|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Melbourne No M142 of 1998
In the matter of -
An application for Writs of Prohibition, Mandamus and Certiorari against
MR SPIRO AGIUS
First Respondent
and
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
Ex parte -
TERESA PASINI CABAL
Prosecutor/Applicant
Office of the Registry
Melbourne No M143 of 1998
In the matter of -
An application for Writs of Prohibition, Mandamus and Certiorari against
MR SPIRO AGIUS
First Respondent
and
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
Ex parte -
MARCO PASINI BERTRAN and
MONSERRAT GONZALEZ KARRAS
Prosecutors/Applicants
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 18 FEBRUARY 1999, AT 10.17 AM
Copyright in the High Court of Australia
MR G. GRIFFITH, QC: If your Honour pleases, I appear with MS D.S. MORTIMER, for the prosecutors/applicants in each matter. (instructed by Purves Clarke Richards)
MR C. GUNST, QC: If your Honour pleases, I appear with my learned friend, MR S.G.E. McLEISH, on behalf of the respondents. (instructed by the Australian Government Solicitor)
HIS HONOUR: I have had both matters called together. I take it that is a convenient course to counsel, is it?
MR GRIFFITH: Yes, it is, your Honour. Your Honour, a preliminary matter: I mentioned to my learned friend that we would seek either by acquiescence or by direction an order that the documents delivered and served on the our learned friend's clients which we have volunteered to serve, even though it is an ex parte application, could be kept confidential to counsel solicitors and the Department.
HIS HONOUR: Yes. Why?
MR G RIFFITH: Your Honour, some of the material was relevant to issues involved in the extradition proceedings which are inter partes proceedings and disclosure of that material could affect the conduct of the defence to the extradition matters.
HIS HONOUR: Yes. Why does that lead to an order for confidentiality in respect of documents otherwise in a public proceeding?
MR GRIFFITH: Your Honour, because in the circumstances these documents concern both our clients and also Mr Cabal, in particular, who is the principal, as it were, in the extradition proceedings. Mr Cabal and also Marco Pasini Bertran are entitled, in our submission, your Honour, to have their position protected in as much as they are the respondent to extradition proceedings and entitled to conduct their defence to those proceedings as they may be advised and certainly not on the basis, your Honour, that part of their case should be disclosed in advance, as much as that becomes incidental to the prosecution of these proceedings, both by discovery - - -
HIS HONOUR: But how does anything said by these applicants stand against the respondent in that set of extradition proceedings? They would not be admissible in those proceedings, at least at first blush, would they?
Why should otherwise public proceedings of the Court be interfered with in this way?
MR GRIFFITH: Your Honour, they give information as to the structure and approach of the defence to those proceedings as part of the material which was relied upon for the prosecution of these applications. Ordinarily, your Honour, it would not be incumbent upon the respondent to an extradition application to disclose the course of preparations of their defence or the issues of evidence on which matters were being pursued for the purpose of defending the extradition proceedings. The effect of the disclosure of all the affidavit material which has been served on my learned friend in connection with these proceedings and the possible application for an adjournment, your Honour, is that there is information which does disclose matter material to the preparation of the defence in the extradition matters. I cannot put it any higher than that, your Honour.
The other matter, your Honour, we would seek - - -
HIS HONOUR: Well, should I deal with this matter first or should I deal with the matter to which you are about to come?
MR GRIFFITH: Your Honour, if I mention part of this initial matter is that we would seek an order for the moment that the transcript not be placed on the Internet for similar reasons.
HIS HONOUR: Yes. I will hear what Mr Gunst says, Dr Griffith. For the moment, though, I would say this: such orders are not simply for the asking. Such orders, if they are to be made, ordinarily ought to be made on the basis of proper material, proper material in the form of sworn material, which will disclose it. To close proceedings to the public is a large step. It ought not to be taken without proper material.
MR GRIFFITH: Your Honour, I should indicate I am not seeking an order that the proceedings be closed to the public.
HIS HONOUR: You are when you seek an order that the transcript of the proceedings not be made available in the ordinary public fashion.
MR GRIFFITH: Yes. Well, your Honour, can I deal with the first matter of the affidavits? The order I seek merely is the affidavit material served on the respondent be kept confidential to counsel, instructing solicitors and the client Department. That is all the order I seek.
HIS HONOUR: Yes. Yes, Mr Gunst.
MR GUNST: Your Honour, our instructions are not to consent but so far as the respondents in this matter before your Honour are concerned, the order would not affect the proper preparation of the case. However, we accept and adopt what your Honour has said about it being a very large step and it is not one that, in any way, we urge upon your Honour.
HIS HONOUR: Yes. Dr Griffith, you may take an order that will, until further order, keep confidential to counsel, solicitors and officers of the Department of Immigration and Multicultural Affairs - if that be its proper title still - affidavits and exhibits which are to be identified in the order. I will expect that a minute of that order is prepared by those instructing you and provided by no later than 2.15 this afternoon. When it is made available, and if it is in form satisfactory, I will initial it and the order will be made in those terms.
I say, again, that if these orders are to be sought in the future, they are to be sought on proper material and not simply on the urging of counsel, with or without acquiescence from the Department.
MR GRIFFITH: I am indebted to your Honour.
HIS HONOUR: Yes. I make no order for the moment about the transcript, Dr Griffith.
MR GRIFFITH: If your Honour pleases. I should make clear, your Honour, that I am seeking no order with respect to persons who may be in Court today.
HIS HONOUR: Yes, I understand. Yes. I have read the papers, Dr Griffith, and I have read also a copy of the proposed amended draft order which I suspect some clerk has been having a coronary trying to fax to the Registry, the fax apparently not being received. It was received and I have read it.
MR GRIFFITH: I am sorry, your Honour, we had intended that it be served last night. We served it on the Commonwealth and when we ascertained this morning, your Honour, it was indeed my junior counsel who was pressing the send button on her computer so that - does your Honour now have a good print because I can give you a better on?
HIS HONOUR: Yes, I do.
MR GRIFFITH: Your Honour, may I explain the constitutional point?
HIS HONOUR: Yes, I would be fascinated to know how you obtain order nisi for declaration and why you do not proceed by action in the ordinary fashion when the constitutional point you raise seems, at least at first blush, to be unconnected with the decision which you otherwise challenge.
MR GRIFFITH: I quite understand your Honour's observations. Firstly, your Honour, clearly, as it comes by way amendment, this is a point but recently perceived. Secondly, your Honour's observation with respect to issuing a writ for declaration, your Honour, of course, that could be done as a direct mechanism to raise the point. The reason why, your Honour, it is raised in the order nisi is, firstly, I will be seeking to satisfy your Honour that it is related to the issues we raise here but, secondly, picking up your Honour's point which I would have had in response to an observation from the Bench, "Well, this seems to be an unrelated issue", our submission is that there is a real constitutional point arising, particularly from the 1992 amendments, which is appropriate for the Full Court of this Court to consider with respect to the issue of the confining of jurisdiction, in respect of, particularly, the prerogative writ reliefs, to this Court to the exclusion now, we would submit, of the Federal Court.
HIS HONOUR: And those are not points that are raised directly in the proceedings in Abebe, heard but not yet determined?
MR GRIFFITH: Yes. It is my understanding, your Honour, and I have read the submissions in that case but not the full transcript, it is a separate point. Your Honour, can I explain how the point is put because your Honour was in that case and knows better than me exactly how it ran?
HIS HONOUR: Yes. And the amendment that was made to the reserved question. The reserved question in Abebe is now much broader than the original question as posed. The reserved question in Abebe was amended to, I think, extend - perhaps I am wrong. The reserved question was amended to read:
In their application to the review by the Federal Court of Australia of decisions of the RRT, when that Tribunal is reviewing decisions of the nature referred to in 4.11(1)(c), are the provisions of Part 8 of that Act, or any of them, outside legislative powers.
MR GRIFFITH: Your Honour, I was unaware of that extension but my inquiries were, your Honour, that Justice Kirby, in the course of argument, asked the question to the effect, "How is the High Court to deal with these matters?", and my understanding is that - my informant said, your Honour, who was there as counsel, that he did not get a satisfactory answer to that. It may be, your Honour, that on such a wide question, the Court is turning to the issue which we do seek to raise. But could I expose it quickly, your Honour - it might be that the point is one which is made by impression quickly and sufficiently - is that we submit, firstly, the effect of the Administrative Decisions (Judicial Review) Act 1977 , particular section 9, Limitation of jurisdiction of State courts, had the effect of combining the mechanism for review to the Federal Court and, of course, the original jurisdiction of this Court. So that was the first step.
