FEDERAL COURT OF AUSTRALIA

DST18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    The appeal be allowed.

3.    Order 1 of the Federal Circuit and Family Court of Australia (Division 2) made on 14 December 2023 be set aside and in lieu thereof order that the separate question be answered “yes”.

4.    The first respondent pay the costs of the application for leave to appeal and the appeal.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In this matter the Court is hearing both an application for leave to appeal, and, if the application is granted, an appeal, against a decision of a judge of the Federal Circuit and Family Court of Australia (FCCA) in DST18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1182. In that case the primary judge considered the following separate question in a proceeding filed by the Minister on 17 June 2022:

Question: Following the issuing of a writ of mandamus to the second respondent (Authority) on 18 August 2020 to require it to determine according to law its review of the fast track reviewable decision made by a delegate of the first respondent (Minister) in respect of the applicant (Delegate’s Decision), was material that came into the possession or control of the Secretary of the Department after the Delegate’s Decision was referred to the Authority by the Minister under section 473CA of the Migration Act 1958 (Cth) on 14 November 2017 capable of meeting the description in section 473CB(1)(c) of “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”?

2    The answer of the primary judge was: No.

BACKGROUND

3    Before turning to the issues before this Court it is helpful to have regard to the background to the present application. Relevant facts were summarised by the primary judge, and I understand the following summary to be uncontroversial:

[6]    The applicant is a citizen of Afghanistan. He entered Australia as an unauthorised maritime arrival on 10 July 2013.

[7]    On 9 November 2017, a delegate of the Minister made a decision, under s. 65(1)(b) of the Act, to refuse the grant of a protection visa to the applicant (‘Delegate’s Decision’).

[8]    On 14 November 2017, the Delegate’s Decision was referred to the Authority pursuant to s. 473CA of the Act.

[9]    On 22 June 2018, the Authority affirmed the Delegate’s Decision (‘Authority’s First Decision’).

[10]    On 18 July 2018, the applicant filed an application in this Court seeking judicial review of the Authority’s First Decision. That application, which was amended on 22 May 2020, was heard on 3 July 2020 and judgment was delivered on 18 August 2020. The Court ordered that:

1.    A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority made on 22 June 2018 into this Court for the purpose of quashing it.

2.    A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

[11]    On 13 October 2020, the Authority again affirmed the Delegate’s Decision. It is this decision which the applicant seeks to have this Court review.

(footnotes omitted)

4    The primary judge set out s 473CA and s 473CB of the Migration Act 1958 (Cth) in full. These provisions read:

473CA Referral of fast track reviewable decisions

The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

473CB Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)     refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

5    His Honour observed:

[18]    The conduct of a review by the Authority is governed by Division 3 of Part 7AA. It commences with s. 473DA(1), which provides that the Division, together with ss. 473GA and 473GB, are an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. The effect of this provision is that the common law hearing rule is excluded in entirety in relation to the conduct of a review.

[19]    Section 473DB(1) provides that a review is to be conducted by the Authority having regard to the review material given under s. 473CB, and without accepting or requesting new information or inviting a referred applicant to an interview. However, the Authority has a discretion, which must be exercised reasonably, to get ‘new information’ – that is, information that was not before the Minister when a decision was made under s. 65 and which the Authority considers may be relevant: s. 473DC(1). If the Authority obtains new information, it is prohibited from considering it unless it is satisfied of the criteria in s. 473DD.

[20]    The Authority must provide reasons for its decision: s. 473EA(1), and notify the referred applicant of its decision. After a decision is made, s. 473EA(4) of the Act provides that:

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.

(footnotes omitted)

6    His Honour described the issue for determination as follows:

[21]    In relation to whether s. 473CB is ‘re-exercised’ following a remittal, both parties accept, on the facts of this particular case, that the duty in s. 473CB was required to be ‘re-exercised’.

[22]    I acknowledge that the Minister’s position is that s. 473CB need only be re-exercised following a remittal if the documents have been returned to the Department under s. 473EA(4) of the Act (whereas the applicant’s position is that the duty must be re-exercised regardless). That area of disagreement is a question for another day (and another matter). It is unnecessary to resolve it in this case. I only acknowledge this to make clear the extent to which the Minister accepted the requirement to ‘re-exercise’.

[23]    In light of the remarks of Edelman J in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (set out at [31] below), I accept that the duty in s. 473CB was required to be ‘re-exercised’.

[24]    Where the real dispute lies, however, is what is meant by ‘referred’ in s. 473CB(1)(c).

(footnotes omitted, emphasis added)

7    His Honour referred in some detail to the litigation history in respect of applications brought by CNY17, including comments by Jagot J in CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 (CNY17 (Jagot J)), a case determined following remittal of the proceedings after the earlier decision of the High Court in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17). In particular, the primary judge noted at [35], inter alia, the contention of the applicant/appellant in CNY17 (Jagot J) that there was a reasonable apprehension of bias on the part of the Authority, on account of the Secretary providing to the Authority the judgment in CNY17 (which contained summaries of irrelevant and prejudicial information). In CNY17 (Jagot J), her Honour relevantly observed:

[36]    Further, I consider that the fair-minded lay observer would be taken to understand that where a court makes an order setting aside a decision as unlawful, it is necessary that the decision-maker, on making the decision again, should comply with the law as determined by the court. This is a fundamental aspect of the rule of law (see, for example, Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 70, cited in SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 at [17]). It follows that the fair-minded lay observer would be taken to understand that, in the ordinary course, it would be proper for the Secretary to consider that a judgment identifying illegality in a previous decision by the IAA about a person was relevant to the review in order to ensure that the IAA, in making the decision again, did not make the same error.

…

[39]    Further again, while the hypothesised fair-minded lay observer “is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system” and thus is not posited to reason like a lawyer (Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 at [21]), that hypothesised observer is to be attributed in the present case with knowledge of the key aspects of the statutory scheme (including, by operation of s 473DB(1), that the IAA must conduct its review “by considering the review material” provided under s 473CB) and the key aspects of the circumstances within which the second IAA decision was to be made. Those key aspects of the circumstances include that the IAA had to make the second IAA decision as a result of the High Court’s decision in CNY17 HCA.

[40]     The fair-minded lay observer would be attributed with knowledge of the fact that the effect of the orders of the High Court in CNY17 HCA was that the appellant’s application had to be referred again by the Minister to the IAA for review under s 473CA of the Act. Further, because s 473EA(4)(a) of the Act provides that after the IAA makes a written statement of its decision under s 473EA(1) of the Act, it must “return to the Secretary any document that the Secretary has provided in relation to the review”, it was also necessary that the Secretary exercise anew the duty under s 473CB(1) of the Act.

[41]     As discussed, the fair-minded lay observer would be attributed with knowledge that while it was not necessary for the Secretary to give the IAA a copy of CNY17 HCA, the Secretary might do so on the basis that the IAA should be given a copy of any judgment potentially relevant to the IAA performing its functions. This is so even if, as in the present case, the judgment concerned what could not be done with respect to the appellant without vitiating any decision of the IAA on the ground of a reasonable apprehension of bias.

8    The primary judge reiterated at [40] that the question before the Court was one of statutory construction of s 473CB(1)(c), in particular the phrase “at the time the decision is referred to the Authority”. His Honour opined that the text of s 473CB(1)(c) was clear, in that:

[42]    Section 473CB(1)(c) of the Act contains an express temporal restriction that the Secretary must give to the Authority “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”. That is, s. 473CB(1)(c) of the Act is limited to relevant documents in the possession and control of the Department at the time of the ‘referral’ to the Authority. The parties appear to accept, and agree, as much. The point of disagreement is what is meant by ‘referral’.

[43]    The applicant contends that ‘referral’ also means ‘remittal’. I acknowledge the applicant’s submissions about the way in which ‘remit’ and ‘refer’ have been used interchangeably, and have been interpreted by the courts. However, those cases are of little assistance. They refer to the use of the word in a judicial context, not in a statutory context.

[44]    The reference to ‘referral’ must, in my view, be read as the date of the s. 473CA referral. The word ‘referral’ cannot be substituted with ‘remittal’. As the Minister submitted, ‘referral’ is a term that is utilised throughout Part 7AA and should only be understood as the referral under s. 473CA of the Act.

[45]    I also do not consider that the applicant’s construction finds any additional support in the words of s. 473CB(2). If a matter is remitted, the Secretary ‘re-exercises’ the duty in s. 473CB(1). It is not the case that the duty was never performed. The duty was performed, and (assumedly) performed as soon as reasonably practicable after the referral.

[46]    I also consider that construing the word ‘referral’ in s. 473CB(1)(c) as meaning the s. 473CA referral is consistent with the legislative regime and ‘fair’. Construing the provision in the way contended does not mean that the Authority will not have or be able to obtain ‘up-to-date country information’. New information can be considered by the Authority under s. 473DD, and the Authority can get this new information…

(emphasis in original, footnotes omitted)

9    In respect of the operation of s 473DD his Honour continued:

[46]    … In this regard, the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) provided that:

903.     While section 473DB provides that the IAA is to conduct limited review by considering the review material provided to it by the Minister, there may be rare instances where on reviewing the review material, the IAA identifies the need to obtain new information that may be relevant to the fast track decision under review. For example, this could include a situation in which the IAA is alerted to a sudden and highly significant change of conditions in the referred applicant`s country of origin since the decision under section 65 was made. Accordingly, new subsection 473DC(1) would have the effect of providing the IAA with the discretionary ability to get that new information.

...

907.     New section 473DD provides that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:

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

...

915.     Examples of exceptional circumstances that may justify the consideration of new information may include, but are not limited to:

a material change in the referred applicant`s circumstances which occurred after the Minister made the section 65 decision including a factual event, such as significant and rapidly deteriorating conditions emerging in the referred applicant`s country of claimed protection, for example, a change in the political or security landscape; or ...

10    His Honour continued:

[47]    In my view, Parliament expressly contemplated situations where there were changed circumstances and considered it was for the Authority, and not the Secretary, to seek out further information. Where there has been a change of circumstances (between the referral and a decision or following a remittal), it is a matter for the Authority to obtain the new information. As is well accepted, the Authority’s discretion to obtain new information is subject to principles of reasonableness. Whilst reasonableness is fact dependent, it is hard to imagine a situation where there has been a change in circumstances/conditions of a country and the Authority would act reasonably in not obtaining new information. Where a considerable period of time has passed since the referral, the Authority ought to consider whether updated information is needed.

11    His Honour noted that he was not persuaded by the applicant’s submissions before that Court, and further that the remarks of Jagot J did not assist with the issue before him.

12    His Honour concluded:

[50]    For these reasons, I consider that the phrase ‘at the time the decision is referred to the Authority’ is to be construed as at the time of the s. 473CA referral.

13    His Honour noted further however that another question arose, namely:

[52]    … whether, upon remittal, the matter is required to be ‘referred’ again under s. 473CA of the Act. The applicant submits, on the authority of CNY17-Fed Court, that it must, having particular regard to [40]-[41] of Justice Jagot’s reasoning. It follows, in the applicant’s submission, that the effect of the remittal was that another referral under s. 473CA had to be made and therefore the ‘time the decision is referred’ means the time that the decision is referred again after the remittal.

14    His Honour continued:

[53]    I note that the question I am asked in this matter specifically states that the referral “under section 473CA of the Migration Act 1958 (Cth)” was made “on 14 November 2017”. The parties had an agreed fact that the referral under s. 473CA was on 14 November 2017. There was no suggestion that the matter was ‘re-referred’, until the applicant’s reply submissions where CNY17-Fed Court was raised.

[54]    Despite the parties not seeking to reframe the question (or taking objection to the argument which the applicant raised), in order to address the matter completely, I have considered this argument.

[55]    On the materials that are before me in the Court Book, the referral date was 14 November 2017. This ‘referral date’ remained the same, even after the matter was remitted by the Court, as demonstrated in the evidence before the Court…

(footnotes omitted)

15    His Honour found at [56] that there was nothing to indicate that the matter was required to be “referred again” by the Minister under s 473CA following remittal to the Authority by a court. His Honour found that the order of the Court itself could not be considered to have been the referral, because:

    a referral is an act of the executive and not the judiciary;

    the relevant orders of the Federal Circuit Court of Australia (FCC) remitting the matter to the Authority caused a writ of certiorari to issue quashing the Authority’s decision, and further caused a writ of mandamus to issue requiring the Authority to “redetermine according to law the review referred to it”. This did not suggest that a new referral had been made as a result of the remittal, or that the Minister was required to make another referral to the Authority; and

    if a new referral were to be made, the remitting orders had the effect of setting aside the Authority’s decision made under s 473CC. The Authority was required to conduct a review of that referral (s 473CC(1)) and a new referral would not exempt the Authority from having to conduct the review of the referral made on 14 November 2017.

APPLICATION FOR LEAVE TO APPEAL AND DRAFT NOTICE OF APPEAL

16    In the application for leave to appeal filed on 12 January 2024 the appellant relied on the following grounds:

1.    Leave should be granted as:

a.    the Judgment is affected by error on the grounds set out in the applicant’s proposed notice of appeal;

b.     the case raises a significant issue of principle regarding the statutory construction of s 473CB of the Migration Act 1958 (Cth) (Migration Act) which is likely to affect the outcome of other matters that come before the Courts, including those matters considering the legality of a second (or subsequent) decision of the second respondent (Authority) made after the first (or prior) decision of the Authority is quashed by a Court; and

c.     the Judgment did not address important submissions made by the parties on the relevant question of statutory construction, including the role to be played by s 33 of the Acts Interpretation Act 1901 (Cth) and the statutory basis for the obligation upon the Secretary to re-perform the duty in s 473CB of the Migration Act following the quashing of a decision of the Authority by a Court.

17    A proposed notice of appeal was annexed to the affidavit of Mr Farid Varess affirmed 15 January 2024. The proposed notice set out one ground of appeal, as follows:

1.    The Federal Circuit and Family Court of Australia (Division 2) erred in failing to find that, on the proper construction of s 473CB of the Migration Act 1958 (Cth) (Migration Act) and/or s 33(1) of the Acts Interpretation Act 1901 (Cth), following the making of the orders of the (then) Federal Circuit Court of Australia on 18 August 2020 in DST18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1813, material that had come into the possession or control of the Secretary of the Department after the initial referral to the second respondent (Authority) by the first respondent (Minister) on 14 November 2017 was capable of being material that the Secretary was obliged to give the Authority under s 473CB(l)(c) of the Migration Act in respect of the fast track reviewable decision made in respect of the appellant.

18    The appellant sought orders that the appeal be allowed with costs, that the orders made by the primary judge be set aside, and that the separate question originally before the primary judge be answered “yes”.

SUBMISSIONS OF THE PARTIES IN THE APPEAL

19    In summary the appellant submitted:

    When re-exercising the task under s 473CB of the Act, the Secretary must also consider material that came into the Secretary’s possession or control after the time of the initial referral.

