FEDERAL COURT OF AUSTRALIA

CED16 v Minister for Immigration and Border Protection [2018] FCA 1451

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to file and rely on an Amended Notice of Appeal which incorporates Ground 2 of the proposed Amended Notice of Appeal.

2.    The appeal be allowed.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 14 February 2017 which dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the IAA) made on 11 July 2016. The IAA had affirmed the decision of a delegate of the Minister for Immigration & Border Protection (the delegate) to refuse to grant the applicant a protection visa.

2    The appeal raises a question as to the correct interpretation of certain provisions of Part 7AA of the Migration Act 1958 (Cth) (the Act) and, in particular, the scope of the IAA’s obligation to give an applicant particulars of new information it intends to consider in reviewing the delegate’s decision. As is well known, in Part 7AA, the Legislature has seen fit to limit a visa applicant’s rights to natural justice in certain respects. However, in accordance with the received jurisprudence of this Country that an essential element of the Rule of Law is the right to a fair hearing for every person whose rights might be adversely affected by a decision, the Legislature has provided appropriate safeguards by which the applicant will be aware of, at least, some matters. If the IAA intends to take into account “new information” which was not before the Minister/delegate when the initial decision to refuse a visa was made, it must give particulars of the information to the applicant: s 473DE(1). If the Minister certifies that particular confidential information given by the Departmental Secretary to the IAA ought to be protected by public interest immunity, the IAA is obliged to reasonably consider exercising a discretion to disclose to the applicant that information, subject to certain safeguards: s 473GB(3). Depending on the circumstances, the confidential information may or may not be revealed to the visa applicant. The circumstances of this case raise the question of how the IAA is obliged to deal with the information in a certificate given by the Minister purportedly under s 473GB and the accompanying confidential information where the certificate is invalid?

3    Somewhat unusually, this pivotal issue arose tangentially as the necessary consequence of the Minister’s submissions. An elemental part of the Minister’s argument was that the general provisions in Part 7AA concerning the giving of information to the IAA as “review material” were unaffected by the specific provisions relating to new or confidential information. On this basis the Minister submitted the Secretary might provide information which was not before the delegate to the IAA as “review material” and the IAA would be entitled to consider it without any obligation to disclose it, or even considering to disclose it, or particulars of it to an applicant. It was submitted that this situation might arise where, by happenstance, information was given to the IAA by the Secretary under cover of an invalid s 473GB certificate identifying that the information was subject to public interest immunity.

4    In part, this issue arose because it was apprehended from the hearing of the appeal that the parties had agreed that an Identity Assessment Form (IA Form), which had been provided to the IAA by the Secretary, was not before the delegate who had made the original decision to refuse the visa. Relevantly, the transcript of the hearing of the appeal reads as follows:

MR KAPLAN: As I understand it, it’s common ground that the identity form wasn’t a document that was before the delegate when the delegate made the decision under section 65 to refuse the protection visa.

5    That submission was consistent with the Minister’s oral submissions generally and especially the argument based on the Full Court decision in Minister for Immigration and Border Protection v BBS16 [2017] 158 ALD 198 (BBS16), that an invalid certificate and accompanying information did not have to be dealt with as “new information” under s 473DD because it was provided to the IAA as “review material”. The Minister submitted that paragraph [92] of the Court’s reasons supported the proposition that information provided by the Secretary under cover of a s 473GB Certificate as “review material” was required to be considered by the IAA under s 473DB and, for that reason, did not have to be considered as “new information” (see page 42 of the transcript of the original hearing). It was also submitted by the Minister that the position may be different if the invalid certificate and accompanying information was sent by the Secretary to the IAA after the review material. In such circumstances, it was acknowledged by the Minister the information might have to be dealt with in accordance with the “new information” provisions in Subdivision C.

6    The difficulty with the Minister’s submissions is that they were contrary to the decision of the majority of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [27] (Plaintiff M174/2016). Unfortunately, this was not evident during the hearing of the appeal.

