Procedural fairness aspect
74 EAV16 submitted as follows.
75 First, for the purposes of this case, EAV16 is content to proceed on the basis that s 473DA(1) is effective according to its terms. Nonetheless, EAV16 says that s 473DA(1) preserves the natural justice hearing rule insofar as it emerges from Div 3 of Part 7AA and ss 473GA and 473GB: see Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 (DZU16) at [99]. He submitted that, as explained in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 (Saeed) at [11]-[15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), unless very clearly excluded, statutes must be read as being subject to a background of common law notions of justice and fairness. Given the principle of legality against which provisions of this kind are construed, any requirement of the natural justice hearing rule that is express or implied in those provisions must be preserved by s 473DA(1).
76 Second, EAV16 submitted that the conduct of a review on the papers under s 473DB is said to be "[s]ubject to this Part". In other words, s 473DB (which is part of Div 3) incorporates compliance with the requirements of the whole of Part 7AA, insofar as it bears on the conduct of a review, as a condition of a valid review. Part 7AA relevantly includes s 473FB. Section 473FB(1)(b) provides for the President to issue directions as to "the conduct of reviews" by the IAA. Under s 473FB(3), the IAA "must, as far as practicable, comply with the directions".
77 Third, EAV submitted that s 473FB must be read and construed against the backdrop of the principle of legality. Relevantly, in Saeed at [15], the plurality said (footnotes omitted):
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts". His Honour said:
"The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law."
78 Counsel for EAV16 noted that there is nothing expressly in s 473FB which states that the requirements in it are not to be read subject to common law procedural fairness. Counsel acknowledged that s 473FB(3) states that "non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision." He says that the function of s 473FB(3) is to confirm that mere non-compliance with a direction, of itself, will not invalidate a decision and that coheres with the fact that the IAA is only required to comply with a direction "as far as practicable". Counsel submitted that, consistently with the principles in Saeed, s 473FB(3) should be read so that material non-compliance will invalidate the IAA's decision where it denies an applicant procedural fairness. Counsel accepted that that proposition is not expressly in the text of s 473FB, but says that it is the standard way to read a provision like this.
79 Fourth, EAV16 says that the Authority's failure to comply with the Practice Direction in his case amounted to procedural unfairness and therefore to a failure to conduct the review under s 473DB "[s]ubject to this Part". Counsel submitted that the Practice Direction provides that an applicant is to be given an opportunity to provide written submissions in relation to a review within 21 days of referral to the IAA. The 21 day time period is plainly intended to allow an applicant a reasonable opportunity to make submissions. That opportunity will only exist if an applicant is notified of a referral promptly. It does not exist if the applicant is given a few days by reason of a process error by the IAA.
80 EAV16 submitted that this conclusion accords with the Full Court's decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 (CLV16) (Flick, Griffiths and Perry JJ), in which the Court held that it is within the IAA's power to receive a written submission, saying at [42]-[43]:
42. In those circumstances where the Authority has not made a decision, no argument could prevail that a visa applicant could not make a submission to the Authority in relation to a fast track reviewable decision referred to the Authority for review. The relevance of the guidance provided in the "information sheet" and the Practice Direction for present purposes is to lend support to an expectation on the part of visa applicants that submissions would in fact be taken into account. Having provided visa applicants with that guidance, it would be contrary to good administrative decision-making for the Authority to invite the submission, receive the submission but to fail to take the submission into account. The reference to "good administrative decision-making" is of course subject to the observations of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 and Attorney-General (NSW) v Quin (1990) 170 CLR 1.
43. It is not to be lightly assumed, of course, that the Practice Direction is either misleading or (wholly or in part) invalid. Indeed, Senior Counsel for the Minister shrank from advancing such a submission. The highest the Minister's submission rose was to contend that paras [20] and [21] of the Direction were "incomplete".
81 EAV16 also submitted that the Full Court rejected summarily any broadly expressed contention that the Authority could not entertain a submission made in relation to a fast track reviewable decision and that any such contention was contrary to the Information Sheet and Practice Direction distributed to referred applicants: CLV16 at [38]-[39]. EAV16 noted that the Full Court further held that the ability to receive a submission was not restricted by the provisions of ss 473DC or 473DD: see CLV16 at [45]-[56]. He says that it is noteworthy that in CLV16's case, the Minister contended (and the Court accepted) that decisions of the IAA which were attended by a failure to consider a submission which had been made were affected by jurisdictional error, such that they were, in law, no decision at all (permitting the IAA to make a fresh decision): CLV16 at [59]-[62]. EAV16 noted that, in CLV16 at [91]-[92] the Full Court said:
91. … Section 473DA in Pt 7AA of the Migration Act severely constrains the procedural protections which the common law may otherwise have afforded a participant in the fast track review process undertaken by the Authority. But no construction of Pt 7AA should be countenanced which further constrains the ability of a visa applicant to make submissions as to the consequences flowing from such factual material as was before the delegate or the ability to seek to have the Authority exercise its power under s 473DD to consider "new information".
