Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64
Outcome: distinguished
At the Federal Magistrates Court, I said that I did not attend the hearing because I was sick. This was not true. The reason why I said this was that I did not want to break the promise I made to Mr Marzukie that I would not tell any one that I was working for him as a nanny. At the time, I did not realise that Mr Marzukie had taken advantage of me, and that because of his actions, I may be deported to Indonesia where I could potentially be silenced either by ending up in Jail, or worse, losing my life. 17 The second affidavit was affirmed on 1 December 2007, where the appellant deposed as follows: 1. I like to add this Affidavit to the filed Affidavit that I affirmed on 11 October 2007. 2. Since affirming the Affidavit on 11 October 2007, I have had a chance refresh my memory, and as a result if there is any conflict between this Affidavit and the Affidavit that I affirmed on 11 October 2007, this Affidavit will contain the true information and not the other Affidavit. 3. I arrived in Australia on 22 November 2004, and commenced work with Mr. Erwin Marzukie on 29 November 2004, as a live-in-nanny. 4. I commenced work with Mr. Marzukie on the basis that he was looking for a live-in-nanny. 5. When I commenced work with Mr. Marzukie, I did not know that he was a Migrant Agent until several days after commencing work, when on about 3 December 2004, Mr. Marzukie inquired about my Visa while in Australia. 6. When on about 3 December 2004, I told Mr. Marzukie about my Visa, Mr. Marzukie referred me to another Migrant Agent. 7. Later on about 3 December 2004, before the other Migrant Agent commenced his work, that Migrant Agent informed me of his fees, which I could not afford as I have just arrived in Australia, and had little money with me. 8. When I explained to Mr. Marzukie that I could not afford the fees of the other Migrant Agent, he said he will do the work for me, for free. 9. The following conversation took place when Mr. Marzukie told me that he will act as my Migrant Agent for free: I said: Thank you very much. He said: I will be your Migrant Agent provided you promise not to tell anyone that you are working for me as a live-in-nanny, otherwise we could get in trouble with the government. Can I trust you to do this? I said: Why would we get into trouble with the government if they found out that I was working with you as a live-in-nanny? He said: Don't ask questions. If I cannot trust you that you will not mention that you are working for me as a live-in-nanny, I will find someone else instead. I said: I am very sorry, I will not do that again. You know that I cannot speak English, nor can I read and write English, and that there is nobody in Australia that can help me because I do not have any friends or relatives in Australia, and you are my only hope of escaping with my life from Indonesia, and even now that I am in Australia, I am still afraid because at any time I might be sent back to Indonesia. He said: Do not worry, leave it to me. In your application for the protection visa I will put your residential address being that of one of the staff that work for me, you understand, because I said, there will be problems if I put your residential address as my house. You just have to trust me. I said: You know better than me about these things, I trust you to do the right thing by me. You are the only one in Australia that is able to help me, I fully rely on you. He said: Good, I will pay you $450.00 per week, and you have half a day every Thursday off work. That is, you will work for me six and a half days per week as a live in nanny. Remember, if you tell anybody about working for me, then you would most probably be sent back to Indonesia, do you understand? You tell nobody about this. I said: Thank you very much, I promise I will tell nobody. 10. I have worked for Mr. Marzukie from 29 November 2004 to 23 December 2005, as a live-in-nanny. 11. As stated in paragraph 9 above, Mr. Marzukie paid me $450.00 per week, and I receive free board and lodging, worth about $100.00 per week. 12. As stated in paragraph 9, above, I worked for Mr. Marzukie 6 days and a half per week, where I have half a day off work every week, every Thursday afternoon. The time I spent working per day is on average 17 hours per day. The following is a summary of the work I did at Mr. Marzukie's house: a. I wake up at 6.00am, and start work about 6.10am. b. I then go to the kitchen and boil water for Mr. and Mrs. Marzukie, so that they can have hot water for their coffee when they come downstairs. c. I then prepare Hermione's breakfast, who was about 2 years old. d. For 2 to 3 days per week I prepare breakfast for Mr. and Mrs. Marzukie, which includes fresh fried rice and noodles. e. By about 9.30am, I take a break of 30 minutes and go jogging outside the house. f. By 10.00am Hermione comes down from her parent's bedroom which is upstairs. g. I then wash Hermione, and toilet her, and then feed her breakfast. h. I take care of