7    Given the inconsistency between what was perceived to be the Minister’s submissions and the decision in Plaintiff M174/2016, the parties were invited to make further submissions as to the application of that decision. They sought and were granted a further hearing in the nature of a Case Management Hearing for the matter to be considered. Contrary to what was submitted at the initial hearing, at the further hearing the Minister submitted that it was common ground between the parties that the Identity Assessment Form was before the delegate when the original decision was made. An affidavit to that effect was sworn and read and was accepted as evidence on the appeal. However, the affidavit said nothing of the invalid s 473GB Certificate, which obviously was issued for the purposes of being given to the IAA and which was not before the delegate.

8    Neither party sought to make further substantial submissions on this issue.

Background

9    The appellant is a citizen of Sri Lanka and is Tamil. He was born in the Eastern province where he lived for most of his life. He also worked for a period of time in Doha, Qatar. He arrived at Christmas Island on 10 September 2012, having departed Sri Lanka illegally on 25 August 2012. He applied for a Safe Haven Enterprise Visa (Class XE Subclass 790) on 4 September 2015.

10    The delegate refused to grant that visa on 19 May 2016 and, on that same day, the decision was automatically referred to the IAA. Also on that day the Minister purported to certify under s 473GB that disclosure of information in the IA Form could form the basis for a claim of Public Interest Immunity by the Crown. It appears the purported certificate and accompanying IA Form were sent to the Secretary shortly thereafter.

11    On 11 July 2016, the IAA affirmed the decision of the delegate to refuse to grant the applicant a visa.

12    The applicant had made several claims in support of his application for protection. He claimed he faced a real chance of persecution, or significant harm, by virtue of his place of birth; the political affiliations of his now deceased father (who was allegedly killed by the Sri Lankan Army on the suspicion that he was a member of the Liberation Tamil Tigers of Eelam (LTTE)); his position within the Rural Development Society of his village; and, his refusal to support the Tamil Makkal Viduthalai Pulikal (TMVP) political group. He claimed he was at risk of persecution as a Tamil from a former LTTE controlled area, as a failed asylum seeker and because of his refusal to assist the TMVP.

13    As this matter has developed the essential issue concerns the issuance by the Minister/delegate of the s 473GB Certificate to the IAA. It stated, by reference to the IA Form, that the “disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a working document”. If it were valid it would have permitted the IAA to consider material which was not disclosed to the appellant and, therefore, on which the appellant was unable to comment. However, the IAA would also have been required to consider exercising the discretion under s 473GB(3) to disclose any part of that information to the appellant. In the Court below the appellant asserted that the certificate was invalid because it failed to specify the reason why the information was protected from disclosure to the appellant on the grounds of public interest immunity or Crown Privilege.

14    By the time of the appeal the Minister accepted that the certificate was invalid, however, it was submitted this had no consequence because the IAA was entitled to treat the information in it and the IA Form as “review material” which, so it was submitted, was not subject to Subdivision C.

Grounds of Appeal

15    The appellant’s initial grounds of appeal were that the decision of the FCC was infected by legal error and that the learned Judge below did not consider all of the grounds raised. Those grounds were bare and not particularised. Shortly prior to the hearing the appellant advanced proposed new grounds of appeal.

16    The Minister opposed the raising of these new grounds and he correctly submitted that leave was required. The principles governing the exercise of discretion to grant leave to raise new grounds on appeal were recently identified in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 (Murad) (per Griffiths, Mortimer and Perry JJ) where their Honours said:

19     The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]-[90]):

46     In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47     In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48     The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

17    The Minister also submitted that in order to advance a ground of appeal it must be founded on some error by the primary judge. That, also, is correct. The Federal Court does not exercise original jurisdiction in migration matters in accordance with s 476A of the Act, save when certain criteria are met. It has been accepted in this Court that appeals are not an occasion to reconsider the Tribunal’s reasons as distinct from considering the correctness of the reasons of the judge below: see SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[8] and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]-[14].

