ABT17 v Minister for Immigration and Border Protection & Anor [2020] HCATrans 104 (6 August 2020)

Last Updated: 7 August 2020

[2020] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M140 of 2019

B e t w e e n -

ABT17

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO LINK TO BRISBANE, SYDNEY AND MELBOURNE

ON THURSDAY, 6 AUGUST 2020, AT 10.29 AM

Copyright in the High Court of Australia

____________________

MS M.A. SCHILLING: If the Court pleases, I appear with my learned friend, MR A.N.P. McBETH, for the appellant. (instructed by Clothier Anderson Immigration Lawyers)

MR G.A. HILL: If the Court pleases, I appear for the first respondent. (instructed by Sparke Helmore)

KIEFEL CJ: The Court will not be taking a morning break and unless there is a difficulty for anyone we will sit through until 1.00 pm. Yes, Ms Schilling.

MS SCHILLING: May it please the Court. Your Honours, the principal issue raised by this appeal concerns the relationship between the principles of procedural fairness and the legal standard of reasonableness attending the exercise of the discretionary power to get new information under section 473DC of Division 3 of Part 7AA of the Migration Act. We contend and I will elaborate that a purpose of the power in section 473DC is to provide a measure of procedural fairness and an opportunity to be heard where the circumstances require it.

Accordingly, we say, the principles of procedural fairness should inform the exercise of that discretionary power. The Court will be aware from reviewing the reasons of Justice Bromberg in the Federal Court that his Honour, in some respects, approached the question of the reasonable exercise of the power under section 473DC in the circumstances of this case in the manner we contend to be correct.

Now, if I can just take your Honours straight to the relevant paragraphs of the decision of the Federal Court. That decision is at the core appeal book page 54 and if I can take your Honours to paragraph 21 of the decision.....core appeal book 58.....if your Honours please.....the Federal Court judge correctly accepted that the IAA’s acceptance of the appellant’s evidence as plausible amounted to an acceptance of his evidence of his claim to have been sexually assaulted whilst detained by the Sri Lankan Army in around May 2011. I will return to that finding later in my submissions in dealing with the principal issue.

If your Honours would go to paragraph 24 on page 59 of the court book, the Federal Court judge there observed:

that the IAA must have been aware that . . . the delegate had the opportunity to observe the appellant’s demeanour –

in giving that evidence. His Honour said:

to see and evaluate the physical manifestations which must have accompanied the evidence given by the appellant.

His Honour further observed that:

The IAA must have recognised, including because of the issues addressed by the evidence, that the delegate’s findings as to the plausibility of the appellant’s evidence, and in particular the evidence given about the alleged sexual torture, may have been, at least in part, based on the delegate’s positive assessment of the appellant’s demeanour. In those circumstances, it may well be thought that a reasonable decision‑maker would not have made credibility findings contrary to those made by the delegate without considering whether or not the powers given to the IAA under s 473DC should be exercised, including for the purpose of inviting the appellant to attend for an interview so that the IAA could conduct its own assessment of the appellant’s demeanour.

It is not, however.....that reasonable analysis ‑ ‑ ‑

KIEFEL CJ: We are losing you to some extent. Could I suggest that if you have some way of propping up your notes so that you do not have to lean forward so much. It is when you seem to lean forward that we lose some of the audio from you.

MS SCHILLING: Okay. Is that better if I sit back a little?

KIEFEL CJ: Yes, it is much better, thank you.

MS SCHILLING: Okay, I will sit away a little bit further. Your Honours, the Federal Court did not complete the reasonableness and.....because the court concluded that, first, for jurisdictional error to be established the panel would need to establish that the IAA failed to consider exercising the power under section 473DC, a matter on which the appellant bore the onus of proof and, secondly, that any such failure was immaterial because there was an alternative or independent basis for the IAA’s decision which did not rely on the appellant’s claims to have been tortured. We submit that both of those conclusions were incorrect.

First, it was clearly open to the Federal Court to find jurisdictional error arising from the unreasonable failure to exercise the power under section 473DC regardless of whether the appellant satisfied the court that the IAA had failed to consider the exercise of that power. Secondly, we say that the Federal Court’s conclusion that there was a separate and independent basis for the IAA’s decision was clearly incorrect.

Rather, the appellant’s profile and the extent to which by reason of that profile he would be likely to be of interest to the authorities if returned to Sri Lanka was both relevant to the IAA’s assessment of the criteria in section 5J(1)(b) of the Migration Act in the circumstances of this case, that is, whether there was a real chance of the appellant being persecuted by reason of his Tamil ethnicity, and that finding was also causally material in the path of reasoning the IAA in fact took in reaching her decision.

In view of the approach taken by the Federal Court it is my intention to deal first with the two errors I have identified before addressing the Court on the primary substantive issue raised by ground 1 of our notice of appeal. Lastly, I will return to the issue raised by ground 2(a) of our notice of appeal and the question of whether materiality is a precondition for an unreasonable exercise of power to constitute jurisdictional error. So, your Honours will have the outline of oral submissions and I will work through that according to the propositions we have identified there.

So, the first proposition is that the IAA’s finding that the appellant would not face a real chance of serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his imputed political opinion was not a separate or alternative basis for its decision, which was not reliant on whether the IAA accepted the appellant’s claims to have been beaten and sexually tortured. For the purpose of addressing that proposition, I would like to take the Court to some critical aspects of the IAA’s reasons.

The reasons are at the core appeal book page 5. As the Court will be aware, the central aspect of the appellant’s claim was that he was repeatedly detained and beaten by officers of the Sri Lankan Army ‑ and I will refer to that as the SLA ‑ over a period of two years following his return to his home in the northern province of Sri Lanka.

He claimed the reasons for those detentions were the SLA’s suspicion that he was a member of the Liberation Tigers of Tamil Eelam that I will refer to as the LTTE. The IAA examined three specific claimed incidents in detail. The first immediately following his return from the internal displaced persons camp, in October 2009; the second, which I will refer to as the most serious detention incident, which was a six‑day period of detention, occurring in around May 2011, during which period the appellant claims to have been sexually tortured; and the third, which is a further incident that occurred in April 2012.

The appellant’s evidence in relation to the first specific incident is described at paragraphs 13 to 14 of the IAA’s reasons. And the IAA dealt with this part of the claim at paragraph 20 of its reasons. The IAA identified several discrepancies in the appellant’s account of his first beating by the SLA following his return home in October 2009. The first was whether he was questioned extensively at his home prior to being required to attend the SLA camp. And the second related to the duration of the beating – that is, whether it was one day or two to three days.

The IAA noted at paragraph 14 that at the delegate’s request the appellant took off his shirt and showed the delegate scarring on his back, claimed to have been caused by the beatings. The IAA made no further mention of that evidence but proceeded to reject this aspect of the claim on the basis of the inconsistencies identified by the IAA and country information which suggested that IDP camp returnees, who had no involvement with the LTTE, would not likely encounter legal or other consequences unless fresh evidence surfaced of their involvement with the LTTE.

In this case the appellant said that although he lived in a LTTE controlled area he had no dealings with them and did not support them. The IAA did not refer further to the evidence of scarring. The appellant’s evidence in relation to the significant ‑ the incident that is particularly significant for the purpose of this.....is at paragraphs 15 to 16 of the IAA’s reasons, and that evidence, or that issue is disposed of by the IAA at paragraph 23 of the reasons. The IAA recorded the appellant’s claim that he had been taken to a place where he was held and tortured for a period of six days and only released on payment of a bribe. The IAA recorded at the delegate interview the appellant claimed for the first time to have been sexually tortured during this period of detention.

The IAA also importantly recorded the reasons given by the appellant why he did not raise the sexual torture earlier. The IAA rejected this claim because, although the payment of ransoms was a common practice, the IAA said that it was implausible that the appellant’s family did not try and secure his release before the sixth day when a bribe was paid. Also, because despite sympathetic questioning, as described by the IAA by the delegate, the appellant was unable to provide details of the sexual assault. And the third reason was that the IAA found the appellant’s explanation for why he did not later seek medical assistance to be unconvincing.

Now, I will return later in my submissions to the reasons of the IAA in relation to that incident, but briefly, the third specific incident in April 2012 is the evidence in relation to that is referred to at paragraph 17 of the reasons and is disposed of at paragraph 24 of the IAA’s reasons. In relation to that third incident or claim of beating, the IAA found that the appellant’s evidence was “contradictory and confusing”. The IAA rejected the appellant’s account of this incident because of those inconsistencies.

The IAA then turned to the question of whether there was a real chance that the appellant would be persecuted if returned to Sri Lanka on the basis of his ethnicity or imputed support for the LTTE. The critical conclusions in relation to this are at reasons 24 and 25 of the IAA’s reasons. If I can ask the Court to go to those.

KIEFEL CJ: Ms Schilling, while you are pausing there, the conclusion at 25 is a summary of conclusion with respect to the IAA’s assessment of the credibility of the claims and the likelihood that they took place as explained. Would you agree that from paragraph 26 onwards the IAA turns to discuss a different topic, namely the country information, and in a way there could have been a subheading above paragraph 26 headed “Country information”. Would you agree that they go on to discuss a different topic at that point?

MS SCHILLING: Yes, I do, your Honour, and indeed I have actually drawn a line immediately above that paragraph in my version of the reasons precisely for that reason at that point. That is the critical conclusion it picks up.....your Honour has referred to that paragraph ‑ and it picks up the finding in paragraph 24 where the IAA says around halfway through that paragraph:

As I have not accepted that this incident occurred and there is no credible information before me that indicates that the applicant is of any interest to the authorities.

So those are critical conclusions, in our submission. The rejection of the claim that the appellant was of interest to the authorities, and that follows from the rejection of the claims as to the beatings that he claimed occurred. And then paragraph 25 bundles up to that conclusion, as your Honour has stated. Now, as your Honour stated ‑ ‑ ‑

KIEFEL CJ: What I am really asking though in terms of the way in which the IAA approached it, is it the discussion from paragraphs 26 onward of the country information the basis for what is referred to as their independent assessment which stands out from claims of credibility ‑ said to be stand apart?

MS SCHILLING: The independent assessment, we would say, covers the findings made at 25, obviously the findings as to credit, and then the passage that follows, in our submission, applies the IAA’s assessment of the country information to the appellant with that profile.

KIEFEL CJ: The conclusion reached from 26 onward is made at paragraph 33?

MS SCHILLING: That is correct, your Honour.

KIEFEL CJ: We can put aside the illegal deportee – the failed asylum seeker topic because that is not really part of the appeal, is it?

MS SCHILLING: No, it is not, your Honour, but the findings at 24, 25 flow through, we would say, to the entire analysis but your Honour is correct in that, yes.

KIEFEL CJ: Well, that is really a critical question about the materiality independent ground point, is it not? You really have to show that what appears in 24 and 25 actually affects the conclusion stated in 33.

MS SCHILLING: Yes, and we submit it does affect those conclusions. We do also submit that it fed through to the conclusions on the failed asylum seeker ground and on the complementary protection assessment, so we say that both of those conclusions were affected by the IAA’s assessment of the appellant profile. If I could take you through those, your Honour.

KIEFEL CJ: Yes.

MS SCHILLING: So, your Honour, at 31 – so, importantly at paragraph 30, the IAA refers to “2012 Guidelines issued by the United Nations” which stated that:

certain real or perceived links with the LTTE continue to expose individuals to treatment which may give rise to a need for protection.

Then, at reasons 31, the IAA concluded that the appellant did not follow into that group because he had no profile giving rise to real or perceived links with the LTTE. We say this picks up the findings in reasons 24 and 25 that the appellant did not have a profile in the sense of being of any interest to the authorities. Then, at reasons 33, the IAA therefore concluded that she was:

not satisfied that the applicant would face a real chance of serious harm on return to Sri Lanka –

This was based, in part, on his personal circumstances, being his absence of a profile that would bring him to the interest of the LTTE.

KIEFEL CJ: Ms Schilling, much, of course, of what you say is hinged on the use of the word “profile” in both parts of the reasons. Could “profile” be said to be used in two distinct sentences though? In paragraph 25 in connection with credibility and the particular events which the applicant has put forward as being the profile based on his claims, that is, subjectively ascertained, and the profile referred to in the paragraphs after – the comment after 26 as a profile more objectively ascertained by reference to what UNHCR guidelines and other country information tells one about a person such as the plaintiff, including being a Tamil from the north? Is that a fair way of reading the IAA reasons?

MS SCHILLING: We would submit that the first reading is the preferable reading because the IAA refers there to being “not satisfied on the evidence before me that the applicant has a profile” and the preferable inference we say is that that is a reference back to the IAA’s conclusion as regards his profile that is reached in paragraph 25.

EDELMAN J: The two might not be entirely independent even if they are separate, might they? I mean, it may be the case that independent objective profiles of a class are going to be affected or a conclusion as to that is going to be affected by an assessment of an individual’s profile to particular authorities.

