Analysis and Decision (the s 473GB Ground)
50 The first step in the appellant's argument in support of this ground is the proposition that the certificate was invalid. I have endeavoured to capture the appellant's submissions as to why this is so at [27]-[28] above.
51 Section 473GB(1) makes clear that there are alternative bases upon which the Minister may legitimately issue a certificate under that section. The first is the public interest immunity basis essentially embodied in s 473GB(1)(a) and the other is the confidentiality basis embodied in s 473GB(1)(b). This much is clear from the use of the word "or" between the two subparagraphs of s 473GB(1).
52 Although the bases for the issue of a s 473GB certificate as specified in s 473GB(1) are alternative and not cumulative, the Minister may nonetheless rely upon both these bases in any given certificate issued by him. In the present case, in my view, that is what he did. In other words, in the present case, the Minister relied upon the public interest immunity basis as well as the confidentiality basis. The appellant addressed his submissions to the former but not the latter although the appellant did make a submission that the Minister had misunderstood s 473GB(1) by approaching the issue of the certificate upon the basis that the requirements in subpars (a) and (b) of that subsection were cumulative.
53 The appellant correctly submitted that the certificate could not be sustained upon the public interest immunity basis. In my view, however, that is not the end of the matter. For the reasons already explained, I think the Minister was also entitled to rely upon the confidentiality basis. That being so, for the appellant to successfully contend that the certificate was invalid, he would need to establish that the claimed confidentiality basis was not sustainable. The appellant did not undertake that burden. There is no material before me which would support the proposition that the certificate is invalid because the Applicant Integrity Form and the information contained therein were not provided to the Minister in confidence within the meaning of s 473GB(1)(b).
54 For the above reasons, I do not think that the appellant has made good his proposition that the certificate was invalid.
55 The Minister did not concede that the certificate was invalid. Rather, he submitted that it did not matter whether the certificate was valid or invalid in the present case. He went on to submit that, whether or not the certificate was invalid, the s 473GB ground should be rejected in any event.
56 At 203 [28] in BVD17, the plurality identified the substance of BVD17's argument as follows:
The thrust of the appellant's argument at the hearing of the appeal was that the reasoning in SZMTA concerning the operation of s 438(2)(a) to give rise to an obligation of procedural fairness within the scheme of Pt 7 is transferable to the operation of s 473GB(2)(a) within the scheme of Pt 7AA. The Minister, as first respondent to the appeal, relied on the differences between the two schemes emphasised in earlier reasoning of the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 [(2017) 257 FCR 111; 158 ALD 198; [2017] FCAFC 1786 (BBS16)].
57 Then, at 203 [29], the plurality expressed its conclusion in respect of that argument in the following terms:
Identification of the incidents of the Authority's obligation to afford procedural fairness in the conduct of a review under Pt 7AA necessarily begins with the prescription in s 473DA(1) 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 [Authority]". For reasons which will become apparent, that prescription is alone sufficient to preclude an obligation of procedural fairness on the part of the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant. Whether such an obligation would arise as an incident of the Authority's obligation to afford procedural fairness within the scheme of Pt 7AA were it not for the prescription in s 473DA(1) need not be explored.
58 At 203 [30] in BVD17, the plurality adverted to some parallels between s 422B(1) and (2) and s 473DA(1) of the Act. Then, at 203-204 [31], the plurality adverted to some differences between Pt 7 of the Act and Pt 7AA of the Act as follows:
Unlike the prescriptions in s 422B(1) and (2) as interpreted in SZMTA [At [35]-[37]. See also WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624; 80 ALD 435; [2004] FCA 106 at [57]; Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404; 257 ALR 427; 110 ALD 15; [2009] FCAFC 83 at [9]], however, the prescription in s 473DA(1) is not framed to confine the exhaustiveness of its operation, in defining the content of the obligation to afford procedural fairness which it acknowledges, to the discrete subject matters of the provisions to which it refers. Instead, it extends the exhaustiveness of its operation, in defining the content of the Authority's obligation to afford procedural fairness, to the entirety of the performance of the overriding duty imposed on the Authority by s 473CC(1) to review a fast track reviewable decision referred to it under s 473CA. The reasoning in SZMTA [At [27]-[37]], that an incident of the obligation of procedural fairness which conditions performance of the overriding duty of the Tribunal to conduct a review under Pt 7 can arise outside the scope of the discrete subject matters of the provisions to which s 422B(1) and (2) refer, can therefore have no application to the Authority.
