FEDERAL COURT OF AUSTRALIA

EUW17 v Minister for Immigration and Border Protection [2019] FCA 744

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent's costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review. The application concerned a decision of the Immigration Assessment Authority (IAA) which affirmed a decision by a delegate of the first respondent (the Minister) refusing to grant a protection visa to the appellant.

Background

2    The appellant is a citizen of Sri Lanka, who is 24 years of age. He arrived in Australia by boat, disembarking at the Cocos (Keeling) Islands on 3 November 2012.

3    On 22 April 2016 the appellant applied for a protection visa. He claimed to fear that if he were to return to Sri Lanka he would face harm at the hands of the Sri Lankan Army and the Sri Lankan Criminal Investigation Department, on the basis of his Tamil ethnicity and suspected involvement with the insurgent group, Liberation Tigers of Tamil Eelam.

4    The precise nature of the appellant's claims to protection are not relevant to the present appeal, which arises out of a mistake that the IAA made when it sent the appellant a letter acknowledging the referral of the delegate's decision to it for review, and documents that were attached to that letter. The mistake was that the IAA sent the acknowledgement letter to the wrong address. It came about in the following way.

5    In his application for a protection visa the appellant gave an address in Jaeger Square, Ballajura, Western Australia. But by 10 October 2016 he had moved to an address in Pimelia Grove, Thornlie, Western Australia, and on that date he notified the Department of Immigration and Border Protection (the Department) of the change of address.

6    The delegate of the Minister refused the application for a protection visa on 12 December 2016. The Department, correctly, sent written notification of that decision to the appellant at the Pimelia Grove address. The decision was a fast track reviewable decision for the purposes of Part 7AA of the Migration Act 1958 (Cth) (Act) and the appellant was not an 'excluded fast track review applicant' as defined by the Act. Therefore, shortly after the decision was made, the Department completed the necessary form to refer the decision to the IAA for review. That form, which was provided to the IAA, showed the Pimelia Grove address as the appellant's address.

7    The IAA sent the appellant a letter dated 19 December 2016 acknowledging the referral to it of the delegate's decision, along with two attachments. One of the attachments was described in the letter as a 'factsheet' entitled 'What you need to know about the IAA'. It was provided in both English and Tamil. The other was entitled 'Practice Direction for Applicants, Representatives and Authorised Recipients' (the Practice Direction), which was a practice direction which the IAA gave under s 473FB of the Act.

8    The problem is that, while it appears that the IAA did send that letter and attachments, for reasons that are unexplained the letter was addressed and, it can be inferred, sent, to the Jaeger Square address in Ballajura, not the (correct) Pimelia Grove, Thornlie address.

9    As a result, the appellant did not receive the acknowledgement letter or the attachments in December 2016. The appellant claims this means that he was denied procedural fairness in respect of the review by the IAA. He also claims on the basis of the same set of facts that the IAA committed a jurisdictional error in failing to conduct the review in accordance with Part 7AA of the Act.

10    The appellant did, however, receive the acknowledgement letter with the Practice Direction before the IAA made its decision affirming the delegate's decision. In an affidavit filed in the judicial review proceedings before the Federal Circuit Court, the appellant says he only came to know about the acknowledgement letter 'a few months later and when I took the letter to a friend to read to me the 21 days stipulated in the IAA acknowledgment letter has passed'.

11    It is not clear from this evidence exactly how the appellant received the letter, and only the covering letter dated 19 December 2016 is annexed to his affidavit, not the attachments. However the primary judge found that the appellant became aware of the Practice Direction well before the IAA made its decision in this matter and the appellant has not challenged that finding (although he does seek to challenge its significance). The reference to 'a few months later' in the affidavit means a few months later than 19 December 2016, the date on which the letter was sent to the wrong address, so it means, at the latest, April 2017. The IAA did not make its decision until 22 August 2017, which is approximately eight months after that date. It follows that the letter and Practice Direction were received at least four months before the IAA made its decision.

12    The paragraphs of the Practice Direction that are relevant to this appeal are as follows:

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

•    why you disagree with the decision of the Department

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

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

…

28.    Reviews will generally be completed within six weeks of referral from the Department.

13    The 'factsheet' entitled 'What you need to know about the Immigration Assessment Authority' which was enclosed with the IAA's letter of 19 December 2016 also contained statements concerning the ability to make submissions. However it does not appear that the question of whether and when the appellant received that document was ventilated before the primary judge, and his Honour did not make any finding on the subject, so I will not refer to the contents of that document here.

