Herijanto, Muin, Lie v Refugee Review Tribunal & Ors S95/2000 [2000] HCATrans 285 (26 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S89, 90 and 93-96 of 2000

B e t w e e n -

HERIJANTO, MUIN and NANCY LIE

Applicants

and

REFUGEE REVIEW TRIBUNAL

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Respondent

Applications for special leave to appeal

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 MAY 2000, AT 11.43 AM

Copyright in the High Court of Australia

_____________________

MR M.A. ROBINSON: If the Court pleases, I appear for the applicants in all those matters. (instructed by Adrian Joel & Co)

MR J. BASTEN: I appear with MR R.T. BEECH-JONES for the second and third respondents in each matter, if your Honours please. (instructed by the Australian Government Solicitor)

McHUGH J: Before you begin, Mr Robinson: I have been informed by the solicitor for the first respondent, the Refugee Review Tribunal, that the first respondent does not wish to be represented at the hearing of these matters and will submit to any order of the Court save as to costs. Yes, thank you, Mr Robinson. You have two matters; in fact, you have six, but they fall into two broad - - -

MR ROBINSON: There are two substantive matters relating to two interlocutory decisions of her Honour Justice Gaudron; one relating to judicial immunity and interrogatories, and that was decided eight weeks ago; the second, in relation to discovery, in a closely related matter, and that was six weeks ago. Both decisions were made during the pre-trial preparation of three judicial review proceedings.

GUMMOW J: Well, that is not right, is it? Proceedings under section 75(v) of the Constitution.

MR ROBINSON: That is correct, your Honour.

GUMMOW J: Well, different point.

MR ROBINSON: Those proceedings are nearly ready to be set down for hearing, and that is the state of that - the substantive proceedings. Those proceedings directly affect about 4,000 refugee applicants who are living in Australia and are specifically named in those proceedings as represented parties.

We say that the leave application should be granted because the decision under review, in practical terms, are finally determinative of a substantial portion of the

matters in the judicial review proceedings. Secondly, we say it is common ground, your Honours, that the issues are of general - - -

McHUGH J: Well, I think it is an invitation to error to talk about "judicial review proceedings". You are applying for the issue of constitutional writs.

MR ROBINSON: Yes, your Honour.

McHUGH J: They are not necessarily the same things.

MR ROBINSON: No.

GUMMOW J: For example, and you have to come to this sooner or later, there was a long practice of generally denying discovery in applications for prerogative writs, was there not?

MR ROBINSON: That may have been the case, your Honour.

GUMMOW J: Yes, well, it was.

MR ROBINSON: But, in any event, in these proceedings - - -

GUMMOW J: And do not forget, translated to 75(v), the "officers of the Commonwealth" there include federal judges. That would reinforce the common law court.

MR ROBINSON: In these proceedings, the first defendants and the second and third, in the proceedings below, all agreed to provide discovery and to be subject to interrogatories and, in any event, they have discovered and they have answered interrogatories.

GUMMOW J: Quite. That is as a matter of concession on the part of the authorities but once you start talking about what you have a right to and how you are to construe these relevant sections, the sections have to be construed against that background.

MR ROBINSON: Yes, your Honour.

GUMMOW J: And in particular, for example, against the background of section 430. This Tribunal has to give reasons and it has to refer to the evidence, et cetera.

MR ROBINSON: Yes, your Honour. That relates to one aspect - - -

GUMMOW J: So, what you are seeking to do, really, is to go behind 430 and fossick around.

MR ROBINSON: No, your Honour, we have quite a specific allegation in the pleadings below, quite a specific claim against the Tribunal in relation to the Part B documents and the - - -

KIRBY J: But the entitlement you assert has to be tested against the fossicker, has it not? I mean, you have to test it against what happens if it becomes the general rule.

MR ROBINSON: We do not concede it is of that character, your Honour. It is a specific statutory power and function that must be performed. The other side - - -

KIRBY J: I realise that, that you want to proceed with but the proposition you are putting to the Court would, if correct, involve a general proposition which would apply in a multitude of cases which may not be as pure as you assert yours to be.

MR ROBINSON: Your Honour, in this case there is a procedure to be invoked before the final decision to which reasons must be given. The proceedings that are the subject of this leave application relate to that process primarily.

GUMMOW J: That is section 418, is it?