18    As was said in Murad, the Court would generally require an adequate explanation for the failure to take the point in the Court below. No satisfactory explanation has been provided in this case as to why the points were not agitated in the FCC, although the new grounds of appeal were apparently prompted by the publication of the decision in BBS16, which was delivered on 10 November 2017. The appellant argues that despite the failure to raise the issue below and the delay in now raising it, the Court ought to allow him to agitate it because it is “in the interests of justice” to allow that to occur. Mr Gormly argued that the substantive new ground raised an important question of law concerning the operation of the Act and it ought be considered by the Court. That submission ought to be accepted, especially in light of the fact that the Minister would suffer no prejudice by it being raised now. The fact that, on consideration, the substantive ground of appeal is a valid one, is also important.

Merits of the proposed grounds

19    In considering whether leave ought to be granted to allow the appellant to advance the new grounds of appeal, a consideration of their merit is warranted. The grounds of appeal set out in the Proposed Further Amended Notice of Appeal are:

(1)    His Honour erred in failing to find the Certificate purportedly issued for the purposes of s 473GB(1) of the Migration Act 1958 (Cth) was invalid; and

(2)    The decision of the IAA was affected by jurisdictional error because the statutory condition required to enliven the discretionary powers under s 473GB(3)(a) and (b) had not been met.

Particulars

(a)    Division 6 of Part 7AA of the Act provides a statutory regime for the Authority’s dealing with certain documents or information the subject of the provisions in that Division, including documents or information to which s 437GB apply.

(b)    The Minister certified an Identity Assessment Form as a document which should not be disclosed as contrary to the public interest, and notified the Authority that s 437GB applied to that document by providing a Certificate purportedly issued under s 473GB(5) for the purposes of s 473GB(1).

(c)    The statutory condition for the lawful exercise of the Authority’s discretionary powers under s 473GB(3)(a) and (b) is the notification of the application of s 473GB to the Identity Assessment Form. This condition was not met because the Certificate was invalid, it not having been issued for the purposes of s 473GB(1).

(d)    As a result the Authority’s exercise of the under s 473GB discretions miscarried.

Ground one

20    Ground one of the Proposed Further Amended Notice of Appeal asserts the FCC erred in determining that the s 473G Certificate was validly issued. It is evident the primary judge made no determination as to the validity of the Certificate, but was prepared to consider the application before him on the hypothesis that it was not (at [52]). He held the “alleged invalidity” of the certificate could not have assisted the applicant in the review. He concluded that, even if it were invalid, the decision would not necessarily contain a jurisdictional error largely because neither the certificate, nor the IA Form, was relied upon by the IAA. The reasons for these conclusions do not appear from his Honour’s judgment.

21    In his written submissions the Minister acknowledged that the s 473GB Certificate was invalid. No adequate reason was specified in the Certificate as to why the disclosure of any matter contained in the IA Form, which was the subject of the Certificate, would be contrary to the public interest because it could form a basis for a claim by the Commonwealth for public interest immunity. The reason specified in the Certificate, that the document “was a working document”, was not and could not form the basis for a claim for public interest immunity.

22    Whilst it appears to have been clear the s 473GB Certificate was invalidly issued, there is no error to warrant allowing the appeal, or for giving leave to amend the Notice of Appeal, merely because the primary judge did not so find. His Honour was prepared to make an assumption in favour of the appellant on this issue and proceeded upon the basis that the Certificate may have been invalid.

23    The next part of his Honour’s conclusion is somewhat difficult to understand. Although the IA Form was not before the Court, his Honour found it was not relevant to the IAA’s decision. Just how such a conclusion could be reached, in the absence of knowing what it contained, was not identified. There is a noticeable lack of reasoning in his Honour’s judgment for that important conclusion and it is particularly unusual where the IAA had stated in its reasons that it had considered the material before it and made no exception in relation to the s 473GB Certificate or the IA Form. It is to be kept in mind that the Minister chose not to make the contents of the IA Form available for consideration by the FCC, or for this Court. Although the Minister is, of course, entitled to adopt that course, it means the Court cannot necessarily assume the information in the document is benign. That is particular so where the Minister saw fit to issue a s 473GB Certificate, even if that Certificate was invalid.