Now, your Honour, we see no constitutional difficulty about that because it is permissible, your Honour, under the Constitution and under the Judiciary Act that the jurisdiction of State courts to be excluded, including, with respect, to prerogative writs against officers of the Commonwealth. Now, your Honour, the second step is the amendments effected in the 1952 amendments of the Migration Act, particular sections 485 and 486. Your Honour, there is a combination of effect there. Firstly, there is confirmation of the total withdrawal of jurisdiction from the State courts and, secondly, your Honour, there is a limitation of what otherwise would be the general jurisdiction of the Federal Court, including that jurisdiction under section 39B of the Judiciary Act, that would have the effect that this Court becomes exclusively vested with the jurisdiction with respect to what might be called review of a decision of an officer of the Commonwealth which otherwise might be made the subject matter of applications for prerogative writ actions for declaration or the like.
Now, your Honour, there is still uncertainty, as we understand from Abebe's Case, as to the relationship of that confining of jurisdiction to this Court with the full panoply of original jurisdiction under the Constitution which cannot be abridged and the effect of the remitter provisions under section 44 of the Judiciary Act. Your Honour, what we submit is that this question of validity is not to be determined by the existence or non-existence of the capacity to remit under the Judiciary Act and whether or not on remitter one can circumvent the confining of Federal Court jurisdiction which is implemented by these two sections of the Migration Act with respect to matters under the Act, apart from that issue of whether or not the Federal Court jurisdiction may be broadened on remitter.
Your Honour, the underlying submission is that we would submit that it is constitutionally impermissible for the Parliament of the Commonwealth so to confine the jurisdiction of State, Territory and Federal Courts so that the only access to that which is constitutionally mandated as the original jurisdiction of this Court in respect, if I could put it generally, administrative review, is within the jurisdiction of this Court.
Your Honour, we say that must be so because, in our submission, it is inherent in Chapter III that the constitutional capacity of this Court to discharge its constitutional responsibilities under Chapter III cannot be compromised or abrogated by the adoption of mechanisms so to restrict access to the other courts of Australia that this Court is vested with the exclusive original jurisdiction in these matters.
Now, your Honour, this may be a submission which is one which is to be judged by the circumstances of the time in that there was a time, your Honour, when each of us was much younger when one had taxation appeals in the original jurisdiction of the High Court, when one could have a trial of customs matters in the High Court, when one could approach the High Court without leave on appeal when there was more than [sterling]20,000 involved or was it $20,000? [sterling]10,000? Your Honour, with the emergence of the judicial structure, federal and State, within Australia, and with the emergence of the workload throughout that judicial organisation, in our submission, it is the case that this Court has a constitutional mandate which cannot be abrogated by policies implemented by a government to ensure the restriction of access to the other courts of the State, Territories and Federal Courts with a view to narrowing as far as may be - and, of course, the "may be" is the constitutional limitation, your Honour. For the purpose of my submission, I would assume that were that to be capable of being abrogated, that would have been abrogated as well but, of course, it cannot.
So that this Court is in the position that, if I may use an example, that your Honour is put in the position where your Honour must take the time to read these papers and to sit this morning, dealing with the matter which could comfortably be exercised and, prior to these amendments, would have been exercised by a judge of the Federal Court or the State courts.
HIS HONOUR: Let it be assumed for the purpose of argument only that that which you put is either arguable or even is right, what consequence, if any, does that have for the decisions, the validity of which you now seek to challenge?
MR GRIFFITH: Your Honour, what we say, we are entitled, when we are affected by these provisions, to know what is the applicable legislative scheme. For example, your Honour, if these provisions are beyond power and void, in that case, there being continuous proceedings involving the various parties and also Mr Cabal is not a party to these proceedings which have already involved and will continue to involve matters of interlocutory application to the Court, we say we are entitled to know to which court we may apply.
HIS HONOUR: Do you not now know that from the statute? You say the statute is invalid in this respect but you are told you must come here. I do not understand how the argument that you now advance touches in any respect the decisions, the validity of which you seek to impugn by the proceedings for prerogative relief.
MR GRIFFITH: Your Honour, what we would say is that were we right we would be entitled to approach the Federal Court.
HIS HONOUR: Yes. Assume that to be so. What follows from that fact?
MR GRIFFITH: Your Honour, we say that the structure then of the Act with respect to our entitlements to judicial review is affected by the validity of this argument. Now, one obvious way in which it is affected, your Honour, is on this question of remitter.
HIS HONOUR: Well, that may affect me and it may affect where you client ends up; it may affect all manner of questions. How does it affect the validity of the decisions which you seek to impugn in what perhaps captiously I refer to as the principal aspect of your claim?
MR GRIFFITH: Your Honour, the question of confining the jurisdiction may have a relationship to the grounds on which we make out to challenge the exercise of the primary decision maker.
HIS HONOUR: In this Court you have, do you not, the widest ambit of grounds or is there some confinement of grounds in this Court that affects you?
MR GRIFFITH: Your Honour, we have the widest grounds which are permitted by the Migration Act in as much as those provisions are valid. So, the answer is, yes, on that basis. It really comes back to your Honour's first observation, "Why can't you do this by a writ claiming a declaration?" The answer is, of course, we can, your Honour.
HIS HONOUR: Indeed, the question, "Can you obtain order nisi for declaration?"
MR GRIFFITH: Yes, your Honour. I mean, what we say is just as your Honour has directed us to do something by 2.15, we can issue a writ claiming a declaration by 2.15. So that it is the merit of the point I seek to address your Honour on, rather than your Honour's, if I may say so, absolutely good point that this does not seem to be the normal or best way to raise it. But we say it is a real point, your Honour, and it is one that does expose what has been an emerging issue of tension. Perhaps one could get evidence to say that there may be 500 applications of this sort in a year or 50 or 5,000, it does not matter how many, we say the principle is the same, that it all goes to interfere with the Court's capacity to exercise its constitutional jurisdiction that these two sections oblige your Honour to sit on this and other applications which are brought before your Honour as of right if this legislation is correct.
Now, your Honour, that original jurisdiction would exist were these sections not here but it must be taken as a matter of commonsense that parties would apply to the Federal Court rather than a State court and they would know what would happen to them if they came here by choice, they would be remitted before they came through the door. Of course, that is another aspect of the Court protecting itself. But I have already made the point, your Honour. We say the remitter capacity does not answer the constitutional point that we seek to raise because that could be withdrawn.
HIS HONOUR: Well, I think I understand the point you make.
MR GRIFFITH: Yes. So, your Honour, that is an issue we wish to ventilate as being integral to the attack which we seek to make on the whole legislative structure of this Act as it is applying with respect to the three prosecutors in these proceedings. We accept your Honour's point that it may be appropriate to issue a writ, making that as a separate claim, but the point is still there and our submission is, your Honour, it is one which is ripe for the Full Court, whether it is done by way of a question referred out of this order nisi or by way of a complementary writ which might be issued by 2.15. It requires no evidence, your Honour. Possibly a few statistics about the number of applications, but we would doubt whether even that would be required. Just on the basic issue as to whether or not, in 1999, there is a constitutional capacity in implementing a certain legislative policy to oblige this Court to exercise plenary original jurisdiction to the exclusion of the other State and Federal Courts. That is the point, your Honour.
As I say, your Honour, having posed the question, it is perhaps one that must be answered by the Court rather than the pleading of counsel before the Court. I am not convinced, your Honour, there is all that much more that can be said for the point itself other than it is a point for seven Justices of this Court, in our submission, not for three justices or one justice of the Federal Court on remitter.
Your Honour, I quite appreciate that, as it were, that is a left-field point but we do submit that it is integral to the position of the prosecutors seeking to challenge the course of decision-making procedures and their capacity to review those procedures.
HIS HONOUR: Understanding that, Dr Griffith, may I say this, that were the procedures to be regularised, my first impression of the matter is that I would take a deal of persuasion to state a case, refer a question, and take any other step to get the matter before a Full Court until the decision in Abebe comes down.
MR GRIFFITH: Your Honour, that is accepted.
HIS HONOUR: Thus, the point is not simply which bit of paper is before the Court but the point is one which my first impression is one which ought to await the decision of the Court in Abebe and, hence, the particular concern I have to understand why it is or how it is that the point is said to affect the validity of the decision which you primarily challenge but as I understand it, you have made the points you wish to make about that.
MR GRIFFITH: Your Honour, if I could deal with those two issues. Of course, when your Honour indicated the wider question in Abebe, that could embrace this issue but my understanding is that it was not put to the Court.
HIS HONOUR: Yes, it was.
MR GRIFFITH: It was, was it?
HIS HONOUR: It was debated, I thought, as some length.
MR GRIFFITH: In that form, your Honour?
HIS HONOUR: The fact that the consequence of the validity of Part 8 or the key provisions of Part 8 would be that the Court's original jurisdiction would be, shall we say, taxed.