MS SCHILLING: Yes, your Honour, we would agree with that. Your Honours, in terms of the flow through to the consideration of being a failed asylum seeker, at reasons 41, in that paragraph the IAA says that:

There may be some risk of harm where a returnee is identified as having an adverse profile (for example, a serious criminal record or suspected LTTE links). I have found however, that the applicant will not be suspected of having an actual or imputed connection to the LTTE on return to Sri Lanka and the evidence does not support that he would be viewed as having –

et cetera and it goes on to talk about the serious crime. So we say that that picks up on the earlier findings relating to his imputed connection to the LTTE. Then at reasons 49 we see in that paragraph at the bottom of the page.....the consideration of the complementary protection claim, stating:

As I have found above, the applicant is not a person of interest to the Sri Lankan authorities and I do not accept that there is a real risk that the applicant will be mistreated –

So we would say that the findings at 24 form the basis for the conclusion that the IAA reached. So our first proposition is, we say, demonstrated by that path of reasoning which establishes, in our submission, that the IAA’s rejection of the appellant’s claim to have been repeatedly detained and beaten and sexually assaulted was part of the basis for the IAA’s conclusion that the appellant did not have a profile that was or would be of interest to the Sri Lankan authorities, and that finding in turn was part of the reason for the IAA’s conclusion that the appellant would not face a real chance of serious harm on the basis of his Tamil ethnicity or imputed political opinions.

BELL J: Sorry, Ms Schilling, but in summarising the claims that the IAA rejected you did not include reference to its conclusion in paragraph 24 that it was not plausible that members of the SLA would go to the appellant’s family home and ask after his whereabouts after he arrived in Australia or that his family had been told to report to the authorities when he returned.

If one goes to the claims identified by the delegate that.....on page 5 of the appellant’s further materials, a claim that the SLA had attended the applicant’s home to inquire about his whereabouts from his family, I am not sure that the delegate’s conclusion that the appellant’s claims were plausible extended necessarily to the assertion that his family had been told to report to the authorities when he returned.

Just looking at the summary on page 5 the delegate’s findings do seem to include acceptance of the plausibility that the appellant was a person who had had a sufficient profile to attract a visit to his home after he left Sri Lanka. And I raised with you the fact that you did not include that in your summary of the material that you rely on to support the contention that relevant to the conclusion about the appellant’s profile were the rejection of findings of ill‑treatment and sexual and other torture.....It would seem to me not insignificant to have regard to his claim, accepted so it would seem by the delegate, that the SLA had turned up to his home after he left Sri Lanka.

MS SCHILLING: Thank you, your Honour. Yes, we agree that that would be a further factor that would support those matters being material. We agree with that.

Your Honour, if I can take you to the Federal Court’s finding on this issue, which is at paragraph 27 of the Federal Court’s decision and what his Honour does there is recite the finding from paragraph 33 of the IAA’s reasons. But we would say that his Honour appears to have overlooked the causal connection between the personal circumstances referred to in paragraph 33 and the.....in the IAA’s reasons at paragraph 31 that the appellant.....which, in turn, picked up the finding at ‑ ‑ ‑

KIEFEL CJ: I am sorry, Ms Schilling, we have just lost that part of your submission. Could you just start that part of your submission again. It is to do with moving forward, I think, and sideways. Could you just..... ‑ ‑ ‑

MS SCHILLING: I am sorry, I will try to sit back.

KIEFEL CJ: ‑ ‑ ‑ submission, just for the record.

MS SCHILLING: So the submission was the Federal Court’s finding at 27, is at 27, his Honour recites the finding at paragraph 33 of the IAA’s reasons, but appears to have overlooked the causal connection between the personal circumstances referred to in that paragraph and the finding at paragraph 31 of the IAA’s reason that the appellant did not have:

a profile which would bring him to the attention of the Sri Lankan authorities ‑

which we say in turn picked up the findings at paragraphs 24 and 25 of the IAA’s reasons. On that basis we contend that his Honour’s statement that the reasons at paragraph 33 was an alternative basis for the decision which was not reliant on acceptance of the appellant’s claims to have been beaten and sexually tortured was plainly incorrect.

His Honour appears to have treated this claim as similar to the independent ground in Hossain, although his Honour did not refer to that case, but it was neither a ‑ it certainly was not an independent and separate basis for affirming the decision as there was in Hossain, nor was it causally immaterial in the path of reasoning that the IAA in fact took. It was plainly, in our view, causally relevant.

So given that there was not, in fact, a separate basis for the IAA’s conclusion that was entirely independent of its acceptance or non‑acceptance of the appellant’s evidence about sexual torture, it was incumbent on the Federal Court judge to complete the reasonableness analysis in relation to the sexual torture claim and we say that his Honour’s failure to do so constitutes error.

Now, this leads us to our second.....turns on the manner in which his Honour approached the analysis of reasonableness. The primary judge erred in concluding ‑ and this is at paragraph 50 of the reasons, if I can take ‑ sorry, it is at paragraph 25, it is at page 59. So what his Honour said there was that he:

need not, however, come to a final view as to whether or not there is a sufficient parallel between the facts of this case and the facts of DPI17.

That is a case I will address your Honours on shortly. His Honour said:

As the Minister rightly contended, in order for jurisdictional error to be established, I would need to be satisfied that the IAA failed to consider exercising the s 473DC discretion, a matter on which the appellant bears the onus of proof. Furthermore, I would need to be satisfied that any such failure was material to the IAA’s decision.

Now, the IAA’s reasons are silent on whether consideration was given to the exercise of the section 473DC power, and if so, the reasons that the IAA determined not to exercise that power. We accept that the IAA was not required to give reasons for the exercise or non‑exercise of that procedural power, as this Court held in BVD17 last year. However, at paragraph 4 of his reasons, the Federal Court found, and we say correctly, that:

It seems apparent that the discretion that the IAA is given to obtain new information by s 473DC . . . was not affirmatively exercised.

So having made that finding this was a situation where it was open to the Federal Court to examine whether the decision not to exercise the power affirmatively fell within the range of possible acceptable outcomes, which were defensible in respect of the facts and law regardless of the absence of reasons on the part of the IAA.

EDELMAN J: Ms Schilling, is there not an anterior question before you consider whether there was any unreasonableness or any need to exercise a discretion to conduct an interview, and that anterior question would be whether it was unreasonable for the IAA to make its own assessment without, apparently, placing any weight upon, on your case, the demeanour related conclusions of the delegate?

MS SCHILLING: Well, yes, your Honour, we have, in a sense, bundled that up within our consideration of the reasonable exercise of the discretion, the knowledge that the delegate had as a result of the hearing made that positive assessment of demeanour. And we see that as part of the question of whether the discretion enforced under 473DC should be exercised, and that is how we have conceptualised it. But there may be an anterior question whether it is reasonable to depart from it per se.

EDELMAN J: They may not be the same question and they may not be able to be bundled up, depending upon whether one accepts that it was even possible for the IAA to.....

MS SCHILLING: Your Honour, I am sorry.....Could I ask you to repeat that.

EDELMAN J: It might not be possible to bundle the two issues up together if it is not correct that the delegate could treat issues such as the scarring as new information permitting the IAA to call the applicant in for an interview.

MS SCHILLING: Yes. I understand the point that your Honour is raising, which is whether the power arose to be exercised in this situation, so whether what the power might have been exercised to obtain was in fact new information. Am I correct in understanding that question, your Honour?

EDELMAN J: Yes, my point is just that that may be a reason – the answer to that question may be a reason why it is not appropriate to bundle up, in your phrase, the two issues of whether or not it was unreasonable for the IAA to reach the conclusion that it did in light of the demeanour and the seeing of the scarring, and the second issue as to whether or not there should have been an invitation for an interview.

MS SCHILLING: Yes. Your Honour, I would agree respectfully that the question of whether this was information capable to be new information – capable of being new information, the IAA needed to form a view on that before considering whether to exercise the discretion. So, in that sense, yes, they are both discrete points and I will address your Honour – and I can address your Honour now on that or as I go through my submissions on this question of whether ‑ because it is put against us by the respondent, that the power in this instance never arose, because what was potentially sought to be obtained was not capable of being new information in these circumstances.

We say that it certainly was for several reasons. I mean, essentially, we say that where the IAA exercises the power to invite an applicant for an interview, certainly what is said at that interview will always be new information because – provided it is relevant ‑ but because it will not have been before the Minister’s delegate at the time of making the decision, so in that sense, we would say that that information would always have been new information.

We accept.....possibly because that is a greater obstacle.....analysis because the scarring was obviously displayed to the delegate before making the decision. However, we have referenced in our submissions a case that – to the effect that the visual image of scarring may change over time. It might not be precisely the same in visual image when it is viewed later, but essentially we would say that the information that is obtained from an interview will always be new information and the fact that it traverses topics or subject matter that may happen in the.....of the interview before the delegate does not preclude its being.....

GORDON J: .....

MS SCHILLING: The other point ‑ and I am jumping ahead in my submissions here ‑ ‑ ‑

GAGELER J: .....

KIEFEL CJ: I think Justice Gordon was asking a question, Ms Schilling.

GAGELER J: I am very sorry.

GORDON J: I think Justice Gageler’s question.....so I think Justice Gageler wants to put something to you, Ms Schilling.

GAGELER J: I will go first then, Ms Schilling. As I understand your submission, you really need to start with section 56 of the Act which is the basis for the interview that was conducted by the delegate. As I understand it, you say that what was said at the interview was information within the meaning of section 56 and how it was said at the interview was also information within the meaning of section 56. When you then go to section 473DC what might be said at an interview.....information and how it might be said at an interview is similarly information.

NETTLE J: Justice Gageler, I am sorry, we cannot hear you, you have dropped your voice.

GAGELER J: It is new information because it is a different interview. Is that the way you put it?

MS SCHILLING: Yes, we do put it that way, your Honour. So we say that, as your Honour has said, both what is said at the interview and the manner in which it is said – and I am jumping ahead here ‑ the information ‑ we rely upon the proposition that is stated by Justice Allsop, as his Honour then was, in SZEEU ‑ and that is in the material ‑ v Minister for Immigration, that information is that of which one is told or apprised.

Now, one may be apprised of the information by becoming aware of it and so the information, the substantive information, is information about some fact or a communication of knowledge about some particular fact, subject or event. And the Court described it in those terms in Plaintiff M174, but what we say is that a person may become apprised of information about some particular fact, subject or event by an assessment of demeanour. So that is an avenue by which information is communicated.

So that goes to the first limb of whether this is in fact information. And I should say we do not put our case so narrowly that all the IAA ought to have sought was, if you like, to see how the applicant described that particular event of sexual torture, because as the reasons disclose – the IAA’s reasons disclosed in its description of what actually occurred at the delegate interview – the applicant, in fact, gave very little information about it. He said it occurred, he described why he had not raised it earlier, but in this situation the IAA ought to have sought more detailed information, giving the appellant an opportunity to provide that more detailed event – information about an event that was inherently traumatic to describe.

And certainly......were not before the delegate at the time of the interview. So we put.....we do say that information provided at an interview.....473DC(3) to which an applicant is invited is going to necessarily be new information because it was not before the delegate at the time of making the decision, and that new information might include information gleaned through an assessment of demeanour. But we also say that if we are wrong about that ‑ ‑ ‑

EDELMAN J: Ms Schilling, if that is correct, does that not mean, then, that the IAA under section 473DC(3) has an unconstrained ability to call any applicant in for an interview?

MS SCHILLING: It is not unconstrained, your Honour. It is certainly constrained by the primary rule which is that the review must be on the papers and there is no doubt that that will condition – and that is a significant factor that would impact on the IAA’s exercise of that power. And the information must be considered relevant, of course, or potentially relevant, at the time that the power is exercised.

But we would say that in those circumstances, yes, the information that is obtained is not going to be – we are not going to be in a situation where we look at what was said at that interview, and what questions can be asked, so that we do not traverse entirely the same topics and we do not elicit exactly the same information.

And we rely on DPI17, which is a case that I will take the Court to, a decision of the Full Federal Court, and the Court will be aware there that the plurality – Justices Griffith and Steward in that case identified the particular unreasonableness as a failure to give the applicant an opportunity to give evidence to explain certain inconsistencies in the material that was also before the delegate. But it is clear that those inconsistencies were the topic of evidence and discussion at the interview before the delegate.

Now, there was no suggestion that that fact precluded the IAA from inviting the applicant to an interview to give new information about that topic. So, whilst it might look that – present the possibility of, you know – that it would open the door, a floodgates type of scenario, in my submission, the other provisions of Division 7AA would make that very difficult because, of course, the IAA still has to only exercise that discretion sparingly because of the effect of the primary rule, which is that the review must be on the papers.

EDELMAN J: Why would not ‑ ‑ ‑

KIEFEL CJ: Ms Schilling, while you are paused there, could I ask you does it follow from what you say that the IAA considers that there are issues with respect to the credibility of an applicant or the veracity of their story that it is obliged to give an interview so that it may observe their demeanour if it is going to depart from the delegate’s findings?

MS SCHILLING: We do not put our submission as high as that, your Honour. We do not cavil with the proposition in the case – I think it is DGZ – to which we refer in our submissions that merely departing from a finding of credit would necessitate the exercise of the power. But we say that there are certain circumstances where demeanour – and where it can be reasonably inferred that demeanour was critical in the outcome of the delegate’s decision, or whether ‑ ‑ ‑

KIEFEL CJ: That will often be the case, will it not?

MS SCHILLING: I think there would be degrees of significance and certainly demeanour will always be important.

EDELMAN J: .....

KIEFEL CJ: .....say that the IAA is not in the position to come to different findings or degrees of findings in relation to credibility or plausibility of claims on an objective assessment without reference to.....

MS SCHILLING: Your Honour, I am afraid.....

KIEFEL CJ: I am sorry, I cannot hear you now. Can you hear me now, Ms Schilling?

MS SCHILLING: I did not hear half the question, if you would not mind repeating it.

