Muin v Refugee Review Tribunal & Ors S36/1999 [2002] HCATrans 544 (1 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry

Sydney No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 NOVEMBER 2002, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR B.M. ZIPSER: I appear for the plaintiffs in both matters, your Honour. (instructed by Adrian Joel & Co)

MR J. BASTEN, QC: I appear for the second and third defendants, your Honour. (instructed by the Australian Government Solicitor)

HER HONOUR: I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the first defendant in each of these matters, the Refugee Review Tribunal, that it does not wish to be represented at the hearing of this matter and will submit to the order of the Court save as to costs. Yes, Mr Zipser.

MR ZIPSER: Your Honour, in September the plaintiffs in both matters filed a summons seeking certain orders and the purpose - - -

HER HONOUR: They are ambitious orders, are they not?

MR ZIPSER: They are ambitious orders, your Honour, and it may be the case that your Honour will not be minded to make them. However, the main issue is that the plaintiffs wish for progress in relation to the class members in the two representative actions. It is unclear what orders should be made, how the matter should be progressed, but the plaintiffs thought that an appropriate step was to bring the matters before the Court in order to raise those issues.

That is one matter which I will be dealing with. A second matter which I will be coming back to is that the defendants have indicated that in relation to about 40 or so members of the class, where the decision of the Refugee Review Tribunal suffers the same defect as in the matter of Mr Muin, that they would consent to prerogative relief being granted. There is an issue as to how to deal with those. A third issue which the defendants raised in discussion earlier this week which would need to be considered is that I understand that the defendants' position is that the representative proceeding should be brought to an end and that each class member should file a separate and individual application. That is an issue which can be considered as well this morning.

Coming back to the first issue. The first issue is the best way in which to deal with the class members in the two representative actions. My instructions are that there are about 7,500 persons in the two classes. My instructions also are that of those 7,500 persons there are about 6,000 primary applicants or applications. The defendants say that on their calculations there are about 3,500 primary applications. That may be an issue that needs to be clarified.

HER HONOUR: It does not matter what the numbers are, we have a very considerable problem of logistics. Surely it is only a question of counting up the names, is it not?

MR ZIPSER: It would be a question of going through each of the matters and counting up the numbers.

HER HONOUR: Well, I am not going to do that. Somebody at the Bar table can do that if it is important.

MR ZIPSER: The plaintiffs have two proposals for a way forward in the two matters. The first proposal is that for each of the applicants in respect of whom the defendant does not consent to prerogative relief being granted the defendant indicate on the basis of the Court's decision in Muin and Lie what evidence they would require.

HER HONOUR: Well, they cannot do that. They cannot ask that.

MR ZIPSER: The purpose would be that we would want to take all steps possible to try to resolve the matters without commencing trials in each separate application, which we believe would be a significant burden on the High Court and on the administration of justice. That is the first proposal.

HER HONOUR: They might be able to tell you on what basis they do not consent, but you cannot ask them what evidence they require, can you?

MR ZIPSER: It is one method of trying to resolve the matters by consent and negotiation without a trial going ahead in each matter. The second way of proceeding would be that rather than trials being commenced in 3,500 or 6,000 separate matters simultaneously, a more sensible way of proceeding would be to take, say, 100 matters from the representative proceeding, run trials in those matters. When those 100 matters are resolved the plaintiff then takes another 100 matters and continues.

HER HONOUR: There is no way that this Court can deal with 100 trials in a year. It is just not possible. Now, I do not know what the solution is, but it is quite impossible to do 100 trials a year and at the same time to attend to special leave applications, appeals, constitutional matters and other matters that fall within this Court's jurisdiction. We will be here for a very, very long time on that basis. I know it is not your problem. There is no way these matters can be remitted for fact finding, is there?

MR ZIPSER: A difficulty or an issue which arises in relation - - -

HER HONOUR: They are privative clause decisions. Therefore, they are not primary decisions as defined in the Act and, prima facie, one can remit the matters to the Federal Court, can one not?

MR ZIPSER: My understanding is that they are not privative clause decisions.

HER HONOUR: What is the remitter provision, section 476, is it? The numbers change every - 476.

MR BASTEN: Your Honour, can I assist just to indicate what position we think is correct, although it may need some further consideration on our part. They are not private clause decisions because we have accepted that the applications were made before 2 October 2001, so they are not confined to any extent in that sense. There does appear to be no provision in the Act which would prevent remittal of these decisions to the Federal Court or, indeed, the Federal Magistrates Court, because the only remittal provision is now contained in 476(4) and it says nothing about this case at all.

