FEDERAL COURT OF AUSTRALIA

AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

THE APPLICATION

1    This proceeding concerns the statutory and procedural fairness entitlements of a referred visa applicant whose application is the subject of a disclosure certificate under s 473GB of the Migration Act 1958 (Cth).

2    Section 473GB in Pt 7AA of the Act provides:

473GB    Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

(a)    must notify the Authority in writing that this section applies in relation to the document or information; and

(b)    may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

(4)    If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)    The Minister may issue a written certificate for the purposes of subsection (1).

3    The applicant seeks an extension of time within which to appeal. Matters relevant to whether an extension of time should be granted include the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted and any relevant public interest considerations: Jackamarra v Krakouer (1998) 195 CLR 516 per Brennan CJ and McHugh J (at 521-522) and Kirby J (at 542-543). The Minister and the Court take no exception to the delay in filing the application, the delay being of one day only and having been explained. The argument advanced by the Minister was that the extension of time should be refused on the basis that the appeal lacked merit.

BACKGROUND

4    The applicant is a Sri Lankan citizen. He claimed to fear harm for reasons of Tamil ethnicity and his status as an illegal departee and a failed asylum seeker. The applicant also claimed to fear harm because he had witnessed a murder by the Tamil Makkal Viduthalai Pulikal in 2008 and because the Criminal Investigation Department (CID) wanted to question him about that in 2012.

5    A delegate for the Minister refused his application in 2016. He was subject to the fast track assessment process; therefore, the decision of the delegate was reviewed by the Immigration Assessment Authority (IAA) under Pt 7AA of the Act.

6    The IAA also rejected the claims of the applicant, largely on credibility grounds due to inconsistencies. The IAA found that the applicant was not suspected of holding connections with the Liberation Tigers of Tamil Eelam. The IAA found the applicant had never been involved in any political organisations. The IAA rejected applicant’s the account that he had been a witness to the murder or that he had been questioned by the CID. The IAA concluded that he did not face a well-founded fear of harm because of the murder and finally that he did not face a well-founded fear of harm simply for being a Tamil, an illegal departee or a failed asylum seeker. The IAA rejected any complementary protection claims. Importantly, in relation to the application before this Court, the IAA recorded that regard had been made to material referred by the Secretary under s 473CB of the Act.

IN THE FEDERAL CIRCUIT COURT

7    In the Federal Circuit Court (FCC) the applicant was granted leave to rely on an amended application. The only ground advanced was that “[t]he IAA had acted upon a certificate invalidly issued under s 473GB of the Act, or alternatively denied the applicant procedural fairness as defined in the Act”.

8    The applicant’s claims in the FCC were dismissed by the primary judge: AYF16 v Minister for Immigration & Anor [2017] FCCA 1487. His Honour accepted the Minister’s submission that the cases relied upon by the applicant did not apply to reviews conducted by the IAA. The primary judge held that the decisions in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 had no application to the current case. No reasons were given for that conclusion. The applicant challenges that conclusion in submissions in this Court.

9    The primary judge also held that the non-disclosure of the certificate, and the information the subject of the certificate, could not possibly give rise to any practical injustice.

THE APPEAL GROUND IF AN EXTENSION OF TIME WERE PERMITTED

10    Were this Court to permit an extension of time in which to appeal the sole ground of appeal that would be advanced is that:

[The primary judge] erred by failing to discern jurisdictional error in circumstances where the IAA had acted up [sic] a certificate invalidly issued under section 473GB of the [Act] or alternatively denied the [applicant] procedural fairness as defined in the Act.

11    The applicant contends that the primary judge’s finding (at [16]) that the certificate was valid on its face was erroneous. The Minister correctly concedes this error. The only reason given in the certificate for non-disclosure was that disclosure would be “contrary to the public interest because it is a Departmental working document”. That does not afford a valid reason for s 473GB: see MZAFZ per Beach J (at [35]-[38]).