92 Pt 7AA certainly contains no express statutory constraint upon a party's ability to participate in the review process by way of making submissions; nor is any such constraint necessarily to be implied. The ability at least to make a submission and the minimal (but nevertheless fundamentally important) procedural protection thereby provided, as opposed to a freedom to supplement the facts to be taken into account without there being "exceptional circumstances" (s 473DD), does not frustrate or impede the legislative objective sought to be achieved by Pt 7AA and the provision of a "limited form of review". An opportunity to make submissions, together with an opportunity to "present material information", it is to be recalled, forms part of a "principle [that] lies deep in the common law" and is an "indispensable requirement of justice": cf. Allesch v Maunz (2000) 203 CLR 172 at [35] per Kirby J. A legislative constraint upon the ability to provide "information" should not be readily construed as extending to a constraint upon the separate procedural protection of the right to make "submissions". The continuing ability to make "submissions" - as opposed to an ability to provide additional factual material other than in "exceptional circumstances" - provides a claimant with perhaps a final opportunity to make submissions as to why (for example) different factual findings should be made upon the existing material or why adverse findings as to credit made by a delegate were misplaced.
82 EAV16 submitted that, if a decision made through a failure to consider a submission is affected by jurisdictional error, it is hard to see why a decision made through a failure to permit a referred applicant a reasonable opportunity to make a submission would not similarly be affected by jurisdictional error. It is equally unfair for the Authority to invite submissions from all applicants, but in relation to a particular applicant who receives notification of that invitation late through no fault of his own, to fail to give that applicant a further opportunity to give submissions.
83 The parties provided post-hearing submissions concerning whether the High Court's decision in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (BVD17) (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) at [33]-[34] was fatal to the success of EAV16's procedural fairness ground. It is useful to set out BVD17 at [32]-[34] (footnotes inserted):
32 Recognising that the prescription in s 473DA(1) is broad in its scope, the appellant argued that the effect of its operation on the identification of the incidents of the Authority's obligation to afford procedural fairness is minimal. The appellant argued that the "exhaustive statement of the requirements of the natural justice hearing rule" to which s 473DA(1) refers encompasses all that is expressed in and implied by the totality of the provisions which s 473DA(1) mentions. If a particular obligation of disclosure arises by implication from construing Div 3 in combination with s 473GA or s 473GB against the background of the common law then, according to the appellant, that implied obligation is itself part of the "exhaustive statement of the requirements of the natural justice hearing rule" to which s 473DA(1) refers. All that the prescription in s 473DA(1) achieves, according to the appellant, is to prevent recourse to provisions in Pt 7AA other than Div 3 and ss 473GA and 473GB in determining the express or implied incidents of the Authority's obligation of procedural fairness. For example, it precludes an implication arising from the requirement of s 473FB for the Authority, so far as practicable, to comply with a direction by the President as to the conduct of reviews.
33 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 (1985) 159 CLR 550 at 611. See also at 585].
34 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 at 491 [67]] and in Minister for Immigration and Border Protection v DZU16 [(2018) 253 FCR 526 at 552-553 [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.
84 In his submissions, EAV16's counsel submitted that, in accordance with what the plurality of the High Court said in BVD17 at [33], he did not rely on the principles of statutory interpretation for the implication of procedural fairness obligations at common law which rely on the principle discussed in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 611 (Brennan J). Rather, EAV16 relied on the extent to which s 473DA(1) preserves the natural justice hearing rule, for which he relied on the Full Court's decision in DZU16 at [99] as follows (emphasis in EAV16's submissions):
99. In our opinion, there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed, except to the extent that those principles overlap with legal unreasonableness. A procedural fairness analysis is not the correct perspective: CRY16 at [67] and [86]. The respondent's contention fails. This is not to say that where Div 3 of Pt 7AA is not followed, a ground of denial of procedural fairness is not available. Section 473DA is not so broad. Section 473DE plays a critical role in the scheme of limited review that Parliament has enacted to ensure some procedural fairness. Where s 473DE applies, an allegation of legal error on the Authority's part in making a decision on the review without taking steps to obtain a referred applicant's response to an invitation to comment may sound in invalidity for that reason alone: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2018) 228 CLR 294 at [77] per McHugh J, [173] per Kirby J and [208] per Hayne J. To that extent we would, with respect, disagree with the reasoning of the primary judge at [68].
85 EAV16 submitted that the High Court expressly confirmed the correctness of DZU16 at [99] in BVD17 at [34] and what the Court said in BVD17 at [33] must be read in that light. He says that, on this basis, the true rule emerging from BVD17 is not that s 473DA(1) precludes any ground of judicial review on the basis of a denial of procedural fairness. It is that a procedural fairness ground of review can only be sustained where a breach of the procedural code prescribed by s 473DA(1) is alleged; that is, an applicant is permitted to allege that one or more provisions of Part 7AA, Div 3 or ss 473GA and 473GB have been breached, with a resultant denial of procedural fairness.
86 In summary, EAV16's contention on the procedural fairness ground is that:
(1) The IAA was required by s 473DB of the Migration Act to conduct its review "[s]ubject to this Part";
(2) That required the IAA to comply with, among other things, s 473FB in the conduct of the review;
(3) Section 473FB(3) required the IAA to comply with any directions given by the President "as far as practicable". While s 473FB(3) also states that non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision, this means only that mere non-compliance (for example, a minor or technical breach) will not of itself invalidate a decision. It does not preclude an argument that non-compliance with directions may give rise to a denial of procedural fairness; and
(4) The IAA did not comply with the Practice Direction because it did not provide EAV16 with an opportunity to provide written submissions to the IAA, and thereby contravened s 473DB in a manner which denied EAV16 procedural fairness.