HER HONOUR: Section 476(4)?

MR BASTEN: Section 476(4) only provides a limitation on remittal in relation to matters which are not within the Federal Court or Federal Magistrates Court jurisdiction "because of this section".

HER HONOUR: And the only other subsection which would apply is, am I right - I do not know - - -

MR BASTEN: There is no other subsection. These are not primary - - -

HER HONOUR: Subsection (1).

MR BASTEN: It is not a primary decision.

HER HONOUR: Because it is not a privative clause, that is right. Subsection (1) is the only one that would appear to bear on it, is it not?

MR BASTEN: They are not primary decisions, your Honour, because subsection (6) defines them in terms which would exclude delegates' decisions but not RRT decisions, and these are all RRT decisions, as I understand it.

HER HONOUR: Is not Part 5 or Part 7 - does not Part 7 - - -

MR BASTEN: Part 7 is the RRT jurisdiction. Part 5 is the MRT jurisdiction.

HER HONOUR: Yes. I see, yes, thank you. Yes, I follow.

MR BASTEN: So I do not think there is any other part of 476 which has operation. It means, because the old Part 8 has been repealed, the jurisdiction which the Federal Court would now have would be section 39B(1) jurisdiction and therefore the same as this Court and therefore, on the face of it, there appears to be no reason why this Court could not remit to the Federal Court, but the mechanism by which one would need to get to that result, which, in my submission, is the appropriate mechanism in any event, is for the individual members of the class to file applications for order nisi in this Court. That application could then be remitted.

HER HONOUR: Yes, I think that might be right.

MR BASTEN: While I am on my feet, can I just indicate what our position is in relation to what is left of these proceedings in this Court. In the Herijanto matter your Honour will recall that that was resolved by consent and the steps which were taken were that Mr Herijanto filed an application for an order nisi and orders were made by consent in relation to him and others in the same category.

HER HONOUR: Yes.

MR BASTEN: We would say that that process should be followed by the two persons, Mr Muin and Ms Lie, who have been the subject of orders in the High Court.

HER HONOUR: Yes, there have been no orders made in their cases yet, have there?

MR BASTEN: No.

HER HONOUR: That is a worry, is it not?

MR BASTEN: We assumed that they would take the same step as Mr Herijanto and make an application for an order nisi. It would not need to be with extensive - it would just be consented to and the orders could then be made. We anticipated that the same would happen in relation to the group to which Mr Zipser referred, in relation to which we accept the same result will follow. So that there are about 49 people who would be disposed of on a consent basis in that manner.

HER HONOUR: Could I ask this: has the Department looked at each one of the cases to determine that that is the total number it can consent to?

MR BASTEN: It has not looked at all the cases but it has put them into categories which are dependent upon - I can tell your Honour the factors, if necessary, but they are factors which the Department accepts would result in the same conclusion being reached. They have not looked at every case because in relation to other matters there are factual issues which were conceded by agreement in the other matters which the Department is not prepared to accept on an individual basis. Some of them are positively counterintuitive.

The discrepancy between the numbers I cannot explain to your Honour and it may not matter. As your Honour says, even 100 cases would be too many, so it does not matter, but there are more cases than those that we have conceded of people who we know have permanent visas anyway. There are some real problems in knowing exact numbers, but it is not just a matter of adding up. Some people should not be there at all.

HER HONOUR: Can the Department's computer sort that out fairly - - -

MR BASTEN: Yes, but we are playing at the edges. We might get rid of a few hundred but it is not going to - - -

HER HONOUR: No, but, you know, let us be realistic, nobody is going to thank me for remitting 7,000 matters to the Federal Court. Whatever one can do even to save the paperwork in this operation is to be attempted, I think.

MR BASTEN: Yes, of course. We have done that exercise, your Honour, and that is why we say the figure is about 3,700. I can give your Honour a precise figure, but it is about 3,700. That is our view. We do not know why - - -

HER HONOUR: Well, of these people you say who have now have permanent visas anyway - I take it you are not talking about protection visas. They are other visas or - well, it does not matter.

MR BASTEN: I do not know, your Honour. The Minister can substitute decisions and he may have done that for all I know. I simply do not know what sort of visas they have. There are 65 that we have identified, I think, from recollection.

