MZAPC v Minister for Immigration and Border Protection & Anor [2020] HCATrans 113 (14 August 2020)

Last Updated: 17 August 2020

[2020] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M16 of 2020

B e t w e e n -

MZAPC

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 AUGUST 2020, AT 11.28 AM

Copyright in the High Court of Australia
MR D.J. HOOKE, SC: May it please the Court, I appear with my learned friend, MR S.G. LAWRENCE, for the applicant. (instructed by Conditsis Lawyers)

MR M.A. HOSKING: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

NETTLE J: Yes, Mr Hooke.

MR HOOKE: Your Honours, this application raises an important and an interesting issue concerning jurisdictional error. Both questions that we pose arise out of what we submit was a substantial departure from the established jurisprudence in the majority judgment in SZMTA that requires correction or, alternatively, a misunderstanding of the majority’s reasons that requires clarification from this Court.

The first special leave question concerns where materiality fits into the determination of a claim of jurisdictional error. It gives rise to two related questions, one being of onus in relation to materiality in circumstances where jurisdictional error has been established by reference to the majority’s reasons in SZMTA at paragraph 46 and the other involves the majority’s statement in that case at paragraph 47, that regularity is to be presumed in a decision‑making process that has been found to be irregular, in other words, that one should infer regularity from the irregular.

The second question involves the Federal Court’s approach that only offences of overt dishonesty are capable of reflecting on an applicant’s credibility and reliability as opposed to those which might be thought to encompass implicit misrepresentation or at least a disregard of society and authority. It throws into relief, in our submission, the treatment of such matters in the ways that we identify in our writing at paragraphs 3.20 to 3.24 in‑chief, and paragraphs 16 and 17 of our reply, particularly by reference to the analysis that Justice Edelman undertook in CNY17, at paragraphs 137 to 142, in addressing the effect of what he described as the irrelevant material in that case.

We are content to rest on our written submissions on the second question because, in our submission, it is a matter that arises in considering the first, if we be correct in relation to that question. If I could turn then to the first question, as Justice Mortimer recorded at application book 62 in paragraph 35 of her Honour’s reasons, jurisdictional error was not only established but conceded by the Minister subject only to the question of materiality.

The conventional expression of materiality was, in our submission, neatly expressed in the unanimous judgment of five members of the Court in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145 and following. That is a decision that has stood, not only unquestioned, but consistently applied for over 30 years. Your Honours will recall that in Stead the Court posed the question against the background of the well‑known passage from Jones v National Coal Board about the fundamental nature of a fair trial and no cause being lost until one has had one. The issue of materiality was phrased in terms of whether further information or, in other cases such as this, submissions could possibly have made any difference and that the qualification to the issue of relief was if it would inevitably result in the making of the same order. Their Honours repeated further down page 145 of the report the test being in terms of a conclusion:

that compliance with the requirements of natural justice could have made no difference.

NETTLE J: Mr Hooke, might I ask you this? As you might have gathered from SZMTA, Justice Gordon and I are respectfully not unimpressed by Stead, but it might be thought, might it not, that the majority in that case took a different view?

MR HOOKE: Your Honour, our response to that is, first of all, with respect, to embrace everything that your Honour and Justice Gordon said in SZMTA. Importantly, in our submission, there is no indication in the majority judgment in SZMTA that there was any intention to depart from long‑established principle or that there was an intention to invert the process that had stood the test of time and was, as your Honours observed, fundamentally entrenched in the constitutional reservation of judicial supervision.

So, to the extent that SZMTA, properly understood, does reflect a departure, we submit that it is not a considered departure and that perhaps it was an inadvertent broadening of statements that were made apposite to the facts in that case because, of course, in SZMTA the material that was not disclosed was material that was favourable to the applicants. So that materiality, in one sense, could never have arisen.

In that sense, it might be thought that the passages from the majority’s reasons that are causing difficulty in the Federal Court and with which we take issue and, I should say, not just in the Federal Court, but in State Supreme Courts as well, are properly regarded as obiter. But what is apparent is that there is a very real practical difficulty in the application of what the majority said in SZMTA, as the primary judge in this case recorded.

