CONSIDERATION
21 We should say at the outset in relation to this last point (in [20]) that we are not satisfied that the document which has now been disclosed does contain the "errors" to which the applicant points. Rather, the document on its face appears to be a draft pro-forma document which contains very little information at all about the applicant himself. More importantly, the factors to which the applicant has pointed in submissions, namely, identity, age and the like, were not at all factors on which his application was refused. The applicant made the point that the Minister could have led some evidence to explain the status of the identity form, but has not done so. This is true, but if BBS16, which is materially almost identical to this case, was correctly decided there was no need for the Minister to do so.
22 In BBS16, in relation to Pt 7AA, the Full Court (Kenny, Tracey and Griffiths JJ) noted that the first respondent's challenge to the primary judge's rejection of his case concerning the undisclosed s 473GB certificate and its related information was based on two suggested grounds:
(a) it was a jurisdictional error per se for the IAA to act upon the certificate due to a denial of procedural fairness, citing Beach J's reasons in [40] and [44] of MZAFZ; and
(b) alternatively, notwithstanding s 473DA(1), the failure to disclose the certificate constituted a contravention of the statutory scheme in Pt 7AA relating to procedural fairness.
23 In BBS16, like this case, the Minister did not contest that the certificate was invalid. Its content and that of the relevant document appeared to be very similar to the present certificate and document. Nor, like this case, did the Minister seriously dispute that the Court should infer that the IAA had considered both the certificate and the related information. In the IAA's reasons for decision before the Full Court in BBS16, the IAA (at [5]) stated it had "had regard to the material referred to the Secretary under s 473CB...". It was common ground in BBS16 that the referred material must have included the certificate and the related information, notwithstanding that the material post-dated the delegate's decision.
24 The Full Court in BBS16 expressly addressed Beach J's decision in MZAFZ. The first issue was whether Beach J's findings and observations regarding the consequences which flow from an invalid certificate in the context of a Pt 7 proceeding also apply in the context of an invalid certificate under Pt 7AA of the Act.
25 The Full Court rejected an argument that the certificate was "new information", thus addressing the first limb of Beach J's analysis in MZAFZ concerning whether it was jurisdictional error in of itself for the Tribunal to act on an invalid certificate in a Pt 7 proceeding. It said (at [90]-[97]):
90 The first respondent approached the issue of whether or not the first limb of Beach J's analysis in MZAFZ applied to a s 473GB certification and/or notification on the basis that such material could be "new information" for the purposes of Pt 7AA and whether provisions such as ss 473DD and 473DE applied. In our view, that approach is incorrect. For the following reasons we consider that the issue is properly addressed by reference to ss 473GB and not by reference to the provisions in Pt 7AA which relate to "new information".
91 First, generally (as is the case here) the s 473GB certificate/notification and related documents will be given to the IAA by the Secretary in discharging his or her duty under s 473CB(1)(c). Any such material would then become "review material" within the meaning of s 473CB. The IAA is obliged, subject to Pt 7AA as a whole, to consider that review material (s 473DB(1)) in discharging its statutory duty to review the decision which has been referred to it under s 473CA (s 473CC(1)).
92 Secondly, the terms of s 473DB strongly suggest that a s 473GB certificate/notification and related information are not "new information" for the purposes of Subdiv C of Div 3 of Pt 7AA. That is because that provision requires the IAA (subject to Pt 7AA as a whole) to review the referred decision by considering the review material provided to it under s 473CB (which, in the circumstances here, includes the certificate and related information) without accepting new information. We strongly doubt that the reference at the outset of s 473DB(1) to "Subject to this Part" was intended to bring in via a back door the possibility of a s 473GB certificate/notification and related information being "new information". Rather, we consider that that phrase should be construed as referring to documents or information which are the subject of Subdiv C of Div 3.
93 Thirdly, the structure of Pt 7AA supports the view that a s 473GB certificate/notification and related information are not "new information". As noted above, generally such material will be provided to the IAA by the Secretary acting under s 473CB(1)(c). That provision is in Div 2 of Pt 7AA. Division 3 deals with the conduct of a review by the IAA. It is notable that s 473DA (which is in Subdiv A of Div 3) provides that Div 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. The provisions dealing with new information are all contained in Subdiv C of Div 3. Sections 473GA and 473GB are not contained in that Subdivision. They are located in Div 6, a separate division, which deals with disclosure of information.