MR ROBINSON: That is the section 418 and 424(1) point; section 418(3) of the Migration Act and 424(1). Now, it is that process that the plaintiffs below have identified a major flaw, as it were, in the proceedings of the Refugee Review Tribunal. The other side have conceded, in plain terms, that the documents, the subject of the review, the Part B documents they have come to be known, were not transmitted to the Tribunal, so it is not a case of looking around for a method to attack the process. It is clear what we are seeking. It is specified quite plainly in the pleadings, your Honours, and it is that which we are seeking to agitate. We are certainly not seeking to open up the process generally.

McHUGH J: Yes. Mr Robinson, before you go on, I think you should have 20 minutes on each matter, so you can take up to 40 minutes to argue the - - -

MR ROBINSON: Thank you, your Honour. In terms of the reasons why leave should be granted, the primary reason is it is determinative of this issue, the Part B documents issue. The question of the review on the papers that her Honour Justice Gaudron identified in the decisions will effectively be shut down by the plaintiffs. They will not be able to pursue that in practical terms.

McHUGH J: I am not sure that that is so. You have an admission that the documents were not sent. Why does not that give rise to an inference they were not read in the absence of some evidence from the other side of the record?

KIRBY J: And could you not analyse all decisions to see whether or not there was any reference whatever to the material in those documents?

MR ROBINSON: We have, your Honour, and - - -

KIRBY J: Yes, I realise that.

MR ROBINSON: - - - for the bulk of that there is not.

KIRBY J: There is not? Well, is there not at least an argument that from that certain inferences may arise?

MR ROBINSON: Your Honour, we might have been confident to seek the drawing of inferences at the appropriate time. Having particularly read the transcript in Aala v The Minister for Immigration, which was argued recently before the Court about the drawing of inferences in circumstances where a person is not compellable, and the Court would be reluctant to draw those inferences, I would not be confident at all, your Honour, that we would be able to successfully seek the drawing of inferences that the Tribunal did not take these documents into account. That is in relation to the final decision. The two-stage process that we are dealing with here - - -

McHUGH J: But you start with a fundamental point in your favour. There is an admission that the documents which were supposed to be sent, were not sent.

MR ROBINSON: Yes, your Honour.

McHUGH J: Now, that is a fairly powerful starting point from your point of view. I can well understand that you want to do more than just simply rely on an inference. If possible, you would have preferred to get a straight-out admission as to the facts. Well, that is understandable, but I do not think it is right to say that it is the end of your case, by a long shot.

MR ROBINSON: In my submission, I do not want to concede that it definitely is the end of the case.

GUMMOW J: You should be more forensically buoyantly about it.

MR ROBINSON: But it is certainly approaching that way, your Honour, particularly having read the transcript of the hearing in Aala's Case.

McHUGH J: You do not take notice of what people say during argument. Judges put propositions to counsel to test them.

MR ROBINSON: Yes, your Honour.

GUMMOW J: There is a whole industry out there of junior counsel pouring over what is on - - -

KIRBY J: It is called the Internet.

GUMMOW J: Yes, on the electronic median of what has been said in argument and it is a waste of time. It is a waste of their time.

MR ROBINSON: I must say, your Honour, it has not been the primary cause of this application. The questions are of general and public importance - that is conceded - and the issue is the decision is attended by error. Now, that is error partly my responsibility and the responsibility of the other side.

McHUGH J: Well, that is another problem.

MR ROBINSON: It is a significant problem, your Honour.

McHUGH J: Well, it is a problem of a discretionary judgment involving a matter of practice and procedure; a very, very difficult problem.

MR ROBINSON: The problem, in essence, is, your Honour, the duty, the immunity is cast in such wide terms that it sweeps up 28 Commonwealth boards, commissions, tribunals and entities.

GUMMOW J: That may be true and I take that point that that only raises the question, in view of what has been put to you in various questions just now, as to whether this is an appropriate vehicle to construe that provision.

MR ROBINSON: In the last 200 years, your Honour, there have been a handful of matters that have raised the question squarely of judicial immunity - - -

KIRBY J: Why do you think that is so?

MR ROBINSON: Your Honour, that is because in that time judges have been held to be non-compellable. Two things have changed: one, the Evidence Act has come into place, and we say that changes the landscape radically, and these issues of judicial and administrative immunity, if I may term it that, were specifically considered in great detail by the Australian Law Report Commission in its reports, the interim report and the final report, but secondly, this is the first time that the judicial immunity has been raised in its application to an administrative tribunal and we say it cannot be applied in terms that make an administrative decision-maker, in effect, acting as a judge.

