SAAP & Anor v MIMIA [2004] HCATrans 132 (30 April 2004)

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SAAP & Anor v MIMIA [2004] HCATrans 132 (30 April 2004)

Last Updated: 7 May 2004

[2004] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A10 of 2003

B e t w e e n -

SAAP and SBAI

Applicants

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 11.45 AM

Copyright in the High Court of Australia

MS R.A. LAYTON, QC: If it please the Court, I appear with MR M.S. BLUMBERG for the applicant. (instructed by Bourne Lawyers)

MS S.J. MAHARAJ: If it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

GLEESON CJ: Thank you.

MS LAYTON: If the Court pleases, in brief, this matter involves an application by a woman belonging to the Sabean/Mandean sect who is uneducated and illiterate, coming from Iran, and she was claiming on behalf of herself and her child that she was a refugee. There were two witnesses called by her, but the daughter was called by the Tribunal.

GLEESON CJ: Ms Layton, we thought we might be assisted by hearing from Ms Maharaj.

MS LAYTON: Certainly, thank you.

GLEESON CJ: Yes, Ms Maharaj.

MS MAHARAJ: If it please your Honours. In respect of the special leave application, your Honours, the Minister makes five short contentions. The first proposition is that the content of the obligation to give procedural fairness is controlled by statute and will vary according to the circumstances of the particular case.

HAYNE J: But the question, Ms Maharaj, is whether we are, in the circumstances of this case, dealing only with a question of procedural fairness or whether there is another and separate question stemming from in general what might be called the consequences of section 424A. Does failure to comply with 424A have consequences regardless of whether otherwise you would conclude that the proceedings have been procedurally fair? In old terms, is it mandatory or directory?

MS MAHARAJ: Yes, your Honour. The question that your Honour has posed entails a twofold analysis, we would say respectfully. First of all, the face of the statute, or the terms of a particular provision have to be looked at, your Honour, to see whether the provision can be characterised as an inviolable or an imperative provision, a breach of which per se means a jurisdictional error has been committed, or, on the other hand, does it mean that the terms of the statute have to be studied and, whilst compliance with it is mandatory, the circumstances of the case must be looked at in order to see whether a breach of procedural fairness has been made out.

GLEESON CJ: Yes, I think you state that correctly. Where do we find the Full Court of the Federal Court addressing that issue?

MS MAHARAJ: Your Honours will see that the discussion starts on page 118 at paragraph 15 at about line 27 where the proposition was put to the Full Court that section 424A was an essential precondition, which is in the terms of being an imperative or inviolable condition. The Full Court analysed that argument in the pages that follow and rejected it. Whilst we accept, your Honours, that the state of the authorities was different at that point in time, because the Full Court did not have the benefit of your Honours’ decision in S157, and at that point in time the Full Court’s decision in NAAV was the effective decision, nevertheless - - -

GLEESON CJ: Yes, the Full Court’s decision went off on a view they took of section 474, did it not?

MS MAHARAJ: That characterisation of the decision would be correct, your Honour. The Full Court did not involve itself in that reconciliation process which your Honours propounded in S157. It took a view of section 474 which has been rejected by the High Court in S157 in the sense that it saw it as a controlling provision, which your Honours have subsequently endorsed as an incorrect approach.

What we say in this particular case, your Honours, to return to the question that was posed by his Honour Justice Hayne, was that the analysis has to be of the order that your Honours characterised in the sense that the first question that has to be posed is whether section 424A is of the order where it can be characterised as an imperative or an inviolable condition, the breach of which per se leads to a denial of natural justice, or does one look to the circumstances of the breach together with the terms of the provision to see whether there has been unfairness or denial of procedural fairness on the facts of this case.

We say respectfully, your Honours, that when a provision which entails a principle of natural justice is involved, then one has to look at the circumstances because the essential issue for the court to consider is one of fairness. That is the way that your Honours characterised the procedural fairness issue in Lam’s Case – this is Justices McHugh and Gummow at paragraphs [105] and [106].

The third proposition that flows from that, your Honours, is that once the issue is one of fairness then an essential ingredient that has to be considered is what is the disadvantage or detriment or loss of benefit that is alleged by the applicant. That particular concept was endorsed again in Lam’s Case by his Honour Justice Hayne at paragraph [113] and Justice Callinan at [149]. In this particular case, whichever way one turns the facts and looks at it, we find that the characterisation of the breach being technical by the primary judge has been left undisturbed by the Full Court.

HAYNE J: But is compliance with the procedure laid down in 424A necessary to there being a valid decision under the Act? Now, that is a question of construction, not a question of whether the outcome achieved in the particular case is fair or unfair, is it not?

MS MAHARAJ: As a matter of principle, your Honour, respectfully I agree with the proposition that your Honour has put. I would respectfully say this, your Honour, that as to whether a provision is an imperative provision of the order that your Honour has characterised it, which is a breach per se leads to jurisdictional error, is a pure question of statutory construction. Your Honours have said so quite clearly in S157. However, your Honours, we would respectfully say that construction of section 424A goes hand in hand with an analysis of the circumstances of the case when a provision like section 424A that is involved encapsulates a natural justice provision, in the sense, your Honours, if I could put it another way, that it does not necessarily have to be a statutory construction exercise in all instances to determine whether there has been a jurisdictional error.

Where natural justice is concerned, one can look at the full circumstances of the case. But, in any event, your Honours, we say that the construction of section 424A, the terms of it are not of the order that elevate the provision into that inviolable condition.

HAYNE J: Is 424A still operative?