MR GRIFFITH: Yes. Well, your Honour, I am indebted to that. My inquiries did not turn up the fact that it had advanced to that point. But, your Honour, if that did embrace the Chapter III argument, well then, it follows even more strongly that your Honour's observations are appropriate. Your Honour, the point is raised as one where my clients are in the position that they wish to challenge the primary decision maker. They wish, your Honour, to have the Refugee Review Tribunal proceedings, which are set down as early as next Monday, adjourned, and I will explain the reason why it is put that where you have a one-shot process before the Tribunal where matter is either found or not found by the primary decision maker, where information, if given to the primary decision maker, can be taken into account by the Tribunal, where, if you have not given information to the primary decision maker, that can be taken into account by the Tribunal. In our submission, those matters are so related that where we have a credible attack upon the validity of the primary decision maker, in our submission, your Honour, it is appropriate to stay the review of that decision.
HIS HONOUR: Well, no application is yet made, is there, for stay of the review; no application for injunction or stay?
MR GRIFFITH: Your Honour, this is the problem we have in that, in convening.....a Justice of the High Court in that the Tribunal has fixed the matter for Monday and has refused an adjournment.
HIS HONOUR: Again, you say that. Of course, I accept what you say, Dr Griffith, but if these applications are to be made, let them be made on proper material, not on what counsel assert from the table.
MR GRIFFITH: Your Honour, we do have affidavits that are sworn that I can file with your Honour now, but it was a question of - we were seeking to do our best either to persuade the Tribunal by Monday or, in the face of the Tribunal on Monday, not to proceed before we had to approach your Honour on that issue.
HIS HONOUR: All of that depends upon my being persuaded that the application for prerogative relief is not premature, that to attack the decision of the primary decision maker, there being the review mechanism in the Act, does not render the present application premature, does it not?
MR GRIFFITH: Yes.
HIS HONOUR: Perhaps if we turn to that.
MR GRIFFITH: If I can, your Honour. Your Honour, there are several arguments as to why we attack the primary decision maker. Can I firstly go to section 57 of the Act.
HIS HONOUR: I understand that. I thought we were turning to prematurity. We are not?
MR GRIFFITH: I am sorry, your Honour, what we say - - -
HIS HONOUR: You should take such course as you wish, Dr Griffith, but prematurity is an issue that looms large in my mind.
MR GRIFFITH: I will follow your Honour's course. Your Honour, what we say is that the mechanisms of the Act are such that there is a procedure for the primary decision maker to comply with the statutory requirements of the scheme of the Act which, whilst affecting in some way what might be regarded as the ordinary obligations of nature justice, none the less impose a statutory framework of which your Honour is distressingly aware, including, as I was about to mention, under section 57, to disclose information. Also, your Honour, we say to act reasonably to the extent of giving a reasonable opportunity to a party to present its case, having regard to the circumstances of that case.
In this case, your Honour has the correspondence where there was a timely application made for an opportunity to which no response was made. There was a specific request, your Honour, for notice to be given prior to proceeding in default. None of that was complied with, your Honour. Then there is a reference in the decision in several places to material which has not been disclosed to the applicants, we say in breach of section 57. And also, your Honour, if I could indicate in outline the matters which we protest as to the decision-making process, because of the failure of opportunity to present those materials, the entire decision-making process, in our submission, has miscarried because the decision maker elected unilaterally to rely upon an analysis by reference to social group and entirely failed to turn his attention to what was the primary basis of the application, the issue of political belief.
HIS HONOUR: Is that the basis referred to in proposed ground 6 as being explicable because of what is said to be the failure to give opportunity?
MR GRIFFITH: Your Honour, the first ground of this application, as one sees from the application, is one of political opinion. It could be analysed in the alternative, your Honour, as social group. But what the decision maker does is entirely fail to make any analysis by reference to political opinion and it is that political evidence, your Honour, which the solicitors flagged in the request given in a timely way to the decision maker as being matters which required extensive evidence we obtained from overseas.
HIS HONOUR: Those are, are they not, matters touching the merits, that is the political opinion issue is a matter that may touch the merits rather than the procedures, may it not? Your complaint is about procedural default.
MR GRIFFITH: Yes. Your Honour, another issue - I do not know whether your Honour would characterise it as merit - is the assertion which has been - must be on material obtained by the decision maker from some other source, your Honour, that Mr Cabal is being prosecuted for offences concerning fraud. Now, there is an affidavit, your Honour, which has been filed this morning indicating that that is not so. I have the original here, so I hand it to your Honour.
HIS HONOUR: Have you seen this, Mr Gunst, an affidavit of Alberto Conrado Zinser Cieslik, sworn 18 February?
MR GUNST: Yes. We do not consent to your Honour receiving this late material, for this reason. These applications were filed in the Court on 23 December. That is nearly two months ago. There was one affidavit sworn in each matter by the solicitor, Mr Cavanagh, which dealt with the matters and it was on the basis of that material that we have come to Court. We had not understood this to be a ground upon which it was proposed to challenged the departmental decision maker.
HIS HONOUR: But, ordinarily, these proceedings are ex parte, are they not, Mr Gunst? True it is, it is ex parte on notice to you. Why should I shut them out from filing this material, inconvenient as it is?
MR GUNST: We say nothing more than that, your Honour, save that if we had had some notice it might have been possible to obtain some rebutting material and, when it is sworn on the morning, albeit an unsworn copy was faxed at about 6 or 7 pm last night - - -
HIS HONOUR: These are ex parte proceedings, ordinarily, Mr Gunst. I will receive the material.
MR GUNST: If your Honour pleases.
MR GRIFFITH: Your Honour, I should indicate this goes to paragraph 9 of our original draft order. It has not altered it but it just - - -
HIS HONOUR: I do not wish to trouble you further on this matter, Dr Griffith.
MR GRIFFITH: Yes, your Honour.
HIS HONOUR: Yes, I have read that.
MR GRIFFITH: Your Honour, there is also an affidavit of Kerrin Anderson filed this morning which indicates that she has, as recently as yesterday, obtained FOI discovery.
HIS HONOUR: Yes, I saw that.
MR GRIFFITH: Which shows that there was information, your Honour, which had not been disclosed, we say, as required by section 57.
HIS HONOUR: Just on the application of section 57, Dr Griffith, how is it that 57(3) works in connection with this kind of application? Which bit of 57(3) is satisfied here?
MR GRIFFITH: I think it is (a). Both, I am told, your Honour.
HIS HONOUR: You have to get (a) and (b) and the visa can be granted in the migration zone.
MR GRIFFITH: Yes, your Honour, protection visa, yes.
HIS HONOUR: Yes, and under Part 5 or 7, it is reviewable, is it?
MR GRIFFITH: Part 7 is RRT.
HIS HONOUR: Yes, thank you.
MR GRIFFITH: I think that is common ground, your Honour.
HIS HONOUR: So you say you have a ground under section 57?
MR GRIFFITH: Your Honour, several grounds we have, yes, under 57: failure to consider entirely the principal argument, your Honour, which even on the truncated entitlement to a procedure, the issue, your Honour, that although the proceedings are meant to be quick, that does not mean to be denied an opportunity by reference to your circumstance. So there is - - -
HIS HONOUR: Well, is that right?
MR GRIFFITH: That is right.
HIS HONOUR: How does 54(3) work in the Act?
MR GRIFFITH: Your Honour, I suppose the answer is how majorities of the Federal Court, Full Court and eventually the High Court tell us how it works but the tenor of authority at the moment, your Honour, is to the effect that it works to the extent that although it is a statutory procedure rather than the ordinary common law procedure, none the less you have to act rationally and fairly and give some opportunity, your Honour, and we would say one element of that is an opportunity and respond to a request to say, "Look, we have to send someone to Mexico for three weeks to gather the material. We want you to please give us time to do that", at least you should respond and say you will not give time, your Honour, so one could then apply or do something else.
HIS HONOUR: Again, assume all that is at least arguable to the extent that you need - - -
MR GRIFFITH: Yes, I am coming to answer your Honour's questions, I had not lost it. What we say is that one has a two-step procedure: you have RRT review - if I could call it "RRT" it seems to be the nature of things nowadays, your Honour, to have acronyms. Now, that is a particular statutory procedure as well. Now, one thing is clear and Kerrin Anderson's affidavit confirms it, that on that review the decision maker has files and material which come up from the primary decision maker to the RRT, much of which may not be disclosed at all. I could take your Honour through the primary decision to indicate various points where there is reference to material which in no way has been disclosed to the applicants for a protection visa.
The mechanism of RRT review is that, firstly, one only has one shot at it. The Act proscribes any further appliction. That is it. You can do it once and once you have had it once you cannot have it again, even on new facts.
HIS HONOUR: And that is not uncommon in most appellate procedures.
