FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The declaration and orders made by the Federal Circuit Court on 5 June 2017 are set aside.

3.    The proceeding is otherwise dismissed.

4.    The First Respondent is to pay the Appellant’s costs of the appeal and in the Court below.

5.    Any application for a certificate to be issued under s 6 of the Federal Proceedings (Costs) Act 1981 is to be made within 7 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The Application is dismissed.

2.    The Applicant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    There are presently before the Court two proceedings, namely:

    Minister for Immigration and Border Protection v CLV16 & Anor, being an appeal from a decision of the Federal Circuit Court of Australia (CLV16 v Minister for Immigration and Border Protection [2017] FCCA 1200, (2017) 324 FLR 142) which is a proceeding in the appellate jurisdiction of this Court (the “CLV16 proceeding”); and

    AHT17 v Minister for Immigration and Border Protection & Anor, which is an application brought in the original jurisdiction of this Court (the “AHT17 proceeding”).

The decisions sought to be challenged in each proceeding were “fast track reviewable decisions” to which Part 7AA of the Migration Act 1958 (Cth) applied.

2    Common to both proceedings are two questions, namely:

    whether, and in what circumstances, the Immigration Assessment Authority (the “Authority”) can receive submissions; and

    whether, and in what circumstances, the Authority has the power to “vary or revoke” a decision once made.

Applicant AHT17, in very summary form, contends that even a “decision” vitiated by jurisdictional error nevertheless remains a “decision” for the purposes of s 473EA of the Migration Act and that once made the Authority thereafter has “no power to vary or revoke” that decision. The submissions made on behalf of Applicant AHT17 were largely adopted by the Respondent CLV16.

3    The Authority made two purported “decisions” in each proceeding as follows:

    in the AHT17 proceeding, the Authority first made a purported “decision” on 13 December 2016 and made a second purported “decision” on 13 January 2017;

    in the CLV16 proceeding, the Authority first made a purported “decision” on 9 August 2016 and made a second purported “decision” on 11 August 2016.

In each proceeding, the Authority concluded that it had power to “re-open” its earlier decision by reason of a failure to consider a submission which was submitted to the Authority at the time of the first decision but which was not taken into account. To be successful in the AHT17 proceeding, Applicant AHT17 has to ultimately set aside both decisions. Applicant AHT17, accordingly, is the applicant and the Minister for Immigration and Border Protection (the “Minister”) opposes the relief sought. In the CLV16 proceeding, the Federal Circuit Court concluded that the Authority had no power to “revoke its first invalid decision” and that it was “not for the Authority to revoke its decision and purport to engage afresh in an exercise of power under Part 7AA of the Act”: [2017] FCCA 1200 at [16], (2017) 324 FLR at 146. That Court declared that the Authority’s second decision “was beyond … authority” and made an order quashing the first decision. Having quashed the first decision, an order was made by the Federal Circuit Court requiring the Authority to “determine the applicant’s review according to law”. In that proceeding, it is the Minister who appeals.

4    Both proceedings were heard together. The Chief Justice has directed that the original jurisdiction of the Court in the AHT17 proceeding be exercised by the Full Court.

5    Subsequent to the hearing of the two proceedings together on 2 March 2018, further submissions were filed pursuant to leave which had been granted. Yet further submissions were invited and filed subsequent to the decision of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”). That decision, handed down on 18 April 2018, was obviously not available as at the date of the hearing before this Court in March 2018.

6    The resolution of both questions, not surprisingly, depends upon the facts and circumstances of each individual case and the construction and application of the relevant provisions of the Migration Act, particularly ss 473DC, 473DD and 473EA.

7    In respect to the two questions posed for resolution, it has been concluded with respect to both proceedings that:

    section 473DC(2) of the Migration Act placed no statutory impediment in the path of the Authority considering the submissions which it had mistakenly not taken into account when making its first decision in each proceeding;

    upon considering the submissions, the Authority properly directed its attention to the terms of s 473DD of the Migration Act and made no error in concluding that, except where specifically identified, it should consider the “new information” contained within that submission;

    the Authority had power to “re-open” its earlier decisions and make a second decision where the first decisions were infected by jurisdictional error and s 473EA(3) of the Migration Act did not preclude the Authority pursuing such a course;

    the Authority in both proceedings retained a power to “vary or revoke” its earlier purported “decision” (which was infected by jurisdictional error) and correctly proceeded to make a further decision; and

    the Authority was correct in proceeding to undertake the “review” function entrusted to it and to proceed to make a second decision.

In the AHT17 proceeding, there remains a further question as to whether the second decision should be set aside by reason of it being made without regard to relevant material. This remaining question has been answered unfavourably to Applicant AHT17.

8    In reaching these conclusions it is necessary to separately consider:

    the relevant provisions of the Migration Act;

    the decision-making process undertaken by the Authority; and

    the manner in which the Authority exercised its powers in respect to both the AHT17 proceeding and the CLV16 proceeding.

Part 7AA

9    The applications made in these two proceedings for protection visas were reviewed by the Authority pursuant to Pt 7AA of the Migration Act.

10    Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The history of some of the key provisions of that Part has been summarised in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [12] to [27] per Griffiths J. That history need not be repeated. Within Pt 7AA, s 473BA sets forth a “[s]implified outline of this Part” and states that the “Part provides a limited form of review”.

