SAAP & Anor v MIMIA & Anor [2004] HCATrans 285 (10 August 2004)

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SAAP & Anor v MIMIA & Anor [2004] HCATrans 285 (10 August 2004)

Last Updated: 18 May 2005

[2004] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A28 of 2004

B e t w e e n -

SAAP and SBAI

Appellants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 10 AUGUST 2