MS MAHARAJ: Yes, your Honour, it is. Could we go on to say, your Honours – this is to develop a submission which we have made in our written submissions that this is not an appropriate vehicle for the grant of relief – that if the primary judge’s characterisation of the breach, being technical, is left undisturbed in the sense that there is no unfairness, then irrespective of whether your Honours see the construction of section 424A as a pure question of statutory construction or not or whether this matter goes to relief under section 39B, the Court would have to withhold relief in any event, we would say, if the breach is technical and there has been no unfairness, thus making this particular case an inappropriate vehicle for the grant of relief.

Whilst your Honours quite correctly observe that the decision of the Full Court grappled with other issues, section 474, and the line of reasoning is rather redundant post the decision of your Honours in S157, the point remains that the finding that the breach did not cause any unfairness has not been disturbed.

HAYNE J: Now, as things presently stand in the Federal Court, there is the decision, is it, Awan - - -

MS MAHARAJ: Yes, your Honour.

HAYNE J: - - - which would be to the contrary of the position that you would maintain in this case. Is that right?

MS MAHARAJ: Yes, your Honour.

HAYNE J: So that as things stand, the Full Court of the Federal Court would be against the submissions that you make here?

MS MAHARAJ: Not completely, your Honour. Could I just explain that answer a little bit?

HAYNE J: That was on the analogous provision under the Migration Review Tribunal stream rather than the Refugee Review Tribunal stream, was it not?

MS MAHARAJ: That is correct, your Honour, and we take no issue with that because the provisions are in similar terms and the principle applies. The chronology of events, your Honour, is that the decision in Awan, which is the Full Court’s decision, was handed down on 20 June 2003 and that follows a position which is contrary to the submissions of the Minister in this case. On the other hand, your Honours, there was a decision of the Full Court in NAHV [2003] FCAFC 102 where there is the unanimous decision of the Full Court of the Federal Court handed down on 21 May 2003 which propounded the approach that the Minister submits respectfully to this Court.

HAYNE J: That rather suggests that if there is a conflict in the Full Court of the Federal Court we ought to take it on, does it not?

MS MAHARAJ: Well, ordinarily, your Honour, with respect, the conflict is conscious in the sense that there are deliberate divergences of views where a particular Full Court takes the view that another Full Court is clearly wrong. In this particular case, the various Full Courts have not had drawn to their attention the contradictory authorities that have existed before their Honours handed their decision down. So, in short, your Honours, it does not appear that the Full Courts of the Federal Court have deliberately and consciously addressed this issue in order to come to divergent views.

Your Honours have had instances regarding construction of various provisions where Full Courts have deliberately taken divergent strands or divergent views about particular statutes. So it is not correct to characterise that there are different deliberate strands of decision running in the Full Court at the moment.

Just to complete that answer, your Honours, there is the decision of the Full Court in VAHP handed down on 31 March 2004 and, again, this particular decision endorsed the line of thinking propounded in NAHV’s Case which is against Awan, and VAHP does not mention Awan’s Case. So at least these three decisions, your Honours, we would respectfully say, make good the proposition that I have put to your Honours that this case cannot be characterised as being infected with divergent deliberate views of different Full Courts in the Federal Court.

So, in closing, if I could simply encapsulate the four propositions that we put to your Honours, that as a matter of proposition we accept that in order to test whether a provision inviolable or imperative it is essentially an exercise in statutory construction. However, we say, your Honours, that where a provision that is involved involves principles of natural justice, then unless and until the express terms of the provision dictate to the contrary, the circumstances in which procedural breach is alleged can be taken into account.

The third proposition we put to your Honours is that, in any event, this is not an appropriate vehicle because the breach did not lead to any unfairness and relief would have to be withheld by the Court in any event in the exercise of its discretion. The fourth proposition that we put to your Honours is that, whilst it is true that there are divergent views in the Full Court – Awan’s decision and the two other authorities that I have mentioned to your Honours – the Full Court ought to be given an opportunity to deliberately address this issue with proper authorities, particularly the contradictory authorities, in order to assess finally what the situation is on the law before it.

We would say, your Honours, that both in relation to the discretionary issues that go to the grant of relief and to the principles which have to assist the Court in determining whether provision is inviolable or imperative, these principles have been clearly settled by your Honours in the recent authorities and there is no need, we would respectfully say, for your Honours to clarify the law.

GLEESON CJ: Thank you, Ms Maharaj.

MS MAHARAJ: Thank you, your Honour.

GLEESON CJ: Your draft notice of appeal on page 125 of the application book - - -

MS LAYTON: Yes, if your Honour pleases.

GLEESON CJ: - - - that really only has one ground of appeal, does it not?

MS LAYTON: Yes. It is probably rather inadequately expressed. That is largely because of the development of the law afterwards which indicated more subtle reasoning than had been apparent before, because it seems to me that we should encapsulate in a notice of appeal three issues: firstly, whether compliance with natural justice is sufficient to fulfil the requirements of section 424A(1); secondly, whether a breach of section 424A(2) is itself, in conjunction with 424A(1), a jurisdictional error and therefore not a decision within the meaning of 474; and there is a third related one, which is whether the exercise of discretion under section 39B in a context of non-compliance with 424A requires the Court to grant relief unless it is satisfied that the breach could have made no difference. So there are really three issues which should be better articulated in the notice of appeal than the one that presently exists.

GLEESON CJ: All right. Thank you. In this matter there will be a grant of special leave to appeal.

We are going to adjourn for a brief time to reconstitute.

AT 12.03 PM THE MATTER WAS CONCLUDED