ADJOURNMENT OF THE APPLICATION

12    Before proceeding with argument on the application, counsel appearing for the applicant sought to adjourn the application pending delivery of judgments by the High Court of Australia in two appeals which counsel suggested would resolve the same point of law: S135/2018 and S36/2018. The first concerns an appeal from BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 and the second concerns an appeal from SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055. As explained by counsel, it is contended that there has been a divergence in opinion amongst judges of this Court such that in one line of authority, following from Singh, it has been held that an obligation to accord procedural fairness extended to an obligation to disclose the existence of a certificate so that submissions could be made about it, whilst in another line it has been held that disclosure of the certificate is not required.

13    The cases before the High Court (BEG15 and SZMTA), however, do not relate to Pt 7AA of the Act, which is the Part relevant to this appeal. It may be accepted that their outcomes could quite possibly be influential to Pt 7AA interpretation. Counsel for the applicant contends that on the point he wishes to argue in this appeal, that an authority which deals expressly with Pt 7AA, Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 17, was wrongly decided, should await the outcome of the High Court’s judgments in BEG15 and SZMTA. He submits these judgments may be influential in assessing the correctness of the decision in BBS16.

14    We were not persuaded that we should adjourn the hearing of the application as requested. The appeal proceedings in the High Court deal with different parts of the Act. There is considered Full Court authority in this Court determining the point raised in the present case. The relevant provisions, examined in our reasons below, are sufficiently different to warrant either following or, if we were persuaded it was clearly wrong, departing from BBS16. Given the differences in the legislative scheme, it is in the public interest to decide this application on this Part of the Act without further delay.

THE APPLICANT’S ARGUMENTS

15    The applicant argues that s 473GB (as set out at [2]), as it applies to the IAA for the purposes of Pt 7AA, is indistinguishable from s 438, as it applies to the Tribunal under Pt 7, and that the Court should treat the rights and obligations under each part in the same manner. The two sections provide the same mechanism for exempting non-disclosure for an applicant. Both depend on the same statutory criteria for engagement of the section. The applicant argues that s 473GB, like s 438, is part of the codification of procedural fairness as can be seen from the comparison of the place of s 438 cf. 422B which is analogous to the places of s 437GB cf. 473DA. The effect of s 473GB is to diminish the obligation to disclose the material in reasons under s 473EA in the same way that s 438 diminishes the obligation to provide reasons under s 430 of the Act. For comparative purposes, s 438 of Pt 7 provides:

438    Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

16    The additional requirement in s 473DE(1) over and above s 424A is that the information was not before the Minister (see s 473DC(1)).

17    The applicant argues that the application of s 473GB is erroneous because the invalid certificate infects the statutory review process in a way which is materially indistinguishable from that considered in SZMTA. The true effect of the invalid certificate is contended to be that:

(a)    the failure of the assessor to conduct a hearing on the question of validity amounts to a failure of the assessor to conduct a hearing on the correct statutory approach – either the s 473GB approach or the s 473EA approach; and

(b)    the practical injustice consists of a failure to conduct a hearing on the question of whether the assessor should make its decision under the more beneficial approach of s 473EA.

18    A further contention of the applicant is that even if the issue is simply one of procedural fairness, rather than a miscarriage of the statutory process, the primary judge gave no reasons as to why the non-disclosure of either the certificate or the documents to which it related resulted in any practical injustice. The applicant argues that a failure to disclose the certificate itself had the practical injustice of preventing the applicant from making submissions that the certificate was invalid on its face. Consequently, s 473GB was applied to the prejudice of the applicant’s interest in obtaining a full hearing under the Act.