14    The IAA sent the notification of its decision of 22 August 2017 to the Pimelia Grove address. By then the appellant had moved back to the Jaeger Square address and, although he had promptly notified the Department of that move, he did not receive notice of the IAA's decision until October 2017. However nothing turns on that for the purposes of the present appeal.

The decision in the Federal Circuit Court

15    By an amended application the appellant sought judicial review in the Federal Circuit Court on two grounds which in his submissions to this court were described as 'closely aligned'.

16    The first ground was that the appellant was denied procedural fairness by being deprived of the opportunity to make submissions to the IAA on the review as invited by the Practice Direction. The key particular of that ground alleged that by sending the acknowledgement letter and Practice Direction to the incorrect address, the IAA deprived the appellant of an opportunity to comply with the Practice Direction and provide a submission to the IAA when conducting the review.

17    In relation to that, the primary judge held, relying on CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404, that there was nothing in the Act that required the IAA to send a copy of the Practice Direction to the appellant and there was nothing in Division 3 of Part 7AA or s 473GA or s 473GB, which required the IAA to give the appellant an opportunity to make submissions or provide new information. Under s 473DA, those provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.

18    The primary judge considered that the central issue, however, was whether, having decided in accordance with the normal administrative practice to send out the Practice Direction, the IAA was required to send it to the correct address, and whether, if it did not comply with any such requirement, that amounted to jurisdictional error. His Honour found that the IAA in the present case did fail to comply with s 473HB, which (he found) required the IAA to send the acknowledgement letter and Practice Direction to the correct address. But his Honour found that in circumstances where:

(1)    the appellant received a letter from the Department which enclosed the delegate's decision and basic information about the referral to the Authority and which provided a website address for the authority where the appellant could obtain further information;

(2)    the Practice Direction was a publicly accessible document;

(3)    nothing in Part 7AA prevented the appellant from making a submission to the IAA; and

(4)    the appellant did in any event receive the Practice Direction well before the IAA made its decision,

the appellant was not deprived of an opportunity to provide a submission to the IAA. Therefore it could not be said that the appellant was denied procedural fairness and that the IAA fell into jurisdictional error.

19    Before the Federal Circuit Court the appellant also submitted that in sending the letter and Practice Direction to the wrong address, the IAA 'has reviewed the decision by considering something other than the review material, as that phrase is defined'. That is a reference to the definition of 'review material' provided by s 473CB which includes relevant notified addresses of the appellant. The appellant submitted that s 473DB imposed a duty on the IAA to conduct its review by reference to the review material, so by sending the acknowledgement to an address that was not part of the review material, the IAA 'departed from the strict legislative pathway which it was bound to follow'.

20    The primary judge rejected this submission. His Honour found that since the IAA sent its decision to the Pimelia Grove address provided by the Department, it was not clear that the IAA did not consider that address. But even if it did not, that omission could have had no impact on the IAA's consideration of the appellant's protection claims.

21    The second ground of review before the Federal Circuit Court was that, by reference to the same particulars as for the first ground of review, the IAA fell into jurisdictional error by failing to conduct the review in accordance with the procedure on review established pursuant to Part 7AA of the Act. The primary judge noted that counsel for the appellant had not sought to distinguish the two grounds of appeal and so held that the disposition of the first ground disposed of the second. His Honour also found in relation to ground 2 that there was no evidence that the requirements of the Practice Direction were not complied with.

This appeal - consideration of ground 1

22    In this court, there were two grounds of appeal. Ground 1 is as follows:

The primary judge erred in not finding that the applicant was denied procedural fairness by being deprived of the opportunity to make submissions to the IAA on the review as invited by the IAA's Practice Direction.

23    There are particulars which specify the mistake in sending the Practice Direction which I have already described above and allege that by sending the acknowledgement of referral to the wrong address, the IAA 'deprived the applicant [sic] of an opportunity to comply with the Practice Direction and provide a submission to the IAA when conducting the review'.