11    The task to be undertaken when conducting such a “review” has attracted the attention of the Full Court: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 (“BMB16”). Attracting attention in that decision, however, were the more limited powers conferred upon the Authority by s 473CC as compared with, for example, those conferred upon the Administrative Appeals Tribunal by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). Justice Dowsett concluded that “s 473CC, by its terms, limits the nature of the contemplated review”: [2017] FCAFC 169 at [17]. Justice Besanko was of the view that the function of the Authority in undertaking a review was “to make the correct and preferable decision on the information before the Tribunal”: [2017] FCAFC 169 at [34] to [36]. Justice Charlesworth concluded that the “word ‘review’ in s 473CC of the Act is not to be construed by immediate and unqualified resort to cases in which the Courts have previously construed the same word in a different statutory context”: [2017] FCAFC 169 at [81]. Her Honour was of the view that “the Authority cannot perform a ‘full merits review’”: [2017] FCAFC 169 at [87]. All members of the Full Court agreed with the result, namely that the Authority was not bound by the findings of fact made by the delegate.

12    Within Part 7AA, s 473DA(1) provides that Div 3, together with ss 473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority”. Part 7AA, it has been said, “modifies (by restricting) the common law principles of procedural fairness”: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71] per Thawley J.

13    Of present relevance to the power of the Authority to consider “new information” as a prelude to making a further decision are ss 473DC and 473DD. Those sections are found within Div 3 of Pt 7AA.

14    Section 473DC provides as follows:

Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

15    Section 473DC(1), it may be noted, confers a discretionary power – i.e., the Authority “may … get any document or information”. Section 473DC(2) is expressed as a negative – i.e., the Authority “does not have a duty to get, request or accept, any new information”. So expressed, s 473DC(2) leaves unconfined the discretionary power conferred by s 473DC(1) to “get any document or information (new information) that … the Authority considers may be relevant”, other than the constraint that the discretion must be exercised in a manner which best promotes the object and purpose of the Migration Act as a whole and gives effect to (in particular) the fast track review process.

16    Section 473DD of the Migration Act provides as follows:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

17    The two limbs of s 473DD(b) are expressed as alternatives: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [37]. Justice Bromberg there went on to conclude that “all that the ‘credible’ element of s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”: [2018] FCA 474 at [41]. “It is only at the deliberative stage of its review”, said his Honour, “that the Authority will be required to determine whether or not the ‘new information’ is true”. The criteria, it was said, is a “filtering mechanism”: [2018] FCA 474 at [42]. Previously, in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [46], Gilmour, Robertson and Kerr JJ did not consider it “necessary” to consider whether there is an “obligation cast by s 473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied”.

18    Sections 473DC and 473DD clearly confine the circumstances in which the Authority may be called upon to consider “new information”. Those circumstances received the attention of Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [69] to [82]. The issue also received the attention of the High Court in Plaintiff M174 [2018] HCA 16 where Gageler, Keane and Nettle JJ observed that:

[24]    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, that meets the two conditions set out in s 473DC(1)(a) and (b).

(Footnote omitted.)

19    Of more immediate concern to the present proceedings is s 473EA, a provision found within Div 4 of Pt 7AA which is headed “Decisions of Immigration Assessment Authority”. That section provides as follows:

Immigration Assessment Authority’s decision and written statement

Written statement of decision

(1)    If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

(a)    sets out the decision of the Authority on the review; and

(b)    sets out the reasons for the decision; and

(c)    records the day and time the statement is made.

How and when written decisions are taken to be made

(2)    A decision on a review is taken to have been made:

(a)    by the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

(3)    The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

(4)    After the Immigration Assessment Authority makes the written statement, the Authority must:

(a)    return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)    give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

(5)    The validity of a decision on a review, and the operation of subsection (3), are not affected by:

(a)    a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or

(b)    a failure to comply with subsection (4).

The Decision of the Authority

20    The questions common to both proceedings can conveniently be resolved by reference to the facts of the AHT17 proceeding.

21    The Applicant in that proceeding, identified by the pseudonym AHT17, arrived in Australia by boat in March 2013.

22    In April 2016, he lodged an application for a Temporary Protection (Subclass 785) visa. A delegate of the Minister refused that application in November 2016 and the application was then referred to the Authority pursuant to s 473CA of the Migration Act.

23    By a letter dated 15 November 2016, the Authority acknowledged that the decision to refuse Applicant AHT17’s application for a protection visa had been referred to the Authority for review. Attached to the letter headed “Acknowledgment of Referral” was an “information sheet and Practice Direction for further information.”

24    On 8 December 2016, submissions on behalf of the Applicant were sent by email to the Authority. By a letter dated 13 December 2016, the Authority informed the Applicant that it had affirmed the delegate’s decision. It later emerged that the Authority did not have before it the 8 December 2016 submissions when it made its decision. That fact emerged when an email was sent on behalf of Applicant AHT17 to the Authority stating that “no mention” had been made by the Authority of the submissions. The email further stated that “[I] am not sure about what happened”. A “Case File Note” dated 12 January 2017 internal to the Authority reveals the problem – the submission “was not uploaded to the IAA case file”. By a letter dated 13 January 2017, the Authority informed the Applicant that it had “decided to re-open” the case. An email also dated 13 January 2017 from the Authority to the Department of Immigration and Border Protection stated that the Authority “decided to re-open the case as it’s [sic] decision is affected by jurisdictional error”.

25    On the same day, 13 January 2017, the Authority decided:

    that the “initial purported decision” should be “vacated”;

    to consider the information submitted to it on 8 December 2016, but which was mistakenly not considered when making its first decision, the Authority being satisfied (with the exception of three articles/links specifically identified) either that that submission did not constitute “new information” or, to the extent that it was “new information”, that it satisfied the criteria in s 473DD of the Migration Act; and

    to affirm the decision of the delegate not to grant a protection visa.

26    The relevant part of the reasoning process of the Authority when making its decision on 13 January 2017 in the AHT17 proceeding was as follows:

Information before the IAA

3.    I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). On 8 December 2016 the IAA received a submission on behalf of the applicant from his representative, Mr Ali Alkafaji. Owing to an administrative error, the email was not placed on the IAA file when a purported decision in respect of this review was made on 13 December 2016.

