Aala, Ex parte - Re Refugee Review Tribunal & Anor S185/1999 [1999] HCATrans 666 (21 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 1999

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against the REFUGEE REVIEW TRIBUNAL and the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondents

Ex parte -

MANSOUR AALA

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 DECEMBER 1999, AT 10.36 AM

(Continued from 20/12/99)

Copyright in the High Court of Australia

MR P.E. KING: I appear with MS K. HAWES for the prosecutor. (instructed by Mr M. Aala)

MR T. REILLY: I appear for the respondent, your Honour. (instructed by the Australian Government Solicitor). The first respondent is represented by my solicitor in a submitting appearance.

HIS HONOUR: Mr Reilly, perhaps I might start by hearing from you. Why should I not grant an order nisi in this case? The case seems to be almost a text book of administrative review law.

MR REILLY: I beg your pardon, your Honour.

HIS HONOUR: I said why should I not grant an order nisi in this particular case? The case seems almost to be a text book example of administrative review.

MR REILLY: Yes, your Honour. I am not sure if I understand your Honour's last "text book" - - -

HIS HONOUR: Let me put this to you. Now, it may well be, as I decided in the last case, that there was no requirement on the Tribunal to inform the prosecutor that it would not act on his evidence. Kioa and Abebe, as well as the decision I have just given, support that proposition. If that was all there was to the case, it seemed to me that the prosecutor would have very considerable trouble in getting an order nisi, at least out of me. But the matter does not stand alone. The Tribunal made a statement that it had read all of the Federal Court papers. Now, having regard to what Teoh decided about legitimate expectation, surely that created a legitimate expectation that the hearing would be determined on the evidence before the Tribunal on the old and new RRT files and on the papers before the Federal Court.

MR REILLY: No, your Honour, not the papers before the Federal Court. The practice is not, and there is no obligation, that the whole Federal Court file is before the Refugee Review Tribunal the second time round, if the decision is set aside and then is returned.

HIS HONOUR: That may be, but the fact is that this statement was made, that it would be decided on the papers before the Federal Court. Part of the papers which, arguably, were before the Federal Court were the various letters - the four letters - that the applicant had sent off to the Federal Court. They may or may not have become part of the Tribunal, but they were certainly part of the papers.

MR REILLY: Your Honour, with respect, not necessarily. They were simply facsimiles that the applicant sent to different Federal Court judges at different stages from Villawood. They were never filed, they were never part of any affidavit, but because the applicant was unrepresented before Justice Beaumont, some leniency was extended in regard to papers handed up. It is because the applicant/prosecutor insisted that they be included in the appeal book that those papers ultimately were included in the appeal book which your Honour has seen. But they were certainly not before the Tribunal. That was conceded both before the Federal Court and, as your Honour will have seen from my submissions, before this Court. There was no reason for the Tribunal to be aware of those papers at all.

HIS HONOUR: That may be, but the fact is the Tribunal made a statement which the prosecutor might reasonably take to mean that the papers that were before the Federal Court would be examined by the Tribunal, and they were not. The question that seems to me to then arise is what fairness required in those circumstances, upon the assumption that the prosecutor believed that the matter would be determined on all the papers, including the letters sent to the Federal Court.

MR REILLY: Your Honour, there are two issues. Firstly, as I have said, the Tribunal was not aware, and there was no reason for it to be aware, of those papers. When it told the applicant that "it had all the Federal Court papers", there is a possibility that it and the applicant understood different things by "all the Federal Court papers". But, your Honour, with respect, that is not enough. Your Honour has seen the decision of Justice Branson which more or less addresses these arguments.

HIS HONOUR: I have seen what Justice Branson said and that is why I said to you this case seems to me to raise some very important questions of natural justice, one of them being: let it be assumed against you that there was a breach, can you overcome the breach by arguing that nevertheless the decision would have been the same in any event.

MR REILLY: Yes, your Honour. The only - - -

HIS HONOUR: There is much authority in England against you. You will not find much support for it in the text books.

MR REILLY: Your Honour, I know the authority that your Honour means; in general, if there is a breach of natural justice, the issue is whether the decision might have been different. I would only point out that here the prosecutor was able to enunciate his new claim - what I have called the agreement claim, in my submissions - to the Tribunal.

HIS HONOUR: I appreciate he was, and I have carefully read what he said before the Tribunal, I have carefully compared them until the early hours of the morning, and what he said in his letters. You are right to say that in substance he put that case orally, but that does not seem to me to answer the arguable point that if the Tribunal had known that he had already put these matters before the Federal Court some considerable time before, it may have taken a completely different view. It may not have. I suspect it would not. But that does not seem to me to be an answer. It is a very difficult question but, on one view of it, the Tribunal has represented to the prosecutor that the matter would be considered both on the evidence, on the files and on the papers before the Federal Court judgments and all, and if that representation was made, then it seems to me, arguably, having regard to Teoh, it created a legitimate expectation, and to depart from that legitimate expectation would be a breach of natural justice, or at least arguably so. At least there seem to me to be issues that call for determination by the Full Court of this Court on an order nisi.

MR REILLY: Your Honour, there is probably not more I can say.

HIS HONOUR: Yes, I understand that.

MR REILLY: I have attempted to deal, in my submissions, with a point your Honour raised yesterday about 75(v). I have not had a whole lot of time obviously.

HIS HONOUR: Yes, and there are other questions that, it seems to me, on the hearing of this case there will be a number of important issues. One on which I certainly have an open mind about is whether or not natural justice must be complied with at every stage of these proceedings before the Tribunal, given its curious structure. In days of old, for example, justices of the peace and magistrates were held to have a duty to act judicially in respect of some matters and ministerial duties in respect of others to which natural justice was not owed. There seems to be also some important questions to be decided as to whether or not the modern developments in relation to orders in the nature of prohibition, mandamus and so on are necessarily applicable to the writ of prohibition, mandamus and so on that the Constitution talks about.

