High Court: "This Court accepted in [SZMTA] that the giving of a notification under s 438(2)(a) ... triggers an obligation of procedural fairness on the part of the [Tribunal] to disclose the fact of notification to an applicant for review under Pt 7. [Does] 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 ... to disclose the fact of notification to a referred applicant in a review under Pt 7AA"?
The Appellant's protection visa application was refused and as he was an unauthorised maritime arrival, the matter was automatically referred to the Immigration Assessment Authority (IAA) for merits review under Pt 7AA of the Migration Act 1958 (Cth).
When referring the matter to the IAA, the Minister provided it with a non-disclosure certificate pursuant to s 473GB, which gave the IAA the discretion to disclose the content protected by the certificate to the Appellant, but did not oblige it to so disclose. That provision read as follows:
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(a) must notify the Authority in writing that this section applies in relation to the document or information; and
(b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) 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 Secretaryunder subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
Section 473DA relevantly provided as follows:
(1) 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.
(2) 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.
The High Court (HCA) summarised the way in which the IAA dealt with the non-disclosure certificate as follows:
21. In the course of the review, the Authority did not disclose any of the documents or information in the file to the appellant and did not disclose the fact of having been given the notification under s 473GB(2) of the Act to the appellant.
22. The Authority's written statement of its reasons for decision records that the Authority had regard to the review material and to particular country information, which it specifically identified as "new information", and that no further submissions or new information were provided to it. The statement makes no reference to the notification under s 473GB(2)(a) of the Act and makes no reference to the exercise of any discretion by the Authority under s 473GB(3) of the Act.
The IAA affirmed the Minister's decision and the Appellant then applied to the Federal Circuit Court (FCCA) for judicial review of the IAA's decision, but the FCCA dismissed that application.
The Appellant subsequently appealed the FCCA's to the Federal Court (FCA), a Full Court (FCAFC) heard the appeal. which unanimously dismissed the appeal.
The HCA then delivered its judgement in SZMTA, where it found that "the giving of a notification under s 438(2)(a) ... triggers an obligation of procedural fairness on the part of the [Tribunal] to disclose the fact of notification to an applicant for review under Pt 7".
The Appellant eventually applied to the HCA for special to appeal the FCAFC's decision, based in SZMTA.
The questions to the HCA were as follows:
Question 1: By analogy with SZMTA, does "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 ... to disclose the fact of notification to a referred applicant in a review under Pt 7AA"?
Question 2: Might there be circumstances in which s 473DA(2) "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)"?
Question 3: If the answer to Question 2 is "yes", did the "failure of the [IAA] to mention the discretion conferred by s 473GB(3)(b) ... support the drawing of an inference that the exercise of the discretion was not considered", thus amounting to legal unreasonableness?
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.