The decision in SAAP
50 The facts in SAAP were that a visa applicant (A) had applied to the Refugee Review Tribunal (RRT) for the review of a decision to refuse to grant her a protection visa. The RRT conducted a hearing via videolink. It took evidence from A's elder daughter in A's absence. The RRT then raised with A several issues arising from her daughter's evidence which were potentially adverse to A's case. It invited A to respond orally. The RRT did not, however, give A written particulars of the issues arising from her daughter's evidence. Section 424A required it to do so.
51 The Court, at first instance, found that while the RRT had failed to comply with s 424A of the Act, there had been no failure to accord procedural fairness. The Court declined to grant A the relief she had sought on that basis: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court dismissed an appeal from that judgment: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411.
52 A's appeal to the High Court was seen to raise four questions: first, whether the RRT had breached s 424A; second, whether there had been a denial of procedural fairness; third, whether the breach of s 424A of the Act, or the denial of procedural fairness, gave rise to a jurisdictional error; and fourth, whether there was any basis for withholding discretionary relief under s 39B of the Judiciary Act 1902 (Cth). The majority in the High Court (McHugh, Kirby and Hayne JJ) held that the RRT had breached s 424A, that breach gave rise to a jurisdictional error and that there were no grounds to exercise the jurisdiction to refuse to grant relief.
53 It is, for present purposes, unnecessary to consider the separate reasons of the majority justices for finding that there had been a breach of s 424A of the Act. What matters is the basis upon which their Honours found that that breach gave rise to a jurisdictional error. Brief consideration should also be given to the reasoning concerning the discretionary withholding of relief.
54 McHugh J considered that the question whether a breach of s 424A amounted to a jurisdictional error essentially turned on the question whether compliance with s 424A was an imperative duty: SAAP at [72]. That, in turn, depended on whether, having regard to the language of the provision and the scope and object of the whole statute, it was a purpose of the legislation that any act done in breach of the provision would be invalid: SAAP at [73] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91], [93]. His Honour concluded (at [77]) that, because compliance with s 424A was mandatory, "failure to comply means that the Tribunal has not discharged its statutory function". Similarly, his Honour reasoned (at [77]) that, because Parliament had made s 424A "one of the centrepieces of its regime for statutory procedural fairness" the "best view of the section is that failure to comply with it goes to the heart of the decision-making process". It followed that "a decision made after a breach of s 424A is invalid": SAAP at [77].
55 As for the discretionary withholding of relief, McHugh J held that there was no basis to refuse relief on discretionary grounds because there was no "delay, waiver, acquiescence or unclean hands". Perhaps more significantly, his Honour reasoned (at [84]) that the issue as to whether A was in fact deprived of the opportunity to deal with the adverse material arising from her daughter's evidence "should not affect the discretion to grant relief".
56 Hayne J emphasised the imperative language in s 424A of the Act, which stood in sharp contrast to the permissive terms of other provisions, including s 424 of the Act. His Honour concluded as follows (at [208]):
Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.
(Emphasis in original)
57 As for the discretion to withhold relief, like McHugh J, Hayne J pointed to the absence of any suggestion of delay, waiver, or acquiescence. His Honour held (at [211]) that the fact that A was aware of and had sufficient opportunity to meet anything arising from her daughter's evidence was not a consideration which bore on whether "certiorari should go to quash what is found to be an invalid decision".
58 Justice Kirby essentially agreed with Hayne J that, because of the mandatory language of s 424A, any breach is sufficient to constitute jurisdictional error: "[a]n imperative obligation for the conduct of a review by the Tribunal has not been complied with" (at [173]). His Honour also agreed with Hayne J that such submissions as had been advanced for the refusal of relief on discretionary grounds were "unconvincing" (at [174]).
59 The following two points emerge from the reasoning of the majority justices in SAAP.
60 First, each of the majority justices clearly found that, given the mandatory language and importance of s 424A of the Act to the RRT's review, any breach of s 424A would constitute a jurisdictional error. It should perhaps be noted, in that context, that while there have been a number of amendments to div 4 of pt 7 of the Act (and div 5 of pt 5 of the Act) since SAAP was decided, the mandatory language of s 424A remains.
61 Second, none of the majority justices suggested that a breach of s 424A would only amount to a jurisdictional error if the breach was material, in the sense that, if there had been no such breach, the outcome of the RRT's review could have been different. That may have been a product of the way the Minister argued the appeal. The Minister's main argument in SAAP was that s 424A was not an imperative duty, at least where compliance with it was not essential in order to provide procedural fairness. While the Minister appeared to argue that the breach in question did not give rise to any unfairness and that compliance could have made no difference, that argument was advanced in the context of the question whether it was appropriate to decline to grant relief on discretionary grounds. Nevertheless, the point remains that there is no suggestion in the reasoning of any of the majority justices that the breach would not amount to a jurisdictional error if it was not material.
62 The decision in SAAP has not been the subject of any detailed consideration by the High Court.
63 In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 10; [2007] HCA 26 at [13], SAAP was referred to by the plurality to be authority for the proposition that that the effect of s 424A of the Act was "mandatory, in that a breach of the section constituted jurisdictional error". The plurality ultimately found that s 424A was not engaged in the circumstances of the case and that there was therefore no jurisdictional error.
64 It is important to emphasise that in SZBYR, the Court made it clear that had there been a breach of s 424A, it would nevertheless have been appropriate to refuse relief on discretionary grounds because, in effect, compliance would have made no difference to the outcome (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [29]; Kirby J at [32], [87]-[90], Hayne J at [91]). It is equally worth noting that according to Kirby J (at [74]), the Minister declined to challenge SAAP, "despite a few hints from the bench", and accepted it as correctly stating the law on s 424A.
65 In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16, a judgment handed down only four months before the judgment in Hossain was handed down, SAAP was cited in a footnote (at [11]) as authority for the proposition that compliance with s 57(2) of the Act "is a condition of the valid performance of the duties of the Minister to consider a valid [visa] application … with the consequence that non-compliance renders a decision to refuse to grant a visa invalid in the sense that the decision is ineffective in law to achieve the result". Section 57(2) of the Act is in similar terms to s 359A(1) and 424A(1) of the Act. That passage from Plaintiff M174/2016 was cited, without qualification, in Plaintiff M7/2021 v Minister for Home Affairs (2021) 95 ALJR 404; [2021] HCA 14 at [49], a case decided after Hossain and SZMTA.