MR REILLY: I suppose those questions had to be decided some time, given the way things are going in this area of practice, your Honour.

HIS HONOUR: Exactly.

MR REILLY: And if it has to be this case, so be it.

HIS HONOUR: It seems to me that this case, in some ways, is a very suitable vehicle for it, simply because of the other outstanding question as to whether or not it would have made any difference anyway, that issue. I think that there are some important questions to be decided. I have read what you had to say carefully. I was much assisted by it. But I think it is a case to go before the Full Court.

MR REILLY: Your Honour, the only thing I would say is that your Honour is aware of the history of this matter, the amount of time, the amount of taxpayer's money that have been expended.

HIS HONOUR: I am well aware of that and that is another reason why it seems to me this case raises all sorts of issues. It raises issues in terms of delay, bypassing the Federal Court - in fact, not bypassing, in a sense, as you point out - having raised very similar type argument in front of Justice Branson. That is why it seems to me to bristle with issues which might be able to be dealt with in a way that could not be dealt with except on a very piecemeal basis in other cases.

MR REILLY: Your Honour is aware Mr Aala has a special leave application on as well which is due to expire in January.

HIS HONOUR: I understand that.

MR REILLY: Though I think he may now finally be doing something about that. It is simply a matter of time, I suppose, your Honour, as to how quickly we could get the matter on.

HIS HONOUR: Yes.

MR REILLY: Obviously we would be concerned to have it heard as quickly as possible.

HIS HONOUR: Exactly. Having regard to the amount of work which I suspect is going to come before this Court, some of these issues should be determined as quickly as possible. I will do what I can to have it brought on and, indeed, I will give you leave to move to strike out the application if it is not brought on with due speed.

MR REILLY: Thank you,. your Honour.

HIS HONOUR: Yes, Mr King. Have you got - - -

MR KING: I have nothing to add, obviously, your Honour. We are in your Honour's hands. We will do our utmost to co-operate with the Court.

HIS HONOUR: There is no reason why you should not get legal aid in this case, now, Mr King, is there?

MR KING: I must say, your Honour, we will do what we can.

HIS HONOUR: It is a case that seems to me to raise some very important issues so far as this Court's jurisdiction is concerned, as well as some important issues about natural justice itself.

MR KING: I will not give your Honour the background as to how instructions came about, but certainly Justice Lockhart in the Federal Court was very concerned about it in the early stages.

HIS HONOUR: Concerned about?

MR KING: About the matter.

HIS HONOUR: Yes. Justice Hill and Justice Lehane expressed the view that they thought the natural justice was a point. There are problems of delay in the case and there are many issues in this case that ought to be dealt with fairly quickly by the Court.

MR KING: I understand. Your Honour, the short minutes of orders that I prepared probably have really been overtaken so I do not know if they are of any assistance to go to those, your Honour.

HIS HONOUR: Hand them up. Just remind me, Mr Reilly. The appeal book that was delivered yesterday, is that the subject of an affidavit?

MR REILLY: Yes, your Honour.

HIS HONOUR: It is, is it? Is there any further evidence that you would want to put on?

MR REILLY: I do not think so, your Honour.

MR KING: Likewise, your Honour.

HIS HONOUR: Yes. I might adjourn the proceedings for a short while to discuss with the Registrar what conditions I need to impose to get this matter on as quickly as - - -

MR KING: There has been a measure of co-operation between my friend's instructing solicitor and us in the past in relation to certainly the Full Court of the Federal Court, for which we are grateful. I would anticipate, your Honour, that I will ask if that can occur again and what I would imagine would be this, it may be of some assistance to your Honour. Firstly, that the parties can agree what should be in a bundle in the appropriate appeal books and that we can get that ready fairly quickly over January. We can prepare a formal motion, if your Honour considers that to be appropriate, and I would imagine that the matter could be brought back before the Registrar fairly promptly, perhaps middle to late January, with a view to the Registrar making some administrative direction about hearing. Or it may be your Honour wants to do that now. We are in your Honour's hands. We do not mind.

HIS HONOUR: What do you say about that, Mr Reilly?

MR REILLY: Your Honour, for our part we do not see why there needs to be more evidence than is currently before the Court. My solicitor's affidavit annexes the Full Court appeal book and the Full Court decision. Mr Aala has an affidavit on. My friend says that he does not want to add to that. So the evidence is in, with respect, and we would wish that the matter proceed as quickly as possible.

HIS HONOUR: No doubt, having regard to your interests, you may even go about preparing the application book

MR REILLY: That will probably be how it ends up, your Honour, yes.

HIS HONOUR: Mr King and Mr Reilly, I do not think it is probably necessary for me to make any orders at this stage. I think the matter can probably be dealt with administratively and if there is any problem, the matter can be put back in the list for directions or, if the Minister takes the view that there has been some intransigence on the part of the prosecutor, for an order dismissing the proceedings. I propose to grant an order nisi in the terms asked and the matter can proceed from thereon.

MR KING: If the Court pleases.

MR REILLY: If the Court pleases.

HIS HONOUR: I had better certify for costs, certify for counsel.

MR KING: If your Honour pleases. Costs in the cause, I presume.

HIS HONOUR: I will certify for counsel. Yes, they will be costs in the cause.

Thank you. Adjourn the Court.

AT 10.56 AM THE MATTER WAS CONCLUDED