C v Minister for Immigration, Local Government and Ethnic Affairs D5/1996 [1996] HCATrans 338 (5 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D5 of 1996

B e t w e e n -

C

Applicant

and

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

First Respondent

M.W. GERKENS

Second Respondent

Office of the Registry

Darwin No D6 of 1996

B e t w e e n -

L

Applicant

and

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

First Respondent

M.W. GERKENS

Second Respondent

Office of the Registry

Darwin No D7 of 1996

B e t w e e n -

J

Applicant

and

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

First Respondent

M.W. GERKENS

Second Respondent

Applications for special leave to appeal

DAWSON J

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON THURSDAY, 5 SEPTEMBER 1996, AT 9.32 AM

Copyright in the High Court of Australia

__________________________

MR C.R. McDONALD: May it please the Court, I appear for the applicants for special leave in this matter. (instructed by Ken Parish)

MR T.J. RILEY, QC: May it please the Court, I appear for the respondents. (instructed by the Australian Government Solicitor)

MR McDONALD: There is no appearance for the intervening Human Rights and Equal Opportunity Commission.

DAWSON J: In relation to that, Mr McDonald, I have been informed by the Australian Government Solicitor, solicitor for the second respondent in each of the above-named matters, that the second respondent does not wish to be represented at the hearing of these applications for special leave to appeal, and will submit to any order of the Court save as to costs. Yes, Mr McDonald?

MR McDONALD: May it please the Court, this application raises an important question concerning the rights of asylum seekers in Australia and the question of access to the Federal Court of Australia for judicial review.

DAWSON J: Really it is just a question of statutory construction, is it not?

MR McDONALD: Your Honour, in one sense the answer is yes, but in the practical sense the particular interpretation translates in the practical domain of refugee law in a very profound way.

DAWSON J: No doubt many points of statutory construction do have a profound result, but they still remain points of statutory construction and involve no point of principle.

MR McDONALD: Your Honour, there is an important point of principle here and that in the environment under Part 8 Division 2 of the Migration Act 1976 of drastically restricted access to the Federal Court the question of notification of the decision is particularly important, particularly important for persons like my clients, who are in immigration detention, but it is also important as a matter of principle for those persons who may not be in detention or who many be coming from the Immigration Review Tribunal. So with respect, your Honour, albeit - - -

KIRBY J: Is there no power to seek an order from the Federal Court extending time?

MR McDONALD: No, your Honour, there is not.

KIRBY J: Is it clear that the Federal Court out of its own powers does not have the power to extend time? This is a jurisdictional requirement, is it?

MR McDONALD: Your Honour, it is a jurisdictional requirement. It is set out in the Migration Act that the Federal Court does not have power to extend time and there is specific reference to that in section - - -

KIRBY J: I will accept that. You do not need to check that.

MR McDONALD: So there is a cut-throat regime of time limits and, if the Minister's argument, which succeeded with the majority, bears fruit, it means that a simple oral notification of the result will suffice for a person seeking to access the judicial review mechanism in Part 8 Division 2 and, with respect, we say that that is important because how can an applicant for judicial review access the Federal Court without knowing the reasons for decision. Particularly that is so when the Court looks at section 478(1)(a) where the applicants must comply with:

An application under section 476 or 477 must -

and those are the remaining grounds for judicial review; that many other grounds have been removed from the Federal Court's jurisdiction -

(a) must be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act; and

(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

If a person is to comply with that requirement that "must", then the applicant must lodge in the Federal Court a document that complies with Order 54B and form 56.

KIRBY J: Presumably you can get a holding application on before the Federal Court and then seek later to enlarge or change it? The whole purpose of the statute is to try and hurry up the process, and that is the will of Parliament.

MR McDONALD: Yes, but the will of Parliament, adopting a proper approach to statutory interpretation - that the need for expedition was to be reflected in that component of the schemer where under section 430 of the Act, where the Refugee Review Tribunal, or under section 368, the Immigration Review Tribunal has to prepare a composite statement setting out the decision, the reasons for decision and the material findings of fact, then under section 368(2) for the IRT, and section 430 for the Refugee Review Tribunal, the Refugee Review Tribunal is given 14 days to give that statement to a particular applicant. That, with respect, your Honour, is where the expedition is first reflected, and then there is the strict time limit of 28 days.