4.    On 11 January 2017, the applicant through his representative made submissions that the IAA reopen the matter on the basis of information submitted but not considered. Although s.473DC provides that the IAA does not have a duty to accept any new information, I have decided that in the circumstances of this particular case, and where as discussed below the new information relates to matters that fall within the terms of s.473DD, a proper conduct of the review in this case requires the initial purported decision to be vacated and for the new information to be considered, within the terms of s.473DD.

5.    Section 473DD of the Act provides that the IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances which justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.

6.    The representative’s submission addresses the delegate’s decision and findings. To that extent, the document may be referred to as argument rather than new information. In addition, however, the submission also references the Wikipedia link “Emo killings in Iraq”, an article from the BBC dated 21 March 2012: “Iraq’s Emo killings: A horror story out of control” and from BasNews dated 30 October 2016: “Two teenagers killed in Bagdad for having ‘Emo style’”. I am not satisfied that the articles and Wikipedia reference could not have been provided before the delegate made the decision or, as general country information, that it is credible personal information. I have therefore not had regard to it.

27    Similar reasoning was set forth in the reasons of the Authority in respect to the CLV16 proceeding at paras [9] to [20] of the reasons provided by the Authority in that proceeding on 11 August 2016.

AN ABILITY TO CONSIDER A LATER SUBMISSION – SECTION 473DC

28    After having made its initial decisions, the Authority on the facts of the present two cases considered the submission which it had previously not considered and proceeded to “re-open” each of its earlier decisions and to make a second decision.

29    Accepted at the outset is a dilemma as to which of the two common questions is to be resolved first – at least in those circumstances where the Authority has already made one decision and seeks to entertain further submissions with the prospect in mind of potentially making a new decision.

30    If the Authority had no power to “vary or revoke” a decision once made, there was no utility in the Authority proceeding to consider a submission which could not possibly give rise to any different or subsequent decision. If Applicant AHT17 was correct in his submission that the Authority had no power to “vary or revoke” the initial decisions, once those decisions had been made the Authority had exhausted its statutory function and had no residual power to do anything – other than, possibly, express regret at the internal administrative mistake which resulted in the submission not being “uploaded” to the Authority’s file.

31    Although it may be accepted that there is a considerable overlap as to the issues to be resolved, and although it has been concluded that s 473EA(3) does not preclude the Authority from “re-opening” a decision once made, the question as to the residual power to “vary or revoke” a decision is presently left to one side.

32    The application of s 473EA(3), it is considered, is best resolved later.

33    If the Authority (for example) in a different factual context entertained a submission and concluded for whatever reason that on the facts any submission could not lead to any different result, no question may arise as to the Authority varying or revoking any existing decision. If the Authority in a different factual context, however, refused to entertain a submission and to even give consideration to the content of what was being set forth in a submission, a different question could arise as to what steps could be taken to compel the Authority to do so.

34    Considerable care, however, needs to be exercised when giving content to what is meant by the term “submission” in the context of ss 473DC and 473DD of the Migration Act.

35    The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to such matters as:

    the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or

    the reasons why “new information” should be considered, including a “submission” as to why such “new information” satisfies the criteria in s 473DD.

36    But for any constraint imposed upon the Authority to “vary or revoke” its initial decisions made in each of the two current proceedings, and confined to the ability of the Authority to consider such a “submission”, it is concluded that:

    the making of submissions by visa applicants is consistent with the administrative processes which have been endorsed by the Authority itself in (inter alia) its Practice Direction for Applicants, Representatives and Authorised Recipients issued by the President (the “Practice Direction”); and

    section 473DC of the Migration Act does not preclude the Authority from considering a submission, being a submission confined to the existing pool of factual information which was before the delegate when the fast track reviewable decision was first made or a submission as to why, pursuant to s 473DD, “new information” should be taken into account.

Presently left to one side is the fate of a submission such as that made on 8 December 2016 in the AHT17 proceeding which unquestionably trespassed beyond arguments as to the consequences flowing from the existing pool of factual information and which unquestionably set forth “new information”.

37    Each of these conclusions should be briefly addressed.

The Authority’s administrative processes & its Practice Direction

38    Any broadly expressed contention that the Authority could not entertain a “submission” made in relation to the fast track review function being exercised is to be summarily rejected.

39    Any such broadly expressed contention is contrary to:

    the administrative processes endorsed by the Authority in an “information sheet” and the Practice Direction which are distributed to review applicants.

Such processes and guidance as has been given by the Authority, it must nevertheless be recognised at the outset, are more directed to those more commonly presented factual situations in which the visa has been refused and the application has been referred to review as opposed to those (hopefully rare) factual situations in which the Authority has made an internal administrative error and thereafter seeks to revisit or “re-open” a decision once made.

40    If attention is momentarily focussed upon (for example) the Practice Direction, it provides in part as follows:

Submissions and new information

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

22.    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23.    If you want to give us new information, you must also provide an explanation as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

While a different version of the Practice Note was given to the visa applicants in each of the proceedings (one dated 21 April 2016 and the other dated 14 October 2016) they are relevantly the same for present purposes.

41    The requirement to provide an explanation was, it may be noted, the subject of observations by Allsop CJ in ABC17 v Minister for Immigration and Border Protection [2018] FCA 254 at [8] to [10].

42    In those circumstances where the Authority has not made a decision, no argument could prevail that a visa applicant could not make a submission to the Authority in relation to a fast track reviewable decision referred to the Authority for review. The relevance of the guidance provided in the “information sheet” and the Practice Direction for present purposes is to lend support to an expectation on the part of visa applicants that submissions would in fact be taken into account. Having provided visa applicants with that guidance, it would be contrary to good administrative decision-making for the Authority to invite the submission, receive the submission but to fail to take the submission into account. The reference to “good administrative decision-making” is of course subject to the observations of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 and Attorney-General (NSW) v Quin (1990) 170 CLR 1.