Hermione while Mr. and Mrs. Marzukie go to the office in the city, and they return home by 8.30 pm. i. While Mr. and Mrs. Marzukie are at the office, I do the cooking for all, the Marzukie family, and I also clean the house. Most of the cooking I do when Hermione is sleeping in my bedroom between 1.30 pm and 3.30 pm. j. I also do all the laundry washing and ironing, for the whole house. k. When Mr. and Mrs. Marzukie come home from the office at about 8.30 pm, I unload their shopping from their car, and they go upstairs to their bedroom to change their cloth. l. While Mr. and Mrs. Marzukie are upstairs, I have to have the food heated so that it is hot when they come down stairs to have their dinner. m. I eat with Mr. and Mrs. Marzukie, and when we are finished eating, I do all the dishwashing and tidy up the kitchen. n. By about 10.15 pm, once the kitchen is all clean and tidy, I go to do the laundry and do the laundry for all the towels that were used during the day. o. I then empty all the rubbish bins in the house and take the rubbish outside. p. I am responsible for putting the garbage out every Thursday night. q. Every second weekend, Mr. Marzukie's daughters from his previous marriage, Natasha and Sarah, come on Friday night and leave Sunday afternoon. I have to do extra work when they visit because they leave food all over the TV room which I have to clean up, and when they use the family bathroom they make a big mess which I have to clean up. r. When on the weekend Mr. and Mrs. Marzukie go shopping they take me with them so that I can be with Hermione and so that I can help them carry their shopping bags. s. On the weekends, Mrs. Marzukie will not feed Hermione because Hermione refuses to eat from Mrs. Marzukie, so Hermione only eats from me. t. By 11.00 pm all the work is finished, I go to bed to wake up the next day at 6.00 am and do the above all over again. 13. Based from the above my income per week from Mr. Marzukie is $450.00 plus board and lodging worth about $100.00 per week, a total amount of being $550.00 per week, for working about 110 hours per week, which means my hourly rate while working for Mr. Marzukie is $5.00 per hour, and I am not entitled to sick leave or holiday leave. At $550.00 per week my annual total income from Mr. Marzukie would be $28,600.00. 14. On or about 17 October 2007 or 18 October 2007, after Mr. Marzukie had been served with this Appeal's filed documents, I received 3 phone calls from Mrs. Marzukie, which I did not answer, and an SMS message from her "Offering me part-time work", which I did not respond to. CONSIDERATION 18 The first issue in this appeal is the resolution of the appellant's application seeking leave to adduce further evidence in the appeal. 19 There was debate before me as to the relevant considerations that may lead to the reception of further evidence by reference to a number of authorities: see for example Orr v Holmes [1948] HCA 16 ; (1948) 76 CLR 632 , at 640-642; Arnotts v Trade Practices Commission (1990) 97 ALR 555 at 612; Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444, and generally Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577. 20 Section 27 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') permits this Court in its discretion to receive further evidence. The exercise of the discretion to receive further evidence must be exercised judicially and consistently with the judicial process. I am not confined to the common law considerations relating to the reception of fresh evidence. So much is clear from the principles enunciated in CDJ v VAJ (No 1) [1998] HCA 67 ; (1998) 197 CLR 172 at [52] - [53] per Gaudron J in dealing with an equivalent provision in the Family Law Act 1975 (Cth). Nevertheless, there are well-established, sound principles surrounding admission of fresh evidence which should normally be considered as relevant to the exercise of the discretion to receive further evidence pursuant to s 27 , but which should not constrain this Court in considering the overall demands of justice. 21 In my view, the demands of justice do not require the admission of the further evidence sought to be relied upon by the appellant for the following reasons: (a) The further evidence was clearly capable of being adduced by the appellant in the court below, and there was no justification for the appellant not raising this evidence in the court below; (b) The appellant submitted that the evidence sought to be tendered substantiated two grounds of appeal. The first ground was that the appellant was denied a real and meaningful invitation because of the conscious deception by her migration agent on the basis of the principles in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64. The second ground was that the Tribunal's failure to take a simple administrative step such as calling the appellant on the day of the hearing was a miscarriage of the Tribunal's discretion under s 426A. For reasons set out later, I do not consider these grounds of appeal could succeed even if the further evidence was received