the matter, and I have seen that. So, that is the basis of the objection of the application – that his Honour’s decision survives any criticisms that can be made of his application of section 473DE, otherwise no question of law of public importance arises.

GAGELER J: Thank you, Mr Gormly.

On the undertaking of the Minister not to seek to disturb the Full Court’s orders as to costs in that court and to pay the respondent’s costs in this Court, special leave to appeal is granted. Would this be a half day case, gentlemen?

MR JOHNSON: Your Honour, certainly no more than half a day, I would have thought.

GAGELER J: Mr Gormly, what do you think?

MR GORMLY: Yes, I agree.

GAGELER J: Thank you. Yes, we will order that the time prescribed by rule 42.03 for the filing of the notice of appeal be abridged and the Minister is directed to file and serve the notice of appeal by 4.00 pm on Tuesday, 24 December.

AT 10.22 AM THE MATTER WAS CONCLUDED