    The Secretary failed to re-perform the s 473CB duty, and the error was material as it is realistic that had the duty been re-performed, the Secretary would have provided country information to the Authority that came into the Secretary’s possession or control after 14 November 2017, and such information could have resulted in a different outcome for the applicant before the Authority.

    Leave to appeal should be granted because the primary judge failed to address key submissions made by either side.

    Part 7AA of the Act requires the Minister to refer fast track reviewable decisions to the Authority as soon as reasonably practicable after such a decision is made (s 473CA), and in performing its review the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick and fair. The Authority may get new information, but has no duty to get, request or accept any new information, and the Authority’s ability to consider that new information is limited: ss 473DC and 473DD.

    In the event of remittal by a court to the Authority, the Secretary must again provide review material to the Authority.

    Section 473CB seeks to ensure that the Authority is provided with all documents that are relevant when the Authority commences its task to allow it to conduct an efficient and fair review.

    The decisions in the CNY17 litigation and DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148 support the proposition that the Authority must, after remittal by a Court, again provide review material to the Authority. Implicit in the reasoning of Nettle and Gordon JJ (at [106]), and Edelman J (at [143]), in CNY17 was that that, following the remittal, the Secretary would again have to provide review material to the Authority, and in doing so would not simply provide the same review material that had been provided previously. Similarly following remittal, Jagot J in the Federal Court in CNY17 (Jagot J) at [40]-[41] found that the Secretary was obliged to exercise anew the duty under s 473CB(1).

    In re-performing the duty under ss 473CB(1)(c) and 473CB(1)(d) following remittal, the Secretary is accordingly required to have regard to material that came into the Secretary’s possession after the initial s 473CA referral.

    The primary judge failed to engage with the Minister’s submissions concerning s 33(1) Acts Interpretation Act 1901 (Cth) (AI Act) and relevant steps required by s 473CB. In any event upon remittal, because the Act requires the Authority to have returned the review material to the Secretary, there is a need for review material to again be provided to the Authority.

    A statutory provision is to be interpreted by reference to its text while, at the same time, having regard to its context and purpose. Where a remittal to the Authority occurs, the word “referred” in the phrase “the decision is referred to the Authority” in ss 473CB(1)(c), (d)(iv) and (2) may be read to refer to the remittal. Courts have used the words “refer” and “remit” interchangeably, describing the relevant power as “the power to remit”.

    The phrase “the decision is referred to the Authority” in ss 473CB(1)(c), (d)(iv) and (2) can be read so as to capture not only the initial referral under s 473CA, but also a later referral, such as remittal or referral back to the Authority by a court. There is good reason to construe the words in this manner. Doing so ensures that the Secretary is obliged, following a remittal, to again provide review material to the Authority, including material coming into the Secretary’s possession or control up until the time of the remittal. The absurd result that, following a remittal, the Authority would be unable to perform its review for a lack of review material is thereby avoided.

20    The Minister submitted, in summary:

    The words in parentheses in s 473CB(1)(c), “at the time the decision is referred to the Authority”, take their meaning from the chapeau to s 473CB(1), which refers to the act performed by the Minister pursuant to s 473CA. The same may be said for the word “referred” in s 473CB(2).

    That s 473CB(2) contemplates performance of the duty in s 473CB(1) “at the same time as” referral of the fast track reviewable decision suggests that s 473CB(1)(c) is referring to the time at which the duty in s 473CA has been performed, not the time at which a court remits a referral to the Authority for redetermination.

    Section 473CB(1)(c) refers to an administrative act performed by a member of the executive government – namely the Minister.

    The effect of the orders made by the FCC on 18 August 2020 was to remit not the decision of the delegate under s 65 of the Act, but rather the performance of the duty by the Authority occasioned by the referral of that decision by the Minister under s 473CA.

    The construction of s 473CB(1)(v) advanced by the appellant would require a court to radically alter the meaning of the section.

    Authority is against that construction, including EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174; 280 FCR 381 at [56], CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; 269 FCR 367 at [105] and BAK18 v Minister for Home Affairs [2020] FCA 83; 274 FCR 268 at [65].

    Provisions including ss 473BA, 473BB, 473DB, 473DA(2), 473DC(2), 473DD(b), 473DE(1) and (3), 473DF(1) and (4), 473EB(1), 473EC(2), 473GB(3)-(4), the note to 473HA(1), and 473HG(1)-(5) highlight the important place that referral of a fast track reviewable decision by the Minister under s 473CA takes in the scheme for decision-making by the Authority under Part 7AA of the Act. None of these provisions suggests that any step must be taken by the Authority upon remittal by a Court.

    It was common ground before the primary judge that, on remittal, the Secretary was required to perform again the duty in s 473CB(1), but that that had not been done. Whether the source of the obligation to re-perform that duty is implied from the terms of s 473EA(4) or to be found in s 33(1) of the AI Act is of no consequence for these proceedings. Whatever the source of that obligation may be, the plain words of s 473CB are unaffected.

    Performance of the duty in s 473CB(1) on remittal in the present case would have involved provision by the Secretary of:

(a)    the delegate’s statement of reasons for their decision dated 9 November 2017 (s 473CB(1)(a));

(b)    material provided by the applicant to the delegate prior to the making of their decision (s 473CB(1)(b));

(c)    all other material in the Secretary’s possession or control as at 14 November 2017 which they considered to be relevant to the review; and

(d)    the applicant’s most up-to-date contact details provided to the Minister (at any time up to the time that the Authority makes its decision on remittal) (ss 473CB(1)(d)(i)-(iii), (v)), or, if no such details have been given to the Minister, those details that the Minister reasonably believed to be correct as at 14 November 2017 (s 473CB(1)(d)(iv)).

    Where the Minister has validly made a referral of a fast track reviewable decision under s 473CA, and the referral itself has not been set aside by a court, there would be no occasion for the duty in s 473CA to be re-performed by the Minister in circumstances where Part 7AA of the Act makes no provision for a referral to be returned to the Minister following the completion of a review.

    The Authority is armed with powers in ss 473DC and 473DD to obtain and consider new information.

    DNU20 is of no assistance because, unlike s 473CB(1)(c), the reach of ss 473CB(1)(d)(i)-(iii) and (v) is not delimited by reference to the time of the referral.

    The decision in CNY17 (Jagot J) is not authority for the proposition that, on remittal, material that has come into the possession or control of the Secretary after the time of referral under s 473CA is capable of meeting the description in s 473CB(1)(c). That was not an issue that was in contest in CNY17 (Jagot J), and her Honour made no statement to that effect. In any event, the High Court in the CNY17 made no order quashing the referral under s 473CA, and it followed that Jagot J’s comments to the contrary were incorrect.

    Leave to appeal should be refused, and the putative appeal dismissed.

CONSIDERATION

21    Principles governing the grant or refusal of leave to appeal from an interlocutory judgment were explained in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; 33 FCR 397 at 398-399 (as recently reiterated in Storry v Parkyn [2024] FCAFC 67 at [20] and Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34 at [142]). The first question is whether, in all the circumstances, the interlocutory judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The second question is whether substantial injustice would result if leave were refused, supposing the interlocutory judgment to be wrong.

22    It was common ground before the primary judge that:

    certain items of country information post-dating the delegate’s decision came into the possession of the Secretary after the date of the referral by the Minister on 14 November 2017;

    the Secretary did not re-exercise the power in s 473CB after the orders were made by the FCC on 18 August 2020; and

    those items of country information were not provided by the Secretary to the Authority.

23    The appellant made detailed submissions concerning the decision at first instance. In those submissions the appellant raised questions as to the correctness of the primary decision, in particular concerning the application of decisions of both the High Court of Australia and the Federal Court in the CNY17 litigation as to whether “referral” also meant “remittal” for the purposes of s 473CB(1)(c). The appellant also raised questions as to whether:

    that provision required the Secretary to provide the Authority with material coming into the Secretary’s possession or control after the initial referral by the Minister, and

    whether s 33 of the AI Act applied, and was relevant, in circumstances where s 33 was raised in oral submissions before the primary judge, but the primary judge made only minimal reference to the section.

24    These are serious issues in respect of procedures required to be followed under Part 7AA of the Act. As the Full Court of this Court has previously observed, a contravention of the obligation in s 473CB could lead to the conclusion that the Authority’s task had miscarried in a way which affected its jurisdiction: EMS18 at [47]-[49], EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 at [35]. There is a likelihood that the appellant in the present case would experience substantial injustice if leave to appeal were refused, assuming the primary decision to be wrong.

25    I am satisfied that the application for leave to appeal should be allowed.

26    However, I am also satisfied, once the merits of the sole ground of appeal are considered, that the appeal should be dismissed. I have formed this view for the following reasons.

Text of s 473CB(1)(c)

27    First, I am not persuaded that the primary judge erred in respect of the proper construction of the text of s 473CB(1)(c), and the obligation of the Secretary required by that provision. Section 473CB(1) relevantly provides that:

(1)     The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

…

(c)    any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(emphasis added)

28    The “referral” in s 473CB(1)(c) is that described in s 473CA, which provides:

The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

(emphasis added)

29    The referral in s 473CB(1) is a referral, by the Minister – not a remittal by a Court – as soon as reasonably practicable after the fast track reviewable decision has been made. A “fast track reviewable decision” is defined by s 473BB as:

fast track reviewable decision means:

(a)    a fast track decision in relation to a fast track review applicant; or

(b)    a fast track decision determined under section 473BC;

but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

Note: Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants ; all others are known as fast track review applicants. The highlighted terms are defined in subsection 5(1).

30    It is not in dispute that s 473CB(1) applies to fast track reviewable decisions, of which the appellant’s application is one.

31    It did not appear to be an issue in dispute before the primary judge that documents which had earlier been provided by the Secretary to the Authority may have been returned to the Secretary by the Authority following its original decision pursuant to s 473EA(4) (primary judgment at [22]). Indeed, s 473EA(4) of the Act specifically provides:

(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.

32    However, his Honour was satisfied that, following the quashing of the original decision of the Authority concerning the appellant, the duty in s 473CB was required to be exercised by the Secretary in respect of material in the Secretary’s possession or control and considered relevant at the time the decision is referred to the Authority, ie on 14 November 2017 (at [23], [45]). In so finding, his Honour relied on the following comments of Edelman J in CNY17:

[143]    … Since the Authority will have returned all materials to the Secretary, the new hearing will require the Secretary to re-exercise the task of considering which of the material that is in the Secretary's possession or control is relevant to the review.

(footnotes omitted)

33    Material in the Secretary’s possession or control at the time the decision is referred to the Authority appears on the plain meaning of those words to mean just that material, existing at the time the decision is referred to the Authority. It does not include material which came into the possession or control of the Secretary after the decision was referred to the Authority by the Minister under s 473CA of the Act.

34    Finally I am fortified in my conclusion that the remittal to the Authority did not also constitute a remittal to the Minister, not only by the absence of a specific order remitting the proceedings to the Minister, but also by the terms of the Act. In particular I note s 473CC(2)(b) of the Act, which appears to contemplate remittal to the Minister only by the Authority (rather than the Court) in accordance with such directions or recommendations of the Authority, and then only in the limited circumstances permitted by regulation (and reg 4.43 of the Migration Regulations 1994 (Cth)).

CNY17 litigation

35    Second, I am not persuaded that the decisions of the High Court in CNY17 or that of Jagot J in CNY17 (Jagot J) are dispositive of the appeal in the appellant’s favour.

36    The proceedings in CNY17 concerned the question whether, in providing to the Authority material the Secretary initially considered relevant to the review, but which was ultimately found to be, inter alia, irrelevant and prejudicial, there was jurisdictional error on the part of the Secretary, which then invalidated the decision of the Authority.

37    I am unable to identify any observation of Kiefel CJ or Gageler J in CNY17 which is of assistance in resolving the present matter. The appellant’s submissions highlighted observations of Nettle and Gordon JJ [106], and Edelman J at [143].

38    Unsurprisingly, the judgment of Nettle and Gordon JJ focussed on the question identified by their Honours at [50], namely whether a hypothetical fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the Authority might not bring an impartial mind to the decision before it, as a result of the irrelevant and prejudicial information given to it by the Secretary. At [51] their Honours concluded that the answer to that question was “yes”, and further at [52] that other grounds of appeal before the High Court concerning an opportunity for the appellant to be heard, the lawfulness of the actions of the Secretary, and jurisdictional error, did not arise once this conclusion was reached. Their Honours gave particular attention to s 479CB(1)(c) of the Act. Their Honours also noted:

[64]    Second, s 473DA(2) provides that nothing in Pt 7AA "requires the [IAA] to give to a referred applicant any material that was before the Minister when the Minister made the [original] decision". Indeed, subject to the rest of Pt 7AA, the IAA must review the decision "by considering the review material provided to [it] under section 473CB", without accepting or requesting new information, and without interviewing the applicant.

[65]    The IAA does not have a duty to accept new information in any circumstances. Nevertheless, the IAA may "get" any documents or information which were not before the Minister which the IAA considers to be relevant, and may invite a person to give new information. Such "new information" gained under s 473DC must not be considered by the IAA unless it is satisfied that there are exceptional circumstances which justify its consideration, and the applicant satisfies the IAA that the new information could not have been provided to the Minister before the original decision was made, or is credible personal information which was not previously known but which may have affected consideration of the applicant's claims.

[66]    If the new information is considered by the IAA under s 473DD and would be the reason, or part of the reason, for affirming a decision, the IAA must give the applicant particulars of the new information. The IAA must also explain to the applicant why that new information is relevant to the review and invite the applicant to give comments on the new information, either in writing or at an interview. This obligation does not apply to "non-disclosable information", information which is about a class of persons rather than the applicant themselves, or information which is prescribed by regulations.

(emphasis added, footnotes omitted)

39    Their Honours discussed in depth whether a decision-maker would need to invite an applicant to comment on adverse information to counteract an apprehension of bias, and concluded at [102]-[103] that such an invitation would be consistent with the statutory scheme. In respect of other appeal grounds, their Honours concluded:

[104]    The Minister accepted that where apprehended bias is shown, it would be appropriate to grant relief under s 75(v) of the Constitution, subject to relief under s 75(v) being discretionary. In the circumstances of this appeal, where the Minister accepted that if apprehended bias was demonstrated, relief would be granted, the role (if any) of materiality in questions of jurisdictional error, and its precise metes and bounds, does not arise.

[105]    Moreover, given the conclusions reached on the question of apprehended bias in this appeal, it is unnecessary to address the other appeal grounds concerning an opportunity for the appellant to be heard, the lawfulness of the actions of the Secretary of the Department, and jurisdictional error on the part of the IAA resulting from the Secretary's allegedly unlawful actions. Indeed, given the conclusions on the question of apprehended bias, the process of the IAA in making the decision was not, and might not have appeared to a fair-minded lay observer to be, a fair process. It is, for that reason alone, inappropriate and unnecessary to consider and address the legality of an outcome of that flawed process.