in this appeal; and (c) There is the desirability of finality in litigation, particularly in refugee cases involving late allegations of agent fraud. It is highly desirable that those allegations be tested at first instance, and not in the appellate jurisdiction of this Court. I understand that the stakes for the appellant are very high, and that she may hold subjective fears of serious harm or even death, by reason of her actions in Indonesia. The prejudice to the appellant is a factor to be considered. Finality in litigation is a significant factor, although it must be weighed in the balance with other aspects, including what is at stake for an appellant. In view of my conclusions as to the other matters relevant to the reception of further evidence, the consideration of finality simply serves to support the final view I have reached in this appeal. 22 In relation to the ability of the appellant to provide the further evidence and whether there was a justification in not adducing the further evidence in the court below, it is necessary to examine the position as it existed before the Federal Magistrate on 11 July 2007, the date of the hearing. 23 At the outset I indicate that I do not accept as contended by the appellant that in the circumstances of this case, it can be said that the ground of appeal based upon the High Court decision in SZFDE [2007] HCA 35 ; 237 ALR 64 was not available because the High Court decision now relied upon was not handed down until 2 August 2007. The ground itself was known and was capable of being agitated, even if only formally, in view of the earlier Full Federal Court's different position. In any event, the reality of the position is that the appellant, unrepresented before the Federal Magistrate, probably had no knowledge of the legal position, but could and should have sought to put to the Federal Magistrate the true factual position in support of her appeal . This, she simply did not do. I do not consider that the fact that the ground of appeal now sought to be agitated would necessarily have been unsuccessful before the Federal Magistrate was the reason that the further evidence now sought to be adduced was not tendered before the Federal Magistrates Court. The appellant in full knowledge of the facts, chose to misinform the Federal Magistrate of the true position. 24 It is important to realise that, as the appellant herself deposes, on or about 23 December 2005 Mr Marzukie terminated the appellant's employment as a nanny and told her that he would no longer help her in relation to her visa, and stated that she was on her own. Another migration agent was found by the appellant to help with her application before the Federal Magistrates Court. The appellant suggests she had trouble communicating with this new migration agent due to language difficulties and was not in fact able to communicate her circumstances to anyone until August 2007. 25 Be that as it may, the facts and circumstances that are now sought to be relied upon by the appellant were obviously well-known to her at the time of the hearing of the Federal Magistrates Court. The appellant was no longer under the influence of Mr Marzukie or dependent on him for her livelihood, and had a new migration agent. 26 Before the Federal Magistrate no mention was made of any of the facts and circumstances now relied upon, and the appellant misinformed the Federal Magistrate that she was sick and that this was the reason she could not attend the Tribunal hearing. 27 The appellant now accepts that this was not true, and says that the reason why she misinformed the Federal Magistrate was because she did not want to break the promise she made to Mr Marzukie that she would not tell anyone that she was working as a nanny. She said she did not realise Mr Marzukie had taken advantage of her and that because of his actions she could be deported to Indonesia with possible serious consequences. 28 I should interpolate that these reasons for misinforming the Federal Magistrate were not sought to be put before this Court on this appeal, in that they were not read as being part of the evidence tendered by the appellant. However, the part of the affidavit containing these reasons was tendered by the first respondent as admissions of the appellant being contained in her first affidavit as filed (see par 31). 29 In my view, such reasons could only assist the appellant, as they seek to provide a justification for her deliberate misinforming of the Federal Magistrate. Without such evidence, this Court is only left with the fact that the appellant deliberately misinformed the Federal Magistrate that she was sick, and this was the reason she did not attend the Tribunal hearing, with no explanation sought to be made to explain the reason for the appellant so deliberately misinforming the Federal Magistrate. In the end, nothing turns upon the acceptance or otherwise of the reasons given for the appellant's conduct before the Federal Magistrates Court, but I have taken her explanation into account. 