MR GRIFFITH: It might be, your Honour, but it is one shot. Now, secondly, your Honour, it is clear - after that, all you have is a non-compellable personal discretion of the Minister under section 48B. Now what happens on the RRT examination, your Honour, is that on that merits review there is an examination of what the delegate has done and very frequently, your Honour, that is relied upon by the decision maker in the RRT who is a single decision maker.
Your Honour, absent further material before the delegate, what is produced before the RRT by way of new material can be relied upon as a ground of finding recent invention. So, what we say, your Honour, because of the failure to have any opportunity to lead this evidence as well as the absence of notice of what material was had and not disclosed prior to the decision, the applicants are in the position that they have not had an opportunity to put that material when, at the RRT level, it could be - the fact that they have not put it in, your Honour, can be relied upon adversely at that examination. The entire jurisdiction of the RRT, your Honour, is founded upon the delegate's decision.
HIS HONOUR: I just do not understand the last point about recent invention, Dr Griffith. It seems to proceed from the assumption that recent invention could be asserted on the basis that, what, the applicant had this material already? I do not understand your "recent invention" point at all.
MR GRIFFITH: Your Honour, can I say that these are various problems which arise if one goes forward to the RRT with a defective primary decision.
HIS HONOUR: No, they do not, if the RRT is to consider matters substantially afresh and it is that point at which I stumble for the moment where I need to understand the way in which you put this.
MR GRIFFITH: Your Honour, the answer is it does not. What it does: it may receive and rely upon information in the delegate's file including, we say, matters of fact which are referred to in the determination which we say we demonstrate - - -
HIS HONOUR: Are section 57 material.
MR GRIFFITH: And, also with respect to this broad matter, are untrue.
HIS HONOUR: Yes, and you can assert to the RRT the lack of truth of that, can you not? You know now that there is this suggestion of fraud. You would contest that. You have, indeed, sworn evidence which would seek to contest it and that can be put to the RRT, can it not?
MR GRIFFITH: We still do not know what is in the file, your Honour. We are trying to get it through FOI but these matters that have not been disclosed, we do not know what they are.
HIS HONOUR: Yes, and either you are entitled to have it before the RRT or you are not. If you are not, what question arises? If you are entitled, the RRT then may perhaps be at risk of going wrong if it does not give it to you.
MR GRIFFITH: Your Honour, what we say, we are entitled to have a decision in our favour in proper procedure from the delegate. We do not have to go to the RRT at all and what we say, your Honour, as we have indicated, that there are successive grounds for credible and serious attack on the validity of - - -
HIS HONOUR: As I say, let that be assumed for the moment for the purpose of argument. The point that troubles me - I do not want you to be under the slightest misapprehension, Dr Griffith - is why it is not premature to come to this Court now before the RRT processes have been undertaken and, if you fail at RRT, attack that if there be ground for attack on it.
MR GRIFFITH: Your Honour, there is another issue of prejudice which your Honour may, for the moment, not regard as established by the evidence. I do have an affidavit which I could give your Honour which has been prepared in connection with the adjournment application which does state the evidence that is and that is, your Honour, relevant to this issue that I mentioned to your Honour in seeking an order for confidentiality, namely, that if the matter proceeds at the RRT, it is necessary for the prosecutors to expose much, if not all, of the case which is sought to be put by Mr Carlos Cabal, who is not a party to these proceedings, and also to the first-named applicant in the first proceedings today, your Honour, dealing with their defence of the extradition proceedings and they will suffer a prejudice in that they will have their defence of those proceedings exposed as an incidental part of the applicants' requirement - - -
HIS HONOUR: Pursued by other parties of their own rights.
MR GRIFFITH: But it is a prejudice, your Honour, including one of the parties is the same and what we say is that in the circumstances where one has - if we could put it not too highly, your Honour - a strong, if not overwhelming case to set aside the decision of the primary decision maker, the balance, in our submission, your Honour, favours that process occurring so that then the provisions of the Act can proceed according to the mandate structure of those parts of the Migration Act providing for primary making decisions and review.
Now, I appreciate your Honour can say there is an element of non-sequitur in that because if the view is taken, "Well, you run your course before you may approach a court", well then, that position forecloses the argument which I just put. But our submission is, your Honour, the appropriate analysis to that is to be made by reference to what appears to be the strength of the case which is brought before your Honour this morning which is entirely confined to attacking the primary decision maker.
Your Honour, we do say that, on the prima facie basis, there are several strong grounds, each one of which, in our submission, even under truncated provisions for what might be called natural justice sought to be imposed by the Act which are, if one can put it fairly neutrally, your Honour, strongly made out. Once more, your Honour, we would say it is not something that a Justice of the High Court need be concerned with beyond that level of being plainly tenable because, we would say, your Honour, that is something to be considered on remitter.
We do submit that the material which your Honour has does present a strong case for invalidity, for setting aside the reported decision of the primary decision maker and, in that circumstance, it being, as we submit, your Honour, a one-shot review process, it is appropriate for the courts to deal with the point of objection one at a time. If the matter goes to the RRT, then the issue on challenge to the RRT decision will be by reference to what the RRT has done or not done. The RRT's jurisdiction is predicated upon a valid decision having been made by the primary decision maker and, in our submission, there is an - - -
Your Honour, when one goes to section 415, the power of the Tribunal is to affirm the decision or to vary it or to set it aside and substitute a new decision. In our submission, if there is - and we do put at the level - a strong case to say that the primary decision is void, then it is appropriate for that opportunity to be given to a person to make that out so as to establish the proper framework for consideration of the original application.
HIS HONOUR: Is that proposition a proposition that is inevitably denied by the authorities that deal with premature application for prerogative relief or can the two be stood together in a way that is consonant? That is, if your proposition is right, does it not deny prematurity as a ground for refusal?
MR GRIFFITH: I hesitate to ask your Honour for direction but my understanding is that there is no authority on this issue of prematurity dealing with the structure of this Act where one has a peculiar truncated decision-making process by its own rules with review. Normally, prematurity is dealing with - you have not taken the point before the primary Tribunal.
HIS HONOUR: Or there is the appeal process open. All the Family Court cases particularly I have in mind.
MR GRIFFITH: Yes, your Honour. Appeal process is one thing, your Honour. We say that what is here is entirely different in that if you have an adverse decision you are not entitled to an ordinary appeal process. What you are entitled to is a very abbreviated statutory minimum by reference to procedures at a tribunal which do not provide the ordinary capacity for re-examination that one gets on an appeal, either on a point of law or a mixture of law or fact.
HIS HONOUR: But unlike appeal you have an undeniable right under this process to adduce fresh evidence, do you not, under 423(1)?
MR GRIFFITH: Your Honour, it is not all that easy in practice because in this case, your Honour has the affidavit evidence. Usually these appeals take ten months. This one is being rushed on on Monday and in the face of a recent application by affidavit that there is evidence which has been obtained from two weeks' visit to Mexico by junior counsel and Mexican lawyers, the response of the Tribunal was to say, "We will go ahead on Monday and hear the applicants" in a circumstance, your Honour, where there is only abbreviated right to representation. I cannot appear on Monday and make these points. I am not a registered migration agent.
HIS HONOUR: Yes.
MR GRIFFITH: So, your Honour, it is not the ordinary case of opportunity to present on review. It is a case of the barest minimum in the statutory structure which, to put it neutrally, is intended so far as possible to pick up and maintain that which has been relied upon down below.
HIS HONOUR: Is the Tribunal, in exercising its powers, bound to give effect to the obligations imposed by section 57?
MR GRIFFITH: Your Honour, it may be on the authority of Thin Thin Cho, the decision of Justice Madgwick on 22 December, that that is the correct construction although my understanding is that it is only Justice Madgwick for the moment who has indicated that that - - -
HIS HONOUR: But such authority as there is - that sounds very rude to Justice Madgwick, it is not intended to be. But the authorities that exist suggest, or do they hold - does Justice Madgwick hold that the RRT is bound under 57? Perhaps the point matters not.
MR GRIFFITH: Yes.
HIS HONOUR: The distinction matters not. There is authority suggesting that the RRT is bound to apply 57.
MR GRIFFITH: Your Honour, it is a very difficult area because your Honour can see from the response of the FOI notice that material which is on the file, of the departmental file, has been withheld although it is material and as far as one can pick up from the primary decision maker's decision that material is on the file which will go to the RRT.
HIS HONOUR: And does an applicant before the RRT have any power to obtain or any right to obtain access to the materials that are transmitted to the RRT under the section that requires the department to transmit material which I had and I have promptly lost?
MR GRIFFITH: Your Honour, my understanding is that there is a discretion in the Tribunal to disclose material on the file but it is not at all the practice for the file to be disclosed. Indeed, it is a more common practice for it not to be disclosed so that one has no reasonable expectation, even when one picks up from the primary decision maker that there are files and contents of files that have been relied upon - my understand, your Honour, is that - and, of course, I have not appeared before the Tribunal because I am not entitled to - the practice is that you are in no particular position to demand to know what is on the file of the decision maker.
