Minister for Immigration and Border Protection v CED16 & Anor [2020] HCATrans 78 (9 June 2020)

Last Updated: 9 June 2020

[2020] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S347 of 2019

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

and

CED16

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE AND MELBOURNE
ON TUESDAY, 9 JUNE 2020, AT 10.00 AM

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

MR J.F. GORMLY: May it please the Court, I appear with MR D.J. McDONALD-NORMAN for the first respondent. (instructed by Labour Pains Legal)

GAGELER J: Mr Johnson.

MR JOHNSON: Thank you, your Honour. Firstly, may I just check that your Honours have all received the three‑page outline that we sent this morning.

GAGELER J: Yes, you can take it that we have that, Mr Johnson.

MR JOHNSON: Yes, thank you, your Honours. Your Honours, that attempts to put the matter fairly briefly. The present matter was resolved by the Federal Court in a way which involved two important errors. One was to treat the certificate which had been given, the purported certificate, under section 473GB of the book that your Honours will find at page 6, as being new information within the meaning of Part 7AA and the second was to find that the Tribunal then fell into jurisdictional error by not putting to the applicant, or considering putting to the applicant, the same certificate or particulars of it, under section 473DE of the Act.

Now, in relation to that second part of the appellant’s case, it is now conceded by the first respondent, at paragraphs 2 and 66 of the respondent’s submissions, that his Honour did err in relation to section 473DE – so my friends do not come here to defend that part of the judgment. We submit that without those findings his Honour has found nothing material which is capable of giving rise to a jurisdictional error and that we would be entitled to succeed.

Our friends dispute that, and they say no, they still press ahead in relation to new information and they say that, in effect, because the certificate was in their submission new information, well then there is a jurisdictional consequence.

I should clarify that the certificate itself at page 6 is the document in relation to which the Federal Court found or the court defined “jurisdictional error”. No issue arises in relation to the document covered by it, that is, the identity assessment form to which it refers. The short reason why that is so is that that form was before the delegate and so it could not have been new information.

The definition of “new information” in section 473DC, as your Honours are aware, is a twofold one. It pertains to information which was (a) not before the delegate – so not before the Minister when the Minister made the decision under section 65 and:

(b) the Authority considers may be relevant.

The form was before the delegate and his Honour accepted that that was not new information and the decision can be seen as turning upon the certificate. In relation to the certificate, we say it was not information – much less, new information.

GAGELER J: Mr Johnson, how did the certificate get to the Authority? Was it provided by the Secretary as part of the notification under section 473GB(2)(a)?

MR JOHNSON: At the same time, we say. So when the material goes – I am sorry. The notification is what gives the Authority the certificate, yes. In this case the notification and the certificate were, in effect, the one document.

GORDON J: I thought it was common ground that it was - the certificate was received at the same time as the review material but did not form part of the review material.

MR JOHNSON: That is correct, your Honour. That is correct. That is the second thing I was going to say to Justice Gageler. So we say that the review material is the material which is sent under section 473CB to the Authority and that, as a matter of practicality, the notification would usually be given at the same time or, at least very soon afterwards. But the notification is not part of the review material.

The references, incidentally, for the Federal Court’s acceptance that the underlying document, the assessment form, was not new information, can be found in paragraphs 7 and 39 of the judgment. I will not take your Honours to them because I do not understand that to be in dispute. That then brings us to the ‑ ‑ ‑

GAGELER J: The critical point is paragraph 4 of your outline, I think, Mr Johnson.

MR JOHNSON: Well, indeed. If it is not - if the certificate was not information then that is really the end of the matter and the question of whether it is new information does not arise. We say that when one has regard to the terms of the certificate, it simply cannot be said to fall within the reach of a word, “information”, as that has been determined by this Court. I will just take your Honours to two references in that respect which are referred to in that second dot point. The first of those is Plaintiff M174, paragraph 24, and in paragraph 24 the plurality held that:

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event –

The Court goes on to say when that will be new information and explains that it would then need to meet:

the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

Paragraph 27 somewhat reinforces that last point. There, it was said that:

Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant.

Now, in this case, there is no dispute that the certificate was not before the delegate but there is a dispute both as to whether it was information and, if so, whether it was new information.