59 At 204 [32], the plurality addressed the appellant's arguments in a little more detail. At 204-205 [33]-[36], the plurality dealt with those arguments as follows:
The argument would deprive s 473DA(1) of any meaningful operation. It cannot be accepted. The evident purpose of s 473DA(1) in prescribing that the provisions to which it refers are to be taken to be an "exhaustive statement of the requirements of the natural justice hearing rule" is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that "[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition" [Kioa v West at CLR 611; ALR 367. See also at CLR 585].
The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [(2017) 253 FCR 475; [2017] FCAFC 210 at [67]] and in Minister for Immigration and Border Protection v DZU16 [(2018) 253 FCR 526; 357 ALR 474; [2018] FCAFC 32 at [99]]. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.
Consistent with the earlier conclusion of the Full Court in BBS16 [At [100]], the entirety of the content of the Authority's obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3). Section 473DA(1) leaves no room for an additional obligation of disclosure to arise in the manner recognised in SZMTA.
For completeness, the overlapping operation of s 473DA(2) in the circumstances giving rise to the present appeal is also to be noted. The prescription in s 473DA(2), it will be recalled, is to the effect that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when making the decision under s 65. There might be circumstances in which the prescription would not prevent the Authority being required to provide material that was before the Minister to a referred applicant as an incident of a legally reasonable exercise of the discretion conferred on it by s 473DC(3) [Plaintiff M174/2016 at [49], [97]]. Similarly, there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b). However, the prescription does operate to preclude an obligation on the part of the Authority to give such material to a referred applicant from otherwise arising as a matter of implication.
60 The plurality then turned to deal with a challenge to the Full Court's conclusion in BVD17 that there was insufficient evidence from which to infer that the IAA failed to consider exercising the discretion conferred upon it by s 473GB(3)(b). The plurality observed (at 205 [38]) that it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. The plurality continued (at 205 [38]):
… To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481; 41 ALD 1]. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared [SZGUR at [32], [70], [91]-[92]].
61 At 206 [40], the plurality stated its conclusion in respect of the appellant's argument based upon discretion in the following terms:
Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. The Authority's specific reference to taking particular country information into account as "new information", thereby indicating an exercise of discretion under s 473DC(1), lends no added support to the drawing of the inference. Having been before the delegate at the time of the decision under review, the information contained in the documents in the departmental file did not meet the description of "new information". The Authority's reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.
62 The following propositions may be taken from BVD17:
(a) The statutory scheme in Pt 7AA of the Act does not provide for any obligation of procedural fairness on the part of the IAA to disclose the fact that the Minister has issued and forwarded to it a certificate under s 473GB of the Act;
(b) The entirety of the content of the IAA's obligation of procedural fairness in the context of the issue and forwarding of a s 473GB certificate to the IAA is to be found in the outworking of the discretions conferred on the IAA by s 473GB(3);
(c) Section 473DA(1) of the Act leaves no room for an additional obligation of disclosure to arise in the manner recognised by the High Court in SZMTA; and
(d) The discretionary powers reposed in the IAA by s 473GB(3) are subject to an implied obligation to exercise those powers reasonably.
63 The Minister submitted that the IAA was permitted to consider exercising the discretions reposed in it by s 473GB(3) whether or not the certificate forwarded to it is valid or invalid. In either event, so the Minister submitted, the way in which the IAA must address the issue is through the procedural discretions contained within s 473GB(3). This submission cannot now be accepted in its entirety in light of the observations made by the plurality (Gageler, Keane, Nettle and Gordon JJ) at [11]-[13] in Minister for Immigration and Border Protection v CED16 [2020] HCA 24 (CED16) to the following effect:
The first respondent had sought leave at the hearing of the appeal to the Federal Court to rely on proposed grounds of appeal formulated in terms differing from the grounds on which he had relied in the application before Judge Street. In his reasons for judgment delivered in September 2018, Derrington J granted the first respondent leave to rely on just one of those proposed grounds of appeal. The ground of appeal on which his Honour then granted leave was formulated in terms that the decision of the Authority "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". As the ground was particularised by the first respondent, the statutory pre-condition in s 473GB(2)(a) to the enlivening of the powers conferred by s 473GB(3)(a) and (b) had not been met "because the Certificate was invalid, it not having been issued for the purposes of s 473GB(1)".