GUMMOW J: I know that. What I am putting to you is that this section was there, in relation to the Trade Practices Tribunal probably before that but why is this a convenient vehicle to construe this Commonwealth provision?

MR ROBINSON: Your Honour, in my submission, another vehicle may not come along for a very long time, if ever.

GUMMOW J: Why not?

MR ROBINSON: And in that time the 28 entities that I have identified on the last two pages of the joint application book may simply refuse to give documents, refuse to do what the Refugee Review Tribunal has done in this case to the applicants - we asked them in requests for particulars, "Please identify the documents before you of these two stages" and they have refused, your Honours.

GUMMOW J: What is being put to you is the next case that comes along may not be a case where the complainant has already in its favour this strong inference that Justice McHugh has been putting to you.

MR ROBINSON: That may be the case, your Honour. In my submission, with respect, it does not - not a suitable vehicle.

KIRBY J: Is there lurking behind your argument some proposition that although the Parliament has provided, in terms, to equate all of these many tribunals to the immunities of a Justice of the High Court, that, in fact, that this is in some way a purported attempt by the Parliament to act in a way contradictory to the judicial power and that they cannot cloak administrative tribunals with the immunity which belonged to judges as judges in Chapter III?

MR ROBINSON: And 28 other boards, committees, commissions, and tribunals, yes, your Honour.

KIRBY J: They only have the immunities that are proper to the Executive Government of the Commonwealth, whatever Parliament says?

MR ROBINSON: That is why we say, your Honour, the immunity - our first argument is that the immunity concerned in section 435 of the Migration Act is immunity from civil suit. If it is read in that fashion, it is very clear that these entities and the Refugee Review Tribunal is simply not exposed to civil action for what it does in the course of exercising its functions and powers. If it is read in that fashion, it does not offend any other principle or any common law principle. But if it is read widely, then it comes up against directly, we say, the provisions of the Evidence Act where all these issues of compellability and the public interest in the giving of evidence by a judge or by an administrator arise. It is important, in my submission, to note that the Evidence Act also applies to administrators who take evidence.

GUMMOW J: The Evidence Act is another statute.

McHUGH J: Yes, and the Evidence Act cannot affect the immunity of Justices of this Court. It does not seem to me the Evidence Act advances the point at all.

MR ROBINSON: Your Honour, the Evidence Act does affect these matters.

McHUGH J: It might purport to but it has to be consistent with Chapter III of the Constitution. The Evidence Act will get short shrift, for instance, if it was amended to say a Justice of the High Court was compellable to explain what cases he or she had read and what his reasons were. It just would be an invalid piece of legislation. So, that is why I said to you at the outset, Mr Robinson, that you should not refer to these proceedings as "judicial review proceedings". There, you may be in a different area of discourse. We are dealing with constitutional writs here.

MR ROBINSON: Yes, your Honour. In relation to that, the Evidence Act applies to the Tribunal members in proceedings in the High Court under section 75(v) of the Constitution. So, there is no need to fill the concept of immunity under section 435(1) of the Migration Act with a concept any wider than needs to be, and that is the error, we say, the most significant error, that is made.

McHUGH J: The Parliament has set out, notwithstanding the difficulties of giving an administrative tribunal the same immunity and protection as the Justices of this Court.

MR ROBINSON: Yes, your Honour.

KIRBY J: Do you accept the validity of that provision?

MR ROBINSON: I am sorry, your Honour?

KIRBY J: You have not challenged the validity of that provision?

MR ROBINSON: No, we have not, your Honour. The Chapter III point, I am afraid, was a last minute point and it is not one that we have pressed today, your Honour. It is more of an issue, frankly, that might have concerned the Court and it was raised in terms for that reason.

KIRBY J: So, we have to proceed, as Justice McHugh is asking you, on the foundation that this is what Parliament has done and we therefore have to test what has been done by what would be the case in the case of a federal judge, including a Justice of this Court?

MR ROBINSON: Yes, your Honour, but bear in mind that we say provision is primarily civil liability from suit, immunity from civil liability from suit. The Evidence Act and the common law, in my submission, makes it clear that the Tribunal members are protected by their own immunities and they are protected, as it were, by the Evidence Act, and so are High Court Justices.