19    The applicant also says by way of supplementary submissions that:

(a)    the reasoning in BBS16 is not dispositive of the points raised in this appeal;

(b)    the reasoning in BBS16 was dealing principally with the Minister’s submissions on whether the material in the certificate/notification constituted “new information” for the purposes of the Act, different to the issues raised by the applicant about the effect of the invalid certificate on the IAA’s exercise of its statutory powers;

(c)    the key part of the reasons in BBS16 (at [98]-[99]) rest on the fact that s 473GB confers discretion on the part of the IAA to reveal the contents of a certificate to the applicant, a feature which is no different to the terms of s 438 which was considered by Beach J in MZAFZ (although not in Singh);

(d)    in BBS16, the observation as to the extraordinary powers conferred by s 473GB and the existence of a discretion on the part of the IAA (at [98]) rests on an assumption that those powers are being applied by the IAA validly engaged by a valid certified notification. That assumption cannot be made in this case. There is no consideration of the concomitant statutory consequences of an invalid application of the power in the “remarkable scheme”;

(e)    the reasoning in BBS16 does not address the impact of the IAA incorrectly applying s 473GB to stultify what would otherwise be the IAA’s statutory obligation to expose the review material (to which it must have regard under s 473DB(1)) in its reasons;

(f)    the reasoning in BBS16 does not address the impact of the IAA incorrectly applying s 473GB as recasting the obligation to have regard to “review material” (in s 473DB(1)) into a mere discretion to have regard to that material (emphasis placed by the applicant);

(g)    in BBS16, the finding that a certificate/notification is transmitted to the IAA pursuant to the general provisions of s 473CB ignores that there is a separate, specific and independent mechanism for the transmission of the certificate/notification under s 473GB(2) which sits in a different Division of Pt 7AA to the general provisions of s 473CB.

(h)    the decision of BBS16 is a Full Court decision of equal standing to the decision of Beach J in MZAFZ, where his Honour was sitting in the appellate jurisdiction of the Court. The doctrine stare decisis applies to decisions and orders based on their place in the appellate hierarchy, not the number of members constituting the Court. The Court in BBS16 did not make a finding that that MZAFZ was plainly wrong. The Full Court sought to distinguish MZAFZ in the circumstances. This Court should follow the reasoning in MZAFZ which, having regard to the submissions made orally, yields the result that the appeal should be upheld; and

(i)    for the reasons given orally and above, to the extent that the dicta in BBS16 does stand for the proposition that the reasoning of Beach J can have no application to Pt 7AA of the Act and an invalid certificate/notification under s 473GB, it is plainly wrong, does not deal with the complete effects of that invalidity on the stultification of the IAA’s functions and powers under Pt 7AA, and should not be followed.

20    The applicant further says, in any event, on the more limited approach of the Full Court of BEG15, there was practical injustice because the underlying documents on their full terms undermined the applicant’s case and his credibility. For example, the document previously subject to non-disclosure (which has now been revealed by the Minister), expressed the view of the Department that:

(a)    the place of birth in the ID document does not match the place of birth supplied in the entry interview and in the applicant’s protection visa application;

(b)    the applicant had stated he was under 17 when he arrived but the ID documents indicated he was 28;

(c)    the applicant originally claimed to be stateless but there were indications or an allegation that he may not be stateless;

(d)    the passport photo did not match the facial image on the “ISR”; and

(e)    information in an offshore application or associated application (for example, a relative) does not match the applicant’s story in his protection visa application.

CONSIDERATION

21    We should say at the outset in relation to this last point (in [20]) that we are not satisfied that the document which has now been disclosed does contain the “errors” to which the applicant points. Rather, the document on its face appears to be a draft pro-forma document which contains very little information at all about the applicant himself. More importantly, the factors to which the applicant has pointed in submissions, namely, identity, age and the like, were not at all factors on which his application was refused. The applicant made the point that the Minister could have led some evidence to explain the status of the identity form, but has not done so. This is true, but if BBS16, which is materially almost identical to this case, was correctly decided there was no need for the Minister to do so.