[106]    The Minister contended that quashing the decision of the IAA and remitting the matter back to it would put the IAA in an "impossible bind", because the IAA would once again be exposed to the prejudicial material. Any further decision it made would, therefore, be infected by the same apprehended bias found in this appeal. That submission should not be accepted. Section 473EA(4) of the Migration Act requires the IAA to return to the Secretary those documents provided by the Secretary, after the IAA's review is complete. Moreover, the matter would be remitted to a differently constituted IAA. As a result, the "impossible bind" spoken of by the Minister would not arise. The relief would not be futile.

40    Similarly, Edelman J focussed in his Honour’s reasons on the questions of apprehended bias and jurisdictional error raised by the appellant in that case as direct reasons for impugning the decision of the Authority. For example, his Honour noted:

[109]    … The anterior issue is that s 473CB(1)(c) of the Migration Act requires, as a prima facie precondition for the exercise of any jurisdiction by the Authority, the formation of an opinion, on reasonable grounds, by the Secretary that the material provided to the Authority was relevant to the review. No reasonable grounds existed for such an opinion to have been formed by the Secretary. However, s 473CB does not contemplate that jurisdictional error will exist, invalidating the decision of the Authority, unless the failure by the Secretary is material. The Minister accepted that if the appellant established a reasonable apprehension of bias then materiality would be satisfied. For this reason, despite the anterior issue being resolved in favour of the appellant, the issue of apprehended bias still arises on this appeal, although in an indirect way.

[110]    As Nettle and Gordon JJ explain, the Federal Circuit Court and a majority of the Full Court concluded that there was no apprehension of bias. I agree with Nettle and Gordon JJ that this conclusion was in error. The Secretary had provided the Authority with 48 pages of irrelevant and prejudicial material involving prejudicial opinion, innuendo and tacit suggestion, on the basis that the Secretary considered that the material was relevant to the review. A fair-minded lay observer would consider that the prejudice arising from any consideration of this irrelevant material could be substantial. Importantly, the Authority said, in a letter to the appellant, that it would make a decision on the basis of the information provided by the Secretary. The Authority acknowledged in its reasons that it had considered all of the material provided to it.

(emphasis added)

41    In respect of the duty of the Secretary under s 473CB(1), Edelman J observed:

[116]    A prima facie precondition for the Authority's jurisdiction to conduct a review of a fast track reviewable decision was compliance by the Secretary with the duty under s 473CB(1). Although s 473CB(1)(c) is expressed in positive terms, concerning the material that the Secretary must provide, contrary to the submission of the Minister on this appeal it also carries an implied prohibition against the provision of any other material which the Secretary could not reasonably consider to be relevant to the review. The duty of the Secretary to assess relevance might involve difficult or nuanced decisions, particularly since the Secretary, or their delegate, might not be aware of the issues that could be considered by the Authority. However, subject to judicial restraint in any review of a decision of this nature, the decision of the Secretary that material is considered relevant must be formed reasonably on the material before the Secretary.

(emphasis added, footnotes omitted)

42    At [142], Edelman J concluded that:

    a fair-minded lay observer would apprehend that the material provided by the Secretary to the Authority, together with the basis upon which it was apparently provided, might cause the Authority to form adverse views of the appellant's character, and

    consciously or subconsciously, the Authority might be influenced by those adverse views, either directly in the course of dismissing each of the appellant's claims to be a person in respect of whom Australia had protection obligations, or indirectly when reaching conclusions based upon the credibility of the appellant.

43    His Honour then observed:

[143]    The appeal should be allowed and orders made as proposed by Nettle and Gordon JJ. The matter should be remitted to a differently constituted Authority for a new hearing. Since the Authority will have returned all materials to the Secretary, the new hearing will require the Secretary to re-exercise the task of considering which of the material that is in the Secretary's possession or control is relevant to the review.

(footnotes omitted, emphasis added)

44    In my view there is nothing in [106] of the reasons of Nettle and Gordon JJ, or [143] of the reasons of Edelman J, which assist the appellant in his appeal in this case. Considering those paragraphs, and the duty imposed on the Secretary by s 473CB(1)(c), there is a difference between:

    on the one hand, the Secretary providing to the Authority material in his or her possession or control, considered at the time the decision was referred to the Authority by the Minister to be relevant to the review by the Authority, but which is subsequently determined by a Court to be irrelevant and unfairly prejudicial such that, on re-exercise of the duty by the Secretary under s 473CB(1)(c), the Secretary does not provide that irrelevant and unfairly prejudicial material (as identified by the Court) to a re-constituted Authority, and

    on the other hand, the Secretary reviewing “new” material that has come into his or her possession or control, after the decision was referred to the Authority by the Minister, determining whether that “new” material is relevant to the review, and being required (as submitted by the appellant) to provide that new material to a reconstituted Authority when giving to that Authority “material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review.”

45    Further, I am not persuaded that, in CNY17 (Jagot J), her Honour found that, on remittal, material which has come into the possession or control of the Secretary after the time of referral under s 473CA was material which met the description in s 473CB(1)(c) and was required to be provided to a reconstituted Authority.

46    Relevantly, the orders of the High Court in CNY17 were:

(a)     the appeal be allowed with costs; and

(b)     orders 1 and 2 of the Federal Circuit Court of Australia dated 8 November 2017 be set aside and, in their place, order that:

(i)     the decision of the Immigration Assessment Authority dated 12 May 2017 be quashed;

(ii)    the matter be remitted to the Immigration Assessment Authority differently constituted; and

(iii)     the first respondent pay the applicant’s costs.

47    It appears that following the decision of the High Court in CNY17, the Authority wrote to the appellant in that case to the following effect:

The IAA has received the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act) (the review material). This includes a copy of the High Court decision CNY17 and Minister for Immigration and Border Protection and Anor [2019] HCA 50. This decision contains references to, and general descriptions of, 48 pages of information that the Secretary provided the IAA in 2017 (see [33]-[37], [81], [111] and [119]-[124]). Those documents have not been provided to the IAA with the review material in the present matter and are not before the IAA.

This information does not appear on its face to be relevant to the review. However, if you wish to do so you are invited to comment on the information referred to in the Court’s decision.

48    The Authority later wrote again to the appellant in that case, stating:

To avoid any doubt, the IAA does not consider the information identified in the High Court decision (and our letter of 15 January 2020) to be relevant and does not intend to consider it. The IAA does not consider that the information would be the reason or part of the reason for affirming the decision under review.

Having regard to the High Court’s observations at [101]-[103], [124] and [141], the IAA is providing opportunity to comment on this approach. Please provide any response, including confirming if you do not wish to comment further, by 24 January 2020.

49    The reconstituted Authority again affirmed the decision of the Minister in that case to refuse to grant CNY17 a protection visa. The appellant unsuccessfully sought judicial review of the decision of the reconstituted Authority by the FCC. The appellant appealed to this Court on the following ground:

The primary judge erred in finding that the [IAA] statement that it would not consider the prejudicial but irrelevant material that was before it was sufficient to assuage the risk that a reasonable observer might apprehend that the IAA’s decision might be affected by subconscious bias in respect of that material.

50    Justice Jagot found:

[27]    I am not satisfied that, in all of the relevant circumstances, the fair-minded lay observer might reasonably apprehend that the IAA might not have brought an impartial and unprejudiced mind to the resolution of the application for review of the Minister’s decision leading to the second IAA decision.

51    Materially for present purposes, her Honour said:

[34]    I agree with the appellant that it is not an answer to the allegation of apprehended bias that the fair-minded lay observer can be taken to have understood that members of the IAA would be familiar with judgments concerning the validity of the IAA’s decisions. In the present case, the fair-minded lay observer also would have understood that such familiarity would not have informed the IAA that the person the subject of the second IAA decision was the same person as the subject of the High Court’s decision in CNY17 HCA. The fair-minded lay observer would appreciate that the Secretary giving a copy of CNY17 HCA to the differently constituted IAA for the specific purpose of the making of the second IAA decision under s 473CB(1)(c) of the Act is not the same as the IAA receiving that judgment from the High Court in its institutional capacity as a party to the proceeding. This is because the act of the Secretary giving the differently constituted IAA the High Court judgment was a result of the Secretary considering the judgment relevant to the review and the effect of this was to disclose to the IAA that the person subject of the second IAA decision was the same person as the subject of the High Court’s judgment. For this reason the reference in the IAA’s decision to the fact that the High Court’s judgment was before the IAA “in any event” is not determinative. It cannot be inferred that, but for the Secretary having provided the High Court’s judgment to the IAA in connection with the review, the IAA would have known that the decision related to the appellant or that the Secretary considered the judgment to be relevant to the review.

35     This said, I also accept that the fair-minded lay observer would understand from the relevant circumstances that although the Secretary gave a copy of CNY17 HCA to the differently constituted IAA for the purpose of the making of the second IAA decision, the Secretary did not give a copy of the primary material which had caused the first IAA decision to be vitiated. The IAA said this in both its communications to the appellant and its reasons for decision.

36     Further, I consider that the fair-minded lay observer would be taken to understand that where a court makes an order setting aside a decision as unlawful, it is necessary that the decision-maker, on making the decision again, should comply with the law as determined by the court. This is a fundamental aspect of the rule of law (see, for example, Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 70, cited in SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 at [17]). It follows that the fair-minded lay observer would be taken to understand that, in the ordinary course, it would be proper for the Secretary to consider that a judgment identifying illegality in a previous decision by the IAA about a person was relevant to the review in order to ensure that the IAA, in making the decision again, did not make the same error.

(emphasis added)

52    The appellant currently before this Court relied in particular on [40] of her Honour’s reasons. Materially her Honour said:

39.    Further again, while the hypothesised fair-minded lay observer “is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system” and thus is not posited to reason like a lawyer (Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 at [21]), that hypothesised observer is to be attributed in the present case with knowledge of the key aspects of the statutory scheme (including, by operation of s 473DB(1), that the IAA must conduct its review “by considering the review material” provided under s 473CB) and the key aspects of the circumstances within which the second IAA decision was to be made. Those key aspects of the circumstances include that the IAA had to make the second IAA decision as a result of the High Court’s decision in CNY17 HCA.

40     The fair-minded lay observer would be attributed with knowledge of the fact that the effect of the orders of the High Court in CNY17 HCA was that the appellant’s application had to be referred again by the Minister to the IAA for review under s 473CA of the Act. Further, because s 473EA(4)(a) of the Act provides that after the IAA makes a written statement of its decision under s 473EA(1) of the Act, it must “return to the Secretary any document that the Secretary has provided in relation to the review”, it was also necessary that the Secretary exercise anew the duty under s 473CB(1) of the Act.

41     As discussed, the fair-minded lay observer would be attributed with knowledge that while it was not necessary for the Secretary to give the IAA a copy of CNY17 HCA, the Secretary might do so on the basis that the IAA should be given a copy of any judgment potentially relevant to the IAA performing its functions. This is so even if, as in the present case, the judgment concerned what could not be done with respect to the appellant without vitiating any decision of the IAA on the ground of a reasonable apprehension of bias.

(emphasis added)

53    The appellant currently before the Court submitted that these observations of Jagot J supported his case. I do not agree. As the Minister has pointed out, the High Court in CNY17 made no orders that the appellants’ application in that case was to be “referred again” by the Minister to the Authority. Rather, the effect of the orders of the High Court were that, because the decision of the Authority in that case was quashed, the Authority was required to redetermine the matter, and in the course of that redetermination the Secretary was required to, inter alia, provide material to the Authority considered by the Secretary at the time the decision was referred to the Authority to be relevant to the review.

54    I further note the observation of the primary judge in this case at [49] that even if his Honour were to accept the correctness of the statement of Jagot J that the effect of the orders of the High Court in CNY17 was that the matter was to be “referred again”:

… it does not change the answer to the question: s. 473CB is to be considered at the time of the referral. The referral is an executive act, not an act of the judiciary.

55    I agree.

56    As I noted earlier, the earlier orders of the FCC in DST18 v Minister for Immigration [2020] FCCA 1813; 354 FLR 459, being orders of Driver J, were:

(1)     A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority made on 22 June 2018 into this Court for the purpose of quashing it.

(2)     A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

57    Like in the CNY17 litigation, there was no “remittal” by the Court to the Minister such as to require him or her to “re-refer” the fast track reviewable decision referable to DST18 to the Authority and provide “updated” information to the Authority under the rubric of s 473CB(1)(c).

DNU20

58    The appellant submitted that the decision of the Full Court in DNU20 was of assistance to his case, on the basis that the Minister there conceded that the Secretary had failed to comply with s 473CB(1)(d) by failing to provide the IAA with details of DNU20’s residential address: at [28].

59    I do not agree that this case assists the appellant. DNU20 is plainly of assistance to the construction of s 473CB(1)(d), not s 473CB(1)(c). As the Minister submitted in the present case – correctly in my view – the reach of ss 473CB(1)(d)(i)-(iii) and (iv) is not delimited by reference to the time of the referral, in contrast to the limitations to s 473CB(1)(c).

60    I am not persuaded that the specific language in s 473CB(1)(d) – as interpreted in DNU20 – aids in the construction of s 473CB(1)(c) as submitted by the appellant.

Section 473DD of the Act

61    As the primary judge observed at [46], the power of the Authority to obtain updated information, including updated country information, is given by s 473DD of the Act, which provides:

473DD 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.

62    The primary judge noted the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), which explained that s 473DD of the Act prohibited the Authority considering any new information unless the Authority was satisfied that there were exceptional circumstances to justify the consideration of that new information. His Honour continued at [47] that:

…Parliament expressly contemplated situations where there were changed circumstances and considered it was for the Authority, and not the Secretary, to seek out further information. Where there has been a change of circumstances (between the referral and a decision or following a remittal), it is a matter for the Authority to obtain the new information. As is well accepted, the Authority’s discretion to obtain new information is subject to principles of reasonableness…

63    I further note the submission of the Minister that the Minister’s suggested construction of s 473DC(1)(c) gives ss 473DC and 473DD work to do, whereas the applicant’s suggested construction of that provision does not. It follows that it is for the Authority, on remittal, to receive the information provided by the Secretary at the time of referral, and, as the primary judge explained, obtain new information subject to principles of reasonableness as explained by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17]. Such new material could plainly encompass new country information which the Authority could seek to obtain to update information provided to it by the Secretary pursuant to s 473CB(1)(c) of the Act.