24    Nevertheless, the mere fact the Minister/delegate issues an invalid 473GB Certificate does not necessarily render the IAA’s decision invalid. The giving of information to the IAA by the Minister/delegate under an invalid certificate is not, by itself, a failure by the IAA to “comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34, [24] per Kiefel CJ, Gageler and Keane JJ. Rather, it is the manner in which the information is dealt with in the decision-making process that is important.

25    It follows, there is nothing in Ground one of the proposed Notice of Appeal as it is formulated which would warrant granting leave to amend the existing notice.

Ground two

26    The second ground of the Proposed Further Amended Notice of Appeal is that the decision of the IAA was affected by jurisdictional error because certain statutory conditions had not been satisfied such that the discretionary powers under s 473GB(3)(a) and (b) could not have been exercised by the IAA. The substance of the argument was that it could not be correct for the IAA to treat the information in the Certificate and IA Form as being protected by an invalid s 473GB Certificate. It was argued the IAA fell into error by exercising the s 473GB(3) discretions in relation to the information in the IA Form and Certificate as there was no valid foundation for the exercise of those discretions.

27    The Minister’s response was that it cannot be known how the IAA dealt with the information in the IA Form and the Certificate because the IAA is not required to give reasons about the manner in which it exercises powers such as the discretions in s 473GB(3). That being the case, so the argument goes, on a proper application of Part 7AA there will be no outward manifestation of how the information was used by the IAA and the appellant cannot establish how or, if at all, the IAA used the material. As will be seen from the analysis below, that last submission is not correct.

28    For the purposes of this ground the Minister also submitted that it was not in issue that both the Certificate and the IA Form were provided by the Minister's Secretary to the IAA purportedly as part of the “review material”. He did so because he sought to establish an essential part of his argument, being that the Certificate and IA Form did not have to be considered as “new information” and, therefore, notice of it did not have to be given to the appellant. In this respect it is probably correct that the documents were given to the IAA by the Secretary as “review material”. The delegate’s decision refusing the appellant a visa was made on 19 May 2016 and the purported 473GB Certificate was made the same day. It can be assumed, for the purposes of this matter, that the IA Form and the s 473GB Certificate were sent at around that time and in purported compliance with the obligation of the Secretary under s 473CB. However, the more problematic issue is whether the IAA was required to comply with the requirements of Subdivision C in relation to “new information”, which is delivered by the Secretary as part of the review material.

29    In the above manner the Minister’s submission raises the issue of whether a jurisdictional error occurred as a result of the IAA taking into consideration the IA Form and invalid 473GB Certificate without regarding it as “new information” subject to the requirements of ss 473DC to 473DF. The IAA’s decision was to have the characteristics of one which followed upon the obtaining and consideration of material in accordance with the manner prescribed by the regime in Part 7AA. Here it was arguable that the decision did not have that quality because of the irregular method by which the IA Form was given and dealt with by the IAA.

The legislative scheme

30    The resolution of the issues necessitates an understanding of the legislative scheme contained in Part 7AA in general and the operation of certain provisions in the context of that scheme. Happily, there is no need to consider the scheme of Part 7AA in any great detail in this case as it has already been undertaken on a number of occasions: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [13]–[38] per Gageler, Keane and Nettle JJ; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [85]–[98] per Kenny, Tracey and Griffiths JJ; Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [12]–[27] per Griffiths J: and more recently in BVD17 v Minister For Immigration and Border Protection [2018] FCAFC 114 at [18]–[31], per Flick, Markovic and Banks-Smith JJ. In these analyses express reference is made to the limiting effect of s 473DA, which defines the scope of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. That is not surprising given that a significant characteristic of Part 7AA is the substantially reduced rights of visa applicants to a hearing of their claims on the merits. Indeed, the general operation of Part 7AA is that the IAA will determine the matters referred by the Secretary on the material before it and without speaking to the applicant.

31    In BVD17 the Full Court summed up the general operation of the Part 7AA process in the following manner:

[31] In summary, the scheme of Pt 7AA is that, except in limited circumstances, the Authority must review de novo a fast track decision referred to it on the papers, those papers being the review material provided to it by the Secretary of the Department, and conduct that review without accepting or requesting new information or interviewing the referred applicant. It may receive and take into account confidential information the subject of a Certificate and has a discretion as to whether to use such information or disclose it to the referred applicant. That is the nature of the statutory scheme against which issues of legal unreasonableness are to be considered.