43    It is not to be lightly assumed, of course, that the Practice Direction is either misleading or (wholly or in part) invalid. Indeed, Senior Counsel for the Minister shrank from advancing such a submission. The highest the Minister’s submission rose was to contend that paras [20] and [21] of the Direction were “incomplete”.

44    Any constraint upon the ability of the Authority to take into account a submission which had been made must be found in some express or necessarily implicit legislative constraint.

The making of a “submission”, “new information” & section 473DC

45    Section 473DC neither expressly nor implicitly precludes the ability of the Authority to take into account a submission made by a visa applicant. No legislative provision other than s 473DC was identified as the source of any such constraint.

46    Section 473DC(1) is expressed in terms of the ability of the Authority to “get any documents or information”; s 473DC(2) is expressed in terms of an absence of a “duty to get … or accept, any new information”. The term “submission” is not employed in s 473DC.

47    Notwithstanding the absence of any “duty to get … or accept, any new information”, s 473DC(2) does not expressly (or implicitly) preclude the Authority from exercising the discretionary power conferred in s 473DC(1) by the term “may” to “get any documents or information”. Indeed, s 473DC(1) expressly confers a power to “consider” any such document or information which “may be relevant”.

48    Given the absence of any constraint and the existence of a discretionary power for the Authority to “consider” information that “may be relevant”, it is difficult to understand any argument – separate from either (possibly) s 473DD or s 473EA(3) – that the Authority was constrained from giving consideration to a submission by the terms of s 473DC. Yet such a broadly expressed argument was in fact advanced on behalf of the Minister. The argument advanced was not understood to be confined to a constraint upon the Authority to entertain a submission only in those circumstances where a decision had already been made.

49    The submission advanced on behalf of the Minister that s 473DC constrained the ability of the Authority to entertain a “submission” is rejected.

50    It is concluded that a “submission” which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:

    a “document”; nor

    “information”

for the purposes of the definition of “new information” as set forth in s 473DC.

51    Less difficulty is experienced in construing the term “information” as not including a “submission” than in so construing the term “document”. The natural and ordinary meaning of the term “information” is “[c]ommunication of the knowledge of some fact or occurrence” (cf. The New Shorter Oxford English Dictionary (Clarendon Press, 1993)). That natural and ordinary meaning would not embrace a “submission” as to the significance to be attached to any “fact or occurrence”. Albeit less certain, it is nevertheless further concluded that the term “documents” in s 473DC(1) is confined to the means whereby the “knowledge of some fact or occurrence” is conveyed to the Authority.

52    There is, it may be noted, a disturbing lack of uniformity or consistency employed in Pt 7AA. For the purposes of s 473DC(1) (for example), “new information” is seemingly defined as “documents or information” that meet certain criteria; for the purposes of s 473FB(5), however, “new information” and “documents” are treated as falling within two different categories. Section 473FB(5) thus provides that the Authority “is not required to accept new information or documents from a person” if the person fails to comply with a relevant direction. If “new information” is defined in s 473DC(1) as relating only to “information” and not “documents”, s 473DC(2) does not apply to documents, nor would s 473DE.

53    Within Pt 7AA there is no express reference to any ability or entitlement of a claimant seeking a protection visa to make a “submission” in respect to a fast track reviewable decision referred to the Authority. Falling outside of Pt 7AA, however, numerous provisions of the Migration Act expressly refer to an entitlement to make a “submission”: e.g., ss 306AE, 309, 311D and 311J. Although caution should be exercised before too readily drawing any inference from the use of the term “submission” in other provisions addressing different decision-making functions, the absence of any reference to “submissions” in the definition of “new information” in s 473DC within Pt 7AA provides some limited support for not including a “submission” within the rubric of the statutory concept of “information” (as that term is used in s 473DC) into which it would not otherwise naturally fall.

54    The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.

55    Any contrary construction of s 473DC necessarily involves:

    construing the phrase in s 473DC(2) “or in any other circumstances” as including the “circumstances” in which it is the Authority that has “request[ed]” the provision of a submission in the form of a “document” and thereafter construing s 473DC(2) as not imposing a “duty” to consider the very “document” which the Authority elicited.

Such a construction, moreover, does not sit comfortably with the scheme of Pt 7AA, including:

    the fact that a visa applicant is to be given notice of the fact that “the decision has been referred for review under Part 7AA” (s 66(2)(e)), which does not sit with the contention that the applicant is thereafter not entitled to make any submission to the Authority concerning his application; and

    the natural and ordinary meaning of s 473DE(1)(c) providing that the Authority may invite an applicant “to give comments on the new information”, namely an invitation to make a “comment” upon – or to make a “submission” as to the relevance or significance of – “new information” of a factual or evidential nature.

56    Senior Counsel for the Minister was correct in his further submission directed to the effect of Plaintiff M174 that “the plurality did not draw any distinction between factual material, on the one hand, and argument, on the other”. Indeed, as was also submitted on behalf of the Minister, that “apart from the plurality’s setting out the text of s 473DC at [23], no reference is made to [s 473DC(2)] anywhere in the reasons of M174.” The observations of Gageler, Keane and Nettle JJ, however, as to the term “information” being used “in the ordinary sense of a communication of knowledge about some particular fact, subject or event” ([2018] HCA 16 at [24]) may be seen as lending some support to the conclusion reached in the present proceedings that neither s 473DC nor s 473DD precludes the Authority from entertaining a “submission” as opposed to placing a constraint upon its ability to “get” or “consider” further “information”.