GUMMOW J: Yes. What I have been putting to you is that at common law they were not subject to this sort of interrogative procedure.

MR ROBINSON: Well, your Honour, it has been affected. The common law, in my submission, has undoubtedly been affected by section 16 and section 129 of the Evidence Act. The Law Reform Commission report makes it quite clear - - -

GUMMOW J: What I am inviting you to do is to consider 75(v) against the anterior common law background.

McHUGH J: Let it be assumed against you for the moment that 75(v) picks up the common law position as it existed at 1900 so that it, in effect, constitutionalised the common law doctrines relating to immunity in their relationship to the 75(v) writs. Now, the Evidence Act could not validly change that situation.

MR ROBINSON: No, it could not, your Honour but, in my submission, that is not a question I need to deal with, with respect. That is not a matter - - -

McHUGH J: Your argument seems to be coming very close to saying that.

MR ROBINSON: Well, your Honour, in terms of elucidating the evidence that is necessary to conduct the constitutional writ proceedings below, the Evidence Act directly applies. In determining how the court applies the legal principles involved, then your Honour's proposition about the law as at 1900 is a different question, with respect.

GUMMOW J: But in any event, the Evidence Act would have to be read with 435 of the Migration Act, would it not?

MR ROBINSON: Yes, your Honour.

GUMMOW J: The statutes are of the same legislature. One is a particular one and one is a general one.

McHUGH J: And, in any event, the Evidence Act is dealing with the curial proceedings: you cannot give evidence of this or that and, as we know, from the Esso Case and other cases, there are real issues of pre-hearing procedures that the Evidence Act does not touch, and it certainly does not touch these proceedings. The best you can rely on is by way of analogy. When I say "proceedings", I mean, this present application.

MR ROBINSON: No, it certainly does not. We do not suggest for a moment that it has anything to do with this leave application, your Honour.

McHUGH J: Yes. You rely on it by way of analogy, I take it?

MR ROBINSON: By way of demonstrating, your Honour, that the principle below has been cast too widely and irrespective of the position of the plaintiffs, there is danger if the principle stays unamended, as it were. If the principle stays as it is - and the principle is at page 214 of the application book - that immunity is immunity from disclosing any aspect of the decision-making process. That is the crux of her Honour's judgment in both matters, the - - -

McHUGH J: Well now, why is that wrong?

MR ROBINSON: Your Honour, it is wrong because it is too widely expressed.

McHUGH J: But why? Is it true in respect of a Justice of the High Court?

MR ROBINSON: It may be, your Honour, but her Honour Justice Gaudron has held that a justice is compellable to reveal the record. It is not necessarily a Justice of the High Court but a justice of a superior court, let us say, is compellable to reveal to another justice or another court the record.

GUMMOW J: That is news to me.

MR ROBINSON: That this concordance in the decision is that an administrative tribunal is not so compellable. That is one major problem with the decision.

The second major problem is it does not take into account - and her Honour could not take it into account because it was not argued before her, regrettably, the Evidence Act overrides the common law position in specific respects in sections 16(1) and section 129.

McHUGH J: Yes, I know, but - - -

MR ROBINSON: So, the premise by which the principle is drawn - - -

McHUGH J: But you cannot rely on that factor.

MR ROBINSON: Why does your Honour say that?

McHUGH J: Well, if you do not raise a point in respect of a discretionary judgment, the judge commits no error by not dealing with a point that is not - - -

MR ROBINSON: I am certainly not seeking to take advantage of it, your Honour. The point was raised by the Commonwealth and it was set down for hearing two days later. The summons was filed in court saying, "We won't answer these interrogatories because of claimed judicial immunity" and her Honour set it down for a hearing two days later.

GUMMOW J: Well, what is wrong with that? You wanted slower justice?

MR ROBINSON: I am not seeking to take advantage of the point but either way, we are left with a ruling that, on principle, we say is too wide. It has the potentially devastating effect of 28 boards, tribunals and commissions, set out in the submissions, being able to take up that very same principle and plead immunity from the Freedom of Information Act applications.

KIRBY J: Well, that is what Parliament has purported to permit and unless it is an invalid provision which is not being argued before us today, then we have to give effect to it, unless it is manifestly without authority, according to its terms.

MR ROBINSON: I am not suggesting that your Honour not do that. All I am suggesting is as presently cast, the principle, in the absence of having been formulated to permit the record to be produced and in light of the Evidence Act, ought not stand. That is our primary contention.