64    I agree.

Section 33 of the AI Act

65    Section 33(1) of the AI Act relevantly provides:

(1)    Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

66    Examination of the written submissions filed in proceedings SYG2533/2020 before the primary judge indicates that s 33(1) was not raised in writing by either party prior to the hearing. Section 33(1) was, however, the subject of oral submissions before the primary judge, and first raised by Counsel for the Minister. In particular, Counsel referred to the decision of the High Court of Australia in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430, including the discussion in that case of s 33(1), and continued:

And that provision was the subject of some discussion in Makasa, which is dealing, of course, with the cancellation powers, and it was found not to apply there. But the principles are useful. If your Honour turns up paragraph 45. You will see referring to that section, their Honours say it’s:

… enacted against the background of “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise”.

Referring to Kurtovic in footnote 22:

The section counters that doctrine not by itself conferring any power – or here perhaps a duty – but by requiring that a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time. The section does not alter the incidents of the power spelt out in the terms of the provision conferring the power. The words “as occasion requires” acknowledge the need for the repository of the power to comply with the incidents of the power spelt out in the terms of the provision. They are not words of additional limitation.

So when one thinks about that in the context of CB, one has, there being no contrary indication, a potential range of situations in which the occasion may require the re- exercise of the power, and they extend beyond remittal. They extend to, for example, one of the examples given by our friends, that is, say the IAA without any question of remittal just loses the documents. Is the IAA to be disabled from performing its function in those circumstances? Of course not. And the reason the secretary has power to re-exercise the duty imposed by CB is because section 33(1) makes it clear that that is how the provision is to be construed.

So your Honour is starting from a provision which needs to be construed in a certain way. It is to be – and this avoids any question of implication. It avoids any question of straining the words of the statute. By force of section 33(1), the court is to approach CB on the basis that it can be re-exercised from time to time. Now, one can imagine other circumstances. The secretary may, for example, realise, having given – thought they were entirely performing the duty, having given the documents, that they’ve omitted something. That will be a further case in which the occasion required the re-exercise of the duty, but it will be limited, of course, by the timing constraint which your Honour has already noted, the words in brackets. And there is - - -

(transcript of proceedings in the Federal Circuit and Family Court of Australia (Division 2) No. SYG 2553 of 2020 10 November 2022 pp 27-28)

67    Counsel for the Minister before the primary judge later continued:

So I’ve already answered part of your Honour’s question, I think, which is that CB has to be read with section 33(1) of the Acts Interpretation Act. So that tells you that you start from the position that, as a matter of construction, when you look at CB, you’re to read it as a duty or power or function that can be exercised from time to time as the occasion requires…

(transcript of proceedings in the Federal Circuit and Family Court of Australia (Division 2) No. SYG 2553 of 2020 10 November 2022 p 36 ll 25-29)

68    Counsel for the appellant in the Court below submitted that the first answer to the Minister’s reliance on s 33(1) was that:

… It runs into the problem that this court is bound by Jagot Js judgment, and for that reason alone, the Minister’s submissions must be rejected. The second point is let it be assumed Jagot Js decision is not binding. The statutory scheme, in particular section 473CA and CB, those two sections work hand in glove...

(transcript of proceedings in the Federal Circuit and Family Court of Australia (Division 2) No. SYG 2553 of 2020 10 November 2022 p 47 ll 7-11)

69    Counsel for the appellant later continued:

MR MOSTAFA: But the state of mind – the way those two sections work together is supposed to be one that is formed at the time of the referral under section 473CA. The sections go together as a whole. You can’t split the two of them the way the Minister is seeking to. For instance, as another example, the Minister said, “Well, what would happen if the secretary omitted to give something? Section 33(1) would come and cure this.” We say that’s true to some extent. If your Honour looks at subsection 473CB(1)(b), part of what must be included in the review material is material that had been provided by the referred applicant to, in essence, the delegate, the Minister’s delegate.

Now, if the secretary bundled up the review material and sent it to the authority but failed to include the submissions that the applicant had made to the Minister’s delegate, the secretary would under section 33(1) be allowed or equal to or ..... later to remedy that. That’s fine. But when one says, “Okay. We want to apply section 33(1) to subsection (c),” that analysis breaks down because it does not make sense to speak of repeating a performance of the section 473CB(1)(c) duty when that section requires the formation of a state of mind at a time that according to the Minister now is in the past. In order for that subsection – the duty under that subsection to be capable of reperformance, there needs to be a contemporaneous referral to the authority, and for that reason, if your Honour decides not to follow Jagot Js judgment, nevertheless, if section 33(1) is to operate in the present case, its effect must be that section 473CA is a duty that, too, must be reperformed. Happily, that conclusion is entirely consistent with what her Honour said.

…

MR MOSTAFA: The last point is this. If all of what I’ve said so far were not accepted, then our submission is that your Honour would not apply section 33(1) in the way the Minister submits because doing so would alter the nature of the duty the secretary is supposed to perform.

(transcript of proceedings in the Federal Circuit and Family Court of Australia (Division 2) No. SYG 2553 of 2020 10 November 2022 pp 47-48)

70    Although the primary judge found in favour of the Minister his Honour’s decision was made on grounds not referable to s 33(1).

71    In the appeal the appellant was critical of the approach of the primary judge in respect of s 33(1) of the AI Act, materially submitting:

22.    In written submissions below, the Minister contended that the obligation to re-perform the s 473CB duty arose by implication from s 473EA(4): AB 88 [20] fn 8. In oral submissions, the Minister resiled from that position, and instead relied upon s 33(1) of the AIA: AB 143.15-21. Though oral submissions were made on s 33(1), the FCC mentioned it only once in passing: eg, AB 132.34-134.26, 142.25-32, 143.15-21, 149.34-155.15; cf J [23] fn 8. The FCC’s failures to deal with those submissions or the question of how the obligation to re-perform the s 473CB duty arose from the Act were significant errors by the FCC.

23.     If s 33(1) applies in the present case, it does so in a manner that leads to the applicant succeeding…

72    The appellant submitted further however that there were difficulties applying s 33(1) to s 473CB(1)(c) (as well as s 473CB(1)(d)(iv)), because s 473CB(1)(c) required the formation of a state of mind at a particular point in time. The appellant submitted further that if s 33(1) operated as the Minister contended, that would undermine the Part 7AA Scheme, because:

[26]    …Rather than commencing its review following a remittal with up to date review material, the IAA would be provided with out of date material under s 473CB(1)(c) (and potentially out of date contact details under s 473CB(1)(d)).

73    The appellant’s submissions in the appeal continued:

[27]    In these circumstances, if s 33(1) is to apply following a remittal to the IAA, it would apply to s 473CA. That section, unlike s 473CB, does not require the formation of any state of mind, much less a state of mind tethered to a particular time. It simply requires that the Minister refer the FTRD to the IAA as soon as reasonably practicable after the FTRD is made. It may be accepted that the re-performance of that duty upon a remittal may mean that the re-referral may occur a long time after the FTRD was made. That is not fatal to the application of s 33(1) – though if it were, the words “at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority” in s 473CB(2) would equally be fatal to the application of s 33(1) to s 473CB.

[28]    Upon remittal, because the Act requires the IAA to have returned the review material to the Secretary, there is a need for review material to again be provided to the IAA. For the reasons given above at [24]-[26], s 33(1) cannot apply to s 473CB to resolve this problem…

[29]    If, however, the Court concludes that s 33(1) does not apply to s 473CA or s 473CB following a remittal to the IAA, then the obligation on the Secretary to re-perform the s 473CB duty must arise in a different way…

74    It is difficult to identify the rationale of the appellant’s complaint concerning the absence of referral by the primary judge to s 33(1) of the AI Act. At first instance, the appellant submitted, in particular, that the primary judge would not apply s 33(1) in the way the Minister submitted, and that s 33(1) could not apply to s 473CB to resolve the problem before the Court. It appears that the primary judge concluded that s 33(1) was not relevant to consideration of the separate question, and to that extent agreed with the position of the appellant. Ultimately, the primary judge found in favour of the Minister on other grounds.

75    It is apparent from the submissions in the appeal that the Minister resiled from his earlier position as to the relevance of s 33(1).

76    In my view the absence of discussion of s 33(1) of the AI Act by the primary judge was not material to his Honour’s decision. I do not consider that absence of discussion grounds for appeal in circumstances where the appellant submitted before the primary judge that s 33(1) should not be read with s 473CB(1)(c) of the Act.

77    In any event, I am not persuaded that the effect of Court orders remitting a decision of the Authority back to the Authority for redetermination, would, pursuant to s 33(1) of the AI Act, trigger earlier obligations of the Minister under other sections of the Act (including s 473CA), or inclusion of “new” material provided by the Secretary to the Authority.

78    Section 33(1) of the AI Act may facilitate redetermination of a fast track reviewable decision by the Authority under s 473CC of the Act, for the reasons explained by the High Court in Makasa, namely to provide certainty against the background of “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise” (at [45]).

79    Plainly, following remittal, a process will be required to permit effective redetermination of the Authority’s decision. Steps in that process may require the aid of s 33(1) of the AI Act. Such steps do not include re-referral of a decision by the Minister under s 473CA of the Act where a valid referral by the Minister has already taken place (in the present case, on 14 November 2017). Relevant steps will include the provision of material by the Secretary to the Authority in order for the Authority to make an informed decision, because the Authority presumably would have returned that material to the Secretary pursuant to s 473EA(4) after the Authority’s first decision. However, as I have already explained, the Secretary is required on redetermination by the Authority to provide to the Authority only such material as falls squarely within the terms of s 473CB(1)(c) at the time of the referral by the Minister.

80    To the extent that s 33(1) of the AI Act is at all relevant in this case, in my view it does not assist the appellant.

CONCLUSION

81    I am not persuaded that the primary judge erred in failing to find, on the proper construction of s 473CB of the Act and/or s 33(1) of the AI Act, and following the making of the orders of the FCC on 18 August 2020 in DST18 v Minister for Immigration [2020] FCCA 1813; 354 FLR 459, that material that had come into the possession or control of the Secretary of the Department after the initial referral to the Authority by the Minister on 14 November 2017 was capable of being material that the Secretary was obliged to give the Authority under s 473CB(l)(c) of the Act in respect of the fast track reviewable decision made in respect of the appellant.

82    The appeal should be dismissed, with costs.

Associate:

Dated:    20 August 2024

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

83    This application for leave to appeal, and the appeal if leave is granted, concerns the proper construction of ss 473CA and 473CB of the Migration Act 1958 (Cth).

84    The applicant is a citizen of Afghanistan who entered Australia as an unauthorised maritime arrival on 10 July 2013. On 24 January 2017, the applicant applied for a protection visa. That application was refused by a delegate of the Minister on 9 November 2017. The delegate’s decision was a “fast track reviewable decision” as defined in s 473BB and was, in the sense described below, subject to “automatic” review by the Immigration Assessment Authority.

85    On 14 November 2017, in performance of his duty under s 473CA, the Minister referred the delegate’s decision to the Authority for review under Part 7AA. In performance of his duty under s 473CB, the Secretary of the Department gave the “review material” to the Authority. On 22 June 2018, in performance of its duty under s 473CC(1), the Authority made a decision under s 473CC(2)(a) to affirm the delegate’s decision and made a written statement setting out the decision and the reasons for the decision in accordance with s 473EA(1).

86    On 18 August 2020, a judge of the Federal Circuit Court of Australia (FCC) quashed the Authority’s decision: DST18 v Minister for Immigration [2020] FCCA 1813. The Court made orders which included:

1.    A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority made on 22 June 2018 into this Court for the purpose of quashing it.

2.     A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.

87    On 13 October 2020, in performance of its duty under s 473CC(1), the Authority made a second decision under s 473CC(2)(a), again affirming the delegate’s decision. Neither the duty in s 473CA nor the duty in s 473CB was re-performed before the Authority made that decision.

88    The applicant commenced proceedings in the FCC on 11 November 2020 challenging the Authority’s second decision. By ground 1, the applicant alleged that the Authority’s decision was affected by jurisdictional error because:

(a)    between the making of the FCC’s orders on 18 August 2020 and the Authority’s decision on 13 October 2020, the Secretary did not re-exercise the power in s 473CB to give review material to the Authority; and

(b)    had the Secretary re-exercised that power on or after 13 October 2020, there is a realistic chance that he would have provided to the Authority country information that came into his possession after the referral on 14 November 2017, but before 18 August 2020.

89    It was common ground before the primary judge that:

    certain items of country information post-dating the delegate’s “fast track reviewable decision” of 9 November 2017 came into the possession of the Secretary after the referral of that decision by the Minister to the Authority on 14 November 2017; and

    the Secretary did not re-exercise the power in s 473CB after the orders made by the FCC on 18 August 2020 and the more recent items of country information were not provided by the Secretary to the Authority.

90    On 17 June 2022, the Minister, with the support of the applicant, made an application to what had by this time become the Federal Circuit and Family Court of Australia (Division 2) (FCCA) for a separate question to be decided in advance of all other issues arising in the proceedings. The question was:

Following the issuing of a writ of mandamus to the second respondent (Authority) on 18 August 2020 to require it to determine according to law its review of the fast track reviewable decision made by a delegate of the first respondent (Minister) in respect of the applicant (Delegate’s Decision), was material that came into the possession or control of the Secretary of the Department after the Delegate’s Decision was referred to the Authority by the Minister under section 473CA of the Migration Act 1958 (Cth) on 14 November 2017 capable of meeting the description in section 473CB(1)(c) of “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”?

91    On 14 December 2023 the FCCA answered “no” to the separate question: DST18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1182 (hereafter “J”).

92    The applicant applies to this Court for leave to appeal. The application for leave to appeal and the appeal were heard together. For the reasons which follow, leave to appeal should be granted and the appeal allowed.

THE LEGISLATIVE SCHEME

93    Part 7AA confers jurisdiction on the Authority to review a “fast track reviewable decision” referred to it by the Minister under s 473CA, being a decision to refuse to grant a protection visa to the “referred applicant” at the conclusion of a primary decision-making process which commences with the applicant applying for a protection visa and which is governed by the Code of Procedure for dealing with visa applications in Subdiv AB of Div 3 of Pt 2 of the Act.

94    Part 7AA has been described as providing for the Authority to engage in “automatic” merits review by the imposition of three cumulative duties: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [2] and [4] (Kiefel CJ and Gageler J); ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [79] (Gordon J); DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 273 CLR 177 at [9] (Kiefel CJ, Gageler, Gordon and Steward JJ). It is “automatic” in the sense that it is not initiated by the unsuccessful visa applicant. Rather, as explained in CNY17 at [4]:

(a)    The Minister has a duty imposed by s 473CA to refer a “fast track reviewable decision” (being one to refuse to grant a protection visa) to the Authority as soon as reasonably practicable after the decision is made.

(b)    The Secretary has a duty to give specified “review material” to the Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority: s 473CB.

(c)    The Authority then has a duty imposed by s 473CC(1) to “review” the referred decision.

95    It is the performance of these three statutory duties which is central to the issues which arise on this application. It is appropriate to set out the terms of them in full.