A POWER TO VARY OR REVOKE – SECTION 473EA(3)

57    Left to be resolved is the second of the two common questions posed for resolution in each of the two proceedings now before the Court, namely the question as to whether the Authority had power to “re-open” its earlier decisions and to proceed to make a second decision.

58    But for the resolution of this question, it has been concluded that:

    it would be inconsistent with good administrative decision-making to not take into account a submission which visa applicants had been advised in the “information sheet” and the Practice Direction was a submission that could be made and would be considered; and

    s 473DC does not impose an express or necessarily implicit constraint upon the ability of the Authority to take into account a submission.

The outstanding question as to whether the first decision nevertheless remained a “decision” for the purposes of s 473EA(3) of the Migration Act is to be answered in the negative. So much follows, it is respectfully considered, from:

    the generally accepted principle that a decision vitiated by reason of jurisdictional error arising from the failure of a decision-maker to take into account a submission is no decision at all; and

    the fact that s 473EA(3) does not dictate any contrary conclusion.

Each of these two propositions should be briefly explored.

Jurisdictional error – the failure to consider a submission

59    On the facts of the present cases, the Authority concluded that it had failed to take into account the submissions which had been made and that the earlier decisions should be “vacated.”

60    But for the argument advanced on behalf of Applicant AHT17 (and adopted by Respondent CLV16) as to the absence of power by reason of s 473EA(3) “to vary or revoke a decision”, the initial decisions reached by the Authority without considering the submissions that had been made would normally be regarded as no decision at all.

61    As a matter of general principle, it was common ground that a decision ostensibly made pursuant to statutory authority but which is made either in excess of the authority conferred or as not constituting an exercise of that authority may be regarded in law as a decision vitiated by jurisdictional error and as “no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 (“Bhardwaj”).

62    In Bhardwaj, a review which had been sought by Mr Bhardwaj miscarried because the Immigration Review Tribunal had proceeded to reach a decision in ignorance of a letter advising the Tribunal of his inability to attend the scheduled hearing date and requesting a later hearing date. In reaching the conclusion that the Tribunal could there make a second decision, Gleeson CJ reasoned (at 603 to 604):

[5]    There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [[1964] AC 40 at 79], Lord Reid said:

“I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.”

[6]    That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made. …

[8]    The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?

The Chief Justice concluded, by reference to the legislative scheme, that the Tribunal could revisit its decision “afresh”. Justices Gaudron and Gummow pursued a slightly different approach and considered whether a decision beyond jurisdiction constituted “no decision at all” and whether the Migration Act “purports to give any legal effect to decisions of the Tribunal which involve jurisdictional error”: [2003] HCA 2 at [51] to [54], (2003) 211 CLR at 614 to 616. That approach led to the same conclusion. In doing so, their Honours set forth “the general law” as follows (at 614 to 615):

Decisions involving jurisdictional error: the general law

[51]    There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

(Footnote omitted).

Their Honours continued (at 616):

[53]    … As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the [Acts Interpretation Act 1901 (Cth)].

Justice Hayne likewise concluded that “[n]othing in the Act requires (or permits) the conclusion that despite the jurisdictional error, some relevant legal consequence should be attributed to the” first decision of the Tribunal: [2002] HCA 11 at [153], (2002) 209 CLR at  647. Justice Callinan also concluded that “the Tribunal had not exercised its jurisdiction … and that therefore it was open for it to do so” on the later occasion: [2002] HCA 11 at [165], (2002) 209 CLR at 649 to 650. Justice Kirby  dissented. A conclusion that a decision vitiated by jurisdictional error is “no decision at all” was also expressed in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 at [76], (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. See also: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [29], (2004) 78 ALJR 992 at 997 per Gummow and Hayne JJ.

63    A failure to consider a submission, in accordance with these generally expressed principles, may constitute jurisdictional error: e.g., Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [82], (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ.

64    But, as the decision in Bhardwaj itself makes clear, that decision does not stand for the universal proposition that jurisdictional error on the part of a decision-maker will inevitably lead to the decision having no consequences at all. The legal and factual consequences of such a decision will ultimately depend upon the particular statutory provisions pursuant to which the decision has been made: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, (2003) 145 FCR 1 at 16. Justices Gray and Downes there concluded:

[42]    In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

Justice Kenny expressed the same conclusion in slightly different terms as follows (at 22):

[64]    For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj … is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision. I reject the appellant’s submissions in so far as they are to the contrary effect.

These observations have since been repeatedly cited with approval: e.g., Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27] per Lander J (Mansfield and Siopis JJ agreeing); Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 at [44], (2012) 200 FCR 30 at 44 to 45 per Flick and Foster JJ (Katzmann J agreeing generally). In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [151], Bromberg J expressed the application of Bhardwaj more broadly in expressing agreement with the conclusions of Muir JA (with whom Holmes JA and Ann Lyons J agreed) in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2013] QCA 394 at [66], [2015] 1 Qd R 228 at 260 that “‘absent statutory provisions necessitating a contrary conclusion’, the general principle identified in Bhardwaj applies”.

65    That which divided the parties in the present proceedings was whether Pt 7AA, and s 473EA in particular, effected such a departure from the general principle such that a “decision” otherwise vitiated by jurisdictional error was nevertheless a “decision” for the purposes of s 473EA(3) and thus the Authority had “no power to vary or revoke” it.

Section 473EA(3) – a different result?

66    When reference is made to the terms of the Migration Act pursuant to which the decisions of the Authority have been made in the present cases, and in particular Pt 7AA of that Act, s 473EA(2) and (3) assume prominence.

67    It was contended on behalf of Applicant AHT17 that even if the first decision was one which a Court could otherwise set aside in accordance with generally accepted principles as one vitiated by jurisdictional error:

    the Authority itself had no power to “re-open” the first decision; and

    the second decision of the Authority was no “decision” at all because it had exhausted such power as it had by making its first decision.