Many of these types of important decisions deal with people who are in Port Hedland; who are, by that stage, not any longer connected with any lawyers, and whilst there is a need for expedition, 28 days and the questions of tyranny of distance, which are intimately involved in these sorts of notification issues, is vitally important. If my friend's argument bears fruit, then one could have a minimum 14 days. With respect, that does not carry out the consistent legislative intent as reflected in the Act.

KIRBY J: There is no doubt that you have a good argument of statutory construction. There are two available constructions. But, if we look at the apparent purpose of Parliament, and we have to choose between the two, then the purpose of Parliament seems to be to set fixed time limits to make them necessary for the jurisdiction and to be rather rigid. One can argue against that as a matter of social policy but that is what Parliament has said. The construction of the majority seems to be more in keeping with that approach and that reflects the will of the Parliament.

MR McDONALD: Your Honour, with respect, the will of the Parliament does set time limits but the will of the Parliament is also, on a proper construction, as Justice Lee, in our respectful submission, correctly set out in his extensive judgment. The will of the Parliament also bore in mind questions of fairness and that the question of notification, if you are going to meaningfully access the Federal Court - and in this case there were enormous errors of law found by the trial judge and confirmed by Justice Lee in the appeal - if you are going to meaningfully access the Federal Court and put a responsible application before the Court then you have to know the reasons for why you have been refused and, indeed - - -

DAWSON J: No doubt, Mr McDonald, these matters were canvassed in the Federal Court and there are two views that can be taken and the Federal Court came to a conclusion by a majority and that settles the question. Where is the point of principle that this Court would elucidate?

MR McDONALD: Your Honour, the point of principle really is behind this question of notification, that if Australia's response to its obligations under the convention is meaningful then a notification to be able to access the Federal Court is meaningful. Then, notification, with respect, is not just being told the result orally but being given the grounds so as you know why you have lost. We would say so much is important in the context of judicial review and in terms of proper decision making, particularly when you are dealing with such vital interests. The consequence of failure is that people are returned to their country of origin or to another country.

In this particular case, severe persecution was detected and the applicants were two days late. But what I would seek to argue, not just on a question of statutory interpretation, but an important principle of the rights of detained people in this country and asylum seekers extends beyond - - -

KIRBY J: But is not the reality, as Justice Dawson has suggested, that if this Court refuses special leave and the decision of the Full Federal Court majority becomes the clear law, the reality is that that will become known and that people will conform to that strict requirement which seems to be more conformable to what the Parliament has required?

MR McDONALD: Your Honour, in dealing with the Act, if you look at the tiers of decision making at the ministerial level, at the primary decision level, at the Immigration Review Tribunal level and at the Refugee Review Tribunal level the parliamentary intent, with respect, is consistent that it requires reasons and material findings of fact to be given in a composite document to the person and then time begins to run not, with respect, before.

KIRBY J: Well, one would hope that administrative arrangements would be made to ensure that ordinarily that is done. One would expect that that would be done but in this case the realities are that there were agents there who, one could infer, had some contact with your clients and it would seem that those people would ensure ordinarily that people in the position of your clients would be alerted to the decision and the reasons for it.

MR McDONALD: Your Honour, the majority of the Federal Court found that they were not agents, that the persons who were acting, their authority to act had expired, they had no authority to act and they were in the position of volunteers trying to assist people who were in detention and as a matter of trying to assist people who were disadvantaged. That they were not agents at all, and this is part of the problem, and why an important issue of principle arises as to what goes on in situations of detention. Yes, it may be a question of statutory interpretation, but the ghost in the machine of that interpretation is critically important in the way it translates in the way the persons can access.

DAWSON J: I have no doubt that is so, Mr McDonald, that the result is very important to your client - it may not be so important to people in the same position in the future, because they will know what the situation is - but who you are really asking this Court to do is to take this matter and go through the same exercise as the Federal Court and come to a different conclusion, but not to employ any different principles.

MR McDONALD: Your Honours, we are seeking to put to the Court, not just an important case of justice on its merits, because the trial judge found that were he able to do so then he would have referred the matter back for very serious errors of law in terms of this question of forced sterilisation of women in the Peoples Republic of China.

DAWSON J: No doubt in many cases that will arise in the future there would be a desire on the part of a trial judge to extend time, but the legislature has made this a somewhat rigid provision.

KIRBY J: Can one not draw an inference from the fact that under the Administrative Appeals Tribunal Act and the AD(JR) Act, there is quite a different scheme, whereas under this Act there is this rigidity which appears to be a deliberate policy that Parliament has adopted.