Minister for Immigration and Border Protection v SZMTA

24    The appellant's case rested on a contention that in sending the acknowledgement letter to the wrong address, the IAA breached a requirement to afford procedural fairness which Bell, Gageler and Keane JJ identified in the following passages from Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599:

[27]    The Minister concedes that the consequences for a review under Pt 7 of the Secretary notifying the Tribunal that s 438 applies in relation to a document or information are sufficient for the common law to imply an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review unless such an obligation is specifically excluded by the statutory scheme. The concession is rightly made.

...

[29]    The reason why the Minister's concession is correct is that procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be apprised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.

(citations omitted)

25    In the present case, the appellant submits, Part 7AA of the Act was the procedural context in which an opportunity to present evidence and make submissions was routinely afforded by the IAA. Part 7AA makes no provision for submissions from an applicant. It was said that the making of the Practice Direction was an event that resulted in an alteration to that routine procedural context. That is because the Practice Direction conferred an opportunity to make submissions which was absent from Part 7AA. Failing to apprise the appellant of the content of the Practice Direction thus denied to the appellant what was referred to in counsel's submissions as a common law obligation of procedural fairness.

26    It is in this sense that it is maintained, by way of ground 1, that the appellant was deprived of the opportunity to make submissions to the IAA on the review. The point was not put this way before the Federal Circuit Court; SZMTA was decided after the primary judge delivered his reasons in this matter. However the Minister did not object to it being raised in that way in this court, so I will deal with it on that basis.

27    For the following reasons, I do not consider that the principle identified in the passages from SZMTA which I have quoted helps the appellant here.

28    Under Part 7AA, at least in the circumstances that usually obtain, the IAA has no obligation to receive or consider submissions from the appellant, but by the same token there is nothing prohibiting the appellant from putting submissions to it: COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37]-[38] (Rares J).

29    It may be, however, that by reason of the Practice Direction, the IAA is obliged to receive and consider submissions that are put to it in accordance with its terms. That is because, being a direction issued under s 473FB(1), s 473FB(3) obliges the IAA to comply with it 'as far as practicable', although that provision also stipulates that 'non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision'.

30    I have already set out the paragraphs of the Practice Direction that are relevant to the present appeal. It is arguable that they imply that the IAA will receive and consider submissions no longer than five pages that are received within 21 days of the referral of the application to the IAA for review (see Practice Direction paragraph 21), and therefore that if the IAA does not receive or consider such submissions, it will not be complying with the Practice Direction 'as far as practicable'.

31    But even if that is so, the difficulty for the appellant here is that, at least by the time his application was referred to the IAA, the Practice Direction did not alter the procedural context in which the IAA routinely afforded an opportunity to make submissions; rather, it was part of that context.

32    The Practice Direction was made before the delegate's decision of 12 December 2016 was referred to the IAA, so it was in effect at all material times. I have already described s 473FB(3). In addition, s 473FB(4) provides that if the IAA deals with a review of a decision in a way that complies with a Practice Direction, the IAA is not required to take any other action in dealing with the review. Section 473FB(5) provides that the IAA is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person. These provisions cement the position of the Practice Direction as part of the routine procedural context in which the IAA was conducting its review of the appellant's protection claims.

33    Once that is understood, the appellant's case resolves to a submission that the IAA was obliged to inform the appellant specifically of the terms of the Practice Direction. With respect, I cannot accept that. The Practice Direction was a publicly available document with which the IAA was required to comply, as far as practicable. The appellant submitted that there was no evidence as to the ability of the appellant to access the Practice Direction, but that fails to recognise that the appellant had the onus of demonstrating jurisdictional error. The appellant also submitted that the obligation to comply with the Practice Direction imported an obligation to send it out to the correct address. However that does not follow, and nor does it engage with the express statement in s 473FB(3) that non-compliance does not mean that the IAA's decision on review is an invalid decision. In any event, it cannot be the case that every time a decision making body releases or changes one of its published practices or procedures, it must specifically notify every interested party before it who is potentially affected by the practice or procedure. Yet that would be the logical consequence of accepting the appellant's case in this regard.