HIS HONOUR: But the authority would have it that you are bound to, or you are entitled to obtain section 57 material?
MR GRIFFITH: Your Honour, one problem is if you are not shown it you do not know and there are clear indications in the primary decision maker that there are several, one would suppose, documentary sources that have been relied upon and there is no reason to suppose that there will be any capacity on the review hearing to even find out what these are, let alone get access to them.
HIS HONOUR: Yes.
MR GRIFFITH: It is not, your Honour, the ordinary position the decision maker discloses to you these matters, and one example is the question where we filed an affidavit this morning of the fraud charges. The FOI disclosed an inquiry made by e-mail by the decision maker saying this is a sensitive matter, asking inquiries to be made which came back from the Australian Embassy in Mexico about the nature of how fraud is regarded in Mexico and yet, here, your Honour, there is now evidence that there has been no charge of fraud and yet the decision maker, in his decision, made a particular and most material reference to the fact that he regards these applicants as merely associated with a person who has been charged with serious fraud in Mexico.
Now if, in fact, he has been charged with some offence under the Housing Co-Operatives Ordinances, or something of the sort, it has a completely different colour but, your Honour, we are not talking about a perfect system of fairness and natural justice. We are talking about a minimalist attempt to provide the narrowest of opportunities to a fair opportunity to find the case that is against you in circumstances where the practice is to rely upon the fact you have not disclosed material to the primary decision maker, to rely upon material when that person's files and by and large, your Honour, we could say to make no inference in the applicant for review's favour but to the contrary, to fall back on file notes undisclosed against our - - -
Your Honour, we accept that leaves the issue of prematurity within that grey area of discretion but our submission is that it being in that area the balancing factor should be the strength of the several grounds and there are several made out to show - we say, if the evidence stays as it is, for cumulative reasons, the decision is insupportable and if that is the case, our submission is that it is appropriate, rather than endure the process of the Tribunal review, that the decision be abrogated and the primary decision maker consider the matter as he should have considered it in the first place and we would suppose, your Honour, get the correct result.
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, that point does not improve through repetition but that is our answer to your Honour's identification of the, if I may say so, what we would say is this is a really material issue for today's application because we say that apart from that, the material, even if my friend regards it as inter partes, is particularly strong.
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, it is observed to me that assuming that we do set aside the primary decision at some time, where does that leave you if the RRT has already made its decision? We say we are entitled to set aside the primary decision maker's decision, your Honour, because it is so insupportable.
HIS HONOUR: Yes, and if the RRT makes a decision afresh then that decision assumedly stands, does it not?
MR GRIFFITH: Your Honour, we say that that is a denial of our right to attack root and branch, the primary decision, which so affects us. We say we are entitled to that according to law within the truncated procedures under the Act.
HIS HONOUR: Yes.
MR GRIFFITH: If your Honour pleases.
HIS HONOUR: Yes, thank you, Dr Griffith. Yes, Mr Gunst.
MR GUNST: Thank you, your Honour.
HIS HONOUR: Mr Gunst, I would, at least for the moment, be much assisted if you would assume for the purposes of your argument that an arguable case of error is raised by the material. If you would perhaps focus your submissions on the consequences if that assumption were made.
MR GUNST: Thank you, your Honour. May we hand up an outline of argument that we have prepared in an endeavour to assist your Honour. We are proposing to make four points and I will come to the fourth of them straight away and your Honour will see it on page 4 of our outline.
The four points are, firstly, that we say the constitutional point is without substance. The second point is that it does not arise on the facts of this case. The third point is that the present application is without merit to the bare, arguable case threshold that is required but the fourth point is the question of discretion or, as your Honour has put it, prematurity.
We have set out a number of cases here. We have the authorities here but we could confine our - encapsulate it all by reference to what Justice Mason said in Twist v The Randwick Municipal Council, the reference to which is at the end of page 5. If I could hand up the authorities now.
HIS HONOUR: I have them. Yes.
MR GUNST: Thank you, your Honour. At page 116, his Honour, in Twist, at about point 2 on the page, says:
But if the right of appeal is exercised -
this is where there was a right of appeal as well as a right to seek prerogative relief -
and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases-notably by the Privy Council -
and his Honour cites a number of cases.
In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as valid, though erroneous decision, by appealing from it - - --
HIS HONOUR: Well, it is a bit hard to say that there is any election here, is there not, Mr Gunst? I mean, you may, perhaps, wish to characterise it as wanting the penny and the bun and the shop window in which it sits but that is what counsel are paid to do. Election does not seem to me to be a point that marches firmly across the stage.
MR GUNST: We do not suggest it is a true election in law in this case, your Honour, but what we do say is this. The material discloses, and we set this out in our chronology, that the application was made to the RRT on 14 December last year.
The application to this Court was not made until 23 December. Now, the solicitor, Mr Cavanagh, has sworn two affidavits, one in each proceeding on 23 December. Those affidavits, in fact, fail to mention at all the application to the RRT. Now, we pass over that because it is now common ground that an application is made. It is 14 December and it is on for hearing next Monday. We emphasise, we might say, that we do not act for the RRT and, as we understand it, it has not been served with any of these materials. In the ordinary way, one asks a tribunal to adjourn on the day of the hearing before going to a court to attempt to restrain it, but we emphasise we act for the primary decision maker and the Minister and not for the RRT here.
We emphasise, your Honour, on the authorities that we have set out here the principle is unarguable that prerogative relief such as is sought here is discretionary, one of the principal grounds upon which the discretion will be refused if there is a perfectly adequate right of review. In many cases it is a right of review to a Court of Appeal which may have restrictions on it, appeals on a point of law and so on. This appeal is not so limited. The appeal before the RRT is full merits review. Under section 418(3) the secretary of the department is obliged to forward all relevant materials to the RRT.
HIS HONOUR: Does the department contend that the applicant to the RRT should have access or may have access to that which is forwarded?
MR GUNST: The broad answer to that is yes, your Honour, but can I place this caveat that, of course, as your Honour understands a proceeding before the RRT is not inter partes and neither the Minister nor his department have any role to play in the hearing before the RRT. It is an application where the applicant is represented and calls whatever witnesses and places whatever evidence is thought desirable before the Tribunal but there is no contesting of that by any adverse party. It is in a sense not for the Minister to say. It is for the Tribunal to govern its own procedures.
We would refer your Honour, of course, to section 420 which obliges the Tribunal to proceed:
according to substantial justice and the merits of the case.
If the thrust of your Honour's question is would it be a fair thing for a Tribunal to put the material forward that was thought to be adverse so that it could be commented on, then clearly, as a general proposition, the answer to that proposition would be yes, but I do not want to be taken as contending that the Minister attempts to interfere in the running of the Tribunal because it is strictly independent and not under the Minister's control or subject to his direction. I hope that answers your Honour's question sufficiently.
HIS HONOUR: Yes.
MR GUNST: Your Honour, the cases we set out establish the proposition that prerogative relief is discretionary. We have set out a number of propositions here. Our learned friend referred to common sense in the argument about the constitutional point. The effect of this proposition would be that we have, at the moment, a very sensible and practical statutory scheme. Primary decision, independent merits review before a Tribunal, appeal to the Federal Court and then appeal to this Court if required. This would place your Honour as a single Judge of the High Court above the primary decision maker and below the RRT in that scheme of things and we say that is not common sense and it is not on the authorities with regard to prerogative relief what is required.
Your Honour, we rely upon all of the matters we have set out in our submissions but we do not believe we can assist your Honour - we should say, your Honour, in respect of the privacy matter, we would refer your Honour to sections 429 and 439 of the Act which require the hearing "to be in private" and for the Tribunal to keep confidential material that is communicated to it. It is a question for the Tribunal and we only observe it in passing. It goes to that question of fear of disclosure of information.
HIS HONOUR: Section 439 particularly or is - - -
MR GUNST: Section 429 is the private hearing and 439 is the confidentiality section.
HIS HONOUR: Yes, I see.
MR GUNST: If your Honour pleases.
HIS HONOUR: Yes, thank you. Dr Griffith.
MR GRIFFITH: Your Honour, could I cavil with my learned friend saying that the department takes no part in the RRT proceeding by referring to section 423(2).
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, may I cavil with my learned friend's suggestion, as I understood it, that there should be no difficulty about access to the file. If my learned friend can give an undertaking we will have complete access to the file that is one thing but as I would understand it, he would say that is for the Tribunal, but your Honour only has to go to the affidavit of Kerrin Anderson and the exhibits to that affidavit which were sworn and filed today to see that the Tribunal itself is claiming FOI exemptions to some of the material on its file.