Both of the limbs to this contention are rejected.

68    Section 473EA(2) does not operate such that a deliberation of the Authority which is set forth in a “written statement” that meets the requirements of s 473EA(1) is taken to be, or is “deemed” to be, a “decision” for the purposes of s 473EA. There is nothing in the terms of s 473EA(2) which displaces the normal position as established in Bhardwaj. A provision such as s 473EA(2) may well serve no “higher purpose” than simply “giving precision to what is to be the date of the decision”: cf. Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 at [44], (2012) 206 FCR 25 at 34 per Logan J (Barker J agreeing). The phrase employed in s 473EA(2), “taken to have been made”, says nothing with respect to whether such a decision is one susceptible of being “re-opened”. The phrase does nothing other than give content to how a decision is to be made (as a matter of form) and when it has been made.

69    Nor does s 473EA(3) dictate any contrary conclusion. Section 473EA(3) simply provides that a “decision” once made cannot be varied or revoked by the Authority. Left unanswered by that sub-section is that which constitutes such a “decision” upon which s 473EA(3) operates. Again, there is nothing in s 473EA(3) which can be relied upon as supporting the proposition that a “decision” made in excess of jurisdiction – or a “decision” made without the Authority having discharged the statutory responsibility entrusted to it by s 473CC to conduct a “review” – is taken to be a “decision” within the meaning and for the purposes of s 473EA(3). And, notwithstanding the difference of views expressed in BMB16 as to the nature of the “review” to be undertaken for the purposes of the “limited form of review” provided for in Pt 7AA, none of the views there expressed provide any support for a proposition that any exercise of the power conferred by s 473CC could give rise to a “decision on a review” (s 473EA(2)) without undertaking such a “review”. Such a “review” includes entertaining a submission which has been made, including a submission that the Authority should consider “new information” pursuant to s 473DD. A purported “decision”, which fell short of considering such a submission, would not constitute a “decision on a review”.

70    Section 473EA(2) and (3), it may be noted, are expressed in substantially the same terms as s 430(2) and (2A). But the comparison takes the analysis of the term “decision” no further.

71    If any Parliamentary intent is to be discerned that a “decision” made by a statutory decision-maker without having discharged the statutory tasks required to be undertaken is to be a “decision” notwithstanding such a fundamental jurisdictional error, much clearer words are required than can be found within s 473EA(2) and/or (3). To clothe a “decision” with the character of one that cannot be revisited in circumstances where it becomes manifestly apparent that the statutory responsibility of conducting a “review” has not been undertaken, much clearer statutory language is called for. The uncertain process of statutory construction advanced on behalf of Applicant AHT17 which initially assumed the conclusion he sought to advance, and thereafter contended that the assumption was correct, only has to be stated to be rejected.

AHT17

72    The two remaining questions to be resolved in respect to the AHT17 proceeding are:

    the Minister’s submission as to the relevance of the fact that the 8 December 2016 submission contained submissions together with “new information”; and

    Applicant AHT17’s argument as to whether the two decisions made by the Authority have been established to be “unreasonable”.

AHT17 & jurisdictional error

73    Section 473DC, it has been concluded, does not preclude the Authority from entertaining a “submission” as to the consequences flowing from an established pool of facts or a submission that the Authority should entertain the power conferred by s 473DD to consider “new information”.

74    The constraints imposed by s 473DD, and the power of the Authority to entertain a “submission” so confined, cannot he subverted by the simple expedient of a visa applicant’s attempt to force upon the Authority for consideration “new information” under the guise of a submission. To the extent that a visa applicant seeks to do so and where the “new information” does not meet the requirements of s 473DD, however, the Authority can properly place to one side any such “new information” and not take it into account. The fact that difficulties may be encountered in a single document headed “submissions” which may contain a mixture of arguments as to the consequences flowing from established facts and interwoven new factual material confers no licence upon a visa applicant to force upon the Authority a “duty” to consider new material which does not meet the requirements of s 473DD or a licence upon the Authority to disregard the constraint imposed by s 473DD. Although such difficulties may be accepted, those difficulties cannot preclude a visa applicant from advancing his or her claims in such a manner as he or she sees fit. It remains for the Authority to sort the wheat from the chaff.

75    Assuming that earlier submissions founded either upon s 473DC constraining any consideration being given to a “submission” did not prevail and that s 473EA(3) did not preclude the Authority from making a second decision, the Minister’s fall-back position was that the Authority was not required to entertain the 8 December 2016 submission.

76    On the facts presented in the AHT17 proceeding, the “submission” made on 8 December 2016 was unquestionably a mixture of:

    statements of fact;

together with

    submissions as to what conclusion should be drawn from the facts advanced for consideration.

77    If reference is made to the facts relevant to the AHT17 proceeding, the presently relevant facts are that on 15 November 2016, Applicant AHT17 was:

    informed that his application for a protection visa had been referred to the Authority on 14 November 2016;

    provided with a copy of both:

    an “information sheet” advising him (inter alia) of the constraints placed upon the ability of the Authority to consider “new information” and his ability to “provide a written submission”; and

    the Practice Direction which also outlined (inter alia) the constraints placed upon the ability of the Authority to consider “new information” and the ability to “provide a written submission”.

and thereafter:

    made the submission on 8 December 2016.