34    When one considers the circumstances with which the High Court was dealing in SZMTA, it becomes clear that the alteration in the procedural context to which the plurality referred in the passages quoted above was different to the making of a publicly available practice direction. The events which altered the procedural context in the cases that were before the High Court in SZMTA were notifications under s 438 of the Act to the Administrative Appeals Tribunal by the Secretary of the Department.

35    In SZMTA, the plurality explained the significance of such notifications as follows:

[30]    A notification by the Secretary to the Tribunal that a document or information given by the Secretary to the Tribunal is a document or information to which s 438 applies is an event which alters the procedural context within which the Tribunal's duty of review is to be conducted. If valid, the notification erects a procedural impediment to the otherwise unfettered ability of the Tribunal to take into account the document or information if the Tribunal considers it to be relevant to an issue to be determined in the review, constrains the power of the Tribunal under s 427(1)(c) [to give information to the applicant and to the Secretary], and truncates the specific obligations of the Tribunal under ss 424AA, 424A and 425 [to give information to the applicant and to permit the applicant to appear and present arguments]. The very fact of notification also changes the context in which the entitlement of the applicant under s 423 - to give the Tribunal a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review - falls to be exercised.

36    Thus the event which altered the routine procedural context was something specific to the cases that were before the Administrative Appeals Tribunal, not the making of a publicly available practice direction. That understanding of SZMTA is confirmed when one considers the authority that the plurality cited for the proposition on which the appellant here relies, namely Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [43]-[44] and [62]-[67]. That was a case where a person whom a delegate of the Minister had assessed not to be a refugee requested an independent merits review of the assessment. He was interviewed by a reviewer who then handed the case to a second reviewer, who decided it adversely to the applicant without conducting an interview. The applicant was not told of the transfer to the second reviewer before the decision was made. The applicant was therefore denied the opportunity to advance his case by having the ultimate reviewer rely on favourable impressions of his credibility formed during an interview, and denied the opportunity to be heard as to how the change in the process might be completed so that it would not disadvantage him: WZARH at [43]-[44]. The change in procedure, which was not notified to the applicant, changed the nature of the opportunity that had previously been given to him: WZARH at [64].

37    The situation in the present case is different to both SZMTA and WZARH. The making of the Practice Direction was not an event specific to the appellant. It was a public and generally applicable direction as to procedures which the IAA would follow. The existence of the Practice Direction did not change the context, afforded in part by the Practice Direction, within which the appellant could provide submissions to the IAA. It did not (and could not) effect any departure from or change to the statutory regime. Nor do I see that it is open to apply the principle in SZMTA to the IAA's decision to send the Practice Direction to the appellant in this case. The step of sending the Practice Direction to the appellant did not change the procedural context. That step was also entirely routine; the primary judge found that the Authority normally does provide a copy of the Practice Direction to applicants, and the appellant does not challenge that finding.

38    In the present case, there was no change in the opportunities available to the appellant. He was always able to make a submission. The Practice Direction applied at all times relevant to his application. The IAA did not (until later) specifically inform the appellant of the existence of the Practice Direction, but for the reasons I have given I do not consider that it had any obligation to do so.

The effect of the mistake in sending the Practice Direction to the appellant

39    The appellant submitted that the IAA was likely to have assumed it had sent the Practice Direction to him so that, not having heard from him, it assumed that he had elected not to make a submission. This, it is said, might lead the reviewer to form conclusions about the correctness of the delegate's decision.

40    I do not accept that submission either. The mere existence of the Practice Direction is likely to have created the same assumption on the part of the IAA, regardless of whether the IAA also assumed that the appellant had been specifically informed of the Practice Direction. In any event, I do not accept that in the context of the automatic review process under Part 7AA, the reviewer would have reached any conclusion about the correctness of the delegate's decision as a result of the absence of any submission from the appellant. Under s 473CC the IAA had an obligation to review the delegate's decision, with or without any submission from the appellant, and there is no suggestion in the IAA's reasons for decision here that it was swayed by the absence of a submission. Even if it was, in my view the alleged assumption is only relevant to the materiality of any breach of procedural fairness. For the reasons I have given, there was no breach.

41    A more elementary problem with the appellant's submission that the IAA must have wrongly assumed that he had elected not to make a submission is that, as I have said, the appellant did receive the Practice Direction, well before the IAA made its adverse decision on the review. That being so, it is hard to see how any such assumption on the part of the IAA was wrong.