KIEFEL CJ: All right. Do you go so far as to say that the IAA is not able in an appropriate case to overturn or come to a different view of credibility or the plausibility of.....claims by reference to an objective assessment of the claims and their veracity without demeanour – without demeanour being privy at all, or do you say that if demeanour has fed into the delegate’s decision, the IAA must in every case undertake that exercise itself?

MS SCHILLING: We would say that of course first of all assessment – obviously that assessment.....is fact dependent. So it is quite difficult to put a broad proposition about the circumstances in which the exercise of power would be unreasonable. But we say that where – and I think I have said it ‑ that where it is apparent from the materials that.....has been critical then, in those circumstances, it would be unreasonable for the IAA to depart from that finding without giving the applicant an opportunity – without giving itself the opportunity to see what it was about the applicant’s demeanour that led the delegate to accept those aspects of the claim. But we also say that ‑ ‑ ‑

EDELMAN J: In a way, Ms Schilling, that comes back to the question I asked you earlier, which is why would it not be consistent with the scheme of the Act, and particularly of this division, for the IAA not to have any power to call an applicant for an interview based solely upon issues of demeanour, but to be constrained in the same way as an appellate court might be constrained by findings of, say, a jury, that are based upon demeanour, to treat those findings at their highest unless there is some objective evidence that would suggest that ‑ or would overcome a conclusion that might have been based upon issues of demeanour?

MS SCHILLING: Your Honour, we would say that that is not the ‑ with respect, that is not consistent, actually, with the scheme of this legislation. We say that, properly construed, the legislation provides the power to the IAA which can be exercised in a situation where the ability of the IAA to carry out the contemplated review may be compromised if the power is not exercised.

And so, we do not see that our case ‑ and I will address your Honour on the scheme of the legislation in fact now ‑ we say that the legislation is not predicated ‑ certainly there is the primary rule, but as this Court said in Plaintiff M174, the primary rule admits an exception. Division 3 may codify the incidence of the procedural fairness hearing rule, but it does not exclude it, and so what we have is a scheme which posits a primary position, and we then have the opportunity for the power to be exercised in an appropriate case. So the question is, and.....appropriate case, and we say that.....it is apparent to the IAA ‑ ‑ ‑

KIEFEL CJ: Ms Schilling, we are having trouble hearing you again, could you just go back a few sentences and perhaps start that submission again.

MS SCHILLING: Yes. If I can remember it. What I was saying, your Honour, was that the scheme of Division 7AA is that is posits a primary rule, but it is a primary rule, as this Court said, in M174, that admits of exceptions. And, likewise, Division 3 of Part 7AA does not exclude the procedural fairness hearing rule, it codifies it. So the question is not ‑ the default position is not that the IAA ought never exercise that power, obviously the power is there for a purpose, and we say that the existence of that exception raises obviously the question that is the subject of this proceeding, in what circumstances is it both appropriate and necessary for that power to be exercised?

Our position is that in circumstances where it is apparent from a review of the material that there is an aspect, a critical aspect of the material that was – of the information that was before the delegate and that will arise where demeanour can be reasonably inferred to have been important or critical but there may have been circumstances where the power.....necessary to exercise it where it is evident that there are aspects of the hearing below that were compromised and, in those circumstances, it is both necessary and appropriate for the power to be exercised and that is the sense in which we say that the power is informed by procedural fairness considerations.

What I would like to do, your Honours, if I may is just take you through briefly the legislative scheme and the aspects of the scheme that we say support that construction but it is also when one looks at the way in which the cases have explored the exercise of this power it is apparent that it is, in fact, being applied in this sense. It is being applied to address and cure procedural fairness deficiencies and that is precisely what occurred in Plaintiff174.

So, your Honours, if I might just move on and I will just talk through the next point which is the proposition C of our outline – I am just mindful of the time as well. Your Honours, there is no dispute between the parties that the presumption that a discretionary power will be exercised – must be exercised within the bounds of reasonableness that conditions the lawful exercise of that power, the proposition well established by the case of Minister for Immigration and Citizenship v Li.

That presumption as found by this Court in Plaintiff 175 is applicable to the exercise of procedural discretions by Part 7AA. The content of the standard of legal reasonableness is to be assessed in light of the terms, scope, purpose and object of the statute in question. As I have said, Division 3 of Part 7AA codifies the natural justice hearing rule, it does not exclude it and the Court made that clear in BVD17 at paragraph 33. I will not take your Honours to that now. Rather, it is intended to give effect to procedural fairness principles up to a point in the curtailed IAA environment. So, what we have in Division 3 of Part 7AA is stated to set out exhaustively the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA and we have that provision in section 473DA(1).

Now, as to the significance of that statement we would rely on what was said by Justice Gageler in the case of Li at paragraph 99 and we have extracted that in our submissions, but your Honours may just wish to turn to it in the authorities. It is in volume 2 of the joint book of authorities at page 121. His Honour said there at paragraph 99, speaking of the declaration:

The legislative declaration that Div 5 of Pt 5 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.....

KIEFEL CJ: Ms Schilling.....we tend to lose you.

MS SCHILLING: Okay. I will try and.....

KIEFEL CJ: I think.....

MS SCHILLING: I apologise, your Honour.

KIEFEL CJ: You were saying about paragraph 99.

MS SCHILLING: .....

The significance is that the implied statutory requirement for the performance of those duties and the exercise of those powers always to be reasonable results in the division providing a measure of procedural fairness sufficient to meet the statutory discretion of it as a statement of the requirements of the natural justice hearing rule.

.....observations having.....

Your Honours, I would also just like to take you to an aspect of the explanatory memorandum, if I might. That is at volume 4 of the joint book of authorities, and page 592. Your Honours will see at paragraph 893 that there is a discussion of the reforms that were proposed in 592. Halfway down that paragraph there is a justification of the curtailment of the review process by stating that:

A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision‑making process and before a primary decision is made on their application.

So that feature, we say, of the scheme places added significance on the integrity of those opportunities. In other words, the premise of the scheme will come unstuck if the earlier opportunities are not sound. We say that the discretion conferred by section 473DC provides what might be described in a sense as a final integrity measure integral to the efficacy of the scheme that is established by Part 7AA. So the scheme of Division 3 contemplates and, indeed, anticipates that the need to exercise the power under 473DC will arise as a consequence of the IAA’s review of the review material provided by the Secretary under section 473DA.

So we start with section 473CB which requires the Secretary to give review material to the IAA. Section 473DB(1) then imposes a mandatory obligation on the IAA to review that material in carrying out its review function. Section 473DC permits the IAA to get relevantly new information. The Court said in M174 at paragraph 23 this term “get” means simply “seek out”. The Court also said that section 473DC is entirely facultative, that is, permissive. The IAA need only be satisfied of the two criteria in section 473DC(1) that the information sought to be obtained may be relevant and was not before the delegate at the time of making the decision.

I pause here to note that contrary to the repeated submissions to this effect in the respondent’s submissions we say that the IAA need not consider at the time of requesting the information that there are exceptional circumstances before exercising the power under section 473DC(3). It is contrary to the express terms of the provisions.

But further, we would say that.....explanatory memorandum also confirm that. If I could take your Honours, please, to paragraph 937 of the explanatory memorandum, and that is at page 598 of the joint authorities, in that paragraph the explanatory memorandum talks about the purpose of the amendments and the:

procedures to be followed where the IAA invites a referred applicant to give new information or to give comments on new information in writing or at interview. It is intended that the same procedures are to be followed whether the IAA requests relevant information where it is seeking to determine whether exceptional circumstances might exist in a case or alternatively –

and it goes on. So, we would say that that passage of the explanatory memorandum confirms the discrete thresholds set by 473DC of relevance as opposed to 473DD(a) of exceptional circumstances. The scheme established thus contemplates that the IAA’s review of the.....material may result in the IAA identifying documents or information that it considers it requires in order to properly carry out the review.

The cases to which I will shortly take the Court demonstrate the range of circumstances which might require the.....exercise, or the exercise of the power. As I have said, they include in the reviews....ought to disclose to the IAA that some critical aspect of the information that was available to the delegate is not available to the IAA or that there are circumstances that might have compromised the quality of the review material, including circumstances affecting the quality of the hearing, so that a reasonable IAA would conclude that the review might not be able to be concluded without exercising the power to obtain information about those matters.

So, it is in this sense that we say that the power encompasses a purpose of enabling the IAA to address or cure procedural unfairness which has occurred in connection with the decision of the delegate, or potential procedural unfairness that would arise if the power were left unexercised. We accept that the IAA on becoming aware of such deficiencies would need to assess the requirement to exercise the power cautiously.

In the context of the primary rule in section 473DC and the exhortation provided by section 473FA(1) that the IAA carry out the review efficiently, quickly and consistently with Division 3 we do not see any inconsistency between the objective of section 473FA(1) and construing 473DC as encompassing a purpose of enabling the IAA to remedy or avoid procedural unfairness.

Indeed, we say that the former facilitates the latter. So, to summarise we say that the power under section 473DC may and should be properly informed by procedural fairness considerations. I would like to briefly take the Court to several decisions which we say in fact are illustrative of the manner in which the power has been exercised to do just that.

So, the first decision is the Court’s decision in Plaintiff M74 and that is at joint book of authorities volume 9, at page 199. M174 is in volume 2. The Court will recall that Plaintiff M174 concerned non‑compliance by the Secretary with the obligation in section 57(2) of the Act to give particulars of information meeting the criteria in section 57(1) to the applicant to ensure that the applicant understood the relevance of that information and to invite the applicant to comment on it.

If I can to your Honours to paragraph 47 of the judgment of Justices Gageler, Keane and Nettle.....consequence of the non‑compliance.....

KIEFEL CJ: Ms Schilling, we cannot hear you.

MS SCHILLING: Prejudicial adverse – sorry.

KIEFEL CJ: Perhaps you could start that again?

MS SCHILLING: Yes. In paragraph 47 their Honours identified the consequence of the non‑compliance with section 57 by the Secretary as the denial of:

an opportunity to respond to prejudicial adverse information and to have any response included in the review material to be given to the –

IAA. At paragraph 47 the plurality identified the role of section 473DC in responding to that denial of procedural fairness, and their Honours said:

If the procedures for which Pt 7AA provides were so constrained as to preclude the Authority from conducting the review in a manner which would negate the want of procedural fairness that would be occasioned by an applicant having been denied the opportunity that s 57 required, that would be a powerful and potentially decisive consideration weighing in favour of the plaintiff’s construction.

That was the other issue in that particular proceeding. But the important point here is a recognition that the power in section 473 can be responsive to the identification of that absence of procedural fairness.

Now, the plurality went on to identify two scenarios where irrelevant information.....which had been non‑compliance with section 57(2) might end up being included in the review material given to the IAA. I want to now deal with the.....the information in respect of which there had been non‑compliance with section 57(2) and was before the Minister or delegate at the time of making the decision. The plurality stated that although the information would not be new information, the power under section 473DC would be available to remedy the absence of procedural fairness in respect of that information. And this is stated at paragraph 49, where the Court said:

Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC3 to issue such an invitation.

I note that Justice Edelman, at paragraph 97, expressly agreed with the analysis in that paragraph, and at paragraph 90 Justice Gordon ‑ I will not take the Court to that at the moment ‑ expressed similar ‑ made a similar statement as to the capacity to use the power to respond to the identified breach of procedural fairness.

Now, the second case to which I want to take the Court is the case of CNY17. That case is in volume 3 of the authorities at page 295. This case was determined late last year, and the Court will recall that in this case, the irrelevant and prejudicial material relating to the applicant, which the applicant had not seen nor.....was provided to the IAA by the Secretary under section 473CB(1). Without exercising the power under section 473DC(3), the IAA affirmed the decision under review, and the issue, on appeal to the High Court, was whether the presence of that material in the review.....The Court, by majority, answered that question in the affirmative. However, for the purpose of this appeal, we rely on what was said at paragraph [102] by Justices Nettle and Gordon, and if I could take your Honours to that passage.

This again, we say, demonstrates the manner in which reasonableness will condition the exercise of the power of the IAA under section 473DC on becoming aware of the erroneously included prejudicial material. Their Honours said in that passage:

If circumstances like this arise, a decision‑maker may need to invite an applicant to comment on adverse information to counteract the apprehension of bias. Is this consistent with the statutory scheme? Yes. Section 473DA(2) says that “nothing in this Part requires the [IAA] to give to a referred applicant any material that was before the Minister” when the Minister made the original decision. But this says nothing about “what might be required of the [IAA] in particular circumstances in order to exercise [its] power [under s 473DC(3)] reasonably”.

And their Honours cited Plaintiff M174 in support of that proposition:

The power in s 473DC(3) allows the IAA to get new information. While the IAA “does not have a duty to get, request or accept, any new information” in any circumstances, it may still invite an applicant to comment on information under s 473DC(3) if that would be the best way of avoiding an apprehension of bias.

So, again, we see the power being exercised there.....in that case, potential procedural unfairness that would have arisen if the power were not exercised.

The third decision of this Court, which I would like to take the Court to, is the decision in BVD17 v Minister for Immigration and Border Protection. That is in volume 3, at page 259. Now, the issue in BVD17 was whether the giving of a notification.....section 473GB(2)(a) triggered an obligation of procedural fairness to disclose the fact of the notification to a referred applicant in a review under Part 7AA. The Court held that it did not.

For present purposes we rely in particular on the statements made by the Court, by way of obiter, as to the extent to which the procedural fairness character of the statutory powers in subdivision C of Division 3 should inform the standard of legal reasonableness. If I could take your Honours to paragraphs [34] to [35] of that decision. This is a statement by all members of the Court other than Justice Edelman, and the statement is:

The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court –

it was a decision of CRY16:

The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.