McHUGH J: Well, that is a dictum of her Honour's that, at least for the moment - and I rather gather Justice Gummow is of the same view - may be too favourable. It is very favourable to you. Too favourable to you.

MR ROBINSON: I am not one to look a gift-horse in the mouth, your Honour, but I do have deep reservations about the width of the provision as it might be applied by any one of - - -

McHUGH J: Yes, but that is the point. As Justice Kirby has said to you, our function is a two-step process. We say, first, "What is the protection of a Justice of this Court?" We reach a conclusion about that, and we then say, it seems to me, on the proper construction of the relevant section, "That same protection is given to all these tribunals." Now, it may be somewhat startling. Many may think that an administrative tribunal should obtain the same protection but that is what Parliament has said.

MR ROBINSON: But, your Honour, could not the question also be, "What is the protection and immunity of a Justice of the High Court as it is applied" or "as it is conferred on a tribunal?" It cannot, in my submission, be the same, in terms, in all respects because it does run the risk of clothing the tribunal with judicial status. Now, that would be, in my submission, something that would be untenable and not envisaged by Parliament.

KIRBY J: You are seeming to teeter on the brink of a constitutional point now.

MR ROBINSON: I am only rubbing up against it, your Honour.

KIRBY J: No, you are right on the brink; right on the brink.

MR ROBINSON: I appreciate I am on the precipice there but - - -

KIRBY J: I mean, there may be a - I am not saying that there is not a constitutional point here because, at least, possibly this is an endeavour by the Parliament and the Executive Government to cloak their tribunals with the immunities of the judiciary.

McHUGH J: And a question, of course, which may arise in some situations as to whether or not the immunity would have the result of excluding this Court's jurisdiction under the 75 writ.

KIRBY J: That is precisely what I was thinking of. Parliament has tried that before and not succeeded.

McHUGH J: But as it stands, the tribunals appear to have exactly the same protection as a Justice of this Court and that seems to me the problem that you face, Mr Robinson.

MR ROBINSON: Well, your Honour, we say that is only civil suit and that is not a problem, we can deal with that. If it is immunity from - - -

GUMMOW J: Well, why do you say - this is what I asked you before - it is just a civil suit? Why is it not at least - and in no way causing any trouble really, if you think about it, to affirm the common law position as to the unavailability of these rummaging procedures in prerogative writ actions?

MR ROBINSON: Firstly, that is no longer the position, your Honour.

GUMMOW J: Just listen to me. That was not something peculiar to judges.

MR ROBINSON: Your Honour, firstly, that is no longer the position under the Evidence Act and, secondly - - -

GUMMOW J: Well, you keep saying that.

MR ROBINSON: Secondly, your Honour, the provision that gives - - -

GUMMOW J: And I say to you then you have to construe 75(v), but I will not say it again.

MR ROBINSON: Your Honour, the provision, as it sits in the Migration Act - there is no provision that deals with immunity from suit; there is no provision of the kind or that is ordinarily found in other statutes saying that anything done in good faith renders the decision-maker immune from civil suit, there is none of those good faith immunity provisions.

GUMMOW J: Exactly; exactly.

MR ROBINSON: The provision as it sits in the Commonwealth Administrative Appeals Tribunal Act at section 60 - and one is thrown to section 60 of that Act from the Migration Act definition. It is in the applicants' authorities bundle at page 13. Down the bottom of page 13, section 60, subsection (1) relates to the "same protection and immunity as a Justice of the High Court". Now, those are the words that are repeated in relation to about 28 Commonwealth entities that I have listed in the reply submissions that is in the application book. But subsection (1A) gives mediators that same protection. Subsection (2) gives:

A barrister, solicitor or other person appearing before the Tribunal.....the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

McHUGH J: Well, the very existence of subsection (2) tends against your argument, does it not, because it is easy to translate the barristers' immunity from one to the other, and if you can do that, why can you not do it in respect of the Tribunal members?

MR ROBINSON: Well, your Honour, the primary immunity here that we say is being spoken of in this Act is an immunity from civil suit.

McHUGH J: Well, it says, "the same protection and immunity".

MR ROBINSON: Yes, your Honour.

KIRBY J: It does not limit itself to the civil suit.

MR ROBINSON: We say it is limited to immunity from civil suit.