96    The first duty is found in s 473CA, which provides:

473CA    Referral of fast track reviewable decisions

The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

97    The second duty is found in s 473CB, which provides:

473CB    Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

98    It should be emphasised that:

(a)    the second duty (the Secretary’s duty to give review material to the Authority) is intended to be performed at the same time as, or as soon as reasonably practicable after, the first duty (the Minister’s duty to refer a fast track reviewable decision to the Authority) is performed: s 473CB(2); and

(b)    the Minister’s referral to the Authority, and the Secretary’s giving of review material to the Authority, is central to the structure of the statutory scheme, including the Authority’s duty to review in which, as will be seen, it must consider exercising its power to obtain new information.

99    The third duty is found in s 473CC(1). Section 473CC provides:

473CC    Review of decision

(1)    The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

(2)    The Immigration Assessment Authority may:

(a)    affirm the fast track reviewable decision; or

(b)    remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

100    The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [21]; CNY17 at [7].

101    Subject to other provisions in Part 7AA, the Authority must “review a decision referred to it under section 473CA by considering the review material provided [by the Secretary] under section 473CB” and do so: “(a) without accepting or requesting new information; and (b) without interviewing the referred applicant”: s 473DB(1).

102    Other provisions in Part 7AA confer power on the Authority to “get”, and in specified circumstances to consider, new information, including at an interview. New information is information which was not before the Minister when making the referred decision and which the Authority considers may be relevant: s 473DC and 473DD.

103    Certain new information must be given to a referred applicant, the Authority must explain to the referred applicant why that new information is relevant to the review, and the applicant must be invited to give comments on such new information in writing or at an interview: s 473DE.

104    The powers of the Authority to get and consider new information are conferred on the implied conditions that those powers must be: (a) considered; and (b) exercised within the bounds of reasonableness: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [15]; ABT17 at [3].

105    The nature of the jurisdiction exercised by the Authority when conducting its review is settled. As was stated in Plaintiff M174 at [17] and repeated in ABT17 at [5]:

[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority … is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

106    After it has conducted its review and made a decision under s 473CC, the Authority must make a written statement of reasons and return material to the Secretary. Section 473EA provides:

473EA    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).

SUMMARY OF THE APPLICANT’S CASE

107    Reduced to its essentials, the applicant submitted that either:

(a)    s 33(1) of the Acts Interpretation Act 1901 (Cth) (AI Act) applies to require s 473CA to be construed as requiring the duty in s 473CA to be re-performed: upon remittal, the Minister must re-refer the decision to the Authority under s 473CA which in turn then obliges the Secretary to re-perform the duty under s 473CB(1); or

(b)    the primary judge erred in his construction of s 473CB: the word “referred” in the phrase “the decision is referred to the Authority” in sub-ss 473CB(1)(c), (d)(iv) and (2) should be construed as a reference not only to the s 473CA “referral” by the Minister but also to the “remittal” by a Court following a successful application for judicial review.

108    In order to address these arguments, it is convenient to say something about the CNY17 litigation.

THE CNY17 LITIGATION

109    CNY17 was an unauthorised maritime arrival who applied for, and was refused, a protection visa. The Minister referred the decision to the Authority in accordance with s 473CA. The Secretary gave the “review material” to the Authority under s 473CB. The material provided under s 473CB(1)(c) included a number of pages of prejudicial material which were irrelevant to any fact about which the Authority needed to make a finding. The Authority affirmed the decision not to grant CNY17 a protection visa.

110    CNY17 applied for judicial review in the FCC, contending that the decision was affected by apprehended bias by reason of the Authority having been given irrelevant and prejudicial material. The application was dismissed, as was an appeal to the Full Court of this Court (by a majority). A majority of the High Court of Australia (Nettle, Gordon and Edelman JJ; Kiefel CJ and Gageler J dissenting) allowed an appeal from the Full Court.

111    Nettle and Gordon JJ concluded that a fair-minded lay observer might apprehend a lack of impartiality on the part of the Authority where: (i) material has been designated as “relevant” by the Secretary; (ii) the Authority must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant: at [100]. Their Honours considered that a fair-minded lay observer “may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account” and that, in those circumstances, the fair-minded lay observer might apprehend that the decision-maker might decide the case other than on its merits: at [100].

112    Edelman J concluded that three matters combined to compel the conclusion that a fair-minded lay observer might reasonably apprehend that the Authority might not have brought an impartial and independent mind to the issue to be decided at the hearing (at [137] to [142]), namely:

(a)    the fact that the material “was qualitatively and quantitatively significantly prejudicial to an assessment of the appellant’s character on grounds other than legal grounds”: at [138];

(b)    the fair-minded lay observer would expect the Authority to have been aware that:

(i)    the material was provided by the Secretary on the basis that the Secretary considered that it was relevant to the review (s 473CB(1)); and

(ii)    the Authority was required to consider the material (s 473DB(1)): at [140]; and

(c)    “although the material was irrelevant, the fair-minded lay observer might reasonably have expected from statements made by the Authority, together with a deafening silence in the reasons of the Authority, that the Authority might have been influenced by the information within the material”: at [141].

113    Nettle and Gordon JJ referred to a submission which had been made by the Minister that quashing a decision and remitting the matter back to the Authority would place the Authority in an “impossible bind” because it would again be exposed to the prejudicial material. Their Honours rejected this argument, stating (at [106]):

That submission should not be accepted. Section 473EA(4) … requires the IAA to return to the Secretary those documents provided by the Secretary, after the IAA’s review is complete. Moreover, the matter would be remitted to a differently constituted IAA. As a result, the “impossible bind” spoken of by the Minister would not arise.

114    Edelman J rejected the argument, stating (at [143]):

Since the Authority will have returned all materials to the Secretary, the new hearing will require the Secretary to re-exercise the task of considering which of the material that is in the Secretary’s possession or control is relevant to the review.

115    The High Court ordered that the Authority’s decision be quashed and that the “matter” be “remitted” to the Authority.

116    The Secretary again gave review material to the Authority, including documents which were considered relevant at the time the Secretary re-performed the duty under s 473CB: s 473CB(1)(c). Included in the review material was a copy of the High Court judgment which (obviously) post-dated the referral to the Authority on 23 March 2017.

117    The Authority again affirmed the decision to refuse a protection visa. CNY17 again sought judicial review in the FCC and again contended that there was a reasonable apprehension of bias. The apprehension of bias was said to arise because the Secretary had given a copy of the High Court judgment to the Authority and that judgment contained summaries of the irrelevant and prejudicial information. The application for judicial review was dismissed by the FCC.

118    CNY17 again appealed to this Court. On this occasion, the appellate jurisdiction of the Court was exercised by one judge, namely Jagot J. Her Honour dismissed the appeal: CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 (CNY17 (Jagot J)). Her Honour made the following observations (appellant’s emphasis added):

[36]     Further, I consider that the fair-minded lay observer would be taken to understand that where a court makes an order setting aside a decision as unlawful, it is necessary that the decision-maker, on making the decision again, should comply with the law as determined by the court. This is a fundamental aspect of the rule of law (see, for example, Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 70, cited in SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 at [17]). It follows that the fair-minded lay observer would be taken to understand that, in the ordinary course, it would be proper for the Secretary to consider that a judgment identifying illegality in a previous decision by the IAA about a person was relevant to the review in order to ensure that the IAA, in making the decision again, did not make the same error.

[37]     This does not mean that the provision of a judgment by the Secretary to the IAA for the purpose of a review can never give rise to a reasonable apprehension of bias where the judgment contains irrelevant and prejudicial material about the person the subject of the decision. Indeed, where a judgment concerns only the apprehension of bias by reason of the provision to the IAA of irrelevant prejudicial material and nothing else, the prudent administrative course would be for the Secretary not to provide that judgment to the IAA for the purpose of the new review. This is because it may be that the judgment identifies the irrelevant prejudicial material in such a way that the real possibility of a potential subconscious effect of the material in the judgment on the decision-making of the IAA might not be able to [be] discounted. In such a case, provision of the judgment would negate the effect of an order such as the High Court made in the present case that the review be remitted to a differently constituted IAA.

…

[39]    Further again, while the hypothesised fair-minded lay observer “is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system” and thus is not posited to reason like a lawyer (Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 at [21]), that hypothesised observer is to be attributed in the present case with knowledge of the key aspects of the statutory scheme (including, by operation of s 473DB(1), that the IAA must conduct its review “by considering the review material” provided under s 473CB) and the key aspects of the circumstances within which the second IAA decision was to be made. Those key aspects of the circumstances include that the IAA had to make the second IAA decision as a result of the High Court’s decision in CNY17 HCA.

[40]     The fair-minded lay observer would be attributed with knowledge of the fact that the effect of the orders of the High Court in CNY17 HCA was that the appellant’s application had to be referred again by the Minister to the IAA for review under s 473CA of the Act. Further, because s 473EA(4)(a) of the Act provides that after the IAA makes a written statement of its decision under s 473EA(1) of the Act, it must “return to the Secretary any document that the Secretary has provided in relation to the review”, it was also necessary that the Secretary exercise anew the duty under s 473CB(1) of the Act.

[41]     As discussed, the fair-minded lay observer would be attributed with knowledge that while it was not necessary for the Secretary to give the IAA a copy of CNY17 HCA, the Secretary might do so on the basis that the IAA should be given a copy of any judgment potentially relevant to the IAA performing its functions. This is so even if, as in the present case, the judgment concerned what could not be done with respect to the appellant without vitiating any decision of the IAA on the ground of a reasonable apprehension of bias.

119    The applicant submitted that Jagot J was correct in what her Honour stated at [40], set out above. The Minister contended that what her Honour stated was by way of obiter and that it was wrong.

CONSIDERATION

120    It is convenient to say something first about s 473EA before turning to the applicant’s two arguments.

Section 473EA and its interaction with s 473CB

121    Before the primary judge and in written submissions before this Court it was accepted by the Minister and the applicant that:

(a)    s 473EA(4) required the Authority, after it makes its written statement, to return to the Secretary, the documents referred to in the section, which include the “review material”; and

(b)    because of s 473EA(4), where a matter is remitted to the Authority after a finding of jurisdictional error, the Secretary must re-perform the duty in s 473CB by again giving the review material to the Authority.

122    In his oral address to this Court, Senior Counsel for the Minister made submissions to the following effect:

(a)    the effect of certiorari is to set aside the decision and the written statement;

(b)    where the Authority’s decision is set aside or quashed:

(i)    whilst it might not have done so, the Authority actually should have retained the documents;

(ii)    if the Authority has returned the documents to the Secretary under s 473EA(4), it has done so under a “misapprehension of law”, namely that it has lawfully completed its review function and lawfully made a written statement of the decision when, in fact, it has done neither; and

(c)    in these circumstances, “the obligation in section 473CB remains to be discharged”.

123    Senior Counsel submitted that this new argument was not inconsistent with what had been said by Nettle and Gordon JJ in CNY17 at [106] or with what Edelman J said at [143].

124    The Minister’s new argument is inconsistent with what their Honours stated. Their Honours did not say that the Authority should not have returned the documents or that the obligation under s 473CB(1) remained to be discharged by reason of the quashing of the decision:

    Nettle and Gordon JJ at [106] considered that s 473EA(4) “requires the IAA to return to the Secretary those documents provided by the Secretary, after the IAA’s review is complete” (emphasis added). Their Honours were talking about what had happened in the case before them, in which the Authority’s decision was affected by jurisdictional error.

    The view of Edelman J was that, “[s]ince the Authority will have returned all materials to the Secretary [under s 473EA(4)], the new hearing will require the Secretary to re-exercise the task of considering which of the material that is in the Secretary’s possession or control is relevant to the review”: at [143] (emphasis added).

125    The argument put for the Minister in oral submissions before this Court as to the operation of s 473EA(4) was not put or addressed in CNY17. Nevertheless, a majority of the High Court in CNY17: (a) construed s 473EA(4) as operating to require the documents referred to in that section to have been returned to the Secretary notwithstanding that the Authority’s decision was affected by jurisdictional error; and (b) contemplated that the duty in s 473CB would have to be re-performed by the Secretary when the “matter” was “remitted” to the Authority.

126    The critical facts in this case are not relevantly different to those in CNY17. In CNY17:

    there was jurisdictional error on the part of the Authority;

    the decision of the Authority was quashed;

    the matter was remitted to the Authority differently constituted; and

    the Minister’s “referral” under s 473CA to the Authority was not expressly set aside.

127    In this case:

    there was jurisdictional error on the part of the Authority;

    a writ of certiorari issued removing the record of the Authority into the FCC for the purpose of quashing it;

    a writ of mandamus issued out of the FCC requiring the review which had been referred to the Authority to be redetermined; and

    the Minister’s “referral” under s 473CA to the Authority was not expressly set aside.

128    Senior Counsel for the Minister did not refer to s 473EA(2) in connection with his submission that the effect of certiorari is to set aside the decision and the written statement. That section deems a decision on a review 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.

129    Section 473EA(2) should not be construed so as to have a legal operation beyond that required to achieve the object of its enactment: Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 at [51]. If the decision is deemed to have been made by the making of the written statement for the purposes of judicial review of the decision – which is central to the intended object of the deeming – then the written statement forms part of the Authority’s record, liable to being quashed on successful judicial review. The written statement is the decision.

130    A decision affected by jurisdictional error is no decision at all, but that does not mean that it necessarily has no effect for any purpose. A written statement (being a decision) was in fact made and that decision may give rise to certain legal consequences, even if affected by jurisdictional error – see: New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [52]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24]. The approach of the majority of the High Court in CNY17 indicates that Parliament should be taken as having intended that the making of the written statement is sufficient to engage s 473EA(4) even if the decision to which the written statement relates, or which the written statement is deemed by s 473EA(2)(a) to constitute, is affected by jurisdictional error: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91]; Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288; 145 FCR 1 at [42]; Tonakie v Director of Professional Services Review [2024] FCAFC 60 at [49].

131    The argument put by the Minister in oral address, summarised at [122(b)] and [122(c)] above, must be rejected by this Court on the basis that it is inconsistent with the considered observations of a majority of the High Court and for the reasons given in [130] above.

Section 473CA and s 33(1) of the AI Act

132    It is convenient next to turn to the first aspect of the applicant’s case.

133    In written submissions before the primary judge, the Minister contended that the obligation to re-perform the duty in s 473CB arose by implication from s 473EA(4). In oral submissions before the primary judge, the Minister instead contended that the obligation to re-perform the duty in s 473CB arose by reason of s 33(1) of the AI Act. The Minister did not contend that s 33(1) applied to require s 473CA to be construed as authorising or requiring a re-performance of the duty by the Minister to refer the fast track reviewable decision to the Authority. However, this argument was put by the applicant to the primary judge in response to the Minister’s new argument.

134    Sections 2 and 33(1) of the AI Act provide that, “subject to a contrary intention”, “[w]here an Act confers a power ... then the power may be exercised ... from time to time as occasion requires”.