GORDON J: Mr Hooke, can I just understand that application here? Do I understand your submission to be, we have a concession of a denial of procedural fairness, we have the section 438 material having been provided to the Tribunal without notice disclosing a criminal record of your client, but no reference to it in either the reasons or for the Tribunal having any obligation to disclose it? So how then do you test materiality against it? Is that the way you put it?

MR HOOKE: Yes, we do. That is why we say, as a matter of practicality, it is impossible on the test in SZMTA for an applicant really ever to prove materiality where the reasons are silent in relation to the undisclosed material. That is why the principles that are so clearly stated in Stead and in other cases up until SZMTA focus the inquiry in the way that they do because those cases – and as the Court in Stead said the issue arises when the Court is invited by a respondent to exercise the discretion not to issue relief in a case of procedural unfairness, that the question of materiality arises. That is said in terms at the foot of page 145 of Stead.

The issue of proof, and the availability of proof is a fundamental reason why that approach, in principle, has stood the test of time and, in our submission, is plainly correct because it is much easier, of course, for a respondent to say the court should not issue relief because it would be futile for these reasons that we can establish whereas what SZMTA requires an applicant to do is effectively to delve into the mind of the decision‑maker to discover the unexpressed and to then discharge a positive onus of proof which the majority seem, with respect, to have elevated to a balance of probabilities question rather than one of reasonable possibility even, which is really where the test has historically been pitched. But, in addition to doing that, they have reversed the onus in a way that makes it practicably impossible for an applicant to discharge it.

Your Honours, returning then to the question, I have given your Honours reference to the foot of 145 and to the passage where the Court discussed the issue of materiality arising at the invitation of a respondent and the respondent having to establish that it could make no difference to the result previously reached and the caution that a court must exercise in reaching that state of satisfaction.

Those passages were cited by the plurality in Hossain at paragraph 30 with no intention of any departure from it or any reversal of onus or an incorporation of the discretionary factor, we would submit, of materiality as an element of jurisdictional error. It was cited by Justice McHugh and other members of the Court in Aala without any doubt and, as we say, the majority in SZMTA did not give indication of any intention to bring about any watershed change in the law.

In this case, your Honours will have seen from the primary judge’s reasons the cri de coeur for assistance from this Court in relation to the interpretation or the understanding and the application of what the majority said in SZMTA and your Honours have read her Honour’s discussion of those difficulties in a practical sense.

What is plain, in our submission, is that the issue of onus - and in a sense it matters not whether that arises as a discrete point or as a subsidiary point, as it were, from the transposition of materiality from the residual discretion into being an element of jurisdictional error, however the question of onus arises in the way that the majority expressed it, it was dispositive in this case and her Honour said so in terms, not only in indicating the test that she understood herself to be required to apply, but in the dispositive paragraph at application book 69 in paragraph 58:

On the approach required by SZMTA, I am bound to conclude the conceded denial of procedural fairness did not involve a jurisdictional error.

At application book 67 in paragraph 51, after setting out the two‑stage process that her Honour distilled from SZMTA:

I consider I am bound to apply that approach. For the reasons that follow, I do not consider the appellant has discharged that burden of proof.

So this case, in our respectful submission, throws into stark relief the importance of where the onus lies and that in large measure, in our submission, is informed by where one places materiality in the formulation of jurisdictional error as opposed to the question of relief issuing. In that sense we, as I say, respectfully embrace the reasoning of your Honours in SZMTA which, in our submission, was an entirely conventional application of principle.

Your Honours, we referred earlier to, at paragraph 47 of the majority’s reasons, and the presumption described by the primary judge that in proceedings that have been found to suffer from irregularity in the form of what your Honours described as a breach of an inviolable limitation it is to be expected that the proceedings were, nonetheless, conducted regularly in the absence of evidence to the contrary.