HER HONOUR: I take it that the proceedings could be discontinued so far as they are concerned without any great difficulty.

MR BASTEN: Yes.

HER HONOUR: Can the Department - well, the Department can find that out.

MR BASTEN: Undoubtedly. We can indicate and one of the questions that always arises is that there are different spellings from time to time, but we can give a list of those that we have identified and proceedings can be discontinued immediately in relation to those, we would have thought. The other variation is that some are family members, so that obviously they are taken account of by the primary applicant. So we do not have quite as many as the affidavit that Mr Joel swore suggested in any event. There are 1,200 of those, I think.

Your Honour, the real question, I think - and I may be wrong about this - is what happens to the representative proceeding. We say, and we have said all along, that it is inapt and certainly at this stage we say that the only issues to be resolved are individual factual issues. Now, we could put on a motion and seek to have the representative proceeding dismissed now.

HER HONOUR: But then you would be in a position to raise questions about time, would you not?

MR BASTEN: No. I think we gave your Honour an undertaking about this in the High Court. We do not take any argument about the fact that they can now make application. There may be an issue as to whether, because they delayed for two years before they reached the representative class, that should be taken into account, but we do not say - 486A, for example, would not apply, I think, to anybody in the current classes. That is the 35-day limitation period which was the subject of S157.

HER HONOUR: And that has a commencement date.

MR BASTEN: Yes.

HER HONOUR: In any event, that is the subject of challenge, is it not?

MR BASTEN: It is, but it would not apply to any of these decisions because of its commencement date, as I understand it.

HER HONOUR: And it relates only to privative clause decisions anyway, which these are not.

MR BASTEN: Which are these not, that is right, yes.

HER HONOUR: Yes.

MR BASTEN: I think there was a predecessor for a couple of weeks, maybe even a few days, to 486A which did not relate to privative clause decisions, but it is of no consequence. Mr Markus was just saying 27 September 2001 is the commencement date and I think is the commencement date in relation to the date of decision. So any decisions made before that date will not be affected in any view. Could I just finish what I was saying about the representative action, your Honour?

HER HONOUR: Yes.

MR BASTEN: We are conscious of the fact that while these proceedings are on foot each member of the represented class has a bridging visa, so that we accept that it would be appropriate and reasonable that if the proceedings are to be terminated there should be a period of time allowed for people to put on individual applications so that they do not automatically lose their entitlement to a bridging visa 28 days after the termination of the proceedings.

We had understood that our friends accepted that it was necessary to look at individual cases, either by way of independent resolution or by judicial determination and that therefore some such staged process might be agreed. I am not sure whether from what Mr Zipser says they do accept that, which means we may need to make an application to this Court which would seek the termination of the representative proceedings subject to a period of grace, as it were - - -

HER HONOUR: I do not know that one can terminate such proceedings without orders of some sort or another.

MR BASTEN: No, they would have to be dismissed. What appears to be the next step is that the two representatives will obtain their relief and one would therefore expect somebody would be substituted, but if there are no further common questions, then we would say it would be inappropriate for the proceedings to continue in representative form. At the end of the day, the individual parties, if they do have to put on further applications for order nisi, can do them now and be remitted. That was the proposal we had and we would expect that that could be done within a period of months perhaps, rather than years, but still within a reasonable time.

HER HONOUR: It would take months just to produce 7,000, or even 3,000, orders nisi and affidavits. Each would have to be supported by an affidavit.

MR BASTEN: Yes. We accept that, your Honour. That is why I said we were thinking months rather than years, but we accept that it would take months.

HER HONOUR: But I think it may take years even to get the paperwork done - a year to get the paperwork done.

MR BASTEN: Well, there may be significant resources available to do that. It just depends on the resources and, if necessary, your Honour would need to consider evidence if - we cannot do it today. That is what I was going to say.

HER HONOUR: Are you offering to assist in this? Is the Department offering to assist in this?

MR BASTEN: We are certainly going to assist by indicating who we think are not appropriately members of the class at all and we are not going to assist by saying what evidence needs to be put on.

HER HONOUR: But you did say you had categories. Are you prepared to disclose the particular categories?