135    In Makasa at [45], the High Court stated (footnote omitted):

[S]ome aspects of the operation of s 33(1) of the AI Act ought to be noted. The section is enacted against the background of “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise”. The section counters that doctrine not by itself conferring any power but by requiring that a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time. The section does not alter the incidents of the power spelt out in the terms of the provision conferring the power. The words “as occasion requires” acknowledge the need for the repository of the power to comply with the incidents of the power spelt out in the terms of the provision. They are not words of additional limitation.

136    The primary judge, referring to the remarks of Edelman J in CNY17 at [143], concluded that the duty in s 473CB was required to be re-exercised: J[23]. His Honour did not expressly state the source of the obligation. In a footnote, his Honour “acknowledged” the references to s 33(1) “made during oral submissions in support of this view”. His Honour did not address those submissions directly, presumably on the basis that his Honour: (a) accepted that the duty in s 473CB had to be re-performed whatever the source of the requirement; and (b) considered that the real dispute lay in the meaning of the word “referred” in s 473CB(1)(c) – see: J[24]. His Honour did not address whether the duty in s 473CA was required to be re-performed.

137    Before this Court, the Minister contended that:

    he had validly made a referral of the fast track reviewable decision under s 473CA and the referral had not been set aside by a court, such that there would be no occasion for the duty in s 473CA to be re-performed;

    s 473EA(4) of the Act makes no provision for a referral to be returned to the Minister following the completion of a review, it only provides for the review material to be returned;

    a requirement to re-perform the duty in s 473CA on remitter where that decision has not been set aside is at odds with the scheme of Part 7AA, which makes provision for a limited form of review in which the Authority must “pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)” – see: s 473FA(1); and

    if the applicant was right that the duty in s 473CA must be re-performed, this raised the “specter … of multiple referrals potentially enlivening on multiple occasions the duty in section 473CC”.

138    The correct construction of s 473CA, as it applies to the present facts and as affected by s 33(1) of the AI Act, is that the Minister was required to re-perform the duty in s 473CA by re-referring the fast track reviewable decision to the Authority.

139    Part 7AA contemplates:

(a)    that the three duties (ss 473CA, 473CB(1) and 473CC(1)) be carried out in a short space of time after the fast track reviewable decision has been made; and

(b)    more specifically, that the first two duties (ss 473CA and 473CB(1)) be carried out as contemporaneously as is possible: s 473CB(2). Sections 473CA and 473CB are interrelated, the latter depending on and operating on the basis of the former.

140    Once it is accepted, as it must be in light of CNY17 and for the reasons given in [130] above, that the duty in s 473CB must be re-performed if a matter is remitted to the Authority by a court, there is no good reason to doubt that the duty in s 473CA must also be re-performed given the interrelationship between the two provisions and the evident intention that the two duties be performed as contemporaneously as possible. This conclusion is consistent with what Jagot J stated in CNY17 (Jagot J) at [40] and not inconsistent with what the High Court stated in CNY17. Whilst the analogy is far from perfect, in Makasa at [46], the High Court stated that, to the extent s 33(1) applied to s 501(2), s 33(1) required s 501(2) “to be interpreted as authorising re-exercise of both stages of the two-stage decision-making process which s 501(2) entails”. If one accepts that s 33(1) operates to require re-performance of the duty in s 473CB(1) – which is what the Minister put in oral argument before the primary judge – it is difficult to resist the proposition that it requires re-performance of the duty in s 473CA given the statutory scheme is constructed on the basis that those provisions operate together.

141    The Authority’s jurisdiction to review was engaged by the Minister’s original referral under s 473CA, and facilitated by the Secretary giving the review material under s 473CB(1). That review ended with a decision affected by jurisdictional error. As noted at [130] and [131] above, the making of the written statement required the Authority to return the review material to the Secretary, notwithstanding that the decision was affected by jurisdictional error – s 473EA(4); CNY17 at [106] and [143].

142    In CNY17, there was no conclusion (nor could there sensibly have been) that the Secretary’s exercise of power under s 473CB(1) was affected by error, yet the Secretary was said to be required to re-perform the duty to give the review material to the Authority: CNY17 at [143]. Likewise, there was no conclusion that the Minister’s referral was affected by error. There does not need to be a challenge to the referral and it does not need to be set aside in order for the occasion to require that duty to be re-performed. The “occasion requires” (s 33(1) of the AI Act) the Minister to refer the fast track reviewable decision to the Authority again because: (a) the first review is over, the resulting decision having been found to have been affected by jurisdictional error; (b) the matter must to go back to the Authority in the way contemplated by the statute for the Authority properly to perform its duty to review under s 473CC(1); (c) the evident intention is for the “review material” to be given to the Authority as contemporaneously to the referral as is possible; and (d) the statutory powers on the part of the Authority to obtain new information are structured on the assumption that the review material has been given to the Authority contemporaneously with the referral.

143    Contrary to the Minister’s submission, there is no real risk of multiple referrals leading to multiple reviews. That is unlikely ever to occur. The only reason the “occasion requires” re-performance of the duty in s 473CA is that a Court set aside the decision resulting from an earlier referral.

144    A further matter should be noted. The first order made on 18 August 2020 was that “[a] writ of certiorari shall issue, removing the record of the Immigration Assessment Authority made on 22 June 2018 into this Court for the purpose of quashing it”. This order comprised the traditional two components of certiorari: (a) the removal of the record into the reviewing court issuing the writ of certiorari; and (b) the quashing of the decision and the record hereof.

145    The “determination of the precise documents which constitute ‘the record’ of the inferior court [or tribunal] for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application”; however, in the absence of statutory prescription, it generally comprises “the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication [being a reference to the order or ruling]”: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 182, citing Hockey v Yelland [1984] HCA 72; 157 CLR 124 at 143. In Craig, the High Court held that the information by which Mr Craig was charged formed part of the record for the purposes of certiorari: at 183. The Minister’s referral under s 473CA forms part of what the common law would regard as the “record”. It follows that, objectively construed, the first order made on 18 August 2020 could be seen as having quashed the Minister’s referral under s 473CA.

146    The second order made on 18 August 2020 was that “[a] writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it”. This order is ambiguous in that it is not clear whether “the review referred to it” is a reference to the review which had been referred or which would necessarily or “automatically” be referred to it following the quashing of the record. If the first order quashed the referral, that referral forming a part of the record, the second order could only refer to a second referral. The second order could only be referring to the first referral if the first order did not quash the first referral.

147    In light of the peculiar statutory scheme established by Part 7AA, it would have been preferable for the second order to have made clear that the Minister (the first respondent) would need to re-perform the duty of referring the fast track reviewable decision to the Authority (the second respondent) following the quashing of the record under the first order.

148    The conclusion that the Minister was obliged to re-perform the duty under s 473CA means it is unnecessary to consider: (a) the application of s 33(1) to s 473CB independently of its application to s 473CA; or (b) the constructional issues concerning s 473CB if the Minister’s duty under s 473CA does not need to be re-performed:

(a)    The independent application of s 33(1) to s 473CB does not arise because the Minister was under an obligation to re-refer the fast track reviewable decision to the Authority under s 473CA. This second and later referral gives rise to a duty on the part of the Secretary under s 473CB again to give the “review material” to the Authority at the same time as, or as soon as reasonably practicable after, the Minister’s second referral to the Authority. The duty in s 473CB must be re-performed whether or not s 473CB is read with s 33(1) of the AI Act, but this conclusion is reinforced by that provision.

(b)    The constructional issues in relation to s 473CB(1)(c) do not arise if the Minister has to re-perform the duty in s 473CA, because the statutory scheme is operating as intended, namely the duties in ss 473CA and 473CB are being performed, in substance, contemporaneously: “the review material [would be given] to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority” as required by s 473CB(2). The result is that the absurdities perceived by the applicant do not arise and, more specifically, the contemporaneous country information relevant to the review would be provided by the Secretary to the Authority.

149    Nevertheless, in deference to the arguments in relation to the application of s 33(1) to s 473CB and the correct construction of s 473CB(1)(c), the following observations are made.

Section 473CB and s 33(1) of the AI Act

150    If the conclusion expressed earlier is wrong and the Minister does not have a duty to re-perform the duty under s 473CA, the “occasion requires” the Secretary to re-perform the duty under s 473CB.

151    This is because a court has quashed the Authority’s decision for jurisdictional error and remitted the matter to the Authority to perform the function under s 473CC(1) of reviewing the decision earlier referred to it by the Minister under s 473CA and the Authority must have the “review material” before it to perform its review function.

152    Section 473CB must be construed in the context of Pt 7AA, including s 473EA(4). Absent an obligation on the Secretary to re-perform the duty in s 473CB after a remittal to the Authority, the Authority will not have the review material. The legislature could not have intended that the Authority be unable to perform a review following a remittal by a Court.

153    If it is only the duty in s 473CB(1) which must be re-performed, and not the duty in s 473CA, the applicant could only succeed in the present case if the correct construction of s 473CB is that the phrase “at the time the decision is referred to the Authority” in s 473CB(1)(c) is read to mean “at the time the decision is remitted to the Authority”. This raises the final issue, being the applicant’s second argument, namely the correct construction of s 473CB and whether, in context, “referred” also means “remitted”.

Section 473CB(1)(c)

154    On the basis that the duty under s 473CA does not need to be re-performed, the applicant submitted that the word “referred” in the phrase “the decision is referred to the Authority” in s 473CB(1)(c), (d)(iv) and (2) should be construed as a reference not only to the s 473CA referral but also to the remittal by a Court following a successful application for judicial review.

155    The applicant submitted that this construction would ensure that the material to be considered under s 473CB(1)(c) will include material coming into the Secretary’s possession or control up until the time of the remittal and that s 473CB(1)(d)(iv) will also operate by reference to that time. It was submitted that his approach accords with the purpose of the statute, not only because it ensures that a review can occur following a remittal, but also “because it requires up to date material and information to be given to the [Authority] under s 473CB(1)(c) and (d)(iv)”, as the statute intended.

156    One potential problem with this submission is that it may assume the statutory object rather than identifying that object through a process of construction – see: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [26] (French CJ and Hayne J).

157    A statutory provision is to be interpreted by reference to its text whilst, at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]. Consequences that appear to be “absurd”, “capricious” or “irrational or unjust” are “to be avoided where the statutory text is not intractable”: Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 at [37]. A construction that promotes the purpose of a statute is to be preferred over a literal interpretation: R v A2 [2019] HCA 35; 269 CLR 507 at [37].

158    The word “referred” in the phrase “at the time the decision is referred to the Authority” in s 473CB(1)(c) is, textually, a reference to the Minister’s referral under s 473CA. Except for specific items concerned with contacting a referred applicant, all of the material referred to in s 473CB is material which exists at the time the decision is referred by the Minister under s 473CA. The statutory text focusses on the provision of material in existence at the time of referral. The Minister’s referral and the time of that referral is central in the statutory language and to the structure of the statutory scheme.

159    The applicant referred to a dictionary meaning of the verb “remit” which includes to “refer (a matter) for consideration, decision, performance … to a person or body of persons …”: Oxford English Dictionary (2nd ed, 1989) volume XIII, page 593. No real assistance is obtained from the dictionary meaning of the word “remit”. Section 473CB(1) does not use the word “remit” (compare s 473CB(2)(b)).

160    The applicant referred to a number of authorities in which the words “remit” and “refer” have been used interchangeably – see, for example: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [31]-[32], [57]; Republic of Turkey v Mackie Pty Ltd (No 2) [2021] VSCA 189 at [23]. As the primary judge noted at J[43], the cases to which the applicant referred address the use of the words in a judicial context rather than in a statutory context.

161    Neither the text nor the context lead to the conclusion that the legislature should be presumed, through an application of the common law or statutory rules of statutory construction, to have intended to be addressing through s 473CB(1)(c) what should happen where the Authority’s decision, made after the review material has been provided, is set aside for jurisdictional error and remitted by a Court – see: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [43]-[44]. A remittal by a Court is quite different to a referral by the Minister.

162    A part of the statutory context in which s 473CB is to be construed, apart from its close relationship with the duty in s 473CA, is the existence of the powers on the part of the Authority to get and consider new information. It has been noted earlier that the Authority must consider exercising the powers in ss 473DC and 473DE to get and consider new information and that those powers must be exercised reasonably – see [104] above.

163    As the primary judge noted at J[46], the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) included in the “Outline” (emphasis added; see [903], [907] and [915]):

As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations.

164    The primary judge observed at J[47] that it is difficult to imagine a situation where the Authority would act reasonably in not obtaining new information where there has been a change in the circumstances or conditions of a country, particularly where a considerable time has passed since the referral.

165    The structure of Part 7AA indicates that it is for the Secretary to provide what is relevant to the review to the Authority from what the Secretary has in his possession or control at the time of the Minister’s referral. Information which post-dates the Minister’s referral is for the Authority to get by considering the exercise of its powers. Given that the Authority must consider the exercise of its powers to get and consider new information, including on its review conducted after an order for remittal, a construction of s 473CB(1)(c) which leaves it to the Authority to obtain later information is difficult to describe as “absurd” or “capricious” or “irrational or unjust”.

166    Reading s 473CB(1)(c) in the way contended by the applicant is inconsistent with, and risks damage to, the carefully constructed division of duties as between the Secretary (to give review material under s 473CB) and the Authority (to review under s 473CC during which it must consider its power to get new information).

167    The applicant’s argument requires one to read the words “at the time the decision is referred to the Authority [by the Minister]” in s 473CB(1)(c) as “at the time the decision is remitted to the Authority [by a Court on judicial review]”, in circumstances where it is clear that the legislature was not addressing in s 473CB what should happen in this respect on remittal from a court.

168    The applicant submitted that a literal application of s 473CB(1)(d)(iv) – where the phrase “at the time the decision is referred to the Authority” is also used – would result in the Secretary knowing that an address for a referred applicant is incorrect, but being prevented from providing the relevant material to the Authority because the paragraph only permits the providing of “an address … that the Minister reasonably believes to be correct at the time the decision is referred to the Authority”.

169    However, even in the absence of a remittal, the situation might arise where the Secretary becomes aware of contact information for a review applicant after the referral but before the Secretary has provided the review material to the Authority “as soon as reasonably practicable” after the referral. This issue is not resolved by reading the concept “refer [by the Minister]” as also including “remit [by a Court]”, which suggests that the applicant’s construction is not the preferable one. The solution to this issue lies in recognising that:

(a)    s 473CB(1)(d)(iv) does not impliedly prohibit the Secretary from providing up to date contact information to the Authority;

(b)    it is unlikely that the Secretary would not provide up to date contact information in circumstances such as those postulated; and

(c)    a failure to provide up to date contact information is likely to result in jurisdictional error where the statutory scheme contemplates the ability of the Authority to contact the review applicant and the Secretary is aware of deficiencies in the Authority’s knowledge in that respect.