The Minister for his part had conceded at the hearing of the appeal to the Federal Court that the Certificate was invalid. The concession was well made. The reason specified in the Certificate, that the Identity Assessment Form was a "Departmental working document", was plainly an insufficient basis for "a claim by the Crown in right of the Commonwealth in a judicial proceeding" that information or matter contained in the Identity Assessment Form "should not be disclosed". The Certificate therefore failed to meet the description in s 473GB(1)(a), as a consequence of which the whole of s 473GB (including the duty imposed on the Secretary by s 473GB(2)(a) and the powers conferred on the Authority by s 473GB(3)(a) and (b)) simply had no application to the Identity Assessment Form.
To determine the appeal on the sole ground of appeal on which his Honour ultimately granted the first respondent leave to rely, Derrington J was accordingly required to turn his attention to the effect on the decision of the Authority of the non-enlivening of the powers conferred by s 473GB(3)(a) and (b). …
64 I have held that the certificate is valid. Nonetheless, in the present case, it does not matter whether the certificate is valid or invalid. Even if the certificate is invalid, there is no room for the engagement of s 57 or s 473DA in the manner relied upon by the appellant. In any event, given that the Applicant Integrity Form is not before the Court, there is no basis upon which I could conclude it contained "relevant information" within the meaning of s 57.
65 The appellant's resort to s 473DC is misconceived. The Full Court made clear at 142 [92] in BBS16 that neither the certificate nor the information protected by the certificate is "new information" within the meaning of that section (as to which, see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (M174) at 228 [24]; SZMTA at 440 [28]; and CED at [20]-[23] per Gageler, Keane, Nettle and Gordon JJ and at [28]-[30] per Edelman J).
66 At 143 [95]-[97] in BBS16, the Full Court said:
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.
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).
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)).
67 In the present case, the appellant contended that the existence of the certificate, the certificate itself and the information protected by the certificate should have been disclosed by the IAA to the appellant and that the IAA's failure to do so was legally unreasonable. That is, although the IAA was under no duty to disclose the certificate or the information protected by it to the appellant, in the circumstances of the present case, its failure to do so was an exercise of a discretion reposed in it by s 473GB(3)(b) of the Act which was unreasonable. In my view, however, the appellant is simply not in a position to make good his claim of unreasonableness.
68 In BVD17, the documents and information which were the subject of the certificate had not been put into evidence. For that reason, the appellant abandoned his contention that, even if the IAA had considered exercising the discretion bestowed upon it by s 473GB(3)(b), its failure to exercise the discretion to disclose the documents and information to the appellant was legally unreasonable. The appellant in BVD17 gave up this contention because the weight reasonably able to be given to the confidential quality of the documents and information could not be assessed because the documents and information had not been put into evidence. See the judgment of the plurality at 202-203 [27]-[28].
69 In the present case, the Applicant Integrity Form was not put into evidence in the Circuit Court or in this Court. It was referred to in the Court Book in the Circuit Court but not reproduced in that Court Book. In those circumstances, as was the case in BVD17, the Court is not able to assess the confidential quality of the Applicant Integrity Form nor the information contained in it and is not able to assess whether, in the event that the s 473GB(3)(b) discretion had been engaged, the failure on the part of the IAA to disclose the certificate and the information contained in the Applicant Integrity Form was legally unreasonable.
70 In the present case, the appellant has not been able to identify any basis upon which the conclusion of legal unreasonableness urged by him upon the Court can be sustained. The mere fact that the IAA did not make specific reference to the certificate or the Applicant Integrity Form in its decision does not provide any information as to the IAA's consideration of the s 473GB(3) discretions.
71 The Minister also submitted that, in order to satisfy the Court that the IAA had been guilty of jurisdictional error, the appellant has to demonstrate that the error was "material" (as to which, see Hossain v Minister for Immigration and Border Protection (2019) 264 CLR 123 and SZMTA). The Minister submitted that, in the present case, the appellant cannot demonstrate anything. He cannot demonstrate that the subject matter of the certificate was adverse to the appellant or that the IAA took it into account in some fashion adverse to the interests of the appellant. In addition, the Minister argued that the current relevant test is one of "materiality" and not "practical injustice" as submitted by the appellant.
72 For all the above reasons, and also for the reasons submitted by the Minister (which I accept save for the submission addressed by me at [63] above), I am of the opinion that the appellant has no prospect of succeeding on the s 473GB ground were I to grant leave to him to amend his Notice of Appeal to raise that ground.