42    The appellant's submissions sought to deal with this by saying that by the time the appellant became aware of the Practice Direction, 'the "horse had already bolted" in relation to the opportunity to make a submission'. That appears to be a reference to the passage from the appellant's affidavit to which I have referred above. The suggestion seems to be that because the 21 days stipulated in the Practice Direction had expired, the appellant thought that he was not able to make any submission. However the suggestion is a faint one; the appellant does not say that he thought he was out of time and that this was the reason why he did not make a submission to the IAA.

43    In any event, the suggestion needs to be assessed in the context of what the Practice Direction said, and the circumstances in which it was received. I have already set out the relevant passages from the document. The key sentence is the one in paragraph 21 that says that any submission 'should be provided to us within 21 days of your case being referred to us by the Department'. This does not convey that submissions received after the 21 day deadline will not be considered. The word used is 'should', not 'must'; the language is precatory, not mandatory.

44    The appellant's submissions focussed on the last sentence of paragraph 21 ('If you do not comply with that deadline we will make our decision without the benefit of your submissions'). That is more categorical as to the consequences of missing the 'deadline' to which it refers. But which deadline is that? The natural reading is that it is referring to the 'deadline' described, using that word, in the preceding sentence, namely the deadline for providing revised submissions if the IAA returns the applicant's original submission. That is different to the 21 days for the provision of the original submission which is the period that the appellant says he thought had passed. Indeed, the fact that a categorical statement is not made about the consequences of missing the 21 day deadline suggests that those consequences will not be as drastic as the consequences of missing the deadline to which the last sentence refers.

45    While the appellant may have had difficulty in understanding the Practice Direction, given that English is not his first language, it was incumbent on him to take appropriate steps to ensure that he understood the Practice Direction: see eg BRGAI of 2008 v Minister for Immigration and Citizenship [2009] FCA 1302 at [17]-[18].

46    In any event, it is unlikely that a person receiving the Practice Direction a few months late because it was sent to the wrong address would have concluded that he had no opportunity to make submissions because the deadline had been missed. It must have been evident to the appellant that he was outside the 21 days due to no fault of his own. I do not accept that he concluded that he could not make any submission, and the appellant does not say that he did conclude that.

47    In those circumstances, therefore, I respectfully agree with the primary judge's finding that, for reasons which include his receipt of the Practice Direction well before the IAA made its decision, the appellant was not deprived of an opportunity to make submissions to the IAA. No 'practical injustice' occurred: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14 [38] (Gleeson CJ).

Exclusion of natural justice hearing rule

48    Even if the IAA did breach an obligation to give the appellant an opportunity to make submissions, s 473DA presents another obstacle to success in the appeal. That section, which as I have already mentioned, provides as follows:

Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

49    It is not suggested here that the IAA has breached any of the provisions which under s 473DA must, together, be taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA. Instead, the appellant relies on a common law obligation of procedural fairness (which may be more accurately described as a common law principle of statutory interpretation: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at 666 [97]). The 'natural justice hearing rule' is not defined in the Act, but it refers to procedural fairness: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 256 [2] (speaking of s 51A of the Act); SZMTA at 609 [34] (speaking of s 422B of the Act).

50    It is difficult to see how, in those circumstances, the appellant can succeed in any case which relies on a breach of an obligation of procedural fairness which is not found in Part 7AA Division 3 or s 473GA and s 473GB. That he cannot is consistent with the passage from CRJ17 on which the primary judge relied, in which (at [51]) Banks-Smith J held that there was no obligation for the IAA to write to the applicant and inform him of the statutory provisions as to receipt of new information, and that:

s 473DA addresses the natural justice rule in the context of reviews by the Authority and that the Authority in this case was obliged only to comply with and did comply with the requirements of Division 3 of Pt 7AA with respect to its treatment of purported additional information.

51    It follows that I do not accept a submission made on behalf of the appellant here that the primary judge's reliance on CRJ17 was misplaced. The appellant sought to distinguish CRJ17 because Banks-Smith J was dealing with notification of the obligations as to new information that are found in the Act, not notification of its own decision to send out the Practice Direction. But either way, s 473DA excludes any relevant obligation of procedural fairness: see also BSQ16 v Minister for Immigration and Border Protection [2018] FCA 469 at [32] (Wigney J).