HIS HONOUR: Sorry, the Tribunal is or the department?
MR GRIFFITH: The Tribunal.
HIS HONOUR: Now which affidavit of Ms Anderson is this?
MR GRIFFITH: That is the affidavit of Kerrin Anderson, your Honour, sworn today.
HIS HONOUR: Which of her several affidavits sworn today?
MR GRIFFITH: Exhibit KA3, your Honour.
HIS HONOUR: Yes.
MR GRIFFITH: And paragraph 3 of the affidavit, your Honour, shows that paragraphs were exempted from release and the exemption has been claimed in that letter. My understanding is that no assumptions can be made from the practice of the Tribunal that any particular access will be given to what information is in the file or, indeed, any particular notice of what is the general nature of what is in the file.
HIS HONOUR: Well, can I then understand what the ambit of this aspect of the dispute is? As I understand it, the primary decision maker relied on folios 1 to 30. That seemed to be what was recorded in the decision. Perhaps I am mistaken. Perhaps that could be checked - but folios 1 to 30, I think, and now folios 1 to 47 in the file, of course, has lived on, are the subject of FOI and folios 22 to 25, a four page affidavit, have been withheld otherwise the whole of folios 1 to 30, I think, are released to you but could somebody be good enough to just verify that my impression of the matter is right in that respect.
MR GRIFFITH: Yes, but I should indicate, your Honour, that a careful reading of the two determinations shows three or four references to files and information that one can pick up plus also the reference to the fraud charge which was just - - -
HIS HONOUR: Yes, I understand that.
MR GRIFFITH: Your Honour, we have no reason to suppose that we will get access to whatever information is on the file about that on review. We can request it, your Honour, but we have no reason to suppose.
HIS HONOUR: Well, again then, I need to be taken - if this point is to be made good, I will need to be taken to it chapter and verse because that is, for the moment, not an impression I have. The impression I have is that there is one affidavit that has been kept back for reasons that may be good, bad or indifferent, but could I be taken chapter and verse to this?
MR GRIFFITH: Your Honour, perhaps I should take you to the decision - - -
HIS HONOUR: Can I go back even one stage prior to that? There is no relevant distinction in the two proceedings in this Court in the material, is there? If I am working off the papers in one of the proceedings in this Court, I am sufficiently apprised, am I not, of the material in the other?
MR GRIFFITH: That is so.
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, I understand my learned friend, Mr Gunst, wished to be excused.
MR GUNST: I wonder if I might, your Honour. I apologise for having another commitment. My learned junior will....reply.
HIS HONOUR: Yes. Yes. Well, if I go to JC5 which is to the affidavit of Mr Cavanagh of 23 December, we have annexed to that the visa decision record.
MR GRIFFITH: Yes, your Honour.
HIS HONOUR: At page 2, evidence before me, item 1 - departmental file such-and-such, folios 1 to 30. Now, that is the source of my reference to folios 1 to 30. I go from there to Mr Rich's FOI answer most recently given. I think it was exhibit KA4 to Ms Anderson. Is that right?
MR GRIFFITH: Yes, sorry, your Honour. I have the other one, the other proceeding - KA3, but I think it is in similar terms.
HIS HONOUR: Release in full, folios 1 to 15, 21 to 45. There is more held back.
MR GRIFFITH: There is quite a bit held back, your Honour.
HIS HONOUR: There is 16 to 20 wholly held back being the affidavit in 16 to 19, so the four page affidavit I have mentioned.
MR GRIFFITH: Yes.
HIS HONOUR: There is then "an overseas cable". One may think it might, perhaps, be a DFAT cable but one does not know.
MR GRIFFITH: Your Honour, I could indicate what concerns us is that it could well be a cable of information from the Mexican government which could be very prejudicial to us.
HIS HONOUR: Yes, yes.
MR GRIFFITH: And we just do not know it.
HIS HONOUR: Yes, I understand that.
MR GRIFFITH: Your Honour, our claim is political and what we say is that the essence of that is to know what the foe is saying.
HIS HONOUR: Yes.
MR GRIFFITH: Or persecutor, I should say, your Honour, so one has a pretty good idea the RRT is not opening its file that has been transmitted from the decision maker.
HIS HONOUR: Yes.
MR GRIFFITH: Indeed, it is digging in on FOI and, absent some indication to your Honour from my learned, or now, friend, we say your Honour should act on the basis that there is no reason to assume any normal position of fairness that all the file of the decision maker will be disclosed. I must say, your Honour, as one analyses this I am somewhat surprised there has not so far been a root and branch attack on this whole process of RRT procedure. It must be right. For myself, your Honour, I must say it is difficult to see as tenable an assertion that a decision maker can sit there saying, "I have a file. I can rely on what the primary decision maker made. Tell me what you want to but I am not going to tell you what is in my file." But that is the basic mechanism as I am instructed.
What we say, your Honour, is that if we have reached the requisite satisfaction to attack the primary decision it is appropriate, admitting it is discretionary, that we should be permitted to mount and sustain that attack without - - -
HIS HONOUR: Is that attack foreclosed to you if the RRT, in the sense that if the point is good, does it not remain good in the RRT's process.
MR GRIFFITH: Well, your Honour, my learned friend has already referred to Twist. We have been told that whatever happened down below that is void, it is all cured by getting whatever you are entitled to before the Tribunal which, we submit, quite deliberately, is not much.
HIS HONOUR: Yes.
MR GRIFFITH: It is not natural justice at large, your Honour, it is the barest compliance with section 420, whatever that means, and I am told there is no equivalent of section 57 which applies to the Tribunal.
HIS HONOUR: I am sorry. If you are to persuade me of that you are going to have to do a jolly sight better than just telling me it does not apply.
MR GRIFFITH: I am sorry, your Honour. Well, your Honour, there are provisions for the Tribunal, particularly Part 7 commencing at page 410 and that does not include section 57. Section 57 is a duty on the primary decision maker, your Honour. There is no such duty on the Tribunal and we say, your Honour, the response to the FOI indicates what might be expected to the approach of the Tribunal. We say that there is an element of persecution by the Mexican government here as constituting the primary claim and, your Honour, the position of the Tribunal, without prompting, is to say it looks like you are not going to receive any information which we have on file about that.
I should indicate that the application to the primary decision maker was to seek a reasonable opportunity to present that material on the basis that counsel has been sent to Mexico. A lawyer has travelled several times between Mexico and here and the material is being guarded. What is unusual about this application - I do not intend to give evidence, your Honour, is that it is an application where the applicant does have a capacity to go out and get evidence and what the applicants want is the opportunity to present that evidence.
HIS HONOUR: Yes.
MR GRIFFITH: It is not someone, your Honour, who is unrepresented and they have to stand up and do their best in a foreign language with, perhaps, just a migration agent to help them. So, your Honour, we accept it is a balance but what we say is that there is a strong case here to suppose that one or other of the grounds to vitiate the primary decision can be made. We say, your Honour, Twist is beside the point. We say the procedure under section 420 by way of the Tribunal's duties is not equivalent to saying, "Oh well, you've got an appeal." and although, your Honour, the final chapter has not been even written - - -
HIS HONOUR: Well, 420 is, on one view of it, no more than a statement of objectives; 424, 425 and 426 are perhaps the more relevant provisions, are they not?
MR GRIFFITH: We accept that, your Honour. Your Honour might be familiar with Eshetu v The Minister, a decision of the Full Court which - - -
HIS HONOUR: Presently stands reserved on appeal. Yes.
MR GRIFFITH: Yes, your Honour, yes. So, this is an uncertain area but one goes to these provisions rather than just relying on ordinary principles of fairness because the structure of the Act is avowedly an attempt to cut down, not just reformulate, cut down what would be otherwise your entitlement under prerogative writs or otherwise to be treated fairly by any decision maker that affects you and, your Honour, this is a decision which affects you par excellence. It is one that could cause, if the Tribunal made its decision on Monday, your immediate arrest and deportation.
HIS HONOUR: Yes.
MR GRIFFITH: Without, your Honour, we say, the consideration on the merits of what, at least, must be a tenable claim, that you come within the description of the Convention, but I think your Honour, having had to sit through these appeals, is probably more aware than me of the content of that submission but that is our submission, with respect, to it and what we say is that one cannot just pick up the ordinary authorities on prematurity and say they all fit here, you are going to get a fair run under the Act, it is inappropriate that you should be able to jump the queue as it were and come to the Court.
It is a question of what is appropriate and we say, your Honour, given the pre-emptive force of the primary decision we are entitled, having made out a strong case, to have merits review at this stage to vitiate that decision and then to require the decision maker, a new decision maker, to act according to even the narrow obligations of the Act, we would hope and expect, your Honour, in a way that obviated whatever it is that one is entitled to before the Tribunal. Your Honour, as part of that application, of course, as of course, we would ask your Honour to remit to the Federal Court the further determination of the matter.