94 Section 473GB applies in its terms to a document or information of a kind identified in s 473GB(1). That involves two categories:
(a) where the Minister has certified that disclosure would form the basis of a claim for public interest immunity; and
(b) where the matter contained in the document or the information was given to the Minister or a Departmental officer in confidence.
95 Where the Secretary gives such a document or information to the IAA in compliance with the Act the Secretary must notify the IAA that s 473GB applies (s 473GB(2)). The Secretary also has a discretion to give the IAA any written advice that the Secretary thinks relevant about the significance of the document or information. Sub-section 473GB(3) is important. It deals with the circumstances where the IAA is given a document or information and is notified (by the Secretary) that s 473GB applies. In those circumstances the IAA has two separate discretionary powers to consider, namely:
(a) whether to have regard to any matter contained in the document or to the information; and
(b) if it thinks it appropriate, having regard to any advice given to the Secretary under s 473GB(2)(b), to disclose to the referred applicant any matter contained in the document or the information.
96 Fourthly, having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).
97 The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA's determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).
(Emphasis added.)
26 The Full Court then focussed on the different nature of the regime under Pt 7AA compared with Pt 7 of the Act, saying:
98 As senior counsel for the Minister frankly acknowledged in oral address, this is truly "a remarkable scheme". That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.
(Emphasis added.)
27 The Court then concluded that the first limb of Beach J's analysis in MZAFZ, concerning the consequences which flow from an invalid certificate in the context of a Pt 7 proceeding, had no application to a Pt 7AA review.
28 Their Honours then turned to the procedural fairness suggested ground:
100 For similar reasons, Beach J's second limb has no application. That is because a referred applicant's "procedural fairness" entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those "entitlements" all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.
(Emphasis added.)
29 It is well established that intermediate appeal courts should not depart from judgments of other such courts in the absence of a compelling reason to do so or unless the earlier decision is "plainly wrong": see, for example, Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148 per Kenny, Griffiths and Bromwich JJ (at [35] and the cases therein cited). It would follow that unless we were so satisfied, or if we concluded it was simply a situation which different minds may reasonably differ, we should not depart from BBS16.
30 The applicant submits that this Court should not follow BBS16 on the basis that it is plainly wrong. The applicant's argument is that the inability of any applicant to make a submission that an invalid process was going to be applied to him or her under the Act is, in of itself, a denial of procedural fairness. Because the Minister is not obliged to disclose the existence of a certificate, the Minister can, counsel for the applicant contends, "conceal unlawful activity by his invalidly issuing a certificate". In support of this argument, the applicant draws on the observations in Singh (although these arguments were held in BBS16 to be inapplicable to Pt 7AA). Singh concerned the construction of s 357A(1) appearing in Pt 5 of the Act which provides:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(Emphasis added.)
31 In contrast, s 473DA(1) in Pt 7AA provides:
This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(Emphasis added.)
32 The specific language in s 473DA compared with s 357A(1) was the very submission in BBS16 which the Full Court noted (at [64]-[65]):
64 The Minister accepted that the certificate was not a valid certificate under s 473GB, applying this aspect of MZAFZ. But irrespective of whether the certificate was relied upon by the IAA, the Minister submitted that there was no jurisdictional error because the primary judge correctly distinguished this case from both MZAFZ and Singh in the light of the particular and different statutory regime in Pt 7AA, with particular emphasis on the significance of s473DA and the "much more limited obligation of disclosure under s 473DE(1)".
65 The Minister submitted that the effect of s 473DA(1) and the absence in that provision of the words "in relation to the matters they deal with" (which appear in s 422B) meant that s 473DA(1), together with ss 437GA and 473GB, are an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA.