The second reference that I wanted to take the Court to is to SZMTA – The Minister v SZMTA & Ors [2019] HCA 3; 264 CLR 421 and, in particular, at paragraph 28 of SZMTA, there Justices Bell, Gageler and Keane held, starting from the second line:

a notification to the Tribunal from the Secretary that s 438 of the Act applies in relation to a document or information is not itself “information” which the Tribunal is empowered and, acting reasonably, obliged to give to the applicant under s 427(1)(c). The term “information” in the context of Div 4 cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature.

The Authority’s reasons took no issue at all with respect to the applicant’s identity. But even leaving that aside it is, with respect, simply not possible to see how the certificate itself can be said to contain information in that sense.

GAGELER J: Now, if you are right about that, Mr Johnson, you just do not need to get to the next ground, which in any event is conceded.

MR JOHNSON: If I am right about that, your Honour, I probably do not even need to go to the second limb of this one, which is whether or not there was error in finding that it was new information, because that does not arise. I certainly do not get to the 473DE matter, because that is conceded.

GAGELER J: Yes.

MR JOHNSON: So I think it is a long way of saying yes, your Honour.

GAGELER J: Yes, all right.

MR JOHNSON: Would your Honours like me to proceed to address why it is not new information?

GAGELER J: You should deal with that, but then we do not need to hear you, I think, in the circumstances, on the second ground and perhaps it is a matter for you to deal in reply with the issues that you say are raised by the respondent.

MR JOHNSON: Yes. I am content with that, your Honour. The position as to why it would not be new information is submitted to be as follows: firstly, there is no evidence that section 473DC(1)(b) was.....that is, there is no evidence that the Authority itself considered that the certificate may be relevant. His Honour made findings that have been taken into account, which I will come to in a moment, but there is no evidence that the Authority considered that the certificate may be relevant to the decision on the review.

An error which contributed at least to the outcome before the Federal Court was that the Federal Court appears to have considered that the certificate had to be new information, simply from a basis that it was not before the delegate when the section 65 decision was made. Now, that would plainly be an error because the definition of “new information” also contains paragraph 473DC(1)(b).

But just to make out where the Federal Court appears to be at that view, I will take your Honours to the paragraphs that I mentioned at the end of my paragraph 6, and if we go, first, to his Honour’s decision at paragraphs 39 and 40. His Honour starts off in 39 by clarifying that the form was not before the delegate – sorry, the form was before the delegate – and says it is probably safe to proceed upon the basis that it was. He then says, however:

Despite that, it is not in doubt that the s 473 Certificate was not before the delegate. It was produced subsequent to the delegate’s decision for the specific purpose of sending to the IAA in purported certification of the privileged nature of the information in the IA Form.

On that basis the information in the s 473GB Certificate would, prima facie, fall within the definition of “new information” in s 473DC(1). It also appears it would satisfy the requirements of s 473DE(1)(a) –

That drifts on to the second part of the case. So, the last part of the case is now conceded by the respondent. But those two paragraphs – 40 read in the light of 39 – do seem to suggest that his Honour thought that satisfying paragraph (a) of the definition may be enough. Then, if one goes to paragraphs 55 to 57 of his Honour’s reasons, there are some sections of those paragraphs that I read to the same end – that is, seeking to demonstrate that his Honour thought that the fact that the certificate was not before the delegate was enough for it to be new information. Beginning at 55, he says ‑ ‑ ‑

GAGELER J: Mr Johnson, I think it is not really necessary for you to read those passages.

MR JOHNSON: Thank you, your Honour. I will also then skip over the last one that I mentioned at paragraph 60. Now, the certificate was not part of the review material furnished by the Secretary under section 473CB and that too is something now conceded by the respondent at paragraphs 27 and 34. In view of the concession I will not further elaborate on paragraph 7. That is why we say that it was not part of the review material. The concession, with respect, is.....and nor does anything in the reasons suggest that it saw the certificate to be of any substantive relevance. Indeed, it is non‑reference to the certificate, if anything, would seem to suggest that the certificate was not considered material to the decision. That is unsurprising given that it was uninformative as to the issues upon which the review depended.

Finally, we make the submission that the way in which this Court has held that the obligation of the Authority to give reasons does not extend to procedural decisions really poses a further hurdle for the respondent. In that respect - I will not go to them but the main authorities, of course, in this Court are BVD17 at paragraphs 16 and 38 to 40 and then SZGUR at 32, 69
to 70, and finally at 91 and 92 where Justices Heydon and Crennan express agreement with the other judgments.