In our respectful submission, that is not an analysis that withstands logical scrutiny. At the very highest against us, it might be said that one error does not necessarily indicate another. But that would place the question of any presumption at a neutral level. It certainly would not warrant what the majority proposed at paragraph 47 and the drawing of a
positive presumption that the irregular was, in fact, regular. In our submission, that is another aspect of the first question that really calls for either correction or, if it be misunderstood, for clarification.

Your Honours, these are issues that it cannot be said are other than of fundamental importance in the context of the broad reach of judicial review, something regarded as fundamental and constitutionally entrenched in this country. It does not only apply in the realm of matters under this legislation. It applies under the gamut of federal legislation and under many, many State statutes all across the country.

It is clear, in our respectful submission, from the difficulties that were expressed in the decision below and the plea for assistance found in those reasons that this issue of materiality and the way it is to be treated and where the onus lies is one vexing courts of review, including intermediate courts of appeal, and that the question requires further attention from this Court.

It is submitted, with respect, that the majority decision in SZMTA is either wrong or misunderstood and that in either event a grant of special leave should issue. Those are our submissions. May it please the Court.

NETTLE J: Thank you, Mr Hooke. Mr Hosking.

MR HOSKING: Thank you, your Honours. The Minister’s written submissions set out the reasons why the Minister submits that the applicant should be refused special leave on both of the proposed grounds of appeal. In oral submissions, subject to any questions from your Honours, I was proposing to focus on three arguments that I understand to be central to the application for special leave on the first proposed ground of appeal and not to say anything further about the second proposed ground of appeal.

The three arguments that I was going to address were, firstly, the argument by the applicant that the authorities in this area do not establish a presumption of the kind that was referred to by Justice Mortimer in her Honour’s judgment. Secondly, the argument that was put in the applicant’s written submissions in reply that the principles in SZMTA should apply differently in this case because the information subject to the section 438 notification here was prejudicial and in connection with that argument, I wanted to briefly address the reasons why, in my submission, this Court’s decision in CNY17 is not relevant to this matter.

The third is the argument that the proper inference to be drawn from the Tribunal’s decision record in this case is that the Tribunal had regard to the information, subject to the section 438 notification and, in my submission, that argument is one that is not correct. So, I will deal with each of those in turn, the first one being the argument that there is no presumption of the kind that Justice Mortimer referred to in her Honour’s judgment in relation to the inferences that her Honour drew about the way that the Tribunal had dealt with the information, subject to the section 438 notification in this case.

In my submission, the approach that Justice Mortimer took in assessing the question of materiality in this case was entirely consistent with the approach that was taken by the majority in SZMTA and for that reason, in my submission, there is no reason to doubt the correctness of her Honour’s approach.

Like SZMTA, in this matter, there was a notification under section 438 of the Act that was given to the Tribunal and the Tribunal did not disclose to the applicant the fact that that notification had been made and in the Federal Court – I am sorry, your Honour?

NETTLE J: Can I ask you at this point, because it is pertinent here, what do you say about Mr Hooke’s submission that there is no apparent intent in the majority judgment of SZMTA to depart from the long‑established law relating to the application of jurisdictional error?

MR HOSKING: In my submission, it is not necessary for the purpose of determining the correctness of the approach taken by Justice Mortimer to reach a particular view about where the majority in SZMTA sit in relation to the sequence of case law that had come before.

NETTLE J: If you approached it being governed by Stead, surely Justice Mortimer would have been driven to a different conclusion?

MR HOSKING: I do accept that the approach taken by the majority in SZMTA is different to the approach that is taken in Stead and different to the approach that was taken by your Honour Justice Nettle with Justice Gordon in SZMTA in the sense that the approach taken by the majority in SZMTA makes the question of materiality a part of the determination of whether there, in fact, was jurisdictional error, whereas the approach taken by your Honours Justice Edelman and Justice Gordon accepted that the denial of procedural fairness was itself a jurisdictional error and then assessed the question in terms of whether the court should exercise its discretion to refuse relief.