33 In the passages extracted above, the Full Court in BBS16 (at [97], [98] and [100]) made clear that a referred applicant's "procedural fairness" entitlements in respect of a s 473GB certificate and related information are exhaustively stated in s 473GB(3). It followed therefore that the entitlements depended upon how the IAA exercised its discretionary powers under that provision.
34 We cannot conclude, on the basis of any argument advanced for the applicant, that the reasoning of the Full Court in relation to that provision is plainly wrong.
35 In that regard, the regime to which Singh was directed was quite different. It depended upon the proposition that s 357A was not an impediment to Mr Singh's argument that general law notions of procedural fairness might require disclosure of the certificate: Singh (at [40] and [41]).
36 The potential difficulties for a referred applicant were not underestimated by the Court in BBS16, where it was noted (at [98]) that the Minister had correctly conceded that Pt 7AA is truly "a remarkable scheme", particularly in relation to s 473GB certificates and the severe limitations imposed upon disclosure to the referred applicant of any such certificate and the related material, no matter how prejudicial or favourable the material may be. But there was a clear basis on which the Full Court in BBS16 distinguished the regime under Pt 7AA from the regime for Pt 7 considered in MZAFZ.
37 As to the applicant's argument in this proceeding to the effect that a certificate is "new information" within the meaning of s 473DC(1), that argument was considered exhaustively in BBS16. This submission was considered carefully by the Full Court in the portion of its reasons at [91]-[97] (extracted above). We see no reason to depart from the reasoning there set out.
38 Further, in relation to the applicant's supplementary submissions (set out at [19]), we do not accept the correctness of the second point as the analysis above reveals. As to the fourth point, the certificate in BBS16 was also invalid and the reasoning proceeded on that basis. As to each of the remaining points, while in some instances they purport to distinguish BBS16, each point is in substance a complaint as to the correctness of BBS16 as is made clear by the applicant's ultimate contention. As indicated in these reasons, we are not satisfied that BBS16 is plainly wrong. While the outcome maybe truly "remarkable" that is a product of the legislative scheme, not the reasoning in BBS16.
39 Those observations and conclusions are also true of some additional arguments raised by the applicant in supplementary submissions to the effect that:
The Minister makes the error of focusing on the relevance of the underlying documents to the ultimate merits of the decision on review, rather than the effect of the invalid certificate on the statutory processes adopted by the IAA and incorrectly focuses on whether the applicant had the opportunity to make submissions about the presence of an invalid certificate and ask that the IAA apply a correct statutory process to the review to accord him a fair hearing within the scope of the Act (which necessarily includes a proper application of s 473GB) (emphasis placed by the applicant).
As Beach J noted in MZAFZ, the Court, in any event, cannot speculate on the IAA's use of the underlying material because the wrongful application of s 473GB means that the IAA must have concealed any impact of the documents or its reasoning.
There is no absurd result and there is no undermining of the statutory process for an IAA to reject an invalid certificate/notification purportedly given under s 473GB of the Act (emphasis placed by the applicant).
The certificate/notification "enlivened" nothing under s 473GB. It was not in truth a certificate or notification for the purposes of s 473GB - it was invalid and a nullity.
The giving of a purported certificate/notification, which alters the nature of the statutory provisions to be applied to the review, is clearly a matter which the IAA would consider relevant - a fortiori which may be relevant (emphasis placed by the applicant).
Clearly the certificate and notification were information not available to the delegate (they did not exist until after the decision), the information was clearly relevant. Accordingly, the certificate and notification were new information. There is no evidence that the Tribunal ever turned its mind to whether the applicant should be given an opportunity to comment orally or in writing on the material under s 473DC(3). Likewise, the wrongful acceptance of the invalid certificate by the IAA would necessarily mean that it wrongly applied s 473DE(3)(b).
40 As to the penultimate points raised in the applicant's supplementary submissions (set out at [19]), we have set out our view of the decision in BBS16. We do not consider these reply arguments, in substance, do more than challenge the process of analysis in BBS16. As we have indicated that we consider BBS16 is correctly decided (or at least we cannot say that it was plainly wrong), nothing raised in these supplementary arguments gives reason to depart from that view. The arguments have essentially already been raised and rejected in BBS16 or depend for their cogency on propositions there rejected.