In view of the indications given earlier, I do not wish to say anything further unless there is anything from your Honours.

GAGELER J: Thank you, Mr Johnson. Mr Gormly.

MR GORMLY: Thank you. The first respondent says that the Federal Court was correct to find that the Authority’s decision was affected by jurisdictional error. Because the Authority did not recognise that if you get to the invalid and new information the Authority breached a primary obligation in its conduct of the review not to accept new information and thereby fell into jurisdictional error.

GAGELER J: Mr Gormly, it is not entirely clear to me whether you are supporting his Honour’s reasons or re‑agitating the ground that was put on your client’s behalf to his Honour and was reflected in ground 2, on which his Honour granted leave, or some combination of those two things. Could you make that clear perhaps at the outset?

MR GORMLY: Yes. I suppose it is probably a combination because his Honour did reach conclusions which are sound but upon reasons which - some of the reasons for some of the conclusions were not so sound, in particular his reasoning in relation to the application of section 473DE in relation to the certificate. Nevertheless, his Honour made clear findings: firstly, that the Authority assumed the certificate was valid and relied upon it. This same conclusion can be drawn, can be inferred from what could be expected to occur in the course of the regular administration of the Act, as this Court said in SZMTA at 47. The Authority has received a certificate. His Honour noticed that the Authority made no exception in relation to the certificate and, therefore, the inference is open and his Honour’s findings can be affirmed on that basis.

KEANE J: Mr Gormly, why would we assume that, given that the certificate has – and, indeed, the applicant identity form does not bear on any question that was for the delegate or, indeed, for the Authority on review, given that there was no question that your client was who he said he was?

MR GORMLY: Well, firstly, the assumption that - the inference I am asking the Court to draw is that the certificate was - sorry, that the Authority regarded or assumed the certificate was valid and acted upon it. Yes, there are problems of materiality ‑ ‑ ‑

KEANE J: No, no, before you get to any questions as to whether there was an error that may have affected the outcome of the case one way or the other, how was it even a matter of question at all, for either the delegate or the Authority, given that your client and, first of all the Department and secondly the Authority, were all in happy agreement that your client was who he said he was?

MR GORMLY: Well, what happened - I think your question bears upon the reliance upon the certificate.

KEANE J: Yes.

MR GORMLY: We can get to that - you can come to that conclusion because of what the Authority said in its decision that the - it had regard to the section 473CB(1)(c) review material that had been provided to it. It said this at paragraph 3 of its decision in the core appeal book, your Honour.

GORDON J: Mr Gormly, I thought you had conceded that this was not part of the review material?

MR GORMLY: I do. What I am saying is that the Authority had, we know from this, regard to the identity assessment form which was the subject of the certificate. Now, the Authority could only have regard to the identity assessment form upon the exercise of its discretion, in similar terms in section 473GB(3)(a), to have regard to it.

GAGELER J: Is that necessarily right, Mr Gormly? I mean, that is a general statement made by the Authority with respect to the totality of the review material. It may simply reflect the Authority referring to the exercise of its duty or the performance of its duty to consider the totality of the review material. That does not mean necessarily consider it relevant or take it into account. It is a library of material which is looked at and then taken into account insofar as it is considered relevant to findings of fact that the Authority goes on to make.

MR GORMLY: Yes, my submission is based on the assumption that the Authority assumed the certificate was valid. Section 473GB gives rather significant powers to the Authority in respect of notified information such as the identity assessment form, to not have regard to it under that core obligation in section 473DB and also to have regard to it even if it were new information.

So when the Authority says that it has had regard to the review material, and using in particular that expression “have regard to”, if the certificate is thought to be valid and on a presumption of regularity we can say that the Authority thought it was and relied upon it, then the only way the Authority could have regard to the IA form was in the exercise of this discretion it thought it had but did not.

EDELMAN J: This submission is all directed towards establishing why what you assume to be information is new information?

MR GORMLY: Yes.

EDELMAN J: The entirety of your submission is really that 473DB(1)(a) is contravened. Is that right?

MR GORMLY: Yes, that is right.