My understanding of Stead is that it similarly puts the analysis at that stage after the question of jurisdictional error has been determined and in the context of determining whether there should be a discretionary refusal of relief. In that context, the question is somewhat different. In undertaking the analysis as part of the materiality exercise, the question is one of addressing a counterfactual and asking if the Tribunal had not made the error that it did, that is, if the Tribunal had disclosed the fact of the notification, is there a realistic possibility that there could have been a different outcome.

My understanding of the question asked in Stead is if this was sent back to the Tribunal now, is there a realistic possibility that there could be a different outcome and it may be that there are cases where those two questions lead to different answers, the most obvious example being a case where circumstances relevant to the Tribunal’s decision have changed in the interim, meaning that there may well be a different answer given if the matter is remitted to the Tribunal.

NETTLE J: I suppose the question is, is it sufficiently clear that the majority in SZMTA intended to depart from established authority that Justice Mortimer is obviously right in following what she took to be as a result of their judgment, or is it as Mr Hooke submits, perhaps that SZMTA may have been misunderstood and did not express an intention to depart from the established position?

MR HOSKING: In my submission, it is clear from SZMTA that it was not intending - in my submission the majority were not intending merely to apply the analysis in Stead, and their Honours, consistently with what was said by the majority in Hossain, were locating the materiality analysis at the stage of determining whether there in fact was jurisdictional error which might entitle an applicant to any relief in the first place and, for that reason, made it clear in SZMTA that it is the applicant who has the onus of demonstrating materiality. In my submission that is something that is different to the analysis that was undertaken in Stead and that, to the extent that those two things are different, the majority in SZMTA did intend to take a different approach.

NETTLE J: Is Mr Hooke right in submitting that, upon that approach, an applicant is faced with the impossible task of proving what was in the mind of the decision‑maker?

MR HOSKING: In my submission, the answer to that question is one that is different now because the Tribunal is now following decisions like MZAFZ and SZMTA well aware of the significance that is attached to what it says in its decision record about the way that it treated a notification under section 438 of the Act. The Tribunal’s decision in this case was one that was made in 2014, before any of these matters had been raised in superior courts and, consistently with that, the Tribunal’s reasons are completely silent about the section 438 notification.

Following the developments in more recent years, Tribunal decisions, it is my understanding now, routinely, make express the Tribunal’s consideration firstly of the validity of a section 438 notification and secondly the exercise of discretions under section 438(3). So for those reasons, in my submission, although I accept that in this particular case where the Tribunal was silent about the way that it had treated the section 438 notification, the applicant faced a very difficult task, as Justice Mortimer acknowledged, in convincing a court on judicial review that the Tribunal in fact had taken into account the document subject to the notification.

That is not something that will always be true now, given that the Tribunal now tends to deal with these issues much more transparently in its decision record. If I could add one ‑ ‑ ‑

NETTLE J: What about ‑ ‑ ‑

MR HOSKING: I am sorry.

NETTLE J: I beg your pardon. What about other tribunals of the kind that Mr Hooke was referring to, such as state administrative tribunals that may not follow the practice of the Migration Tribunals in this matter?

MR HOSKING: I had understood Mr Hooke’s submission about the impossibility of proving materiality as being one that was - and I may have misunderstood this. I had understood it as being limited to the situation of a tribunal that receives a notification under section 438 of the Migration Act or one of the equivalent provisions in that Act which give rise ‑ ‑ ‑

GORDON J: Mr Hosking, what he was suggesting was suggesting was it is an issue for all tribunals faced with this purported approach in SZMTA. How does one, having the onus on the applicant, prove the materiality required in order to overcome the hurdle, given the reasons and difficulties identified here? It is not limited just to the Immigration Tribunal.

MR HOSKING: In my submission, your Honour, the issue is presented most acutely in a case like this case involving a notification under section 438 because it is in this case that the reasoning of the majority in paragraph 47 of SZMTA applies, that reasoning being reasoning that flows directly from section 438(3)(a) of the Migration Act which says that the Tribunal can only have regard to information subject to a section 438 notification if it positively exercises its discretion to have regard to that information.

