BVD17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 09 October 2019
• Neutral Citation: [2019] HCA 34
• Docket Number: S46/2019
• Date: 09 October 2019

[2019] HCA 34

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

S46/2019

BVD17

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

Representation

A Aleksov for the appellant (instructed by Australian Presence Legal)

G T Johnson SC with N D J Swan for the first respondent (instructed by MinterEllison)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), Pt 7AA.

Immigration — Refugees — Application for protection visa — Immigration Assessment Authority (“Authority”) — Review by Authority under Pt 7AA of Migration Act 1958 (Cth) — Where decision by delegate of Minister for Immigration and Border Protection to refuse protection visa referred to Authority for review — Where Secretary of Department of Immigration and Border Protection gave Authority documents and information — Where Secretary notified Authority that s 473GB applied to documents and information — Where s 473GB(3) conferred discretions on Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant — Where documents and information not disclosed to referred applicant during review — Where fact of notification not disclosed to referred applicant during review — Whether procedural fairness required Authority to disclose fact of notification to referred applicant.

Administrative law — Judicial review — Jurisdictional error — Procedural fairness — Where Div 3 of Pt 7AA, s 473GA and s 473GB provided exhaustive statement of natural justice hearing rule in relation to reviews by Authority — Whether implied obligation of procedural fairness precluded.

Words and phrases — “disclosure”, “document or information”, “exclusion of procedural fairness”, “exhaustive statement”, “fact of notification”, “natural justice hearing rule”, “notification”.

1 Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. This Court accepted in Minister for Immigration and Border Protection v SZMTA 1 that the giving of a notification under s 438(2)(a) of the Migration Act 1958 (Cth) (“the Act”) triggers an obligation of procedural fairness on the part of the Administrative Appeals Tribunal (“the Tribunal”) to disclose the fact of notification to an applicant for review under Pt 7. The question of general importance in the present appeal is whether the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority (“the Authority”) to disclose the fact of notification to a referred applicant in a review under Pt 7AA.

2 The short answer is that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant in a review under Pt 7AA. The short reason is that s 473DA precludes such an obligation from arising.

Relevant provisions of Pt 7AA

3 The scheme of Pt 7AA of the Act, under which the Authority must review a “fast track reviewable decision” 2 made by the Minister for Immigration and Border Protection (“the Minister”) refusing under s 65 to grant a protection visa to a “fast track applicant” 3, was considered in detail in Plaintiff M174/2016 v Minister for Immigration and Border Protection 4. For the purposes of the present appeal, it is sufficient to mention only some features of the scheme.

4 Section 473CA mandates referral of a fast track reviewable decision to the Authority by the Minister. Upon that referral occurring, s 473CB requires the Secretary of the Department of Immigration and Border Protection (“the Department”) to give to the Authority specified categories of “review material”. The specified categories of review material include any material in the

Secretary's possession or control considered by the Secretary to be relevant to the review 5

5 Two provisions located in Div 6 of Pt 7AA qualify the obligation of the Secretary under s 473CB. One is s 473GA, which takes precedence over s 473CB to prevent the Secretary from giving the Authority a document or information if the Minister certifies under s 473GA(2) that disclosure would be contrary to the public interest because it would prejudice Australia's security, defence or international relations or because it would involve disclosure of Cabinet deliberations. The other is s 473GB, which operates to impose cumulative obligations and to confer supplementary powers on the Secretary and on the Authority where the Secretary gives to the Authority a document or information to which that section applies.

6 By force of s 473GB( 1), s 473GB applies to a document or information in either of two circumstances. One is where the Minister certifies that disclosure would be contrary to the public interest for a specified reason (other than a reason justifying certification under s 473GA) that could form the basis for a claim by the Commonwealth for non-disclosure in a court 6. The other is where the document (or matter contained in the document) or information was given to the Minister or an officer of the Department in confidence 7.

7 Where s 473GB applies to a document or information which the Secretary gives to the Authority, s 473GB(2)(a) obliges the Secretary to notify the Authority in writing that the section applies in relation to the document or information. Complementing that obligation is a power, conferred on the Secretary by s 473GB(2)(b), to give the Authority any written advice that the Secretary thinks relevant about the significance of the notified document or information.

8 The consequence for the Authority of the Secretary giving a notice under s 473GB(2)(a) is addressed in s 473GB(3), which provides:

“If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

• (a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

• (b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.”

9 In relation to any matter or information which the Authority discloses to a referred applicant under s 473GB(3)(b), s 473GB(4) obliges the Authority to give a direction under s 473GD restricting its publication.

10 Conformably with the analysis in SZMTA of the operation of s 438(3), three aspects of the operation of s 473GB(3) are not in dispute in the appeal. First, the Authority has no power to have regard to notified information or matter for the purpose of exercising any of its powers in relation to a fast track reviewable decision in respect of a referred applicant unless the Authority affirmatively exercises the discretion conferred on it by s 473GB(3)(a) 8. Second, the Authority has no power to disclose the notified information or matter to the referred applicant unless the Authority affirmatively exercises the discretion conferred on it by s 473GB(3)(b) 9. Third, the discretion conferred by s 473GB(3)(b) is conditioned by the requirement that it must be exercised within the bounds of reasonableness 10. Also not in dispute in the appeal is that the discretions conferred by s 473GB(3)(a) and (b) are so bound together that an affirmative exercise of the discretion conferred by s 473GB(3)(a) gives rise to a

duty on the part of the Authority to consider exercise of the discretion conferred by s 473GB(3)(b) 11

11 The overriding duty of the Authority to review a fast track reviewable decision referred to it under s 473CA is imposed by s 473CC(1). The outcome of the review is the making of a decision by the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation.

12 How the Authority is ordinarily to go about conducting a review in the performance of the overriding duty imposed on it by s 473CC is the topic addressed in Div 3 of Pt 7AA. The powers of the Authority “in relation to a fast track reviewable decision in respect of a referred applicant” to which s 473GB(3)(a) refers encompass the powers conferred on the Authority by that Division.

13 Division 3 commences with s 473DA, the construction and operation of which are central to answering the main question in the appeal. Section 473DA is headed “Exhaustive statement of natural justice hearing rule”. Sub-section (1) 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.”

Sub-section (2) adds:

“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.”

14 Within Div 3, s 473DB(1) goes on to spell out that the primary obligation of the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material given under s 473CB “without accepting or requesting new information” and “without interviewing the referred

applicant”. The primary obligation is nevertheless imposed “[s]ubject to this Part”, an expression indicating that the generality of the primary obligation can be qualified in the conduct of a particular review by the operation of other provisions located within Pt 7AA

15 The provisions which can operate to qualify the primary obligation...