Consistent with the earlier conclusion of the Full Court in BBS16, the entirety of the content of the Authority’s obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority –

So we say that that recognises a substantive overlap between procedural fairness and reasonableness in the context of the exercise of the discretion conferred by 473DC. Justice Edelman, in paragraphs [61] and [62] made reference to an implication with almost precisely the same content as procedural fairness which could be implied as a requirement of legal reasonableness. And His Honour said at [62]:

It is hard to imagine any circumstance in which the exercise of a power in a manner contrary to the requirements of procedural fairness that would be implied but for the purported exclusion by s 473DA(1) would not be legally unreasonable.

So we say the statements of the Court in BVD17 are consistent with the proposition we advance in this proceeding which is that the exercise and limits of the power in section 473DC may in an appropriate case be informed by procedural fairness considerations.

Now, the joint book of authorities provided to the Court contain further examples of decisions of the Federal Court which demonstrate the proposition we advance as to the relationship between reasonableness and procedural fairness in the exercise of the section 473DC power. I will mention these cases briefly, and the first of those is the case of DPI17 v Minister for Home Affairs. That case is at volume 3 of the authorities at page 366.

In DPI17 the court concluded that the IAA had failed to consider whether to exercise the power under section 473DC to invite the applicant to an interview. A central claim in that proceeding, as here, was that the applicant had been sexually tortured. The plurality ‑ Justice Griffiths and Steward – placed weight on the evidence, significance of demeanour and credibility when the sexual assault was discussed at the delegate interview. If I can take your Honours to paragraph [46] of that decision, this is where the plurality discuss the sexual assaults and I will not read the passage in full, but just the propositions in each of those subparagraphs:

(1) It would have been evident to the IAA from the extracts from the transcript . . . that the delegate’s [decision] . . . was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when this matter was discussed in the course of the interview with the delegate.

(2) The IAA must have been aware of the delegate’s positive assessment of the appellant’s demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.

(3) In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.

Now, their Honours proceeded in that case – took the view that the IAA’s reliance on the inconsistencies as a reason for departing from the delegate’s findings was compromised because of statements made by the delegate to the effect that the delegate would not put any weight on those inconsistencies and the likely impact of those statements on the material provided to the IAA by the applicant.

So the plurality found that the specific unreasonableness in that case was not inviting the appellant to an interview to provide further information about those inconsistencies, and that finding was made at paragraph [47]. We say that the fact that their Honours identified a more specific aspect of what occurred as the unreasonableness in this case does not detract from the force of the propositions in those first three paragraphs of paragraph [46], which are to the effect that we propose in this proceeding.

Justice Mortimer took a similar – placed significant reliance on demeanour as a factor, but took a different approach to characterising the unreasonableness, which did not rest on what the delegate had said to the applicant at the interview. Rather, for Justice Mortimer, the critical matters that tipped the case into a category where the IAA’s failure to consider exercising this section 473DC power into one that could be described as an abuse of power, was summarised at paragraph [125] of her Honour’s reasons and that is at page 397 of that decision of the court book – sorry, the authorities.

I just mention those because they are particularly relevant to the proceeding in this ‑ the facts in this proceeding. The first was the subject matter of the.....and that relates to what her Honour had found at paragraph [120] that the IAA acting reasonably and aware of the exceptions of the primary.....would have appreciated the possible importance of hearing and observing the appellant give his account of the sexual assault and rape, especially given the affect his narration had had on the conclusions reached by the delegate.

The IAA acting reasonably would have appreciated that a review on the papers might not give it sufficient understanding of this important aspect of the appellant’s narrative about what had happened to him in Sri Lanka. So we obviously rely upon those statements in this proceeding.

The second aspect of – factor identified by Justice Mortimer as relevant to the characterisation of the non‑exercise of the power as unreasonable, was the significance of the claims regarding the sexual assault.....protection. The third was:

the well‑established importance of observing and hearing an individual recounting such events to the assessment of that individual’s reliability and credibility ‑

And the fourth was:

the fact the delegate had accepted this narrative on the basis of her impression of the appellant’s presentation and demeanour ‑

So once again we see the 473DC power being used responsibly to address procedural fairness deficiencies that would arise were it not addressed and that would not enable the reviewer to carry out the review contemplated by the Act.

Now, there are several further decisions that, in view of the time, I see is.....and I will not go through in any great detail, but I would like mention which provide further examples or circumstances where the power has been used responsibly to achieve procedural fairness objectives.

The first was the case of FND17, that is at volume 3, page 431 of the materials. What I would like to do is in particular just bring to the Court’s attention the observations of Justice Griffiths at paragraph 39 of that decision. This was a case where the applicant contended that the IAA’s failure to exercise the 473DC power in circumstances where it departed from credit findings made by the delegate was legally unreasonable in the sense outlined in DPI17.

Now, Justice Griffiths rejected that argument but, we say, these observations are particularly pertinent for present purposes. His Honour said:

I do not accept that either of these matters supports the appellant’s case on legal unreasonableness. They add little if anything to the proposition that the IAA reached different findings on various matters to those of the delegate, as the IAA was entitled to do. Something more than that is required to establish that it was legally unreasonable for the IAA not to consider exercising its powers under s 473DC(3). Some relevant feature of the particular case is required to show a reason why the IAA has to consider exercising its power to get new information in order for the IAA to discharge its review function under Pt 7AA. The appellant has not identified any aspect of the delegate’s reasoning which indicates that the IAA was disadvantaged in comparison with the delegate . . . which suggests that it was legally unreasonable for the IAA to depart from the delegate’s findings without first considering the exercise of its power under s 473DC(3) to ensure it was not deprived of relevant information or evidence –

And his Honour cited the decision on appeal in this proceeding in support of that proposition. Again, his Honour has endorsed the function of 473DC(3) in those circumstances to remedy potential procedural fairness. Now, there is another case ‑ ‑ ‑

GAGELER J: Ms Schilling, does his Honour really speak in terms of procedural fairness? I can see that the language of Justice Mortimer that you have taken us to shades into procedural fairness but did his Honour here or in DP – I am not sure if it is DP17 or DP117 – .....really talk in terms of procedural fairness or rather in terms of the.....

GORDON J: Justice Gageler, I am sorry, we cannot hear you still, could you please speak up?

GAGELER J: I am speaking pretty loudly. The Authority proceeding on the same set of information as what is before the delegate, is that not the thrust of the reasoning?

MS SCHILLING: Your Honour, would you please mind repeating that question because I did miss some of it.

GAGELER J: Okay. What I am suggesting to you is that Justice Griffiths in the two cases you have taken us to was not focusing on procedural fairness in the way you have suggested but rather on the extent of the information available to the Authority in the absence of the interviewer.

MS SCHILLING: Your Honour, yes, there is – you can see in the cases a focus on either the extent of the information or the absence of information and its impact on the capacity of the reviewer to conduct the review contemplated by the Act but we say that where that circumstance arises it necessarily followed that the non‑exercise of the power to obtain that information in those circumstances would be unreasonable. So, certainly some of the cases focus more on the review power and others as occurred – as certainly clearly in the approach of Justice Mortimer and DPI17 focuses on procedural fairness but the effect is the same.

We would say that the decision I was just about to mention, which is a decision called Minister for Immigration and Border Protection v CRY16, that case is not in the volume of authorities but its effect is summarised in DGZ16, and what the Court said there, essentially, distinguished the circumstances in DGZ16 from those in CRY16, and they said it is necessary ‑ the need to be ‑ the additional – I am sorry, if I can go back. It is to be noted that in the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review.

We refer to Minister for Immigration and Border Protection v CRY where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation, which the delegate had not addressed, thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in 473DC(3). Now, we would say that is an orthodox application of the fundamental principle of procedural fairness that a party infected by the decision should be given an opportunity of ascertaining the relevant issues and should be informed of the nature and content of the adverse material such as described in cases such as Commissioner for Australian Capital Territory Revenue v Alphaone [1994] FCA 1074; (1994) 49 FCR 576.

And this is the circumstance in which the power under 473DC may be responsive. So notwithstanding that the character of the error is described in different ways in the cases, we say that the consequence of not being able to carry out the review contemplated by the Act by the absence of information that was before the delegate would, in itself, render the non‑exercise of the power in the circumstances unreasonable, because the power, we say, is informed, its purpose is to enable the IAA to obtain that information when it needs it so that it can carry out the review contemplated by the Act.

The last case that I was intending to take the Court to, but I will not take you to, that was just the case of DVO16 v Minister for Immigration, that is also in the joint book of authorities at volume 3, page 399. This concerned errors of translation that only came to light after the decision of the IAA had been made. Now, the arguments relating to the mistranslation were rejected, but what is important, for present purposes, was the statement of the plurality, made again by way of obiter at paragraph 12, where their Honours said:

Left to one side are those cases in which deficiencies in translation services are so manifestly apparent that both the delegate and the Authority must be taken to be on notice that any interview process was manifestly deficient and a manifestly inadequate basis upon which a “review” can lawfully be undertaken. Such is not the present case.

So again, we see a characterisation of that as essentially, I suppose, a constructive failure to exercise the jurisdiction to carry out a review, but it follows from that that the non‑exercise of the power to get information in those circumstances would be unreasonable.

Now, your Honours, that concludes my submissions on proposition C, and I will try to work through the remaining propositions reasonably quickly. The next proposition goes to the matter that I discussed earlier, which was this question of the characterisation of demeanour as information. I think I in fact addressed your Honours on that matter; there are two aspects of this.

First, we say demeanour is information within the meaning of section 473DC.....on observations made by Justices Kiefel, Bell and Keane in the decision of Minister for Immigration and Border Protection v WZARH, in volume 2 of the authorities at page 191. At paragraph 40, in the last part of that paragraph, their Honours stated:

Impressions formed by a decision‑maker from the demeanour of an interviewee may be an important aspect of the information available to the decision‑maker. That this is so has long been recognised.

So, we would say that that supports our construction of demeanour being information in the sense of information of which the IAA may become apprised. Secondly, and I have already addressed your Honours on this point, which is that information elicited from a person at an interview to which the person is invited will always be new information, and I have addressed your Honours on that point.

As I say, if we are wrong about that point and new information is limited to information, the substantive content of which was not before the Minister, whether by way of spoken word or demeanour, we say that in this case, as the IAA itself observed at paragraph 23 of its reasons, the appellant was unable to provide details of the sexual assaults at the delegate interview such that an invitation to attend an interview to give new information about that incident would not elicit information, the substantive content of which had been before the delegate.

Now, I will move on to proposition E which is really the application of the principles that I have outlined, and our approach to those principles to the particular circumstances of this case. Your Honours have reviewed the reasons of the delegate. As your Honours are aware, Justice Bromberg referred specifically to the delegate’s acceptance of the applicant’s evidence as plausible as the basis for inferring an acceptance of the sexual torture claim, but we would say that there are other aspects of the delegate’s reasons, even though they are at the highest level of generality and very brief, that support that conclusion.

I will not take your Honours to those reasons right at the moment, but the delegate’s reasons state that the claims were plausible and consistent with contrary information and that the delegate accepted in light of experiences of detention that the appellant genuinely feared being seriously harmed by the SLA. So we say that the delegate’s finding went beyond the mere statement that the appellant’s evidence was plausible and it is clear that the delegate accepted the appellant’s claims he had been beaten and detained.

Now, on that basis alone we say that Justice Bromberg’s observation that.....based on the delegate’s positive assessment of the applicant’s demeanour were correct. .....17 we say that on that basis alone.....the IAA acting reasonably ought to have exercised the 473DC(1) power. We rely on both the plurality at [46], paragraph [46](3) in particular of DPI17, and of course her Honour Justice Mortimer’s analysis of this issue.

Here, however, in addition to the question of demeanour there were a series of additional factors which we say made the IAA’s failure to exercise the 473DC power unreasonable. The IAA’s reasons, the significant parts of them are at paragraph 23 of the reasons and I will not read those through because I am assuming that the Court will have looked at that particular aspect of the reasons which are critical.

In summary, that paragraph shows that the IAA was alive to and identified other factors which may have affected the appellant’s ability to give evidence about the sexual assault and thus the quality of the hearing. Those factors were the cultural taboo surrounding rape in Tamil culture, the difficulty of the subject matter and the fact that all other persons in the room were of the opposite gender. In addition, we would say that the IAA did not have before it any evidence of the scarring shown to the delegate at the delegate’s request and which it must be inferred from the delegate’s reasons that the delegate accepted to have been caused by the beating described by the appellant.

So, in those circumstances, having noted the concerns regarding the circumstances of the hearing and the critical role demeanour likely played in the delegate’s findings, we say that a reasonable decision‑maker would have realised that a review on the papers would not give a sufficient understanding of this important aspect of the appellant’s case which had been presented to the delegate at the interview and would not have departed from those findings without exercising the power in section 473DC to invite an appellant to an interview to give new evidence about the sexual assault in which it could be confident of giving the appellant a meaningful hearing that was not compromised in the same way that the delegate interview - the IAA had itself identified the delegate interview had been compromised or might have been compromised - by which it could have evaluated what it was about the appellant’s evidence that had caused the delegate to believe his account. So, the exercise of the power ‑ ‑ ‑

EDELMAN J: Just to come back, I think, to the point that you made at the start, do you also say, I take it then, that alternatively it was unreasonable to reach the conclusion it did without accepting the delegate’s findings based upon the assessments the delegates had made.

MS SCHILLING: Yes, we do say that, your Honour. That necessarily flows from the conclusion - the proposition we make about the reasonable exercise of the DC power.