170    Finally, in relation to the correct construction of s 473CB, the applicant submitted that a provision may, if necessary, be read “as if it contained additional words … with the effect of expanding its field of operation”: Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [37].

171    The applicant submitted that the phrase “the decision is referred to the Authority” where it appears in ss 473CB(1)(c), (d)(iv) and (2) may be read as encompassing the remittal (or referral back) to the Authority.

172    In Taylor, the majority referred to four “conditions” which are often referred to in this context as at least relevant to the question of whether a court can construe a provision as if it contained additional words to give effect to its evident purpose: at [18], [22] to [25], and [39] to [40]. The “conditions” are, in summary:

(1)    the precise purpose of the provision can be identified – see: Taylor at [22];

(2)    there has been an inadvertent failure to deal with an eventuality that must be dealt with if the provision is to achieve its purpose – see: Taylor at [23];

(3)    the words that Parliament would have included can be clearly identified – see: Taylor at [24]; and

(4)    the words that might be read into the text are consistent with the wording otherwise adopted – see: Taylor at [25].

173    The first three “conditions” are intended to reflect the three conditions identified by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74. The High Court accepted that Lord Diplock’s three conditions should be treated as necessary, but did not decide whether the three conditions are “necessary and sufficient”: at [39].

174    The fourth “condition” is intended to reflect a “condition” adopted by McColl JA in the Court of Appeal decision the subject of the appeal in Taylor, which her Honour took from Dawson J’s statement of the relevant principles in Mills v Meeking [1990] HCA 6; 169 CLR 214 at 235 – see: Taylor v Owners – Strata Plan No 11564 [2013] NSWCA 55; 83 NSWLR 1 at [40]; Taylor at [25]. The High Court endorsed the fourth condition as at least relevant.

175    It cannot be said that it was a purpose of s 473CB to address what material should be provided to the Authority in circumstances where a matter was remitted to it after it had returned the “review material” to the Secretary under s 473EA(4).

176    It follows that the conditions in Taylor are not capable of being satisfied.

177    The legislature should not be presumed to have intended the word “referred [by the Minister]” to have included “remitted [by a Court]” in s 473CB(1)(c).

CONCLUSION

178    The application for leave to appeal should be granted and the appeal allowed. The separate question should have been answered “yes”, because the Minister should have re-performed the duty under s 473CA with the consequence that the Secretary should have re-performed the duty under s 473CB(1). If these events had occurred, it is possible that up to date country information would have been provided to the Authority.

Associate:

Dated:    20 August 2024

REASONS FOR JUDGMENT

STEWART J:

INTRODUCTION

179    This is an application for leave to appeal from the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) on a separate question. The application and the prospective appeal, if leave be granted, were heard together. The primary judge gave the answer “no” to the following question:

Following the issuing of a writ of mandamus to the second respondent (Authority) on 18 August 2020 to require it to determine according to law its review of the fast track reviewable decision made by a delegate of the first respondent (Minister) in respect of the applicant (Delegate’s Decision), was material that came into the possession or control of the Secretary of the Department after the Delegate’s Decision was referred to the Authority by the Minister under section 473CA of the Migration Act 1958 (Cth) on 14 November 2017 capable of meeting the description in section 473CB(1)(c) [of the Migration Act 1958 (Cth)] of “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”?

180    The issue raised by the separate question, and hence the appeal, is a narrow one although not without complexity. It arises in the context of the fast track review process in relation to certain protection visa decisions in Pt 7AA of the Migration Act 1958 (Cth).

THE SCHEME OF PART 7AA

181    Part 7AA provides a limited form of review of certain decisions to refuse protection visas to some applicants, including “unauthorised maritime arrivals” who entered Australia on or after 13 August 2012 but before 1 January 2014 and who have not been taken to a regional processing country (as explained in s 473BA). Qualifying decisions are referred to as “fast track reviewable decisions”. The fast track review process includes the following three cumulative and consecutive steps after a decision is taken by the Minister (or their delegate) under s 65 to refuse a protection visa to a relevant applicant (see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [83]).

182    First, the Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made (s 473CA). That is a duty that requires the Minister to be satisfied only that the relevant decision is a fast track reviewable decision, following which the Minister must make the referral which is regarded as “automatic”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [15].

183    Secondly, the Secretary of the Department of Home Affairs must give to the Authority the following material (referred to as the “review material”) in respect of each fast track reviewable decision referred to the Authority under s 473CA (s 473CB(1)):

(a)     a statement that:

(i)     sets out the findings of fact made by the person who made the decision; and

(ii)     refers to the evidence on which those findings were based; and

(iii)     gives the reasons for the decision;

(b)     material provided by the referred applicant to the person making the decision before the decision was made;

(c)     any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)     the following details:

(i)     the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)     the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)     the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)     if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)     if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

184    As will be seen, the provision at the centre of the case is s 473CB(1)(c). It imposes upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority. An unreasonable failure to identify potentially relevant documents in the Department’s possession or control could amount to a breach of the provision: see AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another [2019] FCAFC 222; 274 FCR 82 at [70] per Allsop CJ, Jagot and Moshinsky JJ.

185    The Secretary must give the review material to the Authority “at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority” (s 473CB(2)).

186    Thirdly, the Authority must review a fast track reviewable decision referred to it under s 473CA (s 473CC(1)). The Authority may affirm the decision or remit it for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC(2)).

187    There are a number of provisions that further govern the Authority’s review.

188    Division 3 Subdiv C deals with “Additional information”. Except as specifically provided, the review must be conducted by the Authority considering the review material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)). However, the Authority may get any documents or information (referred to as “new information”) that were not before the Minister when the Minister made the decision under s 65 and the Authority considers may be relevant (s 473DC(1)).

189    The Authority does not have a duty to get, request or accept, any new information whether it is requested to do so by a referred applicant or by any person, or in any other circumstances (s 473DC(2)). But, the Authority may invite a person, orally or in writing, to give new information in writing or at an interview (s 473DC(3)). The Authority’s failure to exercise the power under s 473DC to get new information can render the decision invalid if that failure exceeds the high threshold of legal unreasonableness: Plaintiff M174 at [86]; ABT17 at [61].

190    The Authority “must not consider any new information” unless it is satisfied that there are “exceptional circumstances to justify considering the new information” and the referred applicant satisfies the Authority that the new information was not, and could not have been, provided to the Minister before the decision under s 65 or it is otherwise credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims (s 473DD).

191    Section 473DE sets out the circumstances in which new information must be given by the Authority to the referred applicant. Section 473DF governs invitations to referred applicants to give new information or comments. The details of those provisions are not presently relevant.

192    Division 4 deals with decisions of the Authority. If the Authority makes a decision on a review, it must make a written statement that sets out the decision and the reasons for the decision, and records the day and time the statement is made (s 473EA(1)). A decision on a review is taken to have been made by the making of the written statement and on the day and at the time the written statement is made (s 473EA(2)). After it makes the written statement, the Authority must return to the Secretary any document that the Secretary has provided in relation to the review and give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based (s 473EA(4)).

193    The Authority must notify the referred applicant of a decision on review by giving the referred applicant a copy of the written statement within 14 days after the day on which the decision is taken to have been made (s 473EB(1)). A copy of the statement must also be given to the Secretary within the same time period (s 473EB(2)).

THE PROBLEM IN THIS CASE

194    The problem in this case arises from the fact that the fast track review scheme does not deal with what is to happen when there is delay between the referral of the decision by the Minister to the Authority under s 473CA and the decision on the review under s 473CC because an initial review decision is quashed and remitted during which time new potentially relevant material comes into the possession or control of the Secretary. Any significant delay between the referral and the ultimate decision increases the prospect of that occurring. The fast track review scheme is not designed in such a way as to cater for such delays. It assumes that once there is a referral there will very quickly be a review decision by the Authority: s 473FA.

195    In the present case there was a delay of nearly three years between the referral by the Minister (14 November 2017) and the decision by the Authority (13 October 2020) because the original decision on review, by writs of certiorari and mandamus, was quashed by a court and remitted to the Authority for a new decision. In the period between the referral of the decision for review by the Minister and the ultimate decision on review the Secretary gained possession or control of new relevant country information. Since the Secretary had some three years earlier performed their duty under s 473CB(1)(c) to identify what material they had in their possession or control that was considered by them to be relevant to the review, they did not reconsider whether at the time that the decision was remitted to the Authority by the Court they had any such material in their possession or control. The result was that the Authority was not given, and did not consider, the later relevant material.

196    The question presented is thus whether, on such a remittal, the Secretary must reconsider what information they have in their possession or control at that time that they consider to be relevant to the review under s 473CB(1)(c), or whether they need only consider material that they had at the time that the decision was originally referred to the Authority.

CONSIDERATION

197    It is common ground that because the Authority must return the materials that it had received from the Secretary following its making of the decision on review (s 473EA(4)(a)), following the remittal the Secretary would have to re-exercise the obligation under s 473CB(1)(c) of identifying relevant material in their possession or control. There is authority for that: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [106] per Nettle and Gordon JJ and [143] per Edelman J (together forming a majority in that case); CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 (CNY17 (Jagot J)) at [40] per Jagot J; DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148; 294 FCR 1 at [28] per Bromberg, Moshinsky and Hespe JJ.

198    However, there is no common ground on the question whether, in re-exercising the duty under s 473CB(1)(c), the Secretary must identify only documents that were within their possession or control at the time that the decision was referred to the Authority by the Minister, or whether they must also have regard to the documents in their possession at the time that they re-exercise that duty.

199    In CNY17, the relevant ratio was that the Secretary would not again give prejudicial and irrelevant material to the Authority following a remittal when the decision had been quashed on the ground that the material should not have been given in the first place. That was because the Secretary would have to re-exercise the duty of identifying material they considered to be relevant to the review. The implication of that ratio by the majority is that in re-exercising the duty the Secretary has to apply their mind to what they then (ie at the time of the re-exercise) considered relevant (Edelman J at [143]) or, at least, what they would properly (ie excluding prejudicial and irrelevant material) have considered relevant at the time of the original referral (Nettle and Gordon JJ at [106]).

200    Thereafter, in CNY17 (Jagot J) the relevant ratio was that in re-exercising the duty the Secretary might consider that the judgment of the High Court that was delivered long after the original referral by the Minister was relevant to the review and consequently give it to the Authority: see [41]. The implication of that is that on re-exercising the duty the Secretary can identify what they then (ie at the time of the re-exercise) consider may be relevant to the review, including material that was not in their possession or control at the time of the referral. That was on the basis that following the orders of the High Court which quashed the Authority’s decision, “the appellant’s application had to be referred again by the Minister to the [Authority] for review under s 473CA of the Act” (at [40]).

201    In DNU20, the chronology is important:

(1)    On 26 May 2017, the Minister’s decision to refuse a protection visa was referred to the Authority for fast track review (at [3]).

(2)    At some unidentified time, but presumably at about the time of the referral, the Secretary gave material to the Authority under s 473CB and thereafter, on 12 March 2018, the Authority affirmed the refusal decision (at [7]).

(3)    The referred applicant advised the Department that from 25 July 2019 he was in Marngoneet Correctional Centre, ie his postal and residential address was the prison (at [8]). (The implication seems to be that the information was given by the applicant on 25 July 2019.)

(4)    The Authority’s decision was quashed by a court and remitted to the Authority on 8 May 2020 (at [11]).

(5)    When the Secretary re-exercised the duty under s 473CB by giving material to the Authority following the remittal, they failed to include “the last residential … address provided to the Minister by the referred applicant for the purpose of receiving documents” as referred to in s 473CB(1)(d)(ii), ie the prison address (at [12]).

202    There was a concession by the Minister, which was accepted as correct by the Court, that on the occurrence of the remittal the Secretary would have to re-exercise the duty of giving to the Authority the details of the last residential address of the referred applicant (as required by s 473CB(1)(d)(ii)) (at [28]). The subsequent decision of the Authority was quashed because, when re-exercising the duty under s 473CB(1), the Secretary failed to include the last known residential address of the referred applicant even though that was not the address given by the applicant at the time of the initial referral or the initial provision to the Authority of the review material (at [42]-[44]). That is to say, it is implicit in the Court’s decision that the Secretary had an obligation to provide information that they had acquired after the time when the decision was referred to the Authority by the Minister.

203    It is to be noted that s 473CB(1)(d)(ii), unlike ss 473CB(1)(c) and 473CB(1)(d)(iv), is not qualified with reference to “the time the decision is referred to the Authority”, so DNU20 is not authority for the proposition that there is such an obligation on the Secretary in respect of those provisions.

204    Although not a necessary implication of the judgment of Nettle and Gordon JJ in CNY17 or that of the Full Court in DNU20, it follows from the judgments of Edelman J in CNY17 and Jagot J in CNY17 (Jagot J) that when re-exercising the duty of identifying and giving “review material” to the Authority under s 473CB(1), the Secretary must have regard to the material and information in their possession at the time of the re-exercise; they are not only required to consider the information and material they had in their possession or control at the time of the initial referral by the Minister. However, in none of the judgments was the issue raised by the present case expressly addressed.

The Minister’s focus on the text

205    The Minister seeks to avoid the implication of the judgments discussed above by focussing on the statutory language. To restate it, the relevant language is that the Secretary must give to the Authority:

any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

206    The Minister emphasises that the provisions contemplate only one referral to the Authority and that is by the Minister (s 473CA). The Minister submits that there is no occasion for the Minister to make a second referral after a decision of the Authority has been quashed and the matter remitted to the Authority – the Secretary must in that circumstance re-exercise the duty under s 473CB(1) but still on the basis of the original referral. The Minister then draws attention to the phrase in parentheses in s 473CB(1)(c), namely, “at the time the decision is referred to the Authority”, which the Minister submits, with reference to the first point just made, must be when the Minister originally refers the decision to the Authority for review and not some later time. The Minister submits that as a matter of language, that phrase qualifies the Secretary’s consideration of what material is relevant to the review.

207    The Minister submits that the text of s 473CB(1)(c) leads to the unavoidable result that the Secretary must identify what material was in their possession or control as at the date of the referral and decide (in this case, at the later time of the re-exercise of the duty) which of that material was relevant to the review at that earlier time.

208    That is a highly artificial and unsatisfactory outcome in at least two respects. One is that the Secretary must engage in the strained and artificial exercise of trying to work out what they consider, or would have considered, was relevant to the review at some prior point in time that could be years earlier. The other is that the Secretary need not consider any up to date and recent information that is or may be relevant to the review simply because they did not have possession or control of that information at the earlier time. That is notwithstanding that the nature of the review to be carried out by the Authority underlines the importance of the Authority being provided with all relevant documents whether or not they were before the person who made the initial decision on the visa application (AUF18 at [66]).