32    It should be observed that in their identification of the general operation of the scheme of Part 7AA Gageler, Keane and Nettle JJ in Plaintiff M174/2016 at [25]–[27] held that material given to the IAA by the Secretary as “review material” is subject to the requirements of subdivision C, which concerns the reception of “new material”. Their Honours said:

25    There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

26    In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably.

27    Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority's obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

33    The last sentence of this passage is significant for the purposes of the disposition of this case.

34    Having adopted the above descriptions of the operation of Part 7AA, for present purposes it is only necessary to set out s 473GB of the Act which provides:

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

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

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

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

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

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

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

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

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

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

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

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

The Minister’s submissions

35    The Minister submitted that as the s 473GB Certificate was invalid it did not enliven either of the discretions in s 476GD(3) to have regard to the IA Form or Certificate, or to disclose any matter to the appellant. Whilst that would appear to be correct, it does not necessarily advance the determination of the real issue in dispute.

36    The Minister submitted the appellant had not established the IAA had given consideration to the Certificate and IA Form such that it could not be argued any error arose in the deliberation process. He submitted that it was the appellant who bore the onus of establishing the basis for drawing any inference necessary to make out the alleged jurisdictional error: BVD16 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [41]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]. However, in this case where the IAA stated in paragraph 3 of its reasons that it had “had regard to” the material referred by the Secretary under s 473CB, it is difficult to accept that this did not mean that it had considered those documents. If, as the Minister submitted, the IAA did not consider the IA Form as part of the review material, it would necessarily not have complied with its obligation under s 473DB(1) and that, of itself, would have constituted a jurisdictional error. In the circumstances, it is appropriate to proceed upon the basis that the IAA considered the IA Form as part of its deliberative process.

37    The Minister also submitted the appellant had not established the IAA acted upon the assumption the s 473GB Certificate was valid such that it exercised its discretion under s 473GB(3)(b) not to disclose it to the appellant. It is alleged the IAA may have ignored the Certificate and IA Form because the certificate was so obviously defective. That submission reflects the somewhat harsh operation of the Act to the effect that the IAA is, apparently, not bound to provide reasons for the exercise of its procedural decisions: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, but see CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [41]. If the purported exercise of the discretion under s 473GB(3)(b) was to be a foundation of the appeal, that is something which the appellant was necessarily required to establish. As was said by the Full Court in BVD16 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [41] – [42]:

41    The appellant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] per Gummow J. It follows that he bears the onus of establishing the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s 473GB(3)(b). The Minister does not need to establish that the Authority had indeed considered the exercise of the discretion.

42    The fact that the Authority did not refer to or explain the exercise of its discretion in its reasons does not assist the appellant in this case. As Thawley J noted in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 [BCQ16] (at [45], [49]–[50]), the Authority's obligation to provide written reasons under s 473EA(1) does not require a statement as to the exercise of a procedural decision in the course of the review. This is consistent with the fact that the statutory scheme contemplates that a person may have no knowledge of the existence of a Certificate.

38    However, the Minister’s reliance upon the appellant’s inability to show how the IAA actually dealt with the information in the invalid Certificate and IA Form was grounded upon the assumption the IAA was not bound to treat either as containing “new information”. If that assumption is correct and s 473GB applied even where the certificate was invalid, the manner the IAA dealt with the information could be hidden from view. However, if, as appears to be the case, the IAA was required to treat either document as containing “new information”, it would have been required to give particulars of that information to the appellant. It is accepted that was not done. It follows that two things can be known about the manner in which the IAA dealt with the information in the Certificate and IA Form:

(a)    First, it did not provide particulars of the information to the appellant which, as will be seen, necessarily means it did not treat the information as “new information”.

(b)    It can inferred that the IAA believed its discretion in s 473GB(3) was enlivened, and it proceeded to undertake the review on that basis.