22    In BBS16, in relation to Pt 7AA, the Full Court (Kenny, Tracey and Griffiths JJ) noted that the first respondent’s challenge to the primary judge’s rejection of his case concerning the undisclosed s 473GB certificate and its related information was based on two suggested grounds:

(a)    it was a jurisdictional error per se for the IAA to act upon the certificate due to a denial of procedural fairness, citing Beach J’s reasons in [40] and [44] of MZAFZ; and

(b)    alternatively, notwithstanding s 473DA(1), the failure to disclose the certificate constituted a contravention of the statutory scheme in Pt 7AA relating to procedural fairness.

23    In BBS16, like this case, the Minister did not contest that the certificate was invalid. Its content and that of the relevant document appeared to be very similar to the present certificate and document. Nor, like this case, did the Minister seriously dispute that the Court should infer that the IAA had considered both the certificate and the related information. In the IAA’s reasons for decision before the Full Court in BBS16, the IAA (at [5]) stated it had “had regard to the material referred to the Secretary under s 473CB...”. It was common ground in BBS16 that the referred material must have included the certificate and the related information, notwithstanding that the material post-dated the delegate’s decision.

24    The Full Court in BBS16 expressly addressed Beach J’s decision in MZAFZ. The first issue was whether Beach J’s findings and observations regarding the consequences which flow from an invalid certificate in the context of a Pt 7 proceeding also apply in the context of an invalid certificate under Pt 7AA of the Act.

25    The Full Court rejected an argument that the certificate was “new information”, thus addressing the first limb of Beach J’s analysis in MZAFZ concerning whether it was jurisdictional error in of itself for the Tribunal to act on an invalid certificate in a Pt 7 proceeding. It said (at [90]-[97]):

90    The first respondent approached the issue of whether or not the first limb of Beach J’s analysis in MZAFZ applied to a s 473GB certification and/or notification on the basis that such material could be “new information” for the purposes of Pt 7AA and whether provisions such as ss 473DD and 473DE applied. In our view, that approach is incorrect. For the following reasons we consider that the issue is properly addressed by reference to ss 473GB and not by reference to the provisions in Pt 7AA which relate to “new information”.

91    First, generally (as is the case here) the s 473GB certificate/notification and related documents will be given to the IAA by the Secretary in discharging his or her duty under s 473CB(1)(c). Any such material would then become “review material” within the meaning of s 473CB. The IAA is obliged, subject to Pt 7AA as a whole, to consider that review material (s 473DB(1)) in discharging its statutory duty to review the decision which has been referred to it under s 473CA (s 473CC(1)).

92    Secondly, the terms of s 473DB strongly suggest that a s 473GB certificate/notification and related information are not “new information” for the purposes of Subdiv C of Div 3 of Pt 7AA. That is because that provision requires the IAA (subject to Pt 7AA as a whole) to review the referred decision by considering the review material provided to it under s 473CB (which, in the circumstances here, includes the certificate and related information) without accepting new information. We strongly doubt that the reference at the outset of s 473DB(1) to “Subject to this Part” was intended to bring in via a back door the possibility of a s 473GB certificate/notification and related information being “new information”. Rather, we consider that that phrase should be construed as referring to documents or information which are the subject of Subdiv C of Div 3.

93    Thirdly, the structure of Pt 7AA supports the view that a s 473GB certificate/notification and related information are not “new information”. As noted above, generally such material will be provided to the IAA by the Secretary acting under s 473CB(1)(c). That provision is in Div 2 of Pt 7AA. Division 3 deals with the conduct of a review by the IAA. It is notable that s 473DA (which is in Subdiv A of Div 3) 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 IAA. The provisions dealing with new information are all contained in Subdiv C of Div 3. Sections 473GA and 473GB are not contained in that Subdivision. They are located in Div 6, a separate division, which deals with disclosure of information.

94    Section 473GB applies in its terms to a document or information of a kind identified in s 473GB(1). That involves two categories:

(a)    where the Minister has certified that disclosure would form the basis of a claim for public interest immunity; and

(b)    where the matter contained in the document or the information was given to the Minister or a Departmental officer in confidence.