30 If Mr Marzukie still had some control over the appellant as at 11 July 2007 (the Federal Magistrates Court hearing date), and the appellant did not have a migration agent to assist her (even if only in a limited way), I could perhaps understand the appellant misinforming the Federal Magistrate. However, by 11 July 2007 (nearly one year and six months after being sacked by Mr Marzukie), the appellant freely chose not to inform the Federal Magistrate of the facts and circumstances now relied upon, and instead said she was sick at the time of the Tribunal hearing and for this reason could not attend. 31 Even accepting that the discretion to accept the further evidence now sought to be adduced is very wide, and is not to be limited by enumerating an exhaustive list of relevant considerations, an important consideration is whether the evidence was capable of being adduced by the appellant in the court below and whether there is any justification for the evidence not being adduced. The hearing before the Federal Magistrates Court was the appellant's opportunity to advance her case, and inform the Federal Magistrates Court truthfully of the facts. I am satisfied that the appellant did have the free choice and the ability to inform the Federal Magistrate of the facts and circumstances now relied upon. If the reason for not doing so was because of her promise not to tell about her employment, that was not a proper basis for misinforming the Federal Magistrates Court. 35 Looking at the contention regarding fraud on the Tribunal, the appellant relies upon the principles set out in the decision of the High Court of Australia in SZFDE [2007] HCA 35 ; 237 ALR 64. 36 It is important to consider the facts of that case and the relevant principle there identified. 37 The High Court stated the relevant facts as follows (at [39]-[49]): The evidence of the first appellant was that when, with her husband, she met Mr Hussain [the migration agent] to discuss the tribunal's letter of invitation dated 27 June 2003, which invited attendance at a hearing of the tribunal, Mr Hussain used words to the effect: It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [Tribunal] you will say something in contradiction to what I will write. Don't worry. I'm doing what is best for you. A letter to the then minister, dated 15 September 2003, was composed by Mr Hussain in the name of the second appellant. It was headed "Application for Consideration [under] Section 417 of the Migration Act ". Section 417 conferred a power upon the minister, if the minister thought it was in the public interest to do so, to substitute for a decision of the tribunal a decision more favourable to an applicant. This and further requests of this nature were rejected. The Federal Magistrate held that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the tribunal hearing "by the fraudulent behaviour of Mr Hussain". The result was to have "deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425". ... Neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the tribunal hearing. The inference is well open upon the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s 281. ... The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. 38 The important point to note, in my view, is that the advice given by Mr Hussain directly and immediately had the consequence that the process of the Tribunal was stultified. The decision-making process was directly corrupted. As a direct result of the representation of Mr Hussain the appellant and her family were dissuaded from appearing before the Tribunal, and in fact did not appear. There was also in effect a conveying of a false impression to the Tribunal, namely that the appellant did not wish to appear. 39 Before this Court, the appellant has set out the basis of the fraud in the Further Amended Grounds of Appeal. This is important as the High Court observed in SZFDE [2007] HCA 35 ; 237 ALR 64 (at [41]-[42]): In the Full Court French J properly observed: ... The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings. In his reasons, French J developed the matter as follows: ... The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant's] prospects of a successful outcome on the basis of a submission to the Minister. ... The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7 , was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with [the first appellant] because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474 . 40 If one analyses the position on the facts as sought to be adduced in this appeal, there is no evidence of a fraud on the Tribunal within the meaning of SZFDE . 41 In SZFDE [2007] HCA 35 ; 237 ALR 64 at [45] the High Court drew inferences about the conduct and motivation of the agent in question in order to uphold the finding of fraud. In that case, the agent falsely held himself out to the applicants as a registered agent and a solicitor when he was neither. He took their money for a service that he was prevented by law from performing: see SZFDE [2007] HCA 35 ; 237 ALR 64 at [40] and [42]. He gave deliberately false advice which was designed to stop them from attending the Tribunal hearing (at [42]). If his conduct had been discovered he risked imprisonment for 10 years (at [46]). 