BELL J: It is implicit in ground 1 that the unreasonableness arises from the election to depart from findings that would have been material and evidently informed by having seen and heard the appellant. Is that the way you put it?

MS SCHILLING: We do, your Honour, yes. Now, your Honours, I will briefly move on to final proposition. This relates to the materiality ground. We contend that the Federal Court judge erred in failing to complete the reasonableness analysis in this situation – in these circumstances and we do so on three bases.

The first, which is our primary basis, is the basis on which I have already addressed the Court, that is, that his Honour erred in concluding that there was a separate and independent basis for the IAA’s decision. Accordingly, on the facts there was no basis for concluding that there was no realistic possibility of a different decision.....in its failure to invite the appellant to be interviewed in relation to his sexual torture claim.

Secondly.....not permissible for his Honour to treat the determination of materiality as a standalone criterion, which was effectively what his Honour did, by which to assess jurisdictional error. We.....the submission in two alternative ways. .....the test for reasonableness in SZVFW does not encompass the materiality requirement.

Now, I will not take your Honours to the particular passages that the Court has set out. The test.....but in none of them is it suggested that jurisdictional error will only arise if there is some bifurcation of the identification of unreasonableness and then a separate assessment of materiality.

The relationship between reasonableness and materiality was taken up by Justice Mortimer again in DPI17, who reasoned by reference to the Court’s statements in SZVFW at paragraph [105], and if I can just take the Court to that part of her Honour’s reasons, it is at page 393.

BELL J: Paragraph number?

MS SCHILLING: Paragraph [105], your Honour.

BELL J: Thank you.

MS SCHILLING: Her Honour says there that:

Reasonableness, like procedural fairness, is an implied condition on an exercise of statutory power, in the absence of a contrary intention, as the High Court made clear in Li. That being the case, as with procedural fairness, my understanding of the authorities at least to the point of Hossain and the majority reasons in SZMTA, is that if a supervising court finds that a repository’s exercise of power (or the failure to consider an exercise of power) is legally unreasonable, that is a finding that the repository has breached a condition on the power which affects the jurisdiction of the repository. It may, of course, be a separate issue whether, in an exercise of discretion as to relief, a court should be satisfied that an applicant has not been deprived of the possibility of a successful outcome, or that there is no utility in setting aside the repository’s decision because of other factors.

So we would rely upon those observations in this appeal. There is an alternative way in which we made this submission that materiality is not required – the broad proposition that materiality is required – not required for an unreasonable exercise of power to result in jurisdictional error, and we rely on the statements of Justices Edelman and Nettle in the case of Hossain for the proposition that there will be some circumstances where an error will be jurisdictional, notwithstanding that the error may not be material in the sense of not depriving a party of a successful outcome.

Now, the decision of Hossain is in the materials, in the joint book of authorities at page 54. If I can take your Honours to paragraph 40. His Honour Justice Nettle there stated the proposition which I have just stated and said:

Edelman J has referred to one such circumstance: where respect for the dignity of the individual may mean that a denial of procedural fairness should be regarded as a jurisdictional error regardless of the effect it may have had on the result reached by the decision maker. Another such circumstance is where a decision maker is required to make a decision by reference to a single specified criterion and, in error, addresses himself or herself to the wrong criterion. In such a case, the decision maker’s error will be a jurisdictional error – a failure to exercise the jurisdiction of deciding the question according to the applicable criterion –

Now, that does not arise in this case. But we do rely on the reference to denial of procedural fairness. Justice Edelman, at paragraph 72.....out certain categories of exception toward a proposition that materiality..... His Honour said there:

There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome.

Now, as I understand that statement – that is, the reference to “material” is a reference to gravity of the error by contrast to the reference to materiality in the sense of the possibility of a successful outcome.

One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J –

Now, we submit that the fundamental character of the obligation of reasonableness on the exercise of statutory power places a breach of that obligation into the exceptional category identified by Justices Nettle and Edelman. Although not in our materials, we rely on the statement of Chief Justice Allsop in Stretton, which is referred to in our submissions at paragraph 23 where the terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power, that is a rejection of unfairness, of unreasonableness and of arbitrariness, equality and the humanity and dignity of the individual will inform the conclusion as to whether the decision bespeaks an exercise of power.

So on this residual basis we would say that the approach taken by Justice Bromberg was erroneous because at the very least it was necessary for his Honour to establish the character and extent of the unreasonableness before assessing whether the decision involved a fundamental irregularity,
such that materiality in the sense of causation was not decisive of whether the error was jurisdictional.

Your Honours, those are my submissions, unless your Honours have any further questions.

KIEFEL CJ: Yes, thank you, Ms Schilling. Yes, Mr Hill.

MS SCHILLING: Thank you.

KIEFEL CJ: We have lost Mr Hill. The Court will adjourn until we can reconnect.

AT 12.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.30 PM:

KIEFEL CJ: Yes, Mr Hill.

MR HILL: Thank you, your Honour. Sorry about that short delay. I am going to start with ground 1 and could I summarise what I see as the main difference between the parties on ground 1 and I divide it into two issues. One is what the purpose of section 473DC is. So, I understand the appellant contends it is a provision to give an applicant the opportunity to be heard when circumstances require, which is informed by procedural fairness. The Minister, though, contends that it is a provision to enable the Authority to get information when the Authority considers it necessary to make an informed decision.

So, the difference is perspective. Is it from the perspective of an applicant to be able to have a reasonable opportunity, further opportunity to make submissions, or is it from the perspective of the.....Authority to make an informed decision. So, that is the first issue on which I think the parties are divided.

The second issue is the role of demeanour when making a decision both before the delegate and the Authority. Building on the first contention I have just said, given the relevant prism is whether the Authority can make an informed decision, it will only be rarely that the Authority must get new information by interviewing an applicant to make an informed decision.

My submission, relevantly to demeanour, is that that principle arises when the delegate’s decision is substantially based on demeanour because if the decision being reviewed was substantially based on demeanour that then is something that the Authority will not have access to. Then we have the issue of a.....can the Authority reach a different decision. So, that is an outline of what I see being the differences between the parties on ground 1.

Could I, in the time available, attempt to develop what I say is the purpose of section 473DC? Now, what your Honours will have seen is both parties going through the scheme of the Act. Could I emphasise the provisions that I would say lead to this result. The scheme is the Authority conducts a de novo review on the papers and only considers new information in exceptional circumstances. So just to list the provisions - section 473DB(1)(b), there is generally no obligation to interview an applicant; it is subject to the part that that is the primary rule. Section 473BD(a), the requirement that you can only consider new information if there are exceptional circumstances. Section 473FA(1), the object is to provide a process that is efficient, quick and free from bias.

So an interesting difference in language as many of those comparable provisions in other parts of the Act say “fair”. Notably it does not say “fair”, it does say “free from bias”, and that is relevant to trying to import the hearing rule into the exercise of discretionary powers.

There is one last provision I would like to mention, which is 473DC defines, in subsection (1), what “new information” is. Your Honours will notice that paragraph (b) of that definition is information that:

the Authority considers may be relevant.

In my submission that is a significant point. When asking what is the purpose of this power to get information, one aspect of the subject matter of the power looks to the perspective of what the Authority considers may be relevant. So what I get from these provisions is that it is built into the scheme of Part 7AA that the Authority will not usually be able to assess the demeanour of a person and yet the Authority conducted a de novo review, so it makes its own assessment of a person’s credibility.

So of course the power to get new information must be exercised reasonably, but reasonableness takes account of statutory context and these features of Part 7AA, in my submission, indicate that the Authority is only required to exercise the power in 473DC in limited circumstances.

A basic answer to my learned friend’s construction is, in my submission, the exception would swallow the rule. Rather than being a primary rule that you do not conduct an interview with a limited exception it would result in the Authority would generally be required to conduct an interview, which I say is contrary to the scheme.

Could I give the Court one more reference to the extrinsic materials? My learned friend took the Court to - without taking the Court to it, but just a reference - my learned friend already pointed out paragraph 893 of the explanatory memorandum and that, your Honours will remember, we are saying the reason for not conducting a hearing at the Authority stage is because the person will have already had a hearing before a delegate.

But could I also just mention this to the Court. Paragraph 905 of the explanatory memorandum, which your Honours will find at volume 4, page 593, draws the link between the power to get new information and the objective of providing a mechanism of limited review that is efficient and quick under section 473FA. So that is an overview - that is, I accept it is no more than a starting point, but the starting point is important, that only rarely is the Authority required by legal reasonableness to conduct an interview.

Could I address another point.....your Honours.....paragraph 3 – I hope not to be too long on it. This is the relationship.....

KIEFEL CJ: I am sorry, Mr Hill, you have the same problem when you turn your head to the side that I tried to draw to Ms Schilling’s attention; we lose you a bit when you move to the side. Could you just repeat what you were saying then?

MR HILL: Of course, your Honour. This threshold point in paragraph 3 of the Minister’s outline is the relationship between the power to get information under.....

KIEFEL CJ: I am sorry, Mr Hill, we cannot hear you.

MR HILL: My learned friend correctly ‑ ‑ ‑

KIEFEL CJ: I think......

MR HILL: I am so sorry.....

KIEFEL CJ: We cannot hear you, Mr Hill.

MR HILL: Can your Honours hear me now?

KIEFEL CJ: We can now, but we have not been.

MR HILL: I am sorry, your Honours, I am not sure what I can do. I have the volume.....

KIEFEL CJ: Perhaps if you speak now we will see if it is any better, Mr Hill?

MR HILL: Is that any better if I talk without headphones?

KEANE J It is.

KIEFEL CJ: Well, it is actually, yes.

MR HILL: I am so sorry. I apologise for any background noise that your Honours hear. I have a couple of children at home, home-schooling, but we will do what we can, your Honours. The point I was making was about the relationship between the power to get new information under 473DC and the power to consider new information under 473DD. What your Honours in paragraph 3 of the outline will see, I referred to a case that is not in the materials, which is EMJ17 at paragraph 60(7), and the Federal Court has consistently held, yes, it is true, there is no requirement of exceptional circumstances before the Authority can get new information but – and these are Justice Thawley’s words:

It may well be permissible . . . to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional -

In my submission the two provisions should be read together and in assessing whether it is unreasonable not to have exercised the power it cannot be unreasonable not to seek out information that is entirely unexceptional given that the Authority would not be able to consider that new information. So that is as high as I put that point about the relationship between the two provisions. They should be read together, and it is relevant to reasonableness under 473DC whether something clearly would not be able to be considered under 473DD.

Your Honours, I notice the time. I was about to talk about the effect of section 473DA(1), the codification of natural justice. That may take some time. Would the Court be assisted ‑ ‑ ‑

KIEFEL CJ: Mr Hill, I tried to indicate earlier, because of the delays this morning we were going to sit through until 1.00 and we will reconvene at 2.15.

MR HILL: I am grateful, your Honour, thank you. So 473DA of course provides that it is:

an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by –

the Authority, and this Court observed in BVD17 [2019] HCA 34; 93 ALJR 1091 that that is more broadly expressed than a provision such as 422B of the Act. I do not need to take the Court to it because my learned friend has already taken your Honours to the statements in paragraphs [33] and [34]. So the key point is, as my learned friend said, what does the Court mean when it says in paragraph [34] that the procedural fairness analysis is not the lens to view unreasonableness:

except to the extent that procedural unfairness overlaps with legal unreasonableness -

My learned friend relies on what your Honour Justice Edelman said in BVD17 at paragraph [62], which is effectively to say, without meaning any disrespect to your Honour, that the content of legal unreasonableness will pick up any breach of procedural fairness, and my learned friend embraces that.

May I explain why I disagree with your Honour. Your Honour cites two cases. One of them is.....249 CLR 332, paragraph 99. .....requirement of legal reasonableness provides.....fairness and, in my submission, that statement does not suggest that legal reasonableness incorporates all of the usual requirements of procedural fairness. In fact, my submission is that it is more a recognition that there is a practical protection of the interests of a person through the requirements of legal reasonableness that is akin to the protections that a person gets from procedural fairness.

Then, your Honour Justice Edelman in BVD17 also refers to Plaintiff M174 [2018] HCA 16; 264 CLR 217 where, as we have seen, the Court said it would be unreasonable not to interview a referred applicant if the referred applicant had not been given information before the delegate in contravention of section 57(2).

Now, in my submission, that actually illustrates the Minister’s view of the world because it shows how legal reasonableness and procedural fairness can overlap in their practical operation but, in my submission, the reason that it is unreasonable not to exercise the 473DC power in that situation is not because from a perspective of the applicant they have not had a fair opportunity to put their case, it is because from the perspective of the Authority, the Authority has been deprived of relevant information because of a misstep before the delegate.

EDELMAN J: Mr Hill, would you be able to give me an example of a circumstance where, if there were an implication of procedural fairness it would be reasonable for an authority to deny that procedural fairness?

MR HILL: Your Honour, I definitely will and, in my submission, there are two cases I am about to take your Honours to which do exactly that. Could I answer it that way by saying ‑ ‑ ‑

EDELMAN J: Certainly.

MR HILL: Two cases that I take your Honour to, in my submission, achieve that exact result. Just before coming to those cases my learned friend also referred to this Court’s decision in CNY17 at paragraph 102 and of course that was a case about apprehended bias and 473DA does not say anything about the content of bias and so, in that sense, it is the situation where the requirements to avoid bias would be relevant to the construction of 473DC. But we are not in that territory here. We are in a territory of, if there is any requirement or relevant aspect of procedural fairness it is something akin to the hearing rule.