It is the existence of that requirement for a positive exercise of discretion before the Tribunal could have regard to the information which leads the majority in SZMTA to say, well, the inference therefore has to be that without any good reason for such an exercise of discretion, one would infer that the Tribunal has not had regard to that information.

In a case where the information is adverse - I accept the fact that there is adverse information and an inference that the Tribunal did not have regard to that information – it makes it very difficult for an applicant to prove materiality because of course if the information was adverse and the Tribunal did not have regard to it, then it could not really be said that in a circumstance where the Tribunal did have regard to it that the outcome might have been any better for an applicant.

But outside of that quite specific context of section 438(3)(a) of the Migration Act, the reasoning of the majority in SZMTA in paragraph 47 about the inferences that would be drawn about the way that the Act is administered in the ordinary course would not apply and, in particular, would not apply to State administrative tribunals administering very different statutory schemes.

To take up the point that your Honour was making about the fact that SZMTA says that the onus is on the applicant to demonstrate materiality, which would be true in a State administrative context, in my submission, the difficulty in the applicant doing that will vary considerably depending on the type of error that is alleged.

If the error that the State Tribunal, for example, fell into was a failure to consider a relevant consideration or a failure to consider a submission that was made by an applicant, the question of materiality will be resolved much more easily because a failure to leave something like – a failure to take something like that into account will almost inevitably be something that could realistically affect the outcome.

That is something that is recognised in Aala and other cases like Stead which talk about the difficulty of showing the denial of procedural fairness would not or could not possibly affect the outcome of a decision. It is just that in the particular context of section 438 notifications, because of the inferences that can be drawn about the way the Tribunal would act based on what section 438(3)(a) of the Migration Act says, that task for an applicant is much more difficult.

I think in the course of responding to those questions from both of your Honours, I have really said a lot of what I intended to say about the presumption that is created by SZMTA and the fact that Justice Mortimer’s decision was consistent with what was said by the majority in SZMTA. So I will move to the second argument from the applicant that I wanted to address, which is the argument that those principles should apply differently in a case where the information, subject to the section 438 notification, is prejudicial to the applicant.

That argument was put in reply submissions on the basis that the decision of this Court in CNY17 was relevant. Your Honours would be aware that the decision in CNY17 involved an allegation that a decision of the Immigration Assessment Authority was affected by apprehended bias. It did not involve any sort of non‑disclosure certificate, and the applicant seems to have put it in written submissions that different principles should apply in assessing materiality where there is a section 438 notification in circumstances where the information subject to that notification is prejudicial to an applicant because of the subconscious effect that it might have had on the reasons of the decision‑maker.

In my submission, there are two main reasons why the decision in CNY17 is not relevant in the context of assessing materiality where there is a section 438 notification. The first is that, as I have mentioned, that decision in CNY17 was concerned with a question of whether the decision of the IAA was affected by apprehended bias, not the question of whether a denial of procedural fairness was material.

Those two questions are very different. Apprehended bias is a question about the perceptions of a hypothetical fair‑minded lay observer whereas an assessment of materiality involves a question about whether there is a realistic possibility that the outcome of the decision could have been different if the decision‑maker had complied with a condition on the exercise of the statutory power and, importantly, in my submission.....bias in this case. The only ground of appeal in the Federal Court related to a denial of procedural fairness that was said to have arisen because of the failure to disclose the existence of the section 438 notification.

The second reason why, in my submission, CNY17 is not relevant in this matter is the different statutory context in which that matter was decided. That was a case involving the IAA and the regime under Part 7AA of the Act and within Part 7AA, section 473DB positively requires the IAA to conduct its review by considering the review material that is provided by the Secretary under section 473CB, which in that case included the irrelevant and prejudicial material. The IAA in that case recorded in its decision record that it had had regard to that information that was provided to it under section 473CB.

By contrast in this case, as I have mentioned, there was a notification under section 438 of the Act which had the effect under section 438(3)(a) that the Tribunal was only permitted to have regard to the information subject to the notification, if it positively exercised its discretion to have regard to that notification. As I have already said, it is that feature of the
statutory regime which gives rise to the inference that in the absence of a positive exercise of that discretion or any particular reason for a positive exercise of that discretion.....the Tribunal did not have regard to the documents subject to the notification, contrary to the decision in CNY17. So for those reasons, in my submission, that case can be distinguished.