HIS HONOUR: You say that remitter is open?
MR GRIFFITH: Your Honour, in a way we are swinging on decisions of the Court on this but on the basis - - -
HIS HONOUR: If the provisions of Part 8 are valid, is remitter open?
MR GRIFFITH: Your Honour, this is the unresolved issue. If one - - -
HIS HONOUR: No, no, that is why I inject the premise.
MR GRIFFITH: Yes.
HIS HONOUR: That is, does the decision on remitter depend upon the outcome of Abebe or, perhaps, Eshetu, but Abebe really.
MR GRIFFITH: Your Honour is entirely right. These are disturbing issues. Our application on the constitutional point is predicated really on a submission that, in effect, the Executive, through the Parliament, is taking on the Court so that these matters are uncertain until step by step they become - - -
HIS HONOUR: Leave aside your constitutional point.
MR GRIFFITH: Yes.
HIS HONOUR: Do you contend that the Migration Act points which you seek to agitate can be remitted to the Federal Court?
MR GRIFFITH: Your Honour, our first contention is that they cannot but, as we understand it, for the moment, in a situation of uncertainty, it seems remitter is happening whilst the ultimate answer to your Honour's question will fall to be resolved at what will only be the completely authoritative level of this Court.
HIS HONOUR: But I understood you to ask me to, in effect, grant order nisi and then remit. Is that so?
MR GRIFFITH: Your Honour is right. I was being sort of practical in a way that jumped over the problem your Honour quite properly points out to me, that the intention of - the fruition of the Act undoubtedly are that there should be no remitter so it stays here which, of course, points you back towards the constitutional argument.
HIS HONOUR: It seems to me - perhaps I am wrong - that 485, if valid, took away from the Federal Court jurisdiction in respect of, amongst other things, decisions covered by 475(2). This is a decision covered by 475(2) and therefore, so the argument ran, it was not possible to remit, all of that assuming validity of all of these provisions to the fullest extent that their words would permit.
MR GRIFFITH: Your Honour is entirely right. It may be that this is also a decision under 475(1)(c). This is another ambiguity of the Act.
HIS HONOUR: Well, save for the exclusion by 475(2)(d). It may be that (2)(d) takes out of (1)(c).
MR GRIFFITH: It may be, your Honour, but the Act speaks in appropriately Delphic terms on that.
HIS HONOUR: Yes.
MR GRIFFITH: So that is another issue as to whether you can be under both. I must say, your Honour, in the last 24 hours I have not resolved that in my own mind as to what seemed to be the preferable construction, whether if you are under subsection (2) you cannot be under subsection (1) as well.
HIS HONOUR: Yes.
MR GRIFFITH: That may be the obvious meaning, your Honour, but (2) does not really say "except as an exception to (1)". It is not expressed in that way., but your Honour is right, my submission really was on the basis that section 485 seems to say that, if it has had effect validly, well the answer to your Honour's question is that you cannot remit and it might be, your Honour, appropriate just to adjourn this matter until we get some decisions from the reserved judgment of the Court. There is no real urgency - - -
HIS HONOUR: I would gladly adjourn it over, Dr Griffith. Judicial indolence is often the most powerful argument available to counsel.
MR GRIFFITH: Yes.
HIS HONOUR: But that would simply provoke a debate about the terms of the adjournment, would it not?
MR GRIFFITH: Your Honour, this is not an urgent matter in that really the extradition proceedings are going to be determinative of where people end up.
HIS HONOUR: Yes. If you ask me simply to adjourn it and make no further order, then that is one case.
MR GRIFFITH: No, your Honour, I would have to ask for an order to stay the RRT review.
HIS HONOUR: And why would I do that in proceedings to which RRT are not joined, in which no relief is sought against RRT. Why should I make any order?
MR GRIFFITH: Your Honour, because it is the operation of the provisions of the Act which are invoked.
HIS HONOUR: But why should that not be on notice to the Tribunal concerned?
MR GRIFFITH: Your Honour, we did contemplate this. Your Honour has seen from a letter that - - -
HIS HONOUR: Because you tell me that there has been application made and refused for adjournment. You do not yet have proceedings on foot - insert "yet", to challenge that decision. Why should I do anything about them, Dr Griffith? I am not minded to.
MR GRIFFITH: No. Well, your Honour, we do have affidavits sworn and what we are seeking is not to bother your Honour unless it was unavoidable. Perhaps we are being a bit too anxious about that but it may become necessary on Monday to make that application.
HIS HONOUR: Yes.
MR GRIFFITH: We would hope that common sense - - -
HIS HONOUR: Yes, sufficient unto the day is the evil thereof and Monday will perhaps give you a chance to see the new courtroom, will it not, Dr Griffith.
MR GRIFFITH: By next Monday, your Honour?
HIS HONOUR: Yes, finding me tomorrow is going to be a bit difficult except underneath a removal van, Dr Griffith, or in a tea chest.
MR GRIFFITH: Yes. Your Honour, we seek to act reasonably and we intend to maintain the application, which I could give your Honour an affidavit now but there is no point because there is no application before your Honour, and in the event that it is refused on Monday, I should indicate that as this Court seems to be the only Court of jurisdiction, we would reluctantly approach the only Judge we can find in Melbourne and we would ask the Tribunal to stand the matter down while we seek your Honour under the moving files. We do not wish to do that unless it is unavoidable.
HIS HONOUR: Yes.
MR GRIFFITH: So, it is not that we did not see that we had to have an application on, it was just we were hoping it is unnecessary.
HIS HONOUR: Yes.
MR GRIFFITH: It is out of our control but, your Honour, coming back to the essential point, your Honour is quite right on this question of whether the effect of remitter can enlarge what seems to be a deliberate restriction of 485.
HIS HONOUR: Yes, you can remit only to a court with jurisdiction, can you not?
MR GRIFFITH: That is what I understand, your Honour.
HIS HONOUR: If they take away the jurisdiction they say that they have thereby - - -
MR GRIFFITH: It is a question, your Honour, of being creative. You say if the court can deal with these sorts of matters, perhaps it can deal with the entire matter in the same way the High Court - that would be the argument, but it really comes back to this issue of how far you must go to protect the integrity of this Court, which is back to my first point, your Honour.
HIS HONOUR: Yes.
MR GRIFFITH: Your Honour, what we do seek is an order nisi and if your Honour is not satisfied that it can be remitted, well then it stays here by default.
HIS HONOUR: Yes.
MR GRIFFITH: We would hope if your Honour grants an order nisi that that will induce the Tribunal to adjourn when a registered migration agent, who has got a right to appear, applies on Monday in the face of the Tribunal and seeks such an adjournment. If it does not, your Honour, it would seem unavoidable that we would need to approach the Registry and ask for a Justice of the High Court to order a stay.
HIS HONOUR: Yes.
MR GRIFFITH: But not without asking the Commonwealth to do what it can to avoid that.
HIS HONOUR: Yes.
MR GRIFFITH: That is why an open letter was written to them. If your Honour pleases.
HIS HONOUR: Yes. I will adjourn until, I suspect, 12.30.
AT 11.44 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.31 PM:
HIS HONOUR: Application is made by Marco Pasini Bertran and Monserrat Gonzalez Karras and also (by separate application) by Teresa Pasini Cabal for orders nisi for prerogative relief. Each claims to be a refugee to whom Australia owes protection obligations. Each applied for, but was refused, a protection visa.
Each of the applications seeks also to agitate a constitutional question with which it is convenient to deal first. Counsel for the applicants provided a draft order nisi which, amongst other things, sought an order that "the respondents show cause why sections 485 and 486 of the Migration Act should not be declared invalid". I was told that the applicants seek to agitate the question whether the two sections that I have mentioned are invalid on the ground, put shortly, that it is impermissible for the Parliament so to confine the jurisdiction of State, Territory and Federal Courts as to restrict access to review decisions made under the Migration Act only to this Court. It was suggested that so to confine the jurisdiction of State, Territory and Federal Courts would be contrary to Chapter III of the Constitution.
The point is one which, if it is to be agitated, seems more appropriately dealt with by writ for declaration of invalidity than the present irregular procedure. Whether or not that is so, I am of the view that the point may be put to one side for present purposes because no prerogative relief directed to the decision maker in this case is founded on the allegations which it is sought to raise concerning the validity of sections 485 and 486 of the Migration Act. Indeed, in the end I did not understand counsel for the applicants to challenge that this was so. Rather, debate has centred on the other proposed grounds for relief. Those grounds are:
2. The respondents were and are obliged by the Act, the Convention -
I interpolate, the Refugees' Convention of 1951 as amended by the Refugees Protocol of 1967 -
and the Regulations -
that is the Migration Regulations 1994 (Commonwealth) -
to consider and determine the prosecutor's application for a protection visa and in so doing to consider whether she was a person to whom Australia was required to extend protection under the Convention ("the respondents' obligations").