78    The insurmountable difficulties confronting this present argument advanced on behalf of the Minister are two-fold, namely:

    to the extent that the 8 December 2016 document contained “submissions”, the Authority was not precluded from considering those “submissions”; and

    to the extent that the 8 December 2016 document contained “new information”, the Authority directed its attention to s 473DD and formed the view (at para [4] of its reasons) that “where … the new information relates to matters that fall within the terms of s.473DD, a proper conduct of the review in this case requires … the new information to be considered, within the terms of s.473DD”. The reasons of the Authority then go on to identify (at para [6]) three particularised exceptions, being specific articles/web links which the authority considered did not meet the requirements of s 473DD and the reasons provide that the Authority did “not [have] regard to” that “new information”. Whether “new information” was to be taken into account was a matter for the Authority to determine and the view that it formed was one open to it.

No question thus arose as to the Authority doing anything other than considering the submission that had been made; forming a view as to whether that submission contained “new information”; forming a view as to whether that “new information” should be taken into account; and proceeding to make a decision.

79    The Minister’s reliance upon ss 473DC and 473DD and the actual content of the 8 December 2016 submission as a basis for contending that the Authority was not required to take that submission into account is rejected.

AHT17 – a failure to consider material?

80    The conclusions reached in respect to the AHT17 proceeding are, accordingly:

    that the Authority had power to “re-open” its first decision made in December 2016 and to proceed to make its second decision in January 2017; and

    that no error has been exposed in the Authority proceeding to take into account the 8 December 2016 submission when making its second decision.

The contrary arguments advanced have been rejected.

81    But that leaves to be resolved the final question as to whether Applicant AHT17 has established any reason to set aside the January 2017 decision of the Authority. The challenge to that decision was that it was vitiated by jurisdictional error by reason of that decision having been made without taking into account a relevant consideration.

82    That argument focused upon the consideration given – or, as Applicant AHT17 would have it, the absence of consideration given – to an article published in the Washington Post dated 5 May 2016.

83    It is at this hurdle that Applicant AHT17 falters. Jurisdictional error has not been exposed. The second decision of the Authority remains a valid decision and should not be set aside.

84    The content of the Washington Post article and the consideration given to it by the Authority emerges from the following extract from the Authority’s reasons for decision given on 13 January 2017 (without alteration):

13.    The applicant’s representative contended at the PV interview and in his submission of 8 December 2016 that the applicant had only ever worked as a barber and further submitted that he would be persecuted on the basis that he was a member of a particular social group comprising “barbers in a conservative environment in Baghdad”. In considering whether the applicant would have a well-founded fear of persecution as a (general) barber or a barber undertaking Western-style haircuts in Baghdad, or as a barber in conservative in Baghdad on return, I conclude that he would not. The 2015 DFAT Country report on Iraq discusses targeting of specific groups of interest, including particular employment types. Targets on this basis seem to be limited to media professionals and journalists2. A number of recent articles in the referred material, including the NIQASH website3 and an article from the Washington Post dated 5 May 20164, more specifically address the specific situation to which the applicant would potentially return. The Washington post article reads in part:

BAGHDAD — Nearly everything about the barbers at one establishment of suave Iraqi hair is at odds with the puritanical militants who overran their home towns. Skilled in blow-drying and thickly applying gels, they transform patrons with chic looks that the Islamic State has brutally sought to eradicate. The barbers also sport risqué hairdos. They drink, chain-smoke and curse like sailors — all punishable sins, according to the group. They have endured extraordinary suffering because of the hard-line Sunni militants, who rampaged through their home towns and murdered family members and friends. But here in central Baghdad where they found work, they’re like a stylish band of anti-Islamic State brothers. “Daesh is our enemy, Iraq’s enemy. They tried to murder my entire tribe,” one of the stylists, Arkan Ismael, 21, recalled on a recent day as he ran a comb through his own meticulously coiffed hair, which seemed to rise a foot.

Footnote 4 referred to in para [13] was a reference to the following web address:

https://www.washingtonpost.com/news/worldviews/wp/2016/06/05/iraqi-barbers-form-a-very-stylish-band-of-anti-islamic-state-brothers/?utm_term=.eb8faeeb886b

85    The difficulty confronted by Applicant AHT17 is that the consideration given by the Authority to the article, the conclusions to be drawn from it and the weight to be attached to it were all matters entrusted to the Authority. In proceeding as it did, it is concluded that the decision of the Authority could in no sense be regarded as one which was reached without having regard to the article relied upon.

CLV16 – THE APPEAL

86    In the CLV16 proceeding, unlike in the AHT17 proceeding, this Court is exercising its appellate jurisdiction to hear and resolve an appeal from the decision of the Federal Circuit Court in CLV16 v Minister for Immigration and Border Protection [2017] FCCA 1200, (2017) 324 FLR 142.

87    The Federal Circuit Court in that proceeding concluded that the first decision of the Authority made in August 2016 was liable to be set aside, that the power to do so rested in the Court and that it was not open to the Authority to revisit its earlier decision. In so concluding, the Federal Circuit Court Judge said (at 146):

[16]    The Authority in its second invalid decision was correct in its conclusion that there had been a failure to conduct a review in accordance with Part 7AA of the Act because of the denial of procedural fairness and that the decision made on 9 August 2016 was liable to be set aside for jurisdictional error. Whilst I accept it was efficient and quick for the Authority to revoke its first invalid decision, there was no power to do so. The Authority had no power to make the second decision. The scheme of the Act is one under which where jurisdictional error has occurred it is for this Court to grant appropriate relief, not for the Authority to revoke its decision and purport to engage afresh in an exercise of power under Part 7AA of the Act.

It was on this basis that declaratory relief was granted as to the August 2016 decision being beyond power and an order made “in the nature of prohibition … requiring the Authority to determine the applicant’s review according to law”.

88    As in the AHT17 proceeding, in the CLV16 proceeding it is concluded that:

    the first decision made by the Authority on 9 August 2016 was no “decision” at all by reason of the jurisdictional error in failing to consider the submission made to it;

and that:

    section 473EA did not preclude the Authority from making its second decision on 11 August 2016.