MR BASTEN: The category in relation to which the concession has been made is a category of Indonesian nationals - and by no means all of the people in the class are Indonesians - of Chinese ethnicity to whom the Secretary's submission, which was the adverse material, if your Honour recalls that aspect of the case, with which it was concerned. So that anybody, even if - we do not care whether the Tribunal looked at it or not. If the Tribunal globally received the submission in relation to somebody who was of ethnic Chinese Indonesian nationality, then we accept that - - -

HER HONOUR: Which submission? I do not understand that.

MR BASTEN: Your Honour dealt with it very briefly. The adverse material argument related to a submission made under section 424, I think it was, of the old Act by the Secretary of the Department which was - - -

HER HONOUR: Saying that the material had been sent?

MR BASTEN: Yes, sending material and making comment on it. That was not disclosed, apparently, to - it certainly was not disclosed to these two applicants and - - -

HER HONOUR: But the decisions went further than that in Muin and Lie, did they not?

MR BASTEN: They did. The other major basis was the expectation raised by the letter in relation to favourable material, but that decision, I think, turned very significantly on the facts which were agreed for the purpose of the argument in an attempt to relieve the Court of the need to hear cross-examination of witnesses. The Department was willing to do that for the purposes of establishing the parameters, but not in relation to every case when allegation is made. So that is the position we are at, as we see it, your Honour.

HER HONOUR: Yes, very well. We will see what Mr Zipser has to say further.

MR ZIPSER: Your Honour, I have two further points to make in response to my friend. The first is that consideration was given to remittal of matters. If the jurisdiction and power of the Federal Court to grant relief is the same as that of the High Court in relation to these matters, then it is likely the plaintiffs would not oppose the remittal of matters to the Federal Court, which is in a better position to hear matters. An issue that I would need to consider further is whether the jurisdiction and power of the Federal Court will be the same and one issue is that before the privative clause amendments were added to the Migration Act there was a specific section in the - - -

HER HONOUR: Yes, that has since been repealed.

MR ZIPSER: I accept that it has been repealed. However, an issue that I would need to think through is whether, on remittal of a matter which was commenced at the time that that section was in force, the Federal Court will consider that the legislation in force at the time applied. It may be that - I conclude that it does not, that it is an issue that I would need to consider.

HER HONOUR: Yes, I see. In any event, I can take it that as a term of remitter the defendants would undertake not to raise any issue as to jurisdiction. They are probably estopped from so doing anyway by means of their submissions today, if estoppel operates. But, yes, I understand that point.

MR ZIPSER: A second issue which I expect will have to be determined on another day, but I will raise the point now, is in relation to whether the representative action should be brought to an end and - - -

HER HONOUR: It will not be brought to an end, I can tell you, until final orders have been made. It can be brought to an end without the making of final orders and you are at least entitled to natural justice on final orders.

MR ZIPSER: In that case I will reserve my position on that until the time at which that matter is specifically before the Court.

HER HONOUR: Yes. In that case why do we not approach matters this way. I mean, certainly it is undesirable that final relief is not granted in respect of those whom it is agreed are entitled to final relief, including the representative plaintiffs. Why do we not do this: ask the Department to identify those whom it concedes are entitled to final relief within 10 days.

MR BASTEN: It has been done, your Honour. We provided a list to my friends this morning.

HER HONOUR: Very well. Then within 14 days of today those applications for orders nisi be filed - let me interrupt myself. A solicitor's affidavit is sufficient, I should think.

MR BASTEN: Yes, your Honour.

HER HONOUR: Supported by formal affidavit of the solicitor on the record. The matters to be listed further on 22 November for the making of consent orders. By 22 November the Department to indicate to the plaintiffs' solicitors those persons whom it believes have obtained permanent visas. That gives you until 22 November. Is that impossible?

MR BASTEN: No, your Honour. I mean, some people may have left the country. We will do the best we can to indicate those that we know about. We can certainly indicate who have permanent visas but there may be others we can indicate. We will do our best to tell them who we think are not within the class any more on any view.

HER HONOUR: Yes. Similarly, by 22 November, the plaintiffs file application for the substitution of others as representative plaintiffs and perhaps indicate which matters it wishes to have remitted in a short period to the Federal Court for determination.

MR ZIPSER: Your Honour, can I comment on that?

HER HONOUR: Yes.

MR ZIPSER: My instructing solicitor believes that if he was required to indicate all matters of which he has carriage to be remitted by 22 November, he would be unable to do that.

HER HONOUR: Indicate that he could or could not?

MR ZIPSER: That he would be unable to do that.