EDELMAN J: So your submission really needs to establish three things. You need to establish that the certificate was information; two, that it was new information; and three, that it was accepted.

MR GORMLY: Yes.

EDELMAN J: The submissions you are making at the moment are related to the second of those points, that it was new information?

MR GORMLY: Well, yes, they do, because the submission is that the Authority assumed that the certificate was valid and relied upon it as if it were to exercise discretions in respect of the notified material. But in fact the certificate was not valid, and of no legal effect and because of that, yes, it was new information which was subject to that prohibition in section 473DB.

EDELMAN J: Essentially you are reading the notion of “new information” in 473DC as including material which the Authority considers may be relevant, and extending to matters that are relevant to those matters that are relevant? In other words, the certificate itself you say is relevant because it is a matter that establishes the relevance of the underlying information to which the IAA had regard?

MR GORMLY: Yes, the latter being a consideration more of materiality. I do not think we have to go that far to say that the certificate was new information in that it was considered may be relevant.

NETTLE J: To what issue?

MR GORMLY: Well, to the conduct of the review.

NETTLE J: The conduct only.....to the decision of issues.

MR GORMLY: I beg your pardon, your Honour. I am sorry, your Honour, a bit faint. I beg your pardon, your Honour.

NETTLE J: I said to which issue could the IAA conceivably have believed the certificate to be relevant?

MR GORMLY: To identity. It is a review. This is a review de novo. The Authority has to come to its own conclusions on identity – that is at least. Now, in determining identity, it is not just a matter of presenting identity documents. There may well be a whole assessment of the ‑ ‑ ‑

NETTLE J: The certificate did not say anything about identity. That was in the form.

MR GORMLY: That is right. I accept that if we are in.....materiality – apart from the procedural footprint of the certificate itself the respondent’s arguments are indirect and concern the identity assessment form and how the information in that form was magnified or rendered important to the Authority from the existence of the certificate - from a claim that the public interest would be injured by the disclosure of the identity assessment form.

GORDON J: That did not change the information in the form to form part of the review material and was before the delegate and before the Authority.

MR GORMLY: I am sorry, your Honour, could your Honour repeat that? You are a bit faint in Sydney.

GORDON J: That is fine, I apologise. The difficulty with that argument is that that did not change the content of the form, what was in the form – a form that was before both the delegate and the Authority.

MR GORMLY: It did not change what was in the form but it may well have affected the Authority’s assessment of the material in that form. We do not know what is in the form. So, I cannot say with any specificity how or in respect of what parts of the form the claim of public interest immunity would have affected the Authority’s consideration of it.

But to get to that point there is a whole disorder of the exercise of power by the Authority in believing that the certificate was valid and thereby the Authority believed that it had powers under section 473GB(3)(a) to disregard information contrary to its primary obligation and to accept new information because the section forced the provisions of relating to additional information - or new information in Division 3 did not apply to notified information under Division 6, upon the authority of the Full Court in BBS16. That is in relation to valid certificates. But as the certificate was invalid, you have the Authority basically exercising power that it did not have.

Now, it may be you can go straight to materiality as if it were criteria for jurisdictional error – and that was done, it is submitted in the Federal Circuit Court – and what you get is a consequentialism. You can ignore having to find whether the certificate was or was not valid because in the end you cannot say for sure what difference that it had.

GAGELER J: Mr Gormly, does this part of your argument have anything to do with whether or not the certificate itself was new information?

MR GORMLY: No, it does not.

GAGELER J: You gave an answer to Justice Edelman earlier where you appeared to nail your colours to the mast of a three‑stage argument. I would just like a quite clear definition of what your propositions are.

MR GORMLY: Well, that the certificate was new information. It was information – and I can come back to that; that is a larger issue.

GAGELER J: Well, perhaps what I am looking for is some definition of the ways in which you put your case. It appears that you have been proceeding to put an argument that does not rely upon the certificate being new information. If that is part of your argument, or one way in which you put your argument, that should be discretely argued and, to the extent that you seek to support his Honour in characterising the certificate as new information, that should be put quite clearly and discretely as well.

MR GORMLY: Well, the basic submission is that the certificate was new information because it was invalid and not before the delegate. The consequence of the invalidity of the certificate was that it fell within the second limb of the definition in section 473DC(1) because the Authority considered it relevant to the review. The Authority considered it relevant to the review upon the mistaken assumption that the certificate was valid. Upon this assumption the statute required the Authority to take the certificate into account. It was a mandatory relevant consideration.