3. In discharging the respondents' obligations, the first respondent acted in breach of the rules of natural justice in that he:
(a) did not interview the applicant where the circumstances of her case reasonably required an interview;
(b) did not allow the applicant and her legal advisers sufficient time or give sufficient notice to the applicant and her legal advisers in the circumstances of the applicant's case to allow submissions to be made on the applicant's behalf as to how she satisfied the criteria for the grant of a protection visa;
(c) despite reasonable and timely requests from the applicant's legal advisers did not allow the applicant and her legal advisers sufficient time in the circumstances of the applicant's case to gather and present material critical to her application;
(d) despite requests from the applicant's legal advisers did not inform the applicant or her legal advisers that he was proceeding to determine her protection visa application without waiting for the material which the applicant wished to submit.
4. In discharging the respondents' obligations the first respondent was required by section 57(2) of the Act to disclose relevant information to the applicant, as that phrase is defined in section 57(1) of the Act, and failed to do so.
5. The first respondent erred in his construction of what is capable of constituting a social group. The first respondent should have found that, as a matter of law, membership of a particular family and/or extended family satisfies the criteria for membership of a social group for the purpose of the Convention.
6. In discharging the respondents' obligations, the first respondent failed to consider the Convention reason of political opinion. This failure may be explicable because of the respondents' failure to give any opportunity to the applicant to make out a case on this ground.
7. The first respondent based his decision on the existence of a critical fact, namely that the applicant's husband was wanted in Mexico on fraud charges and this fact did not exist.
8. In consequence of the matters referred to above (a) the decision of the first respondent on 8 December 1998 was made without jurisdiction and is void and (b) the first and second respondents have not discharged the respondents' obligations under the Act.
For present purposes I assume, without deciding, that a sufficiently arguable case is established in respect of each of the grounds that are alleged. The central difficulty that then confronts the applicants is that the decision which it is sought to challenge is that of the delegate of the Minister - a decision which is open to review under the mechanisms prescribed by Part 7 of the Act. Indeed, before commencing the present application in this Court, each applicant had engaged those mechanisms under Part 7 by applying for review by the Refugee Review Tribunal (the RRT) of the decision to refuse a protection visa. The RRT:
"may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision."
(Section 415(1)) In doing so, the Tribunal is to exercise its powers and conduct its review in the manner prescribed by Division 3 and Division 4 of Part 7 of the Act. In particular, reference should be made to the provisions of section 423(1) under which:
"An applicant for review by the Tribunal may give the Registrar:
(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review";
to section 425(1) which provides that where section 424, governing review on the papers -
"does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence, and
(b) may obtain such other evidence as it considers necessary."
and to section 427 where the Tribunal is empowered to "take evidence on oath or affirmation", "adjourn the review from time to time" and subject to certain other provisions of the Act "give information to the applicant and the Secretary" of the department.
It was said that the applicants have a good arguable case that the decision to refuse them protection visas miscarried. It was submitted that each of the applicants will likely labour under the same difficulties before the RRT as they laboured under in putting material before the primary decision maker which, so it is said, is material that goes to their claimed status as refugees. In particular, it was said that the applicants were denied documents which should have been disclosed to them under section 57 of the Act and that, despite freedom of information requests that they have made, are still documents and information which they are denied.
It is said that the applicants had insufficient time to obtain and prepare all of the material for submission to the primary decision maker that was material that touched their claims to be refugees and it may still be contended, so it seems, that the applicants have had insufficient time to assemble the necessary material. It was said that errors of fact were made by the primary decision maker and, indeed, that the primary decision maker mistook the principal basis of the claim to refugee status as being membership of a particular social group when, in fact, it is founded in political opinion.
But all of these are matters that can be canvassed in the RRT. It should be said at once that those proceedings, on at least one view of the Act, are not properly to be seen as adversary proceedings and this notwithstanding the power of the Secretary of the department under section 423(2) to give to the Registrar written argument relating to issues arising in relation to the decision under review. But whether or not that is so, it may be that, properly understood, the proceedings are not ones in which there is a contradictor and that the analogy which was spoken of in the course of argument with appeal is an analogy that is far from complete or accurate. Nevertheless, each of the applicants has an opportunity to remedy the difficulties and errors which it is said attended the primary decision maker's processes.
Counsel for the applicants submitted that the procedures before the RRT are confined and intended to give what he described as being a "bare minimum" of review. For present purposes I would be prepared to assume, again without deciding, that this is an accurate description of the effect of the relevant provisions of the Act but, as I have said, I am of the view that the complaints that now are made or sought to be made in the present proceedings are complaints that are all remediable in the course of the proceedings before the RRT.
Particular reference should be made to the allegation that certain documents, and thus certain relevant information, were not provided when there was an obligation under section 57 of the Act to supply that information to the applicants. It was accepted, in the course of argument, that the present state of authority in the Federal Court suggests that if there is an entitlement under section 57 to be provided with information, that is an entitlement that remains and has application in proceedings before the RRT. Certainly the contrary of this contention was not advanced in the proceedings before me. If that is so then, if the applicants have a right to information under section 57, that right can be exercised in the course of the proceedings before the RRT. Further, if, despite the provisions of section 54(3), that:
"a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions"
the applicants are entitled to time to assemble the material which they consider is necessary to advance their contentions, that is an entitlement that will remain before the RRT for the powers of the RRT are, under section 415 of the Act, the powers of the primary decision maker.
It may also be noted that what are now asserted to be errors of fact or understanding are matters to which specific reference can be made in the course of the proceedings before the Tribunal, whether pursuant to section 425(1)(a), which obliges the Tribunal to "give the applicant an opportunity to appear before it to give evidence", or under section 423(1)(a) and (b), pursuant to which:
An applicant for review by the Tribunal may give the Registrar:
of the Tribunal -
(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues -
said to arise.
In these circumstances, I refuse to make an order nisi. The application is premature in the sense that has been described in cases such as Reg v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15; Re Wilkie; Ex parte Johnston (1980) 55 ALJR 191 at 192; Reg v Ross-Jones; Ex parte Green (1984) 156 CLR 185, particularly at 193-5, 214-5, 217-8, 222; and Re Family Court of Australia; Ex parte Herbert (1991) 65 ALJR 688.
As I have said earlier, the main dispute in these proceedings is not about the constitutional limits of any legislative power that affects the making of the impugned decision. The constitutional point which it has been sought to raise concerns limitations on reviewing decisions of the particular crime. It is, of course, a point which may be affected by the decision of the Court presently standing reserved in the matter of Abebe. In any event, it is a point which, as I say, I consider should be put to one side, the complaints now made being remediable by processes other than prerogative relief. Those processes having been engaged by the applicants, the applications will be refused.
The order is application refused.
MR GUNST: I ask for an order for costs, your Honour.
HIS HONOUR: Yes. Dr Griffith?
MR GRIFFITH: Your Honour, this is an ex parte application.
HIS HONOUR: Yes, on notice, which you were good enough to give.
MR GRIFFITH: But, your Honour, by being good enough to give, that does not, in our submission, expose us to any risk for costs.
HIS HONOUR: Mr Gunst, why should you have costs in circumstances of this kind?
MR GUNST: There is no suggestion of impecuniosity advanced on behalf of the applicants.
HIS HONOUR: Having a defendant with money is not, I think, a recognised ground for having an order for costs, at least not yet, Mr Gunst. It may come, but not yet.
MR GUNST: It is often put that impecuniosity of an applicant is a reason why an order should not be made.
HIS HONOUR: I understand that. This is a rather different point.
MR GUNST: May I make the point it is consistent with the view your Honour took, and the order your Honour made, in an identical matter of SE, as it is known in this Court, the Somali gentleman whose application for prerogative relief was dismissed with costs by your Honour late last year. So the jurisdiction is there.
HIS HONOUR: SE is the matter where the order for confidentiality made in this Court was varied in the Federal Court, is it?
MR GUNST: Over my objection, yes, your Honour. That is the matter.
The fact is, your Honour, it is the practice of the Court - and true it is as a matter of law these matters are ex parte, but it is the practice of this Court now to require notice to be given for the very sound and sensible reason that it saves a day of coming back and having proper argument. Substantial material was served and has, in fact, been responded to by correspondence and some material sought to be tendered and so on. In our submission, it is an appropriate order to make.
HIS HONOUR: The application will be dismissed. There will be no order as to costs. I will certify for the attendance of counsel. I will adjourn.
AT 12.52 PM THE MATTER WAS CONCLUDED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/1999/35.html