A document not before the Minister/delegate when the original decision was made

39    As identified above, an unsatisfactory aspect of this matter is the state of the evidence concerning whether the IA Form was before the delegate when the decision was made to refuse the visa. To some extent, that was clarified by the filing of additional material on the subsequent hearing and it is probably safe to proceed upon the basis that it was. Despite that, it is not in doubt that the s 473 Certificate was not before the delegate. It was produced subsequent to the delegate’s decision for the specific purpose of sending to the IAA in purported certification of the privileged nature of the information in the IA Form.

40    On that basis the information in the s 473GB Certificate would, prima facie, fall within the definition of “new information” in s 473DC(1). It also appears it would satisfy the requirements of s 473DE(1)(a) and there was no submission to the contrary.

The Minister’s argument based upon BBS16

41    The Minister submitted that once it is accepted s 473GB is not engaged because the certificate was invalid, the IAA was required to deal with the information as “review material” pursuant to s 473DB. It was submitted that if the Secretary provides material under that section there is no requirement by the IAA to treat it as “new information” and no obligation arises to disclose it to the applicant. In support of that Mr Kaplan, for the Minister, relied upon the decision of the Full Court in BBS16. He did, however, acknowledge that “different considerations might arise if that document does meet the description of new information in section 473DC”. Later he submitted:

MR KAPLAN: There may – your Honour, if – if it can be clearly shown that the document covered by the non-disclosure certificate meets the definition of “new information” – which is not the present case. But if it meets the definition of “new information” under 473DC then other questions may arise

42    Subsequently, it was submitted that if the material was not sent to the IAA by the Secretary as “review material”, but came into existence sometime well after the delegate’s decision and was then forwarded to the IAA it may be “new information” because it is not given by the Secretary under s 473CB.

43    Ultimately, the Minister’s submission was that if the information given by the Secretary to the IAA is “review material” then it cannot be “new information” under Subdivision C and he sought to support that proposition by reference to the Full Court decision in BBS16. In that case it had been submitted that the IAA had failed to determine that a s 473GB Certificate, which had been issued by the Minister/delegate, was invalid and by acting on it, by presumably having regard to it and the information to which it referred, the IAA had committed a jurisdictional error. There were two limbs to this argument which were, first, that it was a jurisdictional error, per se, to act upon the Certificate (relying on the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1) and, secondly, the failure to disclose the Certificate and associated information had denied the applicant procedural fairness. In that case, like the present, the associated information was an IA Form and, like the present case, it was not disclosed to the Court.

44    The first respondent in BBS16, who was the visa applicant, had argued that information given to the IAA in the form of an invalid s 473GB Certificate and associated material would have been “new information” such that the IAA was required to comply with Subdivision C in relation to it, which included giving particulars to the applicant. The Court held this was the wrong approach and that material or information provided under the s 473GB Certificate was separate and distinct from “new information”. Their Honours said:

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

45    The immediate difficulty with these observations is they proceed on the assumption the invalid s 473GB certification has some degree of efficacy which requires it and the accompanying material to be dealt with under s 473GB. In this case the Minister submitted the invalid certification had no consequences at all and could not and did not trigger the operation of s 473GB. If the Minister’s submission in this respect is correct, there is no reason why an invalid s 473GB Certificate has the operative effect attributed to it by the decision in BBS16.

46    The first reason identified by the Court as to why the “new information” provisions did not apply in that case was that the certificate and the associated information would be provided to the IAA by the Secretary in compliance with the duty in s 473CB(1)(c) and would, therefore, be “review material” the IAA was obliged to consider in making its determination pursuant to under s 473DB(1). In precise terms it was held:

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

47    The Minister relied upon this passage in support of the proposition that “review material” is not subject to the requirements of Subdivision C. That submission is contrary to the plurality of the High Court in the subsequent decision in Plaintiff M174/2016 (at [27]), and if the decision of the Full Court does have the meaning attributed to it by the Minister, it is inconsistent with the decision of the High Court and this Court is bound to follow the latter.

48    Further, so their Honours held in BBS16, pursuant to s 473DB(1) the IAA is required to consider the review material without accepting any “new material”. On that basis their Honours said:

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

49    Whilst the penultimate sentence in that paragraph might be correct when a Certificate is valid, it does not say anything about the situation where the provisions of s 473GB are not engaged and, as the Minister submits in this case, have no operative effect.