52    Counsel for the appellant sought to overcome the obstacle posed by s 473DA by referring to a passage from SZMTA where the plurality held (at [32]-[36]) that s 422B, a similar provision, did not exclude procedural fairness from the conduct of reviews by the Administrative Appeals Tribunal under Part 7 of the Act. The passage is as follows:

[32]    The submission of the Minister, made in a notice of contention in BEG15 and in a summons seeking special leave to cross-appeal in CQZ15, is that an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification is excluded by the requirement of s 422B(2) that, in so far as s 438 relates to Div 4 of Pt 7, s 438 must be taken to be an exhaustive statement of the requirements of procedural fairness in relation to the matter with which that section deals. To evaluate that submission, it is necessary to consider s 422B as a whole.

[33]    Appearing at the commencement of Div 4 of Pt 7, s 422B provides:

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

(2)    Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

[34]    Importantly, s 422B is not framed in a way that excludes procedural fairness, which it refers to as "the natural justice hearing rule", from the conduct of the review. Rather, the section is framed in a way that is consistent with the implication of an obligation to afford procedural fairness through the operation of a common law principle of interpretation as a condition of the performance by the Tribunal of its duty to conduct the review. The section is also framed in a way which recognises that the precise content of that obligation to afford procedural fairness depends on "the particular statutory framework".

[35]    By providing that specified provisions and groups of provisions are taken to be an exhaustive statement of the requirements of procedural fairness in relation to the "matters" with which they deal, s 422B(1) and (2) operate to ensure that compliance by the Tribunal with the procedures prescribed by those specified provisions and groups of provisions constitutes compliance with the obligation of the Tribunal to afford procedural fairness in so far as each provision gives specific content to that obligation. The "matters" to which the sub-sections refer are the discrete subject-matters of the provisions. The discrete subject-matter of each provision is indicated by, but not limited to, the terms of each provision.

[36]    Section 422B(3) reinforces this operation of s 422B(1) and (2), and complements the general exhortation to the Tribunal to act according to substantial justice and the merits of the case, by requiring the Tribunal's performance of the procedural obligations imposed on it by Div 4 and the Tribunal's exercise of the procedural powers conferred on it by Div 4 to be informed by the same considerations of fairness and justice as those that inform the common law's implication into the statutory scheme of the Tribunal's overall obligation to afford procedural fairness. The design of the sub-section in that way guards against "rigidity" in the application of procedures themselves designed to facilitate partial compliance with the overall obligation of the Tribunal to afford procedural fairness.

(footnotes omitted)

53    However that passage does not help the appellant here. While s 422B is similar to s 473DA in some ways, they are not the same. In DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, Barker J pointed out one important difference as follows:

[62]    Section 473DA(1) of the Migration Act makes clear that Div 3 of Pt 7AA, together with s 473GA and s 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews by the Authority. The provision may be contrasted with s 422B(1), which deals with reviews by the Administrative Appeals Tribunal under Pt 7 of the Migration Act. Section 422B(1) provides that Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule 'in relation to the matters it deals with', suggesting that there is still some scope for the operation of common law principles of natural justice that are able to operate consistently with the provisions in Div 4 of Pt 7. See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23. Markedly, s 473DA(1) is not qualified in this manner.

54    To this it may be added that s 473DA lacks any provision similar to s 422B(3), which provides that in applying Division 3 of Part 7 of the Act, the Administrative Appeals Tribunal must act in a way that is fair and just.

55    In Saeed v Minister for Immigration and Citizenship at [35]-[42], the plurality emphasised the importance of identifying the specific matters that were encompassed by the phrase 'in relation to the matters it deals with' in another similar provision, s 51A of the Act, and concluded that s 51A did not exclude the natural justice hearing rule in relation to the provision of certain information to offshore visa applicants such as the appellant in that case. Similarly, it appears from the passage in SZMTA relied upon that the reference to specific 'matters' in s 422B is what led the plurality to conclude that the section did not exclude procedural fairness. But s 473DA is not limited in that way.

56    Ground of appeal 1 fails.

What submission would the appellant have made anyway?