MR McDONALD: Your Honour, with all the rigidity that Parliament has adopted, it has not totally abandoned some basic concepts of fairness. If the majority decision stands, then there will be a gateway for injustice in the lives of, not just my clients but many people in their situation, and who come before the Immigration Review Tribunal. The Parliament, albeit that it may have restricted judicial review under section 476 in the grounds for judicial review and put in time limits, nevertheless has consistently, as Justice Lee's judgment eloquently puts, maintained a policy of their being reasons so you know the grounds of why you have lost.

If, for example, a document is lost between the Refugee Review Tribunal in Melbourne or Sydney and Port Hedland and all you are informed of is the result, if the majority decision is right, the 28 days passes, you never know why you have failed, you have never been able to meaningfully access the Federal Court and the written letter of the law is bypassed. What Justice Lee, with respect, achieved, was to give a proper context in terms of making those rigid time provisions work, that you must give it to the applicant within 14 days of that decision, that is the decision, the reasons for decision and the material findings of fact, and then 28 days runs from then, and that means, wherever that person is, at least they have an opportunity to access the Court.

The point of principle, albeit a matter of statutory interpretation, ultimately is meaningful access to the Federal Court for judicial review, and these cases highlight just how serious the errors of law can be in the Refugee Review Tribunal if you are dealing with people who do not have lawyers who are entirely dependent upon volunteers to assist them and then the majority decision in the Federal Court - and it is only a majority in the Full Court because the trial judge Justice O'Loughlin on this issue agreed with Justice Lee.

The Federal Court on this critically important issue was evenly divided and under section 35A of the Judiciary Act, that is one of the matters this Court is entitled to take into account to clarify the law. Your Honour, this is not just an idle or dry dust matter of statutory interpretation. It is something that affects the lives of many people who come to the northern shores of Australia but also who face the Immigration Review Tribunal in Sydney, Melbourne and Perth.

The question behind it all, the important point of principle, is should access to the Federal Court of Australia for judicial review be as Parliament intended and should a party at least have the right to be able to know the grounds so that they can formulate proper grounds in accordance with section 478(1) and lodge that application in the proper form as is required, as is mandatory, and then agitate that particular issue before the Federal Court. Otherwise, you are left with a regime that is very loose - you have got 14 days on one extent of the argument - and you may not know the grounds of why you have lost.

So we say why special leave should be granted. The Federal Court is evenly divided on this issue and this Court's appellate function is invoked to clarify the law. The question of notification will recur and recur and the evenly divided Federal Court decision will come up again. This majority decision, with respect, does not settle the law. It is highly contentious and leads to unjust results.

GAUDRON J: But it does settle the law. It is a decision of the Full Bench of the Federal Court and that now is the law.

MR McDONALD: Your Honour, I accept that. What I do seek to put before the Court is that albeit that the majority decided that issue, two other justices of the Federal Court who have considered it went in entirely the opposite direction, and when you look at the reasoning of Justice Lee and Justice O'Loughlin, the trial judge, you see that there is merit in what they have put. Furthermore, if the majority is right, then there will be in terms of the paradigm under the Administrative Appeals Tribunal Act and the Administrative Decisions (Judicial Review) Act a diminished form of judicial review for persons - - -

KIRBY J: But that seems to be a deliberate distinction that Parliament has drawn. It could have followed the course of the other Acts.

MR McDONALD: It could have, your Honour. But the one area where it has not drawn the drawbridge totally in is on this vital question of notification, and notification, we respectfully submit, involves knowing the grounds and having the reasons. Under section 478(1)(b) notification - that collocation of words "notification of a decision" means, and refers back to, that statement that is supposed to be given to you under section 430 in refugee cases, and in Immigration Review Tribunal cases under section 368. Your Honour, I see that the time has expired.

DAWSON J: Thank you, Mr McDonald. The Court need not trouble you, Mr Riley.

This application raises a point of statutory construction which has been determined by the decision of the Full Federal Court. There is no point of principle involved which would attract the attention of this Court. Accordingly, special leave to appeal is refused.

MR RILEY: I would seek an order for costs, if it please your Honour.

DAWSON J: Can you say anything as to that, Mr McDonald?

MR McDONALD: No, your Honour.

DAWSON J: The application is refused, with costs.

AT 9.54 AM THE MATTER WAS CONCLUDED