The two cases – so just to set out at a high level what I say the relevance of 473DA or its effect - we referred in the submissions to a decision of Justice Bromberg in a case called CSR16 [2016] FCA 474. Your Honours will find that at tab 15. I do not need to take your Honours to it now. The relevant paragraph is 29, and what his Honour says is 473DA means that the capacity of the hearing rule to be informative of whether a statutory discretion has been exercised in a legally unreasonable way is “much diminished”.

In my submission, that is the correct analysis - that both procedural fairness and unreasonableness take their content from the statutory context and 473DA is a relevant part of the context in assessing what is reasonable and unreasonable.

Now, I come to answer your Honour Justice Edelman’s question by going to two cases in the Federal Court. One is a case called DGZ16 [2018] FCAFC 12; 258 FCR 551. It is under tab 16. The point, to answer your Honour Justice Edelman’s question, is that it is well settled that procedural fairness would normally require that a person be notified of the issues before a new decision‑maker. This case said there is not that obligation on the Authority and.....case.

Your Honour, the Chief Justice, could I.....I am going to pause my call because I am worried that if I am rustling papers your Honour will not be able to hear a single thing that I say, so I apologise, of course.

KIEFEL CJ: Yes.

MR HILL: If I could ask your Honours first to start with the appeal grounds in paragraph 47. That is on page 354 of the authorities. Could I ask your Honours particularly to see grounds 2 and 3. The arguments were an essential part of the review ‑ this is ground 2, was to identify a person of any new issues. Then, ground 3 is legally unreasonable not to notify a person of new issues.

If your Honours are on page 355 of the authorities, what you will see, without getting into the facts, in paragraph 50 the Full Court notifies or puts how the delegate and the Authority took quite a different approach to reviewing the factual claims of the appellant in that case.

Could I then take your Honours to paragraph 69, please, which is on page 359 of the authorities? The court says, of course, you start with the provisions of Part 7AA and I embrace that. In paragraph 70 their Honours say this is not a case like CRY16. That is a point that has been made by my learned friend but, in my submission, the significance of that is different. In CRY16 the Authority decided on a different issue that had not been considered by the delegate..... Therefore, without conducting a new interview it was disabled from completing the review because it did not have any information.

So, in my submission, CRY16 actually supports the Minister’s view that legal unreasonableness is informed by whether the Authority has sufficient information to make an informed decision. That certainly explains the result in CRY16. But, for my purposes, paragraph 72 makes the point I have already said which is:

Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate –

and there is no obligation for the Authority to notify the referred applicant that it is considering taking a different view. Then if I could just emphasise, in paragraph 74, that requirement is not required:

as a matter of legal reasonableness –

In paragraph 75 the court says there is no equivalent to section 425, therefore, in 76:

It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

Then at paragraph 78, about halfway through, you will see initially the court says ground 2 must fail because there is no obligation to give an appellant notice of new issues and a reasonable opportunity to respond:

Ground 2 therefore fails. Ground 3, concerning legal unreasonableness, fails as under the statutory scheme in the circumstances of this case the Authority was not obliged to inform the appellant of the issues that it considered to arise on the review –

So your Honour Justice Edelman, it is this way that I say that ‑ ‑ ‑

EDELMAN J: But that is entirely consistent with what is said by me at paragraph 62 of BVD17. That is simply saying that one assesses - if procedural fairness were not entirely excluded by the regime one would ask what.....require as a matter of legal fairness if there had not.....exclusion of it and then would a different conclusion.....asking.....question in terms of unreasonableness. .....reaches the same conclusion in both directions, and the answer is no.

MR HILL: But the reason it is significant, your Honour, is that if it was not for the blanket exclusion then the Authority would be required to notify of any new issues. That is what this Court held in cases like ‑ ‑ ‑

EDELMAN J: No, no, there is no single test. There is no single test for procedural fairness that applies to every single statute in exactly the same way. Procedural fairness always takes its colour from the particular statute.

MR HILL: Your Honour, I may have misunderstood your Honour’s meaning. If your Honour means to say that whatever procedural fairness requires in the context of Part 7AA, including its restriction by 473DA, well, you can get to the similar result of unreasonableness, I might embrace that. What I had understood my learned friend to say is you can look at the usual instance of procedural fairness under, say, review under Part 7 of the Migration Act. An important principle such as the requirement to notify new issues is imported through the rubric of reasonableness at 473DC and this case is exactly the opposite. That is my submission, your Honour.

I think there might be time for me to take your Honour to the other example, which is DVO16 [2019] FCAFC 157 under tab 18, your Honours. Now, the relevance of this case is simply, if your Honours go to paragraphs 3 and 4, what your Honours will see there are very significant errors of translation and some letters were not translated at all. Your Honours see that in paragraph 3. In paragraph 4, the plurality said:

Free of the constraints of Pt 7AA of the Migration Act, a conclusion may have been open that the errors in translation and the failure to translate the responses of the Appellant constituted a denial of natural justice and the common law rules of procedural fairness.

In paragraph 5, their Honours go further:

Had the common law rules of procedural fairness applied to the present decision‑making process, it would probably have been concluded that there was a denial of procedural fairness -

In paragraph 6, their Honours say:

But Pt 7AA of the Migration Act imposes significant constraints upon the common law rules -

and the key is, for my purposes, paragraphs 9 and 10. In paragraph 9, their Honours say:

Within the constraints imposed by Pt 7AA, no argument is open to the Appellant that the Authority acted unreasonably in not exercising the discretionary power to get “new information” -

and the reasons are set out in paragraph 10, and I want to focus on the second reason where their Honours say:

it cannot be said that any consideration that the Authority gave to whether it should seek further information was unreasonable when there was no information available to it at the time of undertaking its review, other than the audio recording, which exposed difficulties in communication . . . Upon the information then available to it, including the audio recording, it cannot be concluded that the Authority acted unreasonably in proceeding upon that information. The extent of the errors in translation made apparent by evidence only obtained subsequent to the Authority’s decision -

and so therefore it cannot be rendered - it did not render – that subsequent evidence did not render the exercise of discretion unreasonable.

So, to answer your Honour Justice Edelman’s question, this is an instance where if one viewed the requirements of Part 7A from the perspective of the applicant, have they been given a fair hearing, the answer would be no because of this very significant errors in translation. But if you asked the question did the Authority act unreasonably in not seeking further information, the answer is it was not unreasonable because from the perspective of the Authority there was nothing to suggest these errors of translation existed and that is the fundamental point the Minister seeks to make.

EDELMAN J: I am not sure the applicant’s case does rely upon a conception of procedural fairness that is abstract and entirely divorced from the regime in which it would otherwise appear. I think.....submission by relying on procedural fairness as a concept that is implied.....colour from the statute itself.

MR HILL: I think.....attempt to do that. What I am trying to do with these cases, your Honour, is to say.....principles of procedural fairness inform a construction of.....

KIEFEL CJ: We have lost you there. Would you mind repeating what you say?

MR HILL: Of course, your Honour. .....these cases show that.....incidents of procedural fairness, even important incidents, are not or have limited relevance in construing what is legally reasonable or unreasonable and that is because there is a fundamental difference of perspective. Procedural fairness is about opportunity to put a case from a perspective of the applicant. Legal reasonableness is about an intelligible justification for a decision from the perspective of the decision‑maker.

EDELMAN J: Do you accept or concede that legal unreasonableness applies not just to the ultimate decision, but also to steps along the way of the decision such as the decision of the - or a decision of an authority not to conduct an interview?

MR HILL: Your Honour, can I say this. I accept that the ultimate decision can contain jurisdictional error by reason of a legally unreasonable exercise of a step along the way such as 473DC, but I say, if that legally unreasonable step is sufficiently material to the final decision. Your Honours, would that be a convenient time?

KIEFEL CJ: That is a convenient time, yes. Thank you, Mr Hill. The Court will adjourn until 2.15.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Hill.

MR HILL: Thank you, your Honours. Your Honours will remember I had said on ground 1 there were two issues and the first was the purpose of 473DC, the power to get new information. I have all but completed that aspect of my argument, but can I finish by defensively distinguishing this case from WZARH 256 CLR 326.

Just to make this short.....WZARH made important observations about demeanour, but that was in a different statutory context and also where the significant problem was a change in procedure. A person conducted an interview and did not inform the person that the actual decision‑maker would be someone else and in that context the Court made observations that that change of process was material. That does not assist in working out what is reasonable in the exercise of the power under 473DC, in my submission.

The second aspect of ground 1 is the role of demeanour and what limits there are on the Authority reaching a different view on credibility from the delegate. Just to repeat what I took from the statutory context, my submission was that the obligation to get new information and to interview an applicant under 473DC is a power that is exercised rarely because the usual – the primary rule is that the IAA, the Authority, conducts a review on the papers.

So I submit that when his Honour Justice Bromberg in paragraph 24 of the reasons said the potential unreasonableness arose because the delegate’s decision:

may have been, at least in part, based on the delegate’s positive assessment of demeanour -

my submission is that is too loose or too low a test for unreasonableness because that would describe, in my submission, many, if not most, cases of this sort. So, in my submission, the potential.....decision may have been based at least in part on demeanour and that a more rigorous test applies.

If I could make this submission also. The relevant decision and the role of demeanour is that of the delegate. I have already submitted that normally the Authority is expected to conduct a de novo review and conduct its own assessment of the materials, including reaching findings on credibility. So the issue, as far as its decision is concerned, is is there a probative basis for its decision and normally it will have enough information from the materials in paper but also listening to the audio.....about.....

KIEFEL CJ: Mr Hill, we have just lost you. Would you mind just repeating that submission, please?

MR HILL: I am sorry, I cut out momentarily.....

KIEFEL CJ: Would you mind just repeating that submission, please.

MR HILL: Of course, your Honour. I submitted that the threshold for potential unreasonableness cannot simply be that the delegate’s decision may have been, at least in part, based on its assessment of demeanour because that would describe many if not all - or most of delegates’ decisions, yet the scheme of Part 7A is that an interview is something that is done rarely.

In my submission, the relevant threshold or the underlying principle is this, and I will attempt to derive this from DPI17. If a delegate makes a decision that is substantially based on demeanour then the Authority will need to have an independent evidentiary basis to depart from that decision. So that is why in DPI17 one of the strands to the reasoning was when a delegate’s decision was so clearly, primarily based, in fact, on demeanour, the Authority needed something more than its own assessment of inconsistencies and other things it was unreasonable to reach a different view in that instance without forming its own view about demeanour.

I will take the Court not to DPI17 but to the summary of it in the decision of Justice Griffiths, FND17 under tab 19 in volume 3 of the authorities. Could I ask the Court to turn up page 442. Your Honours, could I start at paragraph 34 where his Honour Justice Griffiths said:

that DPI17 does not represent any distinct or new issue of principle –

and then if I could take your Honours to the summary of the reasoning in that case in paragraph 35 of his Honour Justice Griffiths’ judgment, just to emphasise the following matters. His Honour starts with paragraph 46 of DPI17, and what your Honours see in subparagraph (1) - so this is of paragraph 46 as quoted, the delegate’s decision, three lines up:

was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility –

So that is an important part of the facts of DPI17. It was not based, possibly in part, but it was based primarily on demeanour, and then in subpoint (3), the court, or the plurality conceded, in that instance:

if the IAA was minded to come to a different determination –

Effectively, if I can paraphrase what they are next saying, it needed - there needed to be available to the Authority:

a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview –

So that is where I get that the underlying constraint is that if the delegate’s decision is based substantially - I say, in fact that DPI17 was based primarily on demeanour - then if the Authority does not conduct an interview itself it will not have a sufficient independent evidentiary basis to make a rational decision and note - if I could just continue on with the extract from DPI17, his Honour also extracts paragraph 47 and if I could just direct the Court’s attention to points (1) and (2) there, that the delegate expressly said:

the “discrepancies aren’t major” and she would not put “a lot of weight on those discrepancies” –

That is in point (1). Then, point (2):

Presumably in reliance upon those statements, the appellant did not address the inconsistencies in his post‑interview submissions.

In my submission, as far as the inconsistencies are concerned, it is a similar analysis. By reason of the course of the interview before the delegate, who said these inconsistencies are not important, the referred applicant had not needed – thought it was not necessary to provide any answer or response on inconsistencies either to the delegate – to the delegate, in fact. So, in that sense, by the time it got to the Authority, the Authority did not have relevant information before it.

It arises differently, but it is a similar result to the situation identified in Plaintiff M174. In that case it arose because there was a failure to put something to someone. Here, the reason there is no information on possible inconsistencies is that the delegate has told a person that these inconsistencies are not important. But in each case the relevant constraint is that the Authority does not have enough information to reach an informed decision contrary to that of the delegate. So that is what I say the underlying constraint is.

Actually, while your Honours have the decision of Justice Griffiths, could I just briefly invite the Court to look at paragraphs 41 and 42 which, in my submission, set out exactly the connection between legal unreasonableness – if your Honours have paragraph 41, the last sentence says effectively in deciding whether:

the exercise of its powers under s 473DC needs also to be approached against the background of the “primary rule” reflected in s 473DC(2), namely that the IAA does not have a duty to get, request or accept, any new information.

To similar effect, his Honour says towards the end of paragraph 42:

Without doubt the IAA is vested with a power under [s 473DC(3)] but it has to be viewed in the context of the limited nature of the review process under Pt 7AA . . . the limited nature of that review process and the significance of the statutory statement in s 473DC(2).