57    In neither the Federal Circuit Court nor this court did the appellant offer any evidence or other suggestion as to what submission he would have made had he not, as he claimed, been deprived of the opportunity to do so. In this appeal the Minister submitted that the appellant had therefore not discharged the onus on him of showing that any alleged jurisdictional error was material. Counsel for the appellant objected to this submission on the ground that it was not raised in the Federal Circuit Court. Given the views I have already expressed, it is not necessary for me to decide whether the Minister was entitled to run the argument in this appeal, or to decide on the merits of the argument.

Consideration of ground 2

58    Ground 2 is as follows:

The primary judge erred in not finding that the IAA fell into jurisdictional error by failing to conduct the review in accordance with the procedure on review established pursuant to Part 7AA of the Migration Act 1958 (Cth) by reason of the failure of the IAA to send the "acknowledgement of referral" together with the "Practice Direction for Applicants, Representatives and Authorised Recipients" to the applicants correct address.

It repeats the particulars to ground 1.

59    This ground seems to suggest that the IAA failed to comply with a specific obligation found within Part 7AA, and thereby fell into jurisdictional error. In the appellant's written submissions, however, there was no attempt to identify any such obligation in connection with ground 2, and in oral submissions counsel made it clear that the appellant's case rested on the asserted common law obligation of procedural fairness addressed in SZMTA, so that ground 2 is not independent of ground 1.

60    Nevertheless there were attempts in submissions to establish that the IAA had breached two provisions of Part 7AA. The first was s 473DB, which relevantly provides that, subject to Part 7AA, the IAA must review a fast track reviewable decision referred to it 'by considering the review material provided to the Authority under section 473CB'. As I have said, the review material under s 473CB included, relevantly, the appellant's Pimelia Grove address. It was asserted that since the IAA had sent the acknowledgement letter and the Practice Direction to the wrong address, it had failed to consider that piece of review material, the correct address.

61    There is an air of artificiality about this submission. Whether the appellant was living at Pimelia Grove, Thornlie, or Jaeger Square, Ballajura, could make no conceivable difference to the outcome of this claim that he would face persecution or other harm if he were to return to Sri Lanka. I therefore agree with the primary judge that the appellant's address could have had no impact on his claims for protection. Materiality is in each case essential to the existence of jurisdictional error: SZMTA at [45] (Bell, Gageler and Keane JJ, Nettle and Gordon JJ dissenting on this point at [89]-[95]). In the present case failing to consider the correct address in the course of the review, even if it was an error, was not material.

62    The second suggestion as to breach of a provision of Part 7AA concerned s 473HA and s 473HB. Before the Federal Circuit Court the appellant's submissions focussed on the latter provision, and a finding that the IAA failed to comply with s 473HB was made. But in this court, counsel for the appellant only submitted that s 473HA was breached. Section 473HB cannot be relevant here as, for it to operate, there must be a provision of Part 7AA or the regulations which both requires or permits that the IAA give a document to a person and states that the IAA must do so by one of the methods specified in s 473HB. No provision of Part 7AA that is relevant to the present case states any such thing.

63    The appellant nevertheless maintained that s 473HA(1) was breached here. That provision reads as follows:

Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method

(1)    If:

(a)    a provision of this Act or the regulations requires or permits the Immigration Assessment Authority to give a document to a person; and

(b)    the provision does not state that the document must be given:

(i)    by one of the methods specified in section 473HB or 473HC; or

(ii)    by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Authority may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note: Under section 473HG a referred applicant may give the Immigration Assessment Authority the name of an authorised recipient who is to receive documents on the referred applicant's behalf.

64    Rather than require the IAA to give a document in any particular way, s 473HA(1) permits the IAA to give any document to which it applies by any method that the IAA considers appropriate. A broadly permissive provision of this sort cannot found a claim of jurisdictional error. In apparent recognition of this, counsel for the appellant ultimately submitted that the only significance of s 473HA was that it did not absolve the IAA of consequences of the error that it had made, because it does not deem the letter and Practice Direction to have been delivered to the appellant. Even if that is so, it would demonstrate nothing incorrect in the primary judge's conclusion that the IAA did not fall into jurisdictional error. Ground 2 fails.

Disposition of appeal

65    The appeal is dismissed with costs to follow the event.

Associate:

Dated:    27 May 2019