95    Where the Secretary gives such a document or information to the IAA in compliance with the Act the Secretary must notify the IAA that s 473GB applies (s 473GB(2)). The Secretary also has a discretion to give the IAA any written advice that the Secretary thinks relevant about the significance of the document or information. Sub-section 473GB(3) is important. It deals with the circumstances where the IAA is given a document or information and is notified (by the Secretary) that s 473GB applies. In those circumstances the IAA has two separate discretionary powers to consider, namely:

(a)    whether to have regard to any matter contained in the document or to the information; and

(b)    if it thinks it appropriate, having regard to any advice given to the Secretary under s 473GB(2)(b), to disclose to the referred applicant any matter contained in the document or the information.

96    Fourthly, having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).

97    The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

(Emphasis added.)

26    The Full Court then focussed on the different nature of the regime under Pt 7AA compared with Pt 7 of the Act, saying:

98    As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.

(Emphasis added.)

27    The Court then concluded that the first limb of Beach J’s analysis in MZAFZ, concerning the consequences which flow from an invalid certificate in the context of a Pt 7 proceeding, had no application to a Pt 7AA review.

28    Their Honours then turned to the procedural fairness suggested ground:

100    For similar reasons, Beach J’s second limb has no application. That is because a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.

(Emphasis added.)

29    It is well established that intermediate appeal courts should not depart from judgments of other such courts in the absence of a compelling reason to do so or unless the earlier decision is “plainly wrong”: see, for example, Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148 per Kenny, Griffiths and Bromwich JJ (at [35] and the cases therein cited). It would follow that unless we were so satisfied, or if we concluded it was simply a situation which different minds may reasonably differ, we should not depart from BBS16.

30    The applicant submits that this Court should not follow BBS16 on the basis that it is plainly wrong. The applicant’s argument is that the inability of any applicant to make a submission that an invalid process was going to be applied to him or her under the Act is, in of itself, a denial of procedural fairness. Because the Minister is not obliged to disclose the existence of a certificate, the Minister can, counsel for the applicant contends, “conceal unlawful activity by his invalidly issuing a certificate”. In support of this argument, the applicant draws on the observations in Singh (although these arguments were held in BBS16 to be inapplicable to Pt 7AA). Singh concerned the construction of s 357A(1) appearing in Pt 5 of the Act which provides:

This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(Emphasis added.)

31    In contrast, s 473DA(1) in Pt 7AA provides:

This Division, together with sections 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.

(Emphasis added.)

32    The specific language in s 473DA compared with s 357A(1) was the very submission in BBS16 which the Full Court noted (at [64]-[65]):

64    The Minister accepted that the certificate was not a valid certificate under s 473GB, applying this aspect of MZAFZ. But irrespective of whether the certificate was relied upon by the IAA, the Minister submitted that there was no jurisdictional error because the primary judge correctly distinguished this case from both MZAFZ and Singh in the light of the particular and different statutory regime in Pt 7AA, with particular emphasis on the significance of s473DA and the “much more limited obligation of disclosure under s 473DE(1)”.

65    The Minister submitted that the effect of s 473DA(1) and the absence in that provision of the words “in relation to the matters they deal with” (which appear in s 422B) meant that s 473DA(1), together with ss 437GA and 473GB, are an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA.

33    In the passages extracted above, the Full Court in BBS16 (at [97], [98] and [100]) made clear that a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate and related information are exhaustively stated in s 473GB(3). It followed therefore that the entitlements depended upon how the IAA exercised its discretionary powers under that provision.

34    We cannot conclude, on the basis of any argument advanced for the applicant, that the reasoning of the Full Court in relation to that provision is plainly wrong.

35    In that regard, the regime to which Singh was directed was quite different. It depended upon the proposition that s 357A was not an impediment to Mr Singh’s argument that general law notions of procedural fairness might require disclosure of the certificate: Singh (at [40] and [41]).