Very briefly, recognising the time, the final point that I wanted to mention was about the inferences that can be drawn from the Tribunal’s decision record in this case. This is a case where, as Justice Mortimer found, there is really no indication in the Tribunal’s decision record not only that it had regard to the documents subject to the notification but that it made any real assessment of the applicant’s credibility to which the document subject to the notification might have been relevant.

Without taking your Honours to paragraphs 22 and 23 of the Tribunal’s decision record, I just indicate that I would respectfully adopt what Justice Mortimer said at paragraphs 56 and 57 of her Honour’s reasons about the proper characterisation of what the Tribunal had said about the applicant’s credibility in this case.

The Tribunal made no assessment of the applicant’s honesty. The few comments that it made about credibility are really ones that are referable to the plausibility of the claims that the applicant was making, rather than his honesty and, in my submission, coupled with the fact that there was no reference to any positive exercise of discretion under section 438(3), the absence of any indication of any consideration by the Tribunal of the applicant’s credibility means that clearly the proper inference to draw in this case is that the Tribunal had no regard to the document subject to the notification.

For those reasons, in addition to the reasons in the Minister’s written submissions, the Minister submits that special leave should be refused.

NETTLE J: Thank you, Mr Hosking. Mr Hooke, is there any reply?

MR HOOKE: Thank you, your Honour. Your Honour, dealing with the last point first, it is plain, with respect, that credibility and reliability did play a role in the Tribunal’s reasoning in this case. The submission that the Minister makes in that regard really emphasises the importance of the question of principle in relation to where the onus lies concerning materiality. The way in which the Minister puts his submissions on that third point, in our submission, makes the case for special leave as far as that aspect of the matter is concerned.

As far as the absence of a presumption is concerned, the Minister’s submission poses the question as involving consideration of a
counterfactual. But what the Minister does not address, again, is this question of onus. It is submitted against us that the majority were not intending to apply Stead but to shift materiality in a fundamental way, but against a judgment in which the majority cited Stead did not say that they were overruling it in whole or in part. Indeed, I do not apprehend that there was a submission even put that Stead should be departed from or much less overruled.

As far as practical impossibility of proof is concerned, as your Honour Justice Gordon took up with our learned friend, this is not only about the Tribunal. This is a question of principle and a matter of general application, not only in the federal sphere but in States. It does not only apply to tribunals of whatever badge or colour, whether federal or State, but also to administrative decision‑makers at every level. The submission that the approach in SZMTA is somehow limited to section 438 belies the opening sentence of paragraph 47 of the majority’s reasons where their Honours say:

The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act.

True it is that the Act in that context was the Migration Act. But it does not matter whether it is the Migration Act or any other Act. As far as intermediate courts of appeal or courts of initial review are concerned, what this Court has said is that that presumption exists and ought be drawn unless displaced by what appears on the record.

Finally, your Honours, as far as CNY17 is concerned, the analogy we draw from CNY17 is not to say that it is a biased point or that the principles applicable to apprehended bias are the same as those for jurisdictional error. All we do is we draw an analogy with what Justice Edelman succinctly put in the passages that I have referred your Honours to in‑chief about the preferred inference really being that where there is undisclosed prejudicial material it is an available inference and a fairly compelling one that the decision‑making process has been contaminated.

That is as far as we take CNY17 as an analogy with what ought to be the proper approach to the question of materiality. As far as the submission that it involved a different statutory context, that is simply, in our respectful submission, to obscure the question of high principle that this application poses. Those are our submissions in reply, your Honours.

NETTLE J: Thank you, Mr Hooke. In this matter, there will be a grant of special leave. The Registrar will write to counsel’s instructing solicitors early in the new week with the directions for interlocutory steps. Thank you, gentlemen. We will adjourn now.

AT 12.12 PM THE MATTER WAS ADJOURNED