Of course, this is all upon a mistaken assumption that the certificate was valid and upon this mistaken assumption those matters followed to the Authority. That is what it believed was happening. But it was not, of course, because the certificate was invalid and was of no effect. So the Authority, you could say, was operating under a delusion, a misapprehension, misunderstanding of the validity of the certificate. But as it was invalid and as it was not before the delegate, it was new information.

It became new information when the Authority considered that it may be relevant under that second limb but because the Authority believed that it was required to consider the certificate that that more than satisfied that requirement of the consideration of its possible or potential relevance.

EDELMAN J: That submission, as I understand it, reads the word “relevant” in section 473DC(1)(b), that is ‑ ‑ ‑

MR GORMLY: I am sorry, your Honour, but your Honour cut out – could your Honour repeat ‑ ‑ ‑

EDELMAN J: In that submission you read the word “relevant” in section 473DC(1)(b) as not being limited to matters that can rationally bear upon a fact in issue but as also extending to matters that bear upon the process of deciding facts in issue.

MR GORMLY: Yes, that is correct. At that point, a distinction on that requirement of – if your Honour is suggesting that there need be – that the certificate need be of some substantive, as opposed to merely procedural relevance. In the context of a Part 7AA review, as opposed to a Part 7 review, yes it is submitted that the relevance may be of a procedural nature but that fits in with the scheme of a Part 7AA review which is to limit what goes before the Authority so that the Authority can conduct a review on the papers without having to consider new information. Section 473GB is important because it is an exception to that new information provision.

But if the Court is to limit or to – yes, to limit the definition of “information” or “relevance” to – relevance of an evidential or substantive nature as opposed to a procedural nature, that is defeating the purpose of the review in that it is basically narrowing or confining the limits of these sections which are meant to catch and exclude as much information as possible.

So, if you say, well, section 473DB in respect of new information is only in respect of – sorry, the prohibition against accepting new information is only in respect of evidential material, that leaves open for material of a procedural nature like this certificate to – like this invalid certificate to ‑ ‑ ‑

GAGELER J: Mr Gormly, would your argument apply equally to a valid certificate?

MR GORMLY: A valid certificate is not subject to the new information provisions.

GAGELER J: And why not?

MR GORMLY: That is as discussed – upon the authority or the reasoning of the Full Court in BBS16. So no issue is taken with that Full Court’s reasoning that the new information provisions do not apply to either the certificate or its underlying information. No issue has been taken with the Court’s reasoning insofar as it relates to a valid certificate on those matters.

GAGELER J: What is the distinction between a valid certificate and an invalid certificate for the purposes of your argument?

MR GORMLY: Well, this certificate is invalid because it was not made under section 473GB in that it did not make a proper claim for public interest immunity.

GAGELER J: I understand that. I am asking why in your submission is there a distinction to be drawn for the purpose of characterisation as new information between a valid certificate and an invalid certificate?

MR GORMLY: Because the provisions ‑ upon the authority of the Full Court in BBS16 the provisions of Division 3 relating to the additional information, including new information, do not apply to certificates issued validly under section 473GB. It is an exception. That is why it is submitted that the exercise of the discretions the Authority thought it had under section 473GB(3)(a) were important because they were not subject to the primary obligations not to receive new material, not to accept new information under section 473DB.

These are significant powers. That is why the Federal Court alighted on the significance of these powers arising from a valid certificate in respect of this kind of review, which is on the papers and which does not afford anything like the procedural fairness that you would find in a Part 7 review, which provides for oral hearings, et cetera.

So his Honour alighted particularly on section 473DE as a vestige of that - of procedural fairness. But at the core of his Honour’s understanding of the issues, and by which he was saying to six brother Justices that he would have to follow this Court rather than their own judgments, he is - notice at paragraph 27 of M174, we refer specifically to the last sentence of this passage as being significant for the purposes of the disposition of the case and there, basically, the Court, the plurality in M174 referred to:

the Authority’s obligation under s 473DB(1)‑

and its:

need to comply with s 473DD, and where applicable s 473DE -

So a valid certificate is not new information by operation of section 473GB, is the short answer. Now, the respondent says that the certificate was information, in that ordinary sense - I am sorry, I am going on to the next topic. I will continue - the certificate was information in that ordinary sense of a communication of knowledge of some particular fact or event as - so the purpose of the giving of the certificate was to inform the Authority that section 473GB applied for the form, the Minister having certified disclosure of the form would be contrary to the public interest.