36    The potential difficulties for a referred applicant were not underestimated by the Court in BBS16, where it was noted (at [98]) that the Minister had correctly conceded that Pt 7AA is truly “a remarkable scheme”, particularly in relation to s 473GB certificates and the severe limitations imposed upon disclosure to the referred applicant of any such certificate and the related material, no matter how prejudicial or favourable the material may be. But there was a clear basis on which the Full Court in BBS16 distinguished the regime under Pt 7AA from the regime for Pt 7 considered in MZAFZ.

37    As to the applicant’s argument in this proceeding to the effect that a certificate is “new information” within the meaning of s 473DC(1), that argument was considered exhaustively in BBS16. This submission was considered carefully by the Full Court in the portion of its reasons at [91]-[97] (extracted above). We see no reason to depart from the reasoning there set out.

38    Further, in relation to the applicant’s supplementary submissions (set out at [19]), we do not accept the correctness of the second point as the analysis above reveals. As to the fourth point, the certificate in BBS16 was also invalid and the reasoning proceeded on that basis. As to each of the remaining points, while in some instances they purport to distinguish BBS16, each point is in substance a complaint as to the correctness of BBS16 as is made clear by the applicant’s ultimate contention. As indicated in these reasons, we are not satisfied that BBS16 is plainly wrong. While the outcome maybe truly “remarkable” that is a product of the legislative scheme, not the reasoning in BBS16.

39    Those observations and conclusions are also true of some additional arguments raised by the applicant in supplementary submissions to the effect that:

    The Minister makes the error of focusing on the relevance of the underlying documents to the ultimate merits of the decision on review, rather than the effect of the invalid certificate on the statutory processes adopted by the IAA and incorrectly focuses on whether the applicant had the opportunity to make submissions about the presence of an invalid certificate and ask that the IAA apply a correct statutory process to the review to accord him a fair hearing within the scope of the Act (which necessarily includes a proper application of s 473GB) (emphasis placed by the applicant).

    As Beach J noted in MZAFZ, the Court, in any event, cannot speculate on the IAA’s use of the underlying material because the wrongful application of s 473GB means that the IAA must have concealed any impact of the documents or its reasoning.

    There is no absurd result and there is no undermining of the statutory process for an IAA to reject an invalid certificate/notification purportedly given under s 473GB of the Act (emphasis placed by the applicant).

    The certificate/notification “enlivened” nothing under s 473GB. It was not in truth a certificate or notification for the purposes of s 473GB – it was invalid and a nullity.

    The giving of a purported certificate/notification, which alters the nature of the statutory provisions to be applied to the review, is clearly a matter which the IAA would consider relevant – a fortiori which may be relevant (emphasis placed by the applicant).

    Clearly the certificate and notification were information not available to the delegate (they did not exist until after the decision), the information was clearly relevant. Accordingly, the certificate and notification were new information. There is no evidence that the Tribunal ever turned its mind to whether the applicant should be given an opportunity to comment orally or in writing on the material under s 473DC(3). Likewise, the wrongful acceptance of the invalid certificate by the IAA would necessarily mean that it wrongly applied s 473DE(3)(b).

40    As to the penultimate points raised in the applicant’s supplementary submissions (set out at [19]), we have set out our view of the decision in BBS16. We do not consider these reply arguments, in substance, do more than challenge the process of analysis in BBS16. As we have indicated that we consider BBS16 is correctly decided (or at least we cannot say that it was plainly wrong), nothing raised in these supplementary arguments gives reason to depart from that view. The arguments have essentially already been raised and rejected in BBS16 or depend for their cogency on propositions there rejected.

CONCLUSION

41    The merits of the applicant’s proposed appeal being based upon BBS16 being incorrectly decided have insufficient prospects of success to grant an extension of time. The application must be dismissed with costs.

Associate:

Dated:    14 August 2018