KIRBY J: That is a great narrowing of the protection and immunity of a Justice of the Court. Why would one read that down?

MR ROBINSON: Well, in relation to subsection (2), your Honour. It does not narrow down the immunity of a Justice of the High Court, your Honour, we say, but in terms of the current position being derived from the Evidence Act about compellability and about privileges, we say the law is by reference to that Act and not by reference to any of the authorities that have been referred by her Honour in the decisions - - -

McHUGH J: But, Mr Robinson, it must go beyond immunity from civil suit unless you are going to give that term a very strange meaning. Surely it must protect the justice or the barrister or the solicitor from a subpoena.

MR ROBINSON: Well, your Honour, that is dealt with expressly in the Evidence Act in section 16.

McHUGH J: Yes, but the Evidence Act is brought in, in, what, 1995. This legislation is passed in 1975.

MR ROBINSON: Yes, your Honour. We say the common law has been affected by the Evidence Act- - -

GUMMOW J: I think the Evidence Act is exercising a delusional fascination, Mr Robinson.

MR ROBINSON: - - - in that it has been overridden - I am sorry, I did not hear, your Honour. I spoke over your Honour.

GUMMOW J: I think the Evidence Act is exercising a delusional fascination on the formulation of your submission.

MR ROBINSON: Your Honour, it is no higher than that which was in the Esso Case. I put it no higher than that. The Law Report Commission specifically looked at the privileges and immunities of High Court Judges, of justices in relation to compellability and privilege. In relation to privilege, the Law Report Commission was only concerned with prohibiting the giving of evidence by justices and, indeed, tribunal member are specifically covered as well under the definitions of the Evidence Act in a rather strange way but they are specifically covered by the Evidence Act, we say - only in relation to the reasons for coming to a decision. So, it is a judicative privilege, as the Canadian courts call it, that is protected by the Evidence Act. It is a judicative or deliberative privilege. It is not the administrative privilege that is also spoken of in the Canadian cases. The administrative privilege is not dealt with by the Evidence Act because they chose, in my submission, not to deal with and Parliament chose not to deal with it.

The gravamen of the complaint with her Honour's decision is it does not deal with those two kinds of privilege. It deals with them all swept up and in such a fashion that a justice is amenable to having his or her record brought to another place and examined but a tribunal is not.

GUMMOW J: It is not a justices record, it is the court's record.

MR ROBINSON: It is the court's record, yes, your Honour, but in terms of the fashion that her Honour Justice Gaudron has expressed it, she has said twice in the decision that a justice is compellable to deliver or identify the record. We want that principle extended because the record, of course, was a Craig v South Australia concept of record, a very narrow concept of record, but all that we want is a formulation of the common law position or the true position with the Evidence Act taken in mind - taken account of - and which permits the identification of the documents before the decision-maker. That is all that the applicants are seeking here and get on with the trial, as it were, with the other proceedings.

If the present formulation stays, it is attended with such difficulty and such potential abuse by boards and committees in future who may simply say, "No, we will not give you the documents; no, we will not tell you what was before us" meaning - - -

McHUGH J: But these are matters for the Parliament to consider. The Parliament, on the one hand, has to weigh up whether or not, by enacting a provision such as is involved in this case, that litigants will be deprived of access to the decision-making process. They have to weigh that against protecting tribunals from, in effect, re-runs of proceedings. If your argument is correct, it would seem to almost always follow that you would always have two sets of proceedings. You would run your case; you would lose it and then you run an action such as you are running now. That is what has happened in this case. I take it all these people have lost their cases, have they?

MR ROBINSON: Yes, they have.

McHUGH J: They have all lost their case. So, now, you want to run another case based on an examination of the decision-making process.

MR ROBINSON: Your Honour, we do not seek to examine the decision-making process. We have specified a legal error which we say occurred in the process.

McHUGH J: I know that but that is the object of the suit.

MR ROBINSON: But, your Honour, it is not a free-ranging exercise. It is a specific. It is the same as the dissentients in the Canadian case that I have given your Honours a copy of in MacKeigan v Hickman, which is at page 21 of the authorities bundle. It is the same situation there. We are not seeking this material in a vacuum. We are seeking it in the context of identified errors and - - -

KIRBY J: I repeat what I said at the beginning. We have to look at the problem, not just in terms of your particular case but in terms of where, if the principle that you argue for is not held, it runs not only to all the tribunals but to federal courts and potentially even, subject to Chapter III, to this Court. So, I mean, you cannot just say, "Well, we are only asking a tiny, tiny little bit", you have to test it.