GAGELER J: Are you going to deal with SZMTA at paragraph 28?

MR GORMLY: Yes. Again, to notice the – that, of course, was in respect of a non‑disclosure certificate in relation to a Part 7 review. In SZMTA the Court distinguished that the certificate in that case applied to a Part 7 review and said:

The term “information” in the context of Div 4 cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature.

But here, of course, the review is Part 7. It is not a review which is designed to afford procedural fairness. Again, it is a review designed to limit the information that is before the Authority, and it does this by casting a wide net over any information that was not before the delegate. So in that catch of information that was not before the delegate, if you then go on to say well, that catch is only in respect of material of an evidential nature, you are narrowing the net – you are going to catch less than you would if you accept that in the context of a Part 7A review information should be read in that broad sense which the Court limited itself to in M174.

That is the same sense that began with the Full Court in SZEEU when it had to decide whether inconsistencies between two statutory declarations were information. The court there came up with that definition of “information” with a view to affirming that what mattered was the information itself, rather than the subjective appraisal or inconsistency between two parts of information.

GAGELER J: Now, the proposition is, as I understand it, that the word “information” in the context of the expression “new information” has a different meaning in Part 7AA from that which it has in Part 7. Is that the way you put it?

MR GORMLY: I am saying that yes, it should be read in the context of a Part 7 review, and that the meaning which this Court gave to “information” at paragraph 24 should apply and that that meaning in this case includes a certificate because that certificate conveyed communicated information about the identity assessment form.

EDELMAN J: So your submission about the breadth of information is dependent upon reading the word “relevant” in 473DC(1)(b) as being broader than merely referring to matters that are capable of rationally bearing upon a fact in issue?

MR GORMLY: I believe that was the intention of the scheme, to cast the net as wide as possible.

GORDON J: Can I.....Mr Gormly, because how does that sit with both 473DD and 473DE which both require that the new information must have affected the consideration of the referred applicant’s claims under DD and then in DE for the requirement of the particulars, only if it would be the reason or part of the reason for affirming the fast‑track reviewable decision?

MR GORMLY: In relation to section 473DE, there the information is qualified by that expression, which would be the reason. That same qualification applies to section 474A, which was what SZBYR was considering. So it is a limited – it is deliberately designed to limit the extent of the procedural fairness obligation, and it is explicit in its use of that expression. But the term “information” itself does not carry that meaning.

As for 473DD – I am sorry, your Honours, I have just been shown something. If your Honour is referring to section 473DD(b)(ii), that is only in respect of information that is given to the Authority by the referred applicant and does not apply to this certificate. In any event, the existence of that qualification confirms the width of meaning that should be attributed to information because here it is explicitly confined to certain information.

So information is intended to be wide except where it is explicitly narrowed by the terms of those three sections. So, relevance – considered to be relevant – should be given a wide meaning to include procedural matters. As I said, the consideration here in the misunderstanding of the Tribunal was mandatory – was mandated by the statute that the Authority should have regard to ‑ ‑ ‑

NETTLE J: “May have regard to” – not “shall”.

MR GORMLY: I am talking about the mandatorily relevant obligation on the Authority to take into account the certificate – that more than fits in with the easier qualification of “may have regard to the relevance”. Again, the exercise of power is so disordered that the Tribunal is thinking it is doing one thing when it just does not have power to do so.

GAGELER J: So, where are we up to?

MR GORMLY: Your Honour, for information that it was new information that the Authority considered it may be relevant upon that misunderstanding of its powers or upon the assumption that the certificate was valid, that it was accepted and section 473DB(1)(a) – and it should not have been because it was new information. That conclusion may be reached simply upon the reliance on the certificate as if it were valid by the Authority.

That then takes the first respondent to the question of the materiality of these errors which is that because of prior forensic choices by both parties, difficult to be specific about, but it can be said of the certificate – sorry, of the identity information form - and in making these submissions it is accepted that the materiality of the error is – of accepting the certificate is indirect and depends upon what the Authority made of the identity assessment form. But we know that it was part of the review material which the Secretary – we are talking about the identity assessment form, part of the review material which the Secretary gave to the Authority under section 473CD(1)(c).