50    Their Honours’ conclusions were fortified by the observation that the provisions concerning the s 473GB Certificate were not part of Subdivision C which dealt with “new information” and where a s 473GB Certificate was given, the Secretary was obliged to give the IAA notice of the section’s application and may provide further information in relation to the significance of the document. Once those matters occur, the two important discretions in s 473GB(3) are enlivened.

51    Their Honours provided further reasons as to why Subdivision C did not apply to a s 473GB Certificate or the material covered by it:

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

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

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

[99]    For these reasons, we consider that the first limb of Beach J’s analysis in MZAFZ has no application to a Pt 7AA review.

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

52    The reasoning in BBS16 identified above appears to be concerned with the situation where the s 473GB Certificate is validly issued. This can be seen from the last sentence in paragraph [100]. As their Honours identified, the position may well be different where it is invalid. That is a somewhat incongruous statement where, in the matter before the Court, it was accepted that the certification was invalid (see [87]). However, it may be that what their Honours were really saying was, as a matter of practical reality, because an applicant will not usually know whether a s 473GB Certificate was issued or whether it was valid, there is no real basis on which they could challenge the IAA’s decision on this ground.

53    A difficulty with applying the reasoning in BBS16 to a situation where the IAA is given an invalid s 473GB Certificate is highlighted by the arguments advanced by the Minister in the present matter. He submitted, as a cornerstone of his case, that once the conclusion is reached, that the 473GB Certificate is invalid it has no effect whatsoever and the information to which it purported to apply should not be treated as being subject to the confidential information provisions in Division 6. If it is correct that in BBS16 their Honours proceeded upon the basis that the confidential information provisions continued to segregate the information disclosed by the Secretary under the invalid s 473GB Certificate from the “new information” provisions, the arguments of the Minister in this case necessarily assume that part of the decision to be incorrect.

54    However, in the Minister’s submission, the fact that the invalid certificate renders the provisions of s 473GB irrelevant, does not have the result that the information should be dealt with as “new information”. He submitted the information in the certificate is simply to be considered in accordance with s 473DC as “review material”, which bypasses Subdivision C. As explained above, that submission is inconsistent with the operation of Part 7AA as identified by the majority in Plaintiff M174/2016 at [27].

55    Whilst it is true that information given by the Secretary to the IAA in an invalid s 473GB Certificate and accompanying material would be “review material” within s 473CB(1), if it was not before the Minister when the first decision was made it must necessarily be “new information” within the meaning of s 473DC(1) and could only be used in accordance with Subdivision 3. Were it otherwise, the Secretary could provide the IAA with additional material (either under an invalid s 473GB Certificate or otherwise) as “review material” which is damaging to the applicant and the safeguards provided by s 473DD and s 473DE could be effectively circumvented. The construction of Part 7AA advanced by the Minister leads to the anomalous result that information not before the delegate might be given to the IAA by the Secretary which is then not regarded as “new information”, but if the same information was obtained by the IAA itself, it would be subject to the requirements of the “new information” provisions. Similarly, if the IAA obtained “new information” which it intended to consider, particulars of it must be given to the appellant, however, on the Minister’s argument, if that same information were provided to the IAA by the Secretary under cover of an invalid 473GB Certificate, there would be no obligation to disclose it. The operation of the Act in that manner would be incongruous or capricious and is not likely to have been intended by the Legislature: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320-321.

56    It can be accepted that if information is provided to the IAA pursuant to a valid s 473GB Certificate, it and the Certificate itself need only be dealt with pursuant to the “confidential information” provisions in Division 6. Those provisions, which are inconsistent with the requirements of the “new information” provisions, permit the IAA to withhold information from the applicant whilst the latter requires it to disclose the information. However, where the s 473GB Certificate is not valid and, as the Minister submits in this case, the section is not engaged, there is no reason why the “confidential information” provisions would have any relevance to the question of the legality of the manner in which the information is used. If the information passed on to the IAA by the Secretary otherwise than pursuant to a valid s 473GB Certificate was not before the Minister when the decision was made, it must be treated as “new information” and the IAA is required to consider it pursuant to s 473DB.