HER HONOUR: Yes. No, I am suggesting that you select at this stage a number of matters in which you would be able to proceed within a short time because it is not going to help anybody to have thousands, whatever the number of thousands be, land on the court doorstep at the one time. They will have to be dealt with in an orderly manner, no matter who deals with them. So there must be some that you can identify as being able to be remitted for determination.

The issue seems to be - I am guessing at this - the absence of affidavit evidence from the individuals as to what they would have done had they realised that the documents had not been forwarded. That seems to be the issue. I mean, there may be other matters, but you have the - - -

MR ZIPSER: Your Honour, can I raise an issue in relation to that timetable?

HER HONOUR: Yes, certainly.

MR ZIPSER: There are two other issues and the first issue is that there were two letters sent by the Tribunal to the plaintiffs and my instructing solicitor says that in some cases he has one letter or perhaps there may be instructions the letter was received but he may not have a copy and - - -

HER HONOUR: Well, that is why I say he will have to pick out those in which he is in a position to proceed.

MR ZIPSER: Yes, your Honour. My instructing solicitor's concern is that right now he cannot say whether there are any matters that are immediately ready to proceed.

HER HONOUR: No, 22 November, to have a look by 22 November and see what can happen by then.

MR ZIPSER: Your Honour, perhaps I can indicate the following: my instructing solicitor will identify the status of those matters in those matters. There is a possibility that on 22 November he would still need through perhaps a notice to produce - - -

HER HONOUR: He may need to call for the production of documents, yes, I understand. But in the meantime I do not see why correspondence should not be able to make some effort to sort that out.

MR ZIPSER: Yes, your Honour.

HER HONOUR: Yes. I think apart from certifying for the attendance of counsel, I need do more than adjourn the matters until 22 November. Is that correct?

MR BASTEN: I was just wondering if it would be appropriate for the Secretary also to put on any motion he might wish to put on in relation to the state of the representative proceedings. I have, in effect, foreshadowed that he would wish to have the proceedings struck out in their present form. I am in your Honour's hands, but it would be a basis for opposition to - - -

HER HONOUR: I just do not understand how anything can be done other than having the proceedings dismissed on the merits or remitted. You have some other - - -

MR BASTEN: If they are not joinder proceedings, then they are in a form under Order 16 rule 12 and there is a question about whether that is an appropriate manner to proceed in if they are really all individual questions to be resolved. It is not a Carnie v Esanda-type case any more. That is the argument anyway.

HER HONOUR: I could refer that question to a Full Bench if you like.

MR BASTEN: I was going to ask what would happen on the 22nd because I may not be available on that date, but if it is merely to see what state - - -

HER HONOUR: I would be hoping - would you prefer another date? I just picked that date. I could make it the 25th at 9.30, if that is more convenient.

MR BASTEN: Yes. I mean I could do it briefly. I am in the Court of Appeal at 10.15 on that morning, that was all.

HER HONOUR: I am happy to sit at 9 o'clock, if that helps.

MR BASTEN: Yes, or the 25th, your Honour.

HER HONOUR: Which would you prefer?

MR BASTEN: Probably the 25th, your Honour.

HER HONOUR: The 25th - 9 o'clock?

MR BASTEN: Yes, your Honour.

HER HONOUR: 9 o'clock on the 25th then.

MR BASTEN: Thank you.

HER HONOUR: It is obviously going to take some time to work this out, but the question of what you can do with these proceedings is not one that presents an immediate answer to me. I hear what you say but it seems to raise a lot of other questions too.

MR BASTEN: It does.

HER HONOUR: Which are perhaps better dealt with by a Full Bench than by an individual.

MR BASTEN: If necessary, yes.

HER HONOUR: Yes. So at this stage we will just see what happens. Is the 25th convenient to you, Mr Zipser?

MR ZIPSER: It is, your Honour.

HER HONOUR: Yes. Instead of the 22nd we will adjourn until the 25th. I take it that if requests are made to the Department to produce documents, everything will be done that can be done to - - -

MR BASTEN: Yes. It sounded to me as if there was a request to be directed to the Tribunal for copies of letters in particular matters. I am sure that can be addressed. I do not appear for the Tribunal, but I have no doubt that the request would be responded to as promptly as possible.

HER HONOUR: Yes, very well. We will simply adjourn this matter until 9.00 am on 25 November.

AT 10.13 AM THE MATTERS WERE ADJOURNED

UNTIL MONDAY, 25 NOVEMBER 2002