MR ROBINSON: But, your Honour, in this case the principle of compellability ought not to be one that your Honours might consider be generally invoked so that applicants can free-range, as it were, and bog through the decision-making process of every tribunal and every entity that is clothed with judicial immunity.

McHUGH J: But that is what the Parliament has sought to do. I mean, do you contend, for example, that you could interrogate or seek discovery from the High Court to find out what books I have taken out of the library on a particular date or for the purpose of reading a particular case?

MR ROBINSON: Never, is the answer.

KIRBY J: Preparing for this case.

MR ROBINSON: Never, because those books go to your Honour's determinative process on questions of law. Now, if the Tribunal under review here was considering evidence and received evidence in their offices or in their rooms, in the absence of any party knowing about it, and that evidence was used to make findings of fact - and that is the case here, your Honours, in the Refugee Review Tribunal, we are talking about things that are not done in open session, even though it is a private session, we are not talking about matters done in a hearing from which a transcript can be obtained, this decision-making process, this review on the papers as the statute calls it, is done indoors.

GUMMOW J: This process culminates in section 430, does it not?

MR ROBINSON: Ultimately, your Honour.

GUMMOW J: Yes.

MR ROBINSON: But the initial decision making, on the review on the papers, is done indoors.

GUMMOW J: And the Parliament has said, "Well, we'll require this tribunal to give written reasons and to refer to the evidence or any other material on which it based its findings of fact."

MR ROBINSON: Yes, your Honour.

GUMMOW J: Parliament has sought to balance all this.

MR ROBINSON: That is the final decision.

GUMMOW J: I realise that. All I am saying to you is Parliament has sought to balance the various interests involved.

MR ROBINSON: Well, your Honour, there is an interim decision, and in cases where, as the dissentients formulate in MacKeigan's Case, an applicant has cause, reasonable cause, to know or suspect that an error or a significant error has occurred, then they ought to be permitted to interrogate that justice. As to precisely what were the documents comprising the record before that justice, that is the principle - - -

McHUGH J: That is part of the problem here, that you do not have a record in any relevant sense. The Administrative Tribunal does not have a record. I mean, that is part of your complaint.

MR ROBINSON: We certainly have documents that were before the Tribunal.

McHUGH J: Yes, but they are not a record.

MR ROBINSON: I mean records in a sense - - -

McHUGH J: I am not quite sure - I mean, a lot of your argument is directed away from the real issues here. Your case, as I understand it, is that in breach of the legislation, the Tribunal did not read these particular documents. That is your case, is it not?

MR ROBINSON: They did not receive them.

McHUGH J: Well, we know they did not receive them.

MR ROBINSON: Yes, your Honour.

McHUGH J: If I understand your main case, you are saying not only did they not receive them but they did not read them.

MR ROBINSON: Yes.

McHUGH J: In breach of what you would allege was a duty.

MR ROBINSON: Yes, your Honour.

McHUGH J: That is another question. But assuming you are right that they had a duty, it is a very different case from the sort of case that was considered in MacKeigan v Hickman, and you say, "Well, they just did not do it." They say, "The documents weren't sent to us". They concede that. So, you are a fair way in front.

MR ROBINSON: Well, your Honour, what pulls us back a bit from that scenario is the Commonwealth say and contend in their defence that they provided these documents in a database in Canberra and they invited the Tribunal to come and get them whenever they wanted.

McHUGH J: Well, there is another question, is it not, if you are talking about drawing inferences? You might be in a better position about that inference. I mean, the fact that they are there does not mean that they were read. There were a lot of documents up there in the library or downstairs in the library does not mean that they were read. They are there.

MR ROBINSON: Well, your Honour, all that we are seeking to establish is what was before the decision-maker.

McHUGH J: I know.

MR ROBINSON: It is a question that can be very easily answered by the Tribunal. There has been no question of "It's too difficult; it's too hard; we can't remember." It is a question that they had the ability to answer - - -

KIRBY J: But they take a stand of principle and of law, so it is not a matter of saying, "They are being awful to us, because they're not answering our simple little question", they take a stand of law.

McHUGH J: And there is a great constitutional principle involved. The constitutional principle is that justices should not be interrogated as to not only their deliberative process but what materials they took into account.