The information in the certificate was “new information”

57    Whilst there appeared to be some confusion as to whether the IA Form was before the delegate, it does not appear to be in doubt that the invalid Certificate was not. The invalid Certificate was considered to be relevant by the IAA and was relied upon. It was also apparently relevant to the decision made by the IAA. It was “new information” which the IAA was required to deal with in accordance with Subdivision C.

A jurisdictional error

58    It follows the IAA dealt with the information provided to it in a way other than how it was obliged in accordance with the requirements of Subdivision C. The decision did not “comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”: Hossain v Minister for Immigration and Border Protection [2018] HAC 34 at [24]. It was not made in accordance with the process put in place and, in particular, the information was considered by the IAA without giving particulars of it to the appellant. It might be noted that where the right of a party who may be affected by an administrative decision to a fair hearing is pared down to the barest minimum to justify the process as one which adheres to the Rule of Law, any departure from the process is likely to generate a jurisdictional error.

Materiality of the error

59    The Minister submitted that even if there were an error it was not sufficiently material to attribute to it of the nomenclature, “jurisdictional”. That is a somewhat surprising submission in the context where the Minister chose, as he was entitled to do, not to disclose the IA Form, for the purposes of the appeal. The test to be applied in ascertaining whether an administrative error is sufficiently material to be jurisdictional sets the bar at a low level. The Court only has to be satisfied that it deprived the affected party of the possibility of a successful outcome: Nobarani v Moriconte [2018] HCA 36 at [38]. The difficulty here is that the invalid Certificate related to information in the IA Form, the contents of which were not known. The real grounds for asserting Public Interest Immunity in relation to the information in that form are not known in this case, but no doubt the assertion of that claim by the Minister to the IAA heightened the import of the information in the IA Form. The appellant was not given the opportunity required under s 473DE(1)(c) to respond to the assertion by the Minister that the information in the IA Form rendered it of particular interest or veracity. That being so it is very difficult to reach the conclusion that there was no possibility of a successful outcome had the correct process been followed.

The manner in which the error impacts on the appeal.

60    It follows that the substratum of the Minister’s submissions was based upon an erroneous construction of Part 7AA. The invalid s 473GB Certificate meant the information it contained was “new information” and notification of it had to be given to the appellant if it were relied upon, as it was. No such notification was given.

61    Further, the Minister’s submission that it could not be ascertained whether the IAA acted properly in relation to the invalid certificate cannot be accepted. First, it is clear that it did not give particulars of the new information to the appellant. It might therefore be supposed that, if it acted in accordance with the correct operation of Part 7AA, it must have assumed that the Certificate was valid. If so, it therefore acted upon a fundamentally wrong premise in the consideration of the exercise of its powers. That too is likely to amount to a jurisdictional error. The IAA was mistaken as to the correct manner in which to deal with the information in the invalid Certificate. It must have incorrectly assumed that it was entitled not to disclose it to the appellant if it thought that it was relevant. It obviously did not turn its mind to whether the requirements of s 473DE(1) were met. The decision generated by the IAA did not have the characteristics of one which was reached in accordance with the essential requirements of Part 7AA because the information in the invalid Certificate was erroneously considered.

Disposition of the appeal

62    The proposed amended notice of appeal raised an important point of construction albeit in a slightly tangential manner. The Minister sustains no prejudice by the raising of the new ground and it is apparent that no additional evidence is required for its consideration. The Minister made fulsome submissions on the topic and was invited to make further submissions when the issue became more clear. It is in the interests of justice that the appellant be entitled to raise them and leave should be given to amend the Notice of Appeal.

63    In light of the above it is apparent that the ground 2 of the proposed Notice of Appeal should succeed.

Conclusion

64    The appeal should be allowed with costs.

Recognition of Counsel

65    The Court expresses its appreciation to Counsel for their submissions. In particular, the Court acknowledges the efforts of Mr Gormly of Counsel who appeared on a pro bono referral from the Court.

Associate:

Dated:    25 September 2018