42 However, in this appeal before me the factual position is quite different. Even if the appellant's evidence were to be accepted in every respect, the Court would find that Mr Marzukie was motivated by his personal desire to have the appellant look after his child for the day (because it suited his personal needs) and was in no way motivated to prevent the Tribunal from conducting a hearing. 43 I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998 , has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE [2007] HCA 35 ; 237 ALR 64 at [53] ; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17] - [18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3] , [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31] - [33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations , this would not lead to a finding of fraud in the relevant sense. 44 It is noted that the evidence the appellant seeks to adduce concerns her working conditions (the amount paid to the appellant, the tasks she was required to perform, the hours she was required to work). However, the nature of the arrangements for payment (if any) for migration services cannot take the appellant very far, unless it could be established (as it was in SZFDE ) that this was in some way connected to the deliberate 'stultification' of the legislative scheme or 'disabling' of the processes of the Tribunal: SZFDE [2007] HCA 35 ; 237 ALR 64 at [49] and [51]. In my view there is no connection between the working arrangements made and the processes of the Tribunal such that those processes were disabled or stultified by the conduct of Mr Marzukie. 45 The further evidence sought to be adduced by the appellant shows that Mr Marzukie gave the appellant at least some letters from the Tribunal, her own mobile number was supplied to the Tribunal in the application for review, the appellant was aware of the existence of the hearing and the date upon which it was to take place, she knew the hearing was 'important', and she intended to go to the hearing. Whilst the appellant was influenced by Mr Marzukie at the last minute not to attend (because she 'dared not oppose him'), she understood the Tribunal hearing was important, and she made the decision not to attend with that knowledge. 46 Further, Mr Marzukie's role and conduct as a registered migration agent is quite unlike that of the migration agent in SZFDE . Such things as encouraging the insertion of the incorrect address on the application form, and telling the appellant that the hearing was an 'interview' are not so significant as to warrant a finding of fraud upon the Tribunal. Further, the appellant herself was complicit and knowingly involved in the decision to mislead the Tribunal as to her place of residence. 50 As the High Court said in the appeal of this decision ( SZFDE [2007] HCA 35 ; 237 ALR 64) at [53] : The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. 62 In SZJBA [2007] FCA 1592 ; 164 FCR 14 , Allsop J said, starting at [53]: On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. ... ... In my view, the inaction of the tribunal for the reasons I have given, amounted to an undermining of the reality and meaningfulness of the invitation to comment that was given purportedly under s 424A or under s 424 or under the general executive power. As such, it was a jurisdictional error in that it undermined the steps in the conduct of the review undertaken pursuant to Pt 7 of the Migration Act , that were required by, or authorised by, the statute or authorised as the conduct of the general executive power under s 61 of the Commonwealth Constitution which had been undertaken by the Tribunal, and, once undertaken, were not to be frustrated by the action or inaction of the Tribunal in circumstances where, as I have said, it was obliged to take basic and simple administrative procedural steps. ... Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s 424A letter, or by the operation of s 424, or by the general executive power . Division 4 of Pt 7 is the statutory formulation of the giving of natural justice: see s 422B. Given the importance of procedural fairness for the principles of jurisdictional error sourced in s 75(v) of the Constitution : see SZFDE 237 ALR 164 at [32], any subversion of the process of the tribunal is a matter of importance: SZFDE [2007] HCA 35 ; 237 ALR 64 at [32] . The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour's comprehensive judgment in Minister for Immigration and Citizenship v Le [2007] FCA 1318. It can readily be accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant's case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60] . The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour's reasons. The only qualification that I would make to her Honour's reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error . [Emphasis added]