As Justices Gageler and Kiefel said in CNY17 recently, this meant that the Authority had formed the opinion that the identity assessment form was capable directly or indirectly of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding. So, in that sense, the Authority has received the – the Secretary has come to this opinion. The Authority is not bound by this opinion. It can form its own. But it is something that we can know about the – or that can be inferred as to its relevance.

Another inference can be drawn from the Authority’s statement – another inference of relevance of the identity assessment form can be drawn from the Authority’s statement that it had regard to the review material. Now, that is significant because if the Authority believed that it had powers under section 473GB, then it could disregard the identity assessment form if it chose. So it had the power to do that. It was exempt from the primary obligation - section 473DB(1) - by the terms of section 473GB(3).

So when the Authority has said that it has had - as it was discussed earlier – when the Authority said it had regard to the review material that includes the identity assessment form but upon that exercise which it thought it had of the discretion to that same expression “have regard to that material”. It was also open to the Federal Court to find that it could not necessarily assume the information in the document is benign.

Now, his Honour reasoned, because of the forensic choices of the Minister not to adduce the identity assessment form and also because the certificate was issued at all that the Department’s – that a delegate exercising the Minister’s power to certify a document on the grounds of public interest immunity meant that you could not assume the information in the IAF form was benign.

The Federal Court said the assertion of public interest immunity and the certificate heightened the import of the information in the identity assessment form, as its disclosure would be contrary to the public interest. So while the respondent is unable to be specific about how information in the identity assessment form might have affected the Authority’s decision, the Authority’s treatment of the certificate as if it were valid meant it exercised powers under section 473GB which it did not have and acted as if the provisions in Division 3 of Part 7 regulating the consideration of new information did not apply to the certificate.

Now, his Honour’s reasoning on section 473DE is extraneous and the Minister does not contend that the considerations in section 473DD relating to exceptional circumstances were carried out – DD, I beg your pardon - DD relating to exceptional circumstances by which the new information could be considered were applied by the Authority.

Finally, I will just note that the Federal Court’s conclusion that the Authority relied on the certificate as if it were valid is not vitiated, as I think my friend is probably going to say this, because that court offered as proofs for this conclusion that the Authority did not apply section 473DE to the certificate when the court mistakenly thought it should have, or that the Authority was given and had regard to the certificate as part of the review material as proofs for this conclusion.

The Authority’s expectation of the regular administration of the Act and hence the validity of the certificate is an independent basis for the same conclusion. That is the final paragraph. It is paragraph 19 of the oral submission which I have basically read out, if your Honours wanted to go back to that. That is what my friend will.....submissions on.

GAGELER J: Does that complete your submissions, Mr Gormly?

MR GORMLY: Yes, it does, your Honour.

GAGELER J: Thank you very much. Mr Johnson, anything in reply?

MR JOHNSON: Yes, your Honours. There is an element of repetition, with respect, about much of what has been said. So I will endeavour to avoid saying things that do not need to be repeated. At the same time, I think it is important that matters that we have already discussed do in fact form a large answer to what has already been said.

There is simply no basis upon which to draw an inference that the Authority considered the certificate to be relevant to the decision, to its own decision on the review, on the sense of going to the merits of the issues in any way. Given my friend’s concession that the certificate was not part of the review material, it is again difficult to see that paragraph 3 of the Authority’s reasons takes the respondent.....Similarly, we have already made that same submission in the sense of it not supporting ‑ paragraph 3 of the Authority’s reasons not supporting the judgment of the Federal Court in the way that his Honour Justice Derrington found that it did.

GAGELER J: Mr Johnson, what do we make of paragraph 3 of the Authority’s reasons?

MR JOHNSON: Your Honour, the answer to that is, I think, rather helpfully supplied by something that the Court said in CNY17 last year. But before I get to that, your Honour, all that the Authority is saying is that it had regard to material referred under section 473GB. Well, that would not include the certificate – that is the material which comes under 473CB. But even leaving aside that point, the question arises, how do we interpret those words “have regard to”? In CNY17, at paragraph 6, there was reference towards the – about an inch of the way down on page 145, to the Secretary’s task under section 473CB.