So that is the point I was endeavouring to make before the break, which is an assessment of legal reasonableness takes account of the context and the important part of this context is that generally the Authority conducts..... So that is the point of principle on this second aspect of ground 1. My submission is the issues of legal unreasonableness do not arise simply because a delegate’s decision may have been based, at least in part, on demeanour, but only arise with a threshold along the lines of the delegate’s decision was substantially based on demeanour such that the Authority would not be able to make an informed decision to the contrary unless it conducted its own interview or had some independent evidentiary material.

BELL J: Mr Hill, if one accepts that for present purposes, here we are looking at a case where one could say the question of the plausibility of the appellant’s claims as determined by the delegate was not essential to the delegate’s reasoning because the delegate accepting those claims concluded by reference to country information that the fears were not objectively well founded.

The IAA conducting its independent review came to the same ultimate conclusion as the delegate but, contrary to the delegate’s path of reasoning, it found it necessary to reject the claims relating to the appellant’s treatment by the authorities in Sri Lanka and their continued interest in him after he had left Sri Lanka.

When one appreciates that which – the question of an independent basis to depart from the delegate really needs some reframing, does it not? What one needs to look at is, well, is it reasonable to infer that the delegate’s acceptance of the claims reflected the delegate’s observations of the appellant in the manner in which he gave his account and when one comes to look at the IAA’s reasons for rejecting it, the IAA looks to things like the hesitancy and the lack of information that was given. These are considerations that one might think may involve a substantial emphasis on what would ordinarily be seen as the assessment of the demeanour of the witness.

MR HILL: I understand, your Honour. Can I answer it this way? The first aspect is to say I accept the reframing that your Honour puts to me. What we are really talking about is did the Authority have a reasonable basis from departing from the delegate’s findings that the delegate accepted the factual claims made by the appellant. I thank your Honour for that clarification.

Then, your Honour says - I think this is the way my learned friend might put the case is to say, well, clearly even though the delegate does not say so, demeanour must have been important because the Authority relied on the manner in which evidence was given to reject some claims, only some. In my submission, that does not follow – the reasons given for rejecting a claim do not tell you anything about the reasons that a delegate had for accepting the claims.

So, I do not know if I can take it much further than this, your Honours, but clearly there is no evidence before the court - there is no transcript of the interview before the delegate and the delegate’s reasons do not say anything about why the delegate accepted the factual claims and so your Honours understand that my submission is that it is not enough that a delegate’s acceptance of claims may have been based in part on demeanour and in my submission there is nothing in the evidentiary material before the court to allow it to draw any inference of the role of demeanour and this is a matter on which, in my submission, the appellant bears the onus.

GAGELER J: Mr Hill ‑ ‑ ‑

MR HILL: Yes, your Honour.

GAGELER J: I wanted to ask a question about the broader statutory scheme.

MR HILL: Yes.

GAGELER J: A review under Part 7AA is a review of a decision being made by a delegate pursuant to the code of procedure in Subdivision AB of Division 3. Within that code of procedure, as I read it, it is up to the delegate whether or not to seek further information through an interview and then, in the conduct of the interview, section 58 allows the interview to be conducted either by the delegate or another officer in person or by telephone. Is that a correct understanding of the way in which.....work?

MR HILL: Now, your Honour, it is certainly my understanding, correct or not, but that is my understanding, yes.

GAGELER J: So it is not inevitable within the statutory scheme that the delegate will conduct an interview in person. Is that correct?

MR HILL: No, it is not. I would accept that, your Honour.

GAGELER J: So it appears to me that it is only where the delegate chooses to conduct the interview in person that the delegate will be privy to information in the form of demeanour that does not form part of the review record – or review material that is then provided by the Secretary to the Authority. So we are ‑ ‑ ‑

MR HILL: I would accept that.

GAGELER J: ‑ ‑ ‑ in circumstances where the primary decision-maker is privy to information. The Authority charged with conducting a de novo review of that primary decision does not have the full set of information that was before the decision-maker.

MR HILL: Yes, your Honour.

GAGELER J: It really comes down to the significance, in the particular case, of the evidentiary gap, does it not?

MR HILL: It does.

GAGELER J: Rather than.....form part of the reasons of the delegate?

MR HILL: In my submission, your Honour, the significance of the evidentiary gap can only be gauged by looking at the delegate’s reasons because demeanour may be important in some cases and not in others. If I could – I am not sure if this is part of your Honour’s question. The review under Part 7A is drafted certainly on the assumption that the person will have been interviewed and one thing I would accept is if the delegate did not interview a person then that may be relevant to whether the Authority was required to conduct an interview because as I have said I see this through the prism of does the Authority have sufficient information.

The assumption is that all the relevant information, the chances to test the applicant’s evidence, will have been done by the delegate. If that is not the case then the exercise of the power under 473DC takes on a different light.

GORDON J: Consistent with that, Mr Hill, does it not mean that the obligation on the delegate to comply with 473CB(1)(a) becomes critical? In other words, Justice Gageler was talking about this evidentiary gap. If, whereas here you have got an interview which is conducted in which it is obvious that at least some of the aspects are reliant on demeanour and you have the visual evidence of the scarring, which itself does not find reflection in the reasons for the decision of the delegate, then you do have this evidentiary gap, do you not?

MR HILL: May I just check I have understood your Honour’s question? Your question is another assumption on which Part 7A is based – in fact, a requirement is that the delegate must set out its findings of fact and, in my submission, that actually works in my favour that the delegate can be taken to have set out the matters that were important to the delegate in reaching its reasons and it did not refer to demeanour, so there is no reason to assume that demeanour was an important part of the delegate’s reasons.

GORDON J: Well, maybe not. What it does is it brings into sharp focus how it is that a review authority would reach, contrary to conclusions upon acceptance of the critical claims, in the absence of any glaring errors without having a proper basis for doing so or providing an independent basis for doing so or, to put it in your terms, do they have sufficient in front of them to reach the conclusion that they have?

MR HILL: Of course, my submission is that the Authority did have sufficient in front of it because it pointed to the source of the findings it did make, which is the audio recording recorded at least orally how the applicant gave evidence. My submission is that in the absence of any indication of the delegate that the visual way in which the person gave evidence was important, there is nothing to suggest that the Authority was not entitled to act on its assessment of the material that it did have.

GORDON J: Yes, thank you.

MR HILL: Thank you, your Honour. What I have said so far is sufficient for the Minister’s purposes to answer ground 1. The answer is it is not legally unreasonable – sorry, there are too many negatives. It is not legally unreasonable not to interview the appellant because the delegate’s decision was not substantially based on physical observation of the appellant.

But there are two further points I would wish to address, your Honours. The first is what is the position of demeanour and is it information or new information. If your Honours have the Minister’s outline, what your Honours see is – I referred to two cases in paragraph 9. Your Honours will be very familiar with CED16, but just to explain the relevance of ABJ17.

It was one of my learned friend’s.....that a person says at interview will be new information because, by definition, it was not before the delegate and ABJ17 is against that view because that was about – if a person provides an untranslated document to the delegate and then provides a translation of the document to the Authority, is that new information? Justice Bromwich said no, it is the same information; it is just presented in a different form. So, in my submission, that is similar to the position here.

Another point, the relevance of CED16 is, as the Court recently held, not all new information is “new information” as defined in 473DC, so in that case your Honours said a certificate, the confidentiality certificate is not new information because it is not of an evidentiary nature.

Now, clearly a person’s demeanour is relevant material and it is of an evidentiary nature in that broad sense, but, in my submission, your Honours did not mean to say all matters of an evidentiary nature are information, and my submission is this. When one looks at the provisions of Part 7A, my submission is that whatever information is, it has a slightly narrower meaning, because under 473DC, information is something that one can get, and under 473DD it is something that can be provided, and in 473DE it is something of which one can provide particulars.

So, in my submission, this indicates that information is something that exists separately from the act of communicating it. So demeanour is something about information, it is not information within the confines of this scheme, and even if that is wrong, as I have said, it is not new information, and, as my learned friend appropriately acknowledges, the scarring, in any view, is not new information.

That was the first additional point I wanted to make on ground 1. The second point is the point made in paragraph 10 of the outline, and I do not need to labour this at all. In paragraphs 9 to 12 of the Minister’s submissions, we have gone through the Authority’s reasons. The relevant parts are 19 through to 23, and my learned friend has taken you to them and I do not need to take you back. But this is the short point. By the time we get to the pivotal paragraph of paragraph 23, which is rejecting the account of the incident of May 2011, the Authority says:

Even if I were to accept if there was such an incident –

which in my submission means it has already rejected that there is such an incident for other reasons, and this is my submission on that topic. I do not put this as a materiality point, and I will explain why not later, but I do say, in weighing up the circumstances, it is a relevant part of the circumstance that this was not a critical step in the Authority’s reasons. This rejection of sexual assault claims was not a critical step, and I have attempted to explain why not in those paragraphs, in the Minister’s submissions at paragraphs 9 to 12.

So the short submission is this. In weighing up reasonableness, the more critical a finding to the Authority’s decision, the more likely the court is to say you need to, if you are going to disagree with the delegate on its critical point, you need to conduct an interview.

BELL J: Mr Hill.....that submission was confined to the Authority’s view of the sexual assault claim. The Authority rejected a number of claims, claims as to the nature of the conduct in May 2009 or it might have been October 2009, the sexual assault a couple of years later and then the further assault but it also rejected that it was plausible that the SLA would have gone to the appellant’s home after he had left Sri Lanka in order to inquire about his whereabouts. Now, those were all on a.....findings that the delegate accepted as plausible. It is, one might think, Mr Hill, difficult to resist the inference that the Authority considered that those claims were material which is why it analysed them closely and rejected.

MR HILL: Your Honour is correct. This idea of it not being a critical step only works in relation to the specific rejection of the sexual assault. It does not – and so the reason I say that is it is only in respect of that matter that the Authority places any reliance on the manner in which evidence is given and that, of course – I say that is not the right prism but this submission is put on the basis that the Court is against me on that.

But as your Honour says, the Authority goes through the critical factual claims which are to all appearances are accepted by the delegate and says I do not believe them and I say – submit, that is the Authority merely conducting the de novo review as contemplated by Part 7AA.

Unless the Court has any questions, I would move to ground 2 – actually there is one small point I would wish to make. The appellant in the outline at paragraphs 7 and 8 seems to have raised an issue about paragraph 25 of his Honour Justice Bromberg’s reasons and the statements about a failure to consider and the two points, one of which my learned friends have acknowledged, there is no obligation to give reasons as to why you have or have not exercised a power, and I think my learned friend cited BVD17 at 16.

But the second point I make about those paragraphs of the outline is, in my submission, they do not come within the terms of ground 1 which is what was unreasonable is the failure to exercise a power but I seem to remember that this was an argument that the appellant sought to raise at special leave and special leave was not granted on that point, so I do not need to take any more of the Court’s time.

BELL J: Just going back to ground 1 in the way Ms Schilling put it, the challenge is as to the failure to exercise the discretion in the context of the IAA having determined that it would reject the factual basis upon which the delegate had proceeded. So its unreasonableness is contended for in that context. That is as I understand the way ground 1 is put.

MR HILL: Your Honour, I have attempted to answer that way of putting ground 1 and if I can say this, with respect, that is, in my submission, the relevant issue. The unreasonableness is reaching a different view from the delegate without exercising the power.

BELL J: Yes.

MR HILL: If I then turn to ground 2, this is the basis ‑ ‑ ‑

EDELMAN J: Before you turn to ground 2, can I just understand why you say that in the circumstances of the case here the power was even available? If one were to accept that demeanour is not new information, or even not information, why would the power have been enlivened?

MR HILL: Thank you for allowing me to clarify. If your Honours are with me that demeanour itself is not new information then it cannot be unreasonable to have failed to exercise a power unless there was a basis on which – an obvious basis on which the Authority could expect to get something that was new information and in the course of obtaining that new information observe the applicant’s demeanour for itself.

EDELMAN J: Thank you.

MR HILL: Thank you, your Honour. So on ground 2 the first point to make is that, in my submission, legal unreasonableness is subject to a requirement for materiality and the Minister has set out why in paragraphs 41 to 43 of the submissions. Can I just draw out the headline points without taking the Court through those cases.

The submission is that the Court’s decision in SZMTA, the majority decision, SZMTA [2019] HCA 3; 264 CLR 421, at paragraph 45 the majority, in my submission, lays down a general principle applicable to all grounds of review and in paragraphs 46 and 47 says this requirement of materiality applies not only to breaches of an express condition on the exercise of power - in that case an invalid notification - but also a breach of procedural fairness.

So, in my submission, the majority decision in SZMTA is squarely against the view that if a ground of review is an implied statutory requirement it is not subject to materiality because the Court has expressly said that materiality does apply to procedural fairness. Of course I will rely on the view of the majority of DPI17 at paragraphs 49 and 50, and what I have also in the submissions pointed to is there is another Full Court Federal Court case called CGA15 [2019] FCFAC 46 at paragraph 59 which said that the ground of review of irrationality is subject to materiality.

So, in my submission, a basic level of coherence to the law would say either there is required materiality or there is not. There is no reason to carve out unreasonableness when the closely related ground review of irrationality is subject to materiality. Could I refer in this context to, without taking the Court to it, in my submission in Minister for Immigration v Li [2014] FCAFC 1; 249 CLR 332, your Honour Justice Gageler, at paragraph 103 said this:

If an unreasonable failure to adjourn is material to the outcome –

then the subsequent decision is “invalid”. I embrace that. But in Li it was not just that the failure to adjourn was unreasonable. It is just that that inevitably meant the application for review must fail because the applicant could not obtain the necessary information to satisfy the statutory criteria.