As stated by Gaudron and Gummow JJ in Bhardwaj, a “decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”: [2002] HCA 11 at [51], (2002) 209 CLR at 614 to 615. Indeed, as their Honours further pointed out, where a purported decision involves jurisdictional error there is “no legal impediment” in the path of a decision-maker making a fresh decision as “the duty to make a decision remains unperformed”: [2002] HCA 11 at [53], (2002) 209 CLR at 616. Or, as Hayne J expressed it, “[n]othing in the Act requires (or permits) the conclusion that despite the jurisdictional error, some relevant legal consequence should be attributed to” such a decision: [2002] HCA 11 at [153], (2002) 209 CLR at 647. Section 473EA of the Migration Act does not “attribute” any “legal consequence” to the earlier decision made by the Authority in each proceeding in circumstances where the Authority has not conducted the “review” which it was required to undertake but which was not initially undertaken. The Appellant Minister in the CLV16 proceeding was correct in the submission that s 473EA(3) refers to “a decision on a review under this Part” and – until such a “review” is undertaken – s 473EA(3) “was not an impediment to the Authority’s power to make the Second Decision”.

89    To require, as concluded by the Federal Circuit Court Judge, that a “decision” of the Authority recognised as one which was undertaken without conducting the “review” the Authority was required to perform could only be set aside by a decision of a Court – and one not susceptible to being revisited by the Authority itself upon becoming aware of the necessity to do so – would be both contrary to the general principle that no legal or practical effect should be given to a decision vitiated by jurisdictional error and inconsistent with the streamlined process of review envisaged by Pt 7AA.

90    The reasoning of the Federal Circuit Court as to the absence of power vested in the Authority to itself revisit its earlier decision was erroneous.

CONCLUSIONS

91    In both proceedings it has been concluded that:

    it was open to the Authority to “re-open” the earlier “decisions” it had made in ignorance of the “submissions” that had been provided to the Authority; and

    no error has been exposed in the Authority considering the submissions made when making its second decision.

Section 473DA in Pt 7AA of the Migration Act severely constrains the procedural protections which the common law may otherwise have afforded a participant in the fast track review process undertaken by the Authority. But no construction of Pt 7AA should be countenanced which further constrains the ability of a visa applicant to make submissions as to the consequences flowing from such factual material as was before the delegate or the ability to seek to have the Authority exercise its power under s 473DD to consider “new information”.

92    Part 7AA certainly contains no express statutory constraint upon a party’s ability to participate in the review process by way of making submissions; nor is any such constraint necessarily to be implied. The ability at least to make a submission and the minimal (but nevertheless fundamentally important) procedural protection thereby provided, as opposed to a freedom to supplement the facts to be taken into account without there being “exceptional circumstances” (s 473DD), does not frustrate or impede the legislative objective sought to be achieved by Pt 7AA and the provision of a “limited form of review”. An opportunity to make submissions, together with an opportunity to “present material information”, it is to be recalled, forms part of a “principle [that] lies deep in the common law” and is an “indispensable requirement of justice”: cf. Allesch v Maunz [2000] HCA 40 at [35], (2000) 203 CLR 172 at 184 per Kirby J. A legislative constraint upon the ability to provide “information” should not be readily construed as extending to a constraint upon the separate procedural protection of the right to make “submissions”. The continuing ability to make “submissions” – as opposed to an ability to provide additional factual material other than in “exceptional circumstances” – provides a claimant with perhaps a final opportunity to make submissions as to why (for example) different factual findings should be made upon the existing material or why adverse findings as to credit made by a delegate were misplaced.

93    In the appeal in the CLV16 proceeding, it has been further concluded that the Federal Circuit Court was in error in declaring that the “purported decision of the Immigration Assessment Authority of 11 August 2016 was beyond the authority of the [Authority] and is invalid and of no effect”. That Court was also in error, it is respectfully concluded, in making an order that the Authority should proceed to now review CLV16’s application for a protection visa. The Minister’s appeal should thus be allowed. The Authority has already discharged that task when it made its second decision on 11 August 2016. The orders made by the Federal Circuit Court to the contrary should be set aside. It follows that the Authority’s second decision made on 11 August 2016 remains a valid decision and one affirming the decision of the delegate not to grant the protection visa.

94    In the AHT17 proceeding, it has been likewise concluded that no jurisdictional error has been exposed in the second decision made by the Authority and that that decision should not be set aside. The argument founded upon both decisions, but more particularly the second decision, being made without regard to relevant material has been rejected. It again follows that the second decision of the Authority made on 13 January 2017 remains a valid decision and one affirming the decision of the delegate not to grant a protection visa.

95    In both proceedings, the ultimate result is that the later decisions made by the Authority affirming the delegate’s decision to refuse a protection visa to Applicant AHT17 and Respondent CLV16 are decisions which have not been set aside. The Authority had power to make each of those later decisions. No reason has been exposed to justify setting aside either of the latter two decisions.

96    There is no reason in either proceeding why costs should not follow the event.

THE ORDERS OF THE COURT IN NSD 1021/2017 ARE:

1.    The appeal is allowed.

2.    The declaration and orders made by the Federal Circuit Court on 5 June 2017 are set aside.

3.    The proceeding is otherwise dismissed.

4.    The First Respondent is to pay the Appellant’s costs of the appeal and in the Court below.

5.    Any application for a certificate to be issued under s 6 of the Federal Proceedings (Costs) Act 1981 is to be made within 7 days.

THE ORDERS OF THE COURT IN NSD 1465/2017 ARE:

1.    The Application is dismissed.

2.    The Applicant is to pay the costs of the First Respondent.

Associate:

Dated:    25 May 2018