Then in paragraph [7], the Court moved to the Court’s task – and taking a similar view in relation to substantive relevance and in paragraph [7], if I could just go to the sentence commencing from the seventh line of paragraph [7], the Court said that:

The requirement is no more than that the Authority examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review –

So it is a matter of looking at the material which comes to see what, if I may use the word, “substantive” relevance it has to the decision to be made – that is, the decision on the review. It is very much a task of looking to see whether or not the material is information of the kind that we discussed earlier this morning, with reference to SZMTA, in relation to the decision to be made.

GAGELER J: Mr Johnson, the slight complication here, of course, is that the language actually used by the Authority is the language of section 473GB(3)(a). What do you say about the use of that language for any inference that might be drawn about what the Authority did or did not do in respect of section 473GB(3)(a)?

MR JOHNSON: In relation to 473GB, we say, with respect, that it cannot be shown that the Authority assumed it to be valid or invalid. The question of what the Tribunal had to do with the form that it received was to look at it in substantive relevance in the way that I have discussed in relation to the certificate. The certificate was not part of the material referred by the Authority under 473GB and there is no command to be found in these provisions for the Authority to have regard to a certificate, as such, in determining questions of substantive relevance.

Also, there is simply nothing in this certificate which goes to any matter of substance. It is simply not shown that the Authority considered the certificate in the review at all - in making the decision on the review and it cannot be said that it was relevant to the review.

The provision in section 473DB and, indeed, the concept of “new information”, wherever it occurs, in DB, DC, DD and, indeed, DE, is talking about information which is relevant to the review decision to be made and not to the process of making that decision, the distinction drawn earlier by members of the Court in the course of argument. The past judgments of the High Court that we have gone to today do, we say, limit the word “information” in the way that we say.

Some reference was made by my friend to BBS16, the Federal Court judgment. The certificate in that case was in fact invalid, not valid, but BBS16, or how BBS16 should be seen is probably best reflected by the Court’s judgment - this Court’s judgment in BVD17 where the Court found, at paragraph [35]:

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 ‑

That is a different point and, with respect, we do not see BBS16 as assisting the matter before your Honours today in any way for the respondent. The applicant is left in a position – sorry, the present respondent is left in a position where it is simply not shown that it was information – the certificate was information – new information, or even that it was accepted in any relevant sense. As was put by Justice Gordon a little bit earlier the certificate did not in any way change the form, or does not seem to have really had any substantive information at all.

I have already referred to the distinction between the decision on the review – the further decision on the review and relevance to the process of deciding and we submit that the provision does not extend to.....Also, my friend made submissions to the effect that the word “information” has a different meaning in Part 7 from what it does in Part 7AA and that, we submit, is not consistent with the consistent way in which the word was treated in Plaintiff M174 and SZMTA.

Plaintiff M174 was, of course, concerned with a Part 7AA case and SZMTA was not but one sees the same approach taken in SZMTA at 28 and Plaintiff M174 at 24 in relation to information – the meaning of “information” and the word should be read consistently where it occurs in Part 7AA and elsewhere in the Act, including in Part 7.

My friend made some reference to the certificate being a relevant consideration. The idea of mandatory relevant considerations has never featured in this case before my friend used it in that way. But there is, in fact, nothing in the Act which makes the certificate something which must be taken into account in reaching the substantive decision on the review. Again, we come back to the distinction between the decision on the review – relevant to the decision on review – and procedural decisions along the way.

In relation to materiality, with respect my friend simply has not shown the initial error but he certainly has not shown any materiality. It is not enough to speculate as to whether or not the underlying form can be assumed to be benign. That does not go anywhere in establishing materiality. But, more to the point, we are talking about the certificate and we can see what the certificate says.

Also it cannot be contended, with respect to my friend, that the invalidity of the certificate provided a foundation for DC(1)(b) being met. Once again, we are talking about the relevance, not to the process of making a decision, we are talking in section 473DC(1)(b) about relevant to the review. If your Honours please, unless there is anything from the Court, those are the Minister’s submissions.

GAGELER J: Thank you, Mr Johnson. The Court will reserve its decision in this matter and will adjourn until 9.30 am tomorrow in Canberra for the announcement of orders.

AT 11.31 AM THE MATTER WAS ADJOURNED