MR ROBINSON: It is not above justices, with respect, it is about administrators, some of whom are not lawyers - many of whom are not lawyers - who are making decisions behind closed doors, not with references to CLRs - - -

GUMMOW J: No, no, no.

MR ROBINSON: - - - but with reference to documents, they make factual findings.

GUMMOW J: No, no. That is just no right. That is just not right. These are not decision-makers taking decisions behind closed doors. They are decision-makers, subject to section 430. You really should not castigate the Tribunal with that sort of language.

MR ROBINSON: Your Honour, the review on the papers is conducted behind closed doors and a decision is made and delivered to the applicants with a letter saying, "We have read all the material delivered to us by the Secretary." Now, that is a separate thing which causes the hearing to be conducted. This is a unique statutory set-up. It is not a question of an application made to a review tribunal; that application listed for hearing; a decision is made. It is an application is made; the Secretary is suppose to send documents; they only send part of them; they do not send the Part B documents; a decision is made on the papers pursuant to 424(1) of the Migration Act and only then, at that point, is a hearing caused to be fixed.

GUMMOW J: So - - -?

MR ROBINSON: But that is a completely different process, your Honour, to that which a court deals with.

McHUGH J: It is not. It is part of the process. In fact, on one view of it, it may be that the purpose of the section is not to impose any duty but to give the commission a power, if it wants to, in certain circumstances, to deal with the matters on the papers. It is a matter for the Tribunal. In other words, it is a duty of imperfect obligation at most.

MR ROBINSON: That is one view of it, your Honour.

McHUGH J: I know, but - - -

MR ROBINSON: And that is something that the respondents do, in fact, contend in their defence. But be that as it may, the fact is that in 4,000 matters they did conduct a review on the papers. They did make a decision unfavourable and then listed it for hearing.

KIRBY J: Your case is that you have lost the chance of a knockout at the point of the decision on the papers?

MR ROBINSON: Yes, your Honour.

KIRBY J: And that you want to interrogate the Tribunal in order to establish that.

MR ROBINSON: Not so much - - -

KIRBY J: It is the second point that is the problem given their immunity.

MR ROBINSON: - - - what they read, what went through their mind, but what was before them. That is all that we are asking.

McHUGH J: This rather turns the notion of advocacy on its head, does it not, that you would have done better, had the case considered on the papers than orally, because you have lost orally.

MR ROBINSON: It might have been the case, your Honour. Some of the documents in the Part B documents were significantly potentially favourable to applicants and we say they were never read.

McHUGH J: But does it not mean that because of section 430 then, that if those documents or those issues were not referred to, then the final decision was vitiated?

MR ROBINSON: That is comfort as far as the final decisions, yes, your Honour. It is no comfort for the decision made behind the doors on 424 on the papers which in fact occurred here. Whether or not it needed to, it in fact occurred in respect of all applicants here. Unless I can assist further - I have one - I appreciate my time is up. If I may refer your Honours to the Montes-Granados Case, a decision of his Honour Justice Burchett in relation to costs. If your Honours were minded not to grant leave, we do ask your Honours to not make any order for costs in your Honours' discretion or that orders be costs in the cause of the main proceedings. The Montes-Granados Case, if I can simply refer your Honours to that - it is set out in the authorities bundle at page 73, paragraph 21 of that decision.

KIRBY J: But why, in principle, would we not follow the normal course? This is an interlocutory hearing; it is separate; it is special; you have made your application. Normally the costs would depend on how this case today was decided.

MR ROBINSON: Your Honour, we say this case might attract special consideration as set out at page 85 of that bundle at paragraph 21 because it is an administrative matter relating to good administration and individual justice and, at about halfway down the page:

the applicability.....of solemn obligations undertaken by Australia pursuant to international conventions.

And his Honour there goes to compare those to constitutional matters. I do not necessarily think that it can be put that high but we certainly ask your Honours' discretion if the application is not successful.

McHUGH J: Thank you very much, Mr Robinson. Yes, the Court need not hear you, Mr Basten.

Notwithstanding the earnest arguments of Mr Robinson, we are of opinion that the applications have insufficient prospects of success to warrant the grant of leave to appeal. The applications are therefore dismissed and the applicants must pay the respondents' costs.

The Court will now adjourn to reconstitute.

AT 12.29 PM THE MATTER WAS CONCLUDED