209    The same problems are presented by the usage of the same phrase in s 473CB(1)(d)(iv). On the Minister’s approach, that provision requires that if the Minister has not been given an address (whether email, other electronic, service, residential or business) or fax number for the applicant as referred to in paras (i), (ii) and (iii), or the Minister believes that the last such address or fax number is no longer correct, then the Secretary must give to the Authority the address or fax number (if any) that the Minister reasonably believes was the correct address or fax number at the time that the Minister made the referral to the Authority. That is to say, even if at some later time when, following a remittal, the Secretary is re-exercising the duty under s 473CB(1) of getting together the review materials to give them to the Authority, and the Minister (through the Department) knows that the contact details given by the applicant at the time of the referral are no longer valid and they have such details that they believe to be correct, they do not have to give the correct details to the Authority. The same applies under s 473CB(1)(d)(v) in respect of the contact details for the carer of an applicant who is a minor.

210    That is an equally, or possibly more, absurd outcome than the outcome under s 473CB(1)(c). It is absurd because the effectiveness of the Authority’s review process depends in certain respects and circumstances on the Authority being able to successfully contact the applicant (see ss 473DC(3), 473DE(1), 473DF(1), 473EB and 473HB). To deny the Authority the applicant’s most up to date known contact details undermines the process and is in conflict with the scheme. It is possibly more absurd in relation to s 473CB(1)(d)(iv) than it is in relation to s 437CB(1)(c) because on one view (being the Minister’s submission to which I will return) the problem created in relation to s 473CB(1)(c) is dealt with by Div 3 Subdiv C, ie the Authority getting new information. But Subdiv C does not deal with contact information; rather, it deals with information that goes to the substance of the review decision itself, and even the ability of Subdiv C itself to work as intended (as opposed to the review process as a whole) depends on the Authority being able to be in contact with the applicant (as is apparent from ss 473DC(3), 473DE(1) and 473DF(1)).

211    There is some difficulty with the Minister’s approach with reference to the text which needs mentioning before getting back to the identified absurdities. First, s 473CB(1)(c) requires that the Secretary give to the Authority other material that “is” in their possession or control. That is to say, the present tense is used. However, the time when the exercise is relevantly being undertaken is after the remittal by a court on the basis that that is the earliest time that it is “reasonably practicable” to do so as referred to in s 473CB(2). On the Minister’s approach it is only material that was (in the past) in their possession or control that must be considered which is not consistent with the use of the present tense in the provision. It is no answer to say that the time referred to is the referral and the getting of the information on the basis that they are designedly proximate because, as this case demonstrates, they may not be.

212    Secondly, a similar problem with regard to tenses arises in s 473CB(1)(d)(iv). Two different subjects of belief by the Minister, one being their belief that contact details are no longer correct and the other being their belief as to the correct contact details, are referred to in the present tense. On the Minister’s approach, following remittal by a court and the re-exercise of the duty, it is the Minister’s belief in the past and not the present that is being referred to. That does not sit seamlessly with the statutory text.

213    The use of the present tense requires that if the Minister presently (ie following remittal) believes that the contact details are no longer correct, the Secretary must give the details that the Minister believes are correct “at the time the decision is referred to the Authority”. The language employed does not support the proposition that the relevant time with regard to the details no longer being correct was when the referral was made by the Minister – because “is” is used and not “was”. As soon as the later time (ie the time of the remittal) is accepted as the correct time for that aspect it makes no sense that the earlier time (ie the time when the decision was referred by the Minister) is used for the second aspect – on what possible logical basis could the Parliament have intended that the Secretary provide contact details that are known to be no longer correct?

214    In the light of those absurdities and textual difficulties, the question becomes whether the text of s 473CB(1)(c) (and s 473CB(1)(d)(iv)) really demands that the Secretary is only obliged to consider material and information available at the time of the original referral of the decision to the Authority by the Minister, or is there some more satisfactory result available within the statutory language.

The applicant’s proposed solutions

215    The applicant advances two alternative answers to that question.

216    First, the applicant submits that following the remittal of a matter to the Authority by a court, it is not only the Secretary’s duty in s 473CB that must be re-performed, but that the Minister must re-refer the fast track reviewable decision to the Authority for review under s 473CA. That would have the result that the reference in s 473CB(1)(c) to “the time the decision is referred to the Authority” would be a reference to the time of the re-referral and no difficulty would arise.

217    In support of that solution, the applicant relies on s 33(1) of the Acts Interpretation Act 1901 (Cth) (AI Act) which provides that where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. The argument is that s 33(1) of the AI Act is the basis for the Secretary re-performing the duty under s 473CB(1) – the “occasion requires” that because s 473EA(4) required the Authority to return to the Secretary any document that the Secretary had provided in relation to the review. However, because, as explained, the passage of time would make the Secretary’s re-performance of the duty with reference to the time when the fast track reviewable decision was initially referred by the Minister artificial, the “occasion requires” the re-referral by the Minister. The applicant refers to what was said in CNY17 (Jagot J) about the Minister having to re-refer the decision under s 473CA – quoted at [200] above – in support of this analysis.

218    Secondly, the applicant submits that the reference to the time when the decision is referred to the Authority in s 473CB(1)(c) must be understood, when applying after a remittal by a court, to be a reference to the time of the remittal rather than the time of the original referral by the Minister. That contention is made on two different bases.

219    The first is on the basis that a statutory provision is to be interpreted by reference to its text while, at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]. Consequences that appear to be “absurd”, “capricious” or “irrational or unjust” are “to be avoided where the statutory text is not intractable”: Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 at [37]. A construction that promotes the purpose of a statute is to be preferred over a literal interpretation: R v A2 [2019] HCA 35; 269 CLR 507 at [37]. If “a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction”: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [15]; PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd [2021] FCAFC 128; 285 FCR 598 at [43]. As to the last proposition, see also MacAlister v The Queen [1990] HCA 15; 169 CLR 324 at 330.

220    On that approach, the applicant submits that where a remittal to the IAA occurs, the word “referred” in the phrase “the decision is referred to the Authority” in ss 473CB(1)(c), (d)(iv) and (2) may be read to include the remittal. One meaning of “refer” is “[c]ommit or hand over (a question, cause, or matter) to some authority for consideration, decision, execution, etc” (JJ v Board of Australian Crime Commission [2011] FCAFC 73; 197 FCR 138 at [32]; see also Graham v Paterson [1950] HCA 9; 81 CLR 1 at 21).

221    The applicant submits that s 473CB must be construed in the context of Pt 7AA. That includes s 473EA(4). As such, s 473CB must be construed on the basis that, under the statutory scheme, absent an obligation on the Secretary to re-perform the s 473CB duty following a remittal to the Authority, the Authority will not have review material. Obviously enough, the Parliament could not have intended that the Authority be unable to perform a review following a remittal. The applicant submits that the phrase “the decision is referred to the Authority” in ss 473CB(1)(c), (d)(iv) and (2) can be read so as to capture not only the initial referral under s 473CA, but also a later referral in fact, such as remittal or referral back to the Authority by a court. He submits that there is good reason to construe the words in that manner. Doing so ensures that the Secretary is obliged, following a remittal, to again provide review material to the Authority. It also avoids the absurd result that, following a remittal, the Authority would be unable to perform its review for a lack of review material.

222    The second basis to the contention that “referred” also captures a remittal is by a process of implication. If the problem of the Authority lacking review material is not otherwise solved, then an implication is necessary to ensure that the Authority is able to perform its review following a remittal. A provision may, if necessary, be read “as if it contained additional words … with the effect of expanding its field of operation”: Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [37]. In the present case, the phrase “the decision is referred to the Authority” where it appears in ss 473CB(1)(c), (d)(iv) and (2) may be read as encompassing the remittal (or referral back) to the Authority. This will see the Secretary become obliged to provide review material to the Authority following a remittal, and to have regard to contemporaneous material when doing so.

The referral under s 473CA must be redone

223    I have had the benefit of considering what Thawley J has written on the applicant’s submission that following a remittal by a court, the Minister is obliged to again refer the fast track reviewable decision to the Authority under s 473CA. I am persuaded by that analysis and I agree with it.

224    On that approach, the absurdities and textual difficulties that I have identified above are mostly resolved and there is no need to consider the applicant’s submission that “referred” in the relevant provisions includes “remitted”. However, because I have reached a different conclusion to Thawley J on that specific issue, and against the possibility of us being wrong on the re-referral issue, I will now deal with it.

“Referred” includes remitted by a court

225    On the premise that the Minister is not obliged to re-refer the fast track reviewable decision to the Authority for review following a remittal by a court, the problems created by the statutory wording are most readily answered by simply reading “referred” in ss 473CB(1)(c), (d)(iv) and (2) as including a remittal to the Authority by a court, and not being tied to the time that the Minister fulfilled the duty under s 473CA to refer the decision to the Authority. With reference to the authorities referred to at [219] above, it is well within the power of the Court to construe the legislation in that fashion, in particular because to do so is within the available meaning of the language employed by the Parliament and it resolves the difficulties and absurdities that otherwise result – difficulties and absurdities that the Parliament evidently did not apply its mind to. It is also consistent with the evident purpose of the fast track review process which requires that the Authority have up-to-date information available to it, and it explains the basis on which the Secretary re-exercises the s 473CB(1) duty – because that is what s 473CB(2) on that construction requires.

226    It is evident that the purpose of the use of the phrase “at the time the decision is referred to the Authority” in ss 473CB(1)(c) and (d)(iv) is to make it clear that the Secretary does not have an ongoing or continuing obligation after performing the s 473CB duty to consider whether they have come into possession or control of new material that is relevant to the review (473CB(1)(c)) or to get from the Minister and give to the Authority any new contact information for the applicant (s 473CB(1)(d)(iv)). The other paragraphs of s 473CB(1) are not bound in time by that phrase because there is no need for them to be.

227    In that regard, para (a) deals with giving the Minister’s statement on the fast track reviewable decision to the Authority and para (b) deals with the material provided by the applicant to the Minister. In both cases those are references to specified material that existed at an identified point in time and in respect of which no possibility of a continuing obligation in respect of new or further material could arise. In subparas (i) to (iii) of para (d), and insofar as those subparas are picked up in subpara (v), there is in any event an on-going obligation on the Secretary as decided in DNU20 to provide to the Authority the latest contact details provided by the applicant.

228    It is also to be observed that there are other references to the decision being referred to the Authority which expressly include a reference to the referral being “under 473CA” which by necessary implication means the referral by the Minister (ss 473BC (in the definition of referred applicant), 473CB(1) (the chapeau), 473CC(1) and 473DB(1)). That is in contrast to ss 473CB(1)(c) and (d)(iv) (and other provisions) which omit any reference to the referral being a referral under s 473CA. That rather detracts from the Minister’s insistence that the reference to the time that “the decision is referred to the Authority” is necessarily the time when the referral is made by the Minister. If that had been intended it could easily have been said that the relevant time is when “the decision is referred to the Authority under s 473CA”. That would have been consistent with the other references I have identified. The omission of that qualification to, or description of, “referred” might be thought to suggest a different meaning.

229    The Minister also submits that the problems identified above arising from the passage of time between a referral by the Minister and a remittal by a court can be adequately answered with reference to Div 3 Subdiv C. That is, if there has been any new development between the referral and the Authority’s decision, the applicant or the Secretary can bring that development to the Authority’s attention under s 473DC(1) and the Authority can consider it if it is satisfied as required by s 473DD (T37:6). There are two problems with that. First, that is of no assistance if the applicant is not aware of the new information that is relevant to the review (or that the Authority does not have that information) and the Secretary fails to bring it to the Authority’s attention – it being implicit in the Minister’s approach to the present case that the Secretary was under no obligation to bring such information to the Authority’s attention. Secondly, as explained above, Subdiv C does not apply to new contact information such as covered by the circumstances in s 473CB(1)(d)(iv). Subdivision C therefore offers no solution to the problem.

230    Two further observations about reliance on Subdiv C to solve the difficulties can be made. One is that confidence that the Secretary is likely to furnish the new information to the Authority anyway may be misplaced, as this case demonstrates, and that is in any event an infirm basis to construe a provision. The other is that there is a large gap between what the Secretary can do to ensure the best decision by the Authority on the basis of up-to-date information and the low level of legal unreasonableness. That is to say, there may be a myriad of circumstances in which it is not legally unreasonable for the Secretary not to furnish new information to the Authority which, if furnished, would enhance the Authority’s decision.

231    The Minister draws attention to s 473CC(2)(b) where the world “remit” is used and submits that that counts against reading “referred” in ss 473CB(1)(c) and (d)(iv) as including a remittal from a court; in other words, where the Parliament means remit it will say remit. I am not persuaded by that because the provision deals specifically with the power of the Authority (ie to affirm or remit the fast track reviewable decision). It does not deal with the process by which the decision gets to the Authority for the purposes of its review. As explained, following an initial referral under s 473CA, that can also occur by way of remittal from a court following writs of certiorari and mandamus. That process is easily caught by the word referral. Put differently, although “remit” as a technical term does not include a referral by the Minister, “refer” can include a remittal.

232    The Minister makes another point, which is that s 473CA only envisages a referral by the Minister; there is no possibility in that section for a referral by a court. I accept that as correct, but that does not mean that “referred” in the relevant provisions cannot also capture a remittal from a court. When a court remits a review to the Authority to be decided again, it does not, and does not purport to, re-exercise the referral duty under s 473CA. On the premise underlying this section of my reasons as identified at [225] above, the Minister’s original referral still stands. The Authority’s power and duty to undertake the fast track review is premised on that original referral by the Minister. However, for the reasons already canvassed, when the review is remitted to the Authority for the Authority to re-conduct the review, the initial review having been quashed, the Secretary has to once again perform the duty imposed by s 473CB(1). That process of remittal, including the re-receipt of the review material from the Secretary, is what is referred to as the time when the fast track reviewable decision is “referred” to the Authority in ss 473CB(1)(c) and (d)(iv).

233    In substance, that process of reasoning and conclusion upholds the applicant’s first basis to the construction question (ie the basis identified at [219]-[221] above). It is therefore unnecessary for me to consider the second basis (ie the basis identified at [222] above).

DISPOSITION

234    The result is that in my view the answer to the separate question (set out at [179] above) is “yes”. The primary basis for that is that following the quashing of the Authority’s decision and the remittal of it by the court, the Minister had to re-refer the fast track reviewable decision to the Authority under s 473CA. The alternative basis, in the event that the primary basis is incorrect, is that “referred” in ss 473CB(1)(c) and (d)(iv) is broad enough in meaning to capture the court’s remittal to the Authority. On either basis, the primary judge erred.

235    It is not disputed by the Minister that if the conclusion of the Court is that the primary judge erred on the legal question presented by this appeal, leave to appeal should be granted and the appeal allowed.

236    In the result, I would grant the applicant leave to appeal and allow the appeal with costs, and substitute the answer given to the separate question identified by the primary judge with the answer “yes”.

Associate:

Dated:    20 August 2024