So in my submission, his Honour Justice Bromberg and their Honours in DPI17 were correct to say that a finding of legal unreasonableness is subject to a requirement that the error be material. So just looking ahead, your Honour Justice Edelman in CNY17 – and I will not take the Court to it – at paragraphs 127 and 128, pointed out the different meanings of “materiality”.

Your Honour said there is a difference between something being not material in the sense of not sufficiently serious, but in 128 your Honour said a second meaning is there is not the required connection between the administrative injustice and the decisions. It is that sense of materiality that we are talking about in this case. Because, on my submission, there is a wholly independent basis for the Authority’s decision that is not affected by any legal error relating to not conducting the interview, therefore there is not that necessary connection. It is not material in that sense.

Before I get to the Authority’s decision and try to make that good on the facts, would the Court permit me just to make two points about how the materiality test is applied. The first point is this. Materiality being a backwards‑looking assessment it is appropriate to consider the findings actually made by the decision‑maker, or at least those findings that are not bound up with the error – and I get that from Hossain.

If I could take the Court quickly to Hossain, which is in volume 2, tab 5. Your Honours will remember this – there were two separate criteria. One was a timing criterion and one was a public interest criterion about outstanding debts. What your Honours will remember in paragraph 15, the Court sets out that her Honour Justice Mortimer in the Full Court had considered that these two criteria were actually related because if the Tribunal, properly instructed, had realised that it misapplied the first criterion relating to timing, it:

might have been persuaded to delay making its decision until such time as Mr Hossain was able to satisfy it –

Your Honours deal with it this way. Could I mention that the requirement of materiality is found in paragraph 31. But then your Honours dealt with the point I have just raised at paragraphs 35 and 36, where your Honours said:

The breach –

by misunderstanding the law:

could have made no difference to the decision which the Tribunal in fact made to affirm the decision of the delegate. That was because the Tribunal was not satisfied that the public interest criterion was met, and, on the findings which the Tribunal made –

and I emphasise those words:

the Tribunal could not reasonably have been satisfied that the public interest criterion was met.

Then, your Honours in paragraph 36 say the contrary view of her Honour Justice Mortimer:

rises no higher than conjecture.

Your Honour Justice Edelman made a similar point in paragraph 78. Now, my learned friend, while we have Hossain, pointed out that your Honours Justice Nettle and Edelman contemplated there might be some errors that are so fundamental that you do not need to establish that the error could have made any difference to the outcome and my submissions on that are, with respect, it is a minority view so far, but more substantively your Honours were talking about extreme cases, a fundamental error of such a nature that it could be said that there was not even a passing resemblance to what the actual statutory function conferred. In my submission, your Honours did not mean to suggest that there could be a whole ground for review, namely, legal unreasonableness that fell outside the notions of materiality.

So that is the first point that I wish to make about materiality - that the assessment takes place in a context of the findings actually made by the decision‑maker that are not affected by error. The reason I bring this up is that there is a certain strand of Federal Court authority which says, well, we should assume that the decision.....decision.....backward‑looking assessment so that is why you do look at the findings that were actually made – at least, those findings that are not infected by the error.

The second point is about what the Court means in SZMTA when it says you ask whether there is a realistic possibility.....an error had not been made.....the Court to SZMTA - it is under tab 7 in volume 2. What your Honours will remember from paragraph 48 is that one of the relevant errors was an invalid notification under section 438 of the Act and the effect of that invalid notification was to deprive the Tribunal of material that it should have had regard to. What your Honours say towards the end of paragraph 48:

Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

Could I take the Court quickly to how your Honours applied that test at paragraphs 70 and 71? What your Honours see is that - this is towards the end of page 160 of the authorities. It is page 451 of the report. Your Honours accepted that - let us assume that the Tribunal did not take them into account. At the top of page 452 of the report, your Honours say:

the appropriate further inference to be drawn was that taking them into account could not realistically have made any difference to the Tribunal’s decision.

At paragraph 71.....

KIEFEL CJ: We appear to have lost Mr Hill. We will just give it a moment. The Court will adjourn until we can reconnect.

MR HILL: I apologise, I am back. I am sorry, your Honours.

KIEFEL CJ: We are back.

MR HILL: I am so sorry.

KIEFEL CJ: It might not be your connection, Mr Hill. We are trying to work out what the issue is. It might not be your connection at all.

MR HILL: Your Honour is too kind. I feel if I look at the computer the wrong way sometimes it stops working.

KIEFEL CJ: They do that to you, but it might be a larger question.

MR HILL: Thank you, your Honour. Without labouring over paragraph 71, what your Honours will see particularly in the middle of that paragraph is the majority judges compared the documents that were not shown with the documents that the Tribunal had considered and said the ones that were not shown were of the same nature, therefore it could be expected that there is no realistic possibility of looking at these documents, reaching a different outcome.

The reason for mentioning this is of course materiality is not an invitation for the Ministers’ counsel to invite the Court to engage in merits review. But, in my submission, this does show that the Court does apply materiality in a fairly robust fashion and there is at least at an appropriate level an engagement with the broad outlines of the merits and, in my submission, that is exactly what happens in all sorts of principles of administrative law in deciding whether an error was sufficiently material to amount to a jurisdictional error.

Now, with those remarks in mind, could I attempt to explain the Minister’s analysis of the Authority’s decision in this case.

EDELMAN J: Mr Hill, before you move to the facts, can I just understand precisely the way you put the submission on materiality. I understand that one part of your argument is to say that in the so‑called extreme cases where it was said by me in Hossain that materiality might not apply, those cases do not include circumstances such as this. But do you also make a submission that there are no such circumstances that can exist, in other words, that materiality is something that will always apply no matter how fundamental the error and no matter whether it could even be said that an applicant did not even really get a hearing at all?

MR HILL: Can I answer it this way, your Honour. What I am conscious of is what your Honour has put to me is a very important point of principle and the person who would normally be answering that is not me on behalf of the Commonwealth. So, if I can, I am hoping to defer full consideration of that point and simply say this. If there is such a principle as your Honour outlined – and I understand the force of the point without conceding it to be so – we are a long way from it here and, in my submission, that is enough to decide this case.

EDELMAN J: Thank you.

MR HILL: I hope that is a sufficient answer for your Honour.

EDELMAN J: Yes.

MR HILL: But one thing that your Honour’s question has reminded me of, and I am grateful, the way that materiality plays out can be different depending on what the nature of the error is, and here I am about to make a point that actually is not in my favour, but I submit it is correct. The errors in Hossain and SZMTA both occurred where the factual foundation or the factual universe before the decision‑maker was known.

In Hossain the Tribunal made an error of law, but it had made findings on the other criteria and the error of law did not affect those findings or did not suggest there was any problem with the Tribunal’s approach to getting evidence and therefore the idea of did it make any difference or did it not was easy.

Similarly. with SZMTA the relevant error was not having certain documents, identified documents before the Tribunal and so it was possible to say let us look at these documents and compare them with documents that were before the Tribunal and ask ourselves is there a realistic possibility of a different decision?

What I feel bound to accept is that other potential errors are not as easily answered on materiality because it is not possible to know what facts would have been before the decision‑maker if the error had not been made. If the error is that you should have given the person reasonable opportunity to make further submissions and you did not give them that opportunity you do not know what they would have said if they had been given the opportunity.

So it is not as easy to say, therefore the error is not material because look at all the facts they did have, because you do not know what other facts they might have had had the error not been committed. I have to acknowledge that this case is much more in that line. If it was legally unreasonable not to exercise the power to invite the person to an interview, then we do not know wat would have been said at the interview. We could say well, the person has given at least two statements and given oral evidence and the delegate has interviewed, but we do not know what extra they would have said. So it is not as easy for me simply to say here are all the powerful facts the.....rely on, therefore the error was not material.

That is why I do not put that.....critical step as materiality because, as far as I can see, it does not work as a matter of materiality. That is why I say it goes to the circumstance of whether it is essential to exercise the power to begin with, not an assessment of materiality once a putative unreasonableness has been found.

So, with those comments in mind, could I then go to the facts. Your Honours have been taken to it, so I propose just to go backwards, starting with the conclusion at core appeal book 33. Your Honours remember this. The Authority said:

Taking into consideration the number of years that have elapsed since he left, his personal circumstances and the country information referred to..... -

Backwards, paragraph 31 says - in the middle of that paragraph you will remember was:

I am not satisfied on the evidence before me that the applicant has a profile which would bring him to the attention of the Sri Lankan authorities either because –

The Authority explains what it means by that:

he would be perceived as an LTTE supporter on the basis of his ethnicity, the fact that he originates from the north of Sri Lanka or his brother’s detention –

So that is certainly the way that the Authority saw the profile potentially arising, either his perception “as an LTTE supporter on the basis of his ethnicity, the fact he originates from the north of Sri Lanka or his brother’s detention”. Then, consistently with that, in paragraph 30 what your Honours will see is there is a reference to:

real or perceived links with the LTTE –

but it is important to also have regard to the remainder of paragraph 30, the country information:

there is nothing to support a finding that all Tamils are imputed with LTTE affiliation . . . even those Tamils who lived within LTTE‑controlled areas –

And so a crucial point that your Honours were talking about earlier today was what does the Authority mean in paragraph 25 when it says:

I am not satisfied that the applicant has a profile that would be of interest to the SLA or the Sri Lankan authorities or that he is at risk of harm on the basis of his ethnicity or imputed support –

Now, in my submission, the key is this: there are two findings in paragraph 25. One is about profile, and one is about being at risk of harm on the basis of his ethnicity. And my submission is the profile is referring to what the Authority finds in paragraph 21, which is ‑ this is on page 9, your Honours:

The applicant’s evidence is that he had had nothing to do with the SLA until the end of the war when he was taken along with others –

But the key is there is an apparent connection with the LTTE through his brother, but if you look at the top of page 10, at the end of paragraph 21, he has been asked once about his brother, but “they didn’t ask [him] anything further about him”. And so what this means, in my submission, the lack of profile is talking about how the applicant’s own evidence was he had no connection with the LTTE and he had not been asked about his brother’s connection with the LTTE, and so when the Authority rejects that certain claims happened, that is not about his profile, that is him being at risk of harm on the basis of his ethnicity or imputed support, simply on the basis of his ethnicity, not because of any of a specific incidence giving rise to a profile, but these incidents happening to him because of his ethnicity.

In my submission, that analysis explains how could it be that the delegate reached the same result on the country information even though the delegate accepted the appellant’s factual claims, and my submission is it is because ‑ if I could just take your Honours back to it briefly. Now, remembering the delegate accepted the appellant’s factual claims, if your Honours have the further materials, I am looking at page 6 of that bundle, which is numbered page 3 of the delegate’s decision. It is true that ‑ do your Honours see how it says:

Consistently with the country information outlined below –

And it says:

the essential and significant reasons the applicant fears serious harm . . . are his Tamil ethnicity; his background as a (young) Tamil from the North; and their suspicion he is a member or supporter of the LTTE.

But when one looks at the rest of the decision, you see the third matter is simply a by‑product of the first two because the delegate starts considering
Tamil ethnicity at page 4, and then at page 5, even though it accepts the appellant’s factual claims, it says:

there is only a remote chance that . . . the applicant would be imputed with an LTTE connection or political support –

And similarly, the next page is “Tamils from Northern Sri Lanka”. Then we get to page 7, where there is the reference to:

the Sri Lankan government still takes a hard line against former senior LTTE leaders and cadres –

And then the final paragraph of that page is:

Given the improved situation . . . and noting the applicant has not claimed to have actual links . . . I find the chance of him facing persecution . . . is remote ‑

So, the delegate said “I find the chance . . . remote” even though the delegate accepted that there was action against people who are suspected of trying to revive the LTTE, and the delegate accepted that the factual claims happened.

Now, of course, that is the delegate’s decision, but it explains the Authority’s chain of reasoning as well. And so, in my submission, that is why it is appropriate to read the Authority’s finding that our country information is providing a wholly independent basis for the decision, because even if the Authority had accepted all the claims happened, it would not alter the fact that the appellant’s own evidence was that he was not connected with the LTTE, the specific instances went to him being mistreated as a Tamil or a young Tamil male from the North, not by reason of him having a profile of an LTTE supporter. So they are the Minister’s submissions, subject to any questions from the Court.

KIEFEL CJ: Yes, thank you, Mr Hill.

MR HILL: Thank you, your Honour.

KIEFEL CJ: Ms Schilling, do you have anything in reply?

MS SCHILLING: Your Honour, are you able to hear me, your Honour?

KIEFEL CJ: Yes, we are.

MS SCHILLING: I am afraid I have just mislaid the piece of paper I had. There was one short point, just to clarify. Much has been made in my
learned friend’s submissions about the observations of Justice Bromberg, I think it is paragraph 24 of his Honour’s reasons, where he refers to demeanour being in part a reason for the decision. Just to clarify ‑ and I think we do do this in our reply submissions ‑ that is not the basis on which the appellant makes the claim. We put the threshold at a higher level than that. That is certainly not the way we place it.

In terms of the analysis of the reasons, I will not go back through that. We have responded to that in our reply submissions. I do not have anything further to add, your Honour.

KIEFEL CJ: Thank you, Ms Schilling. The Court reserves its decision in this matter and adjourns to tomorrow at 9.45 am.

AT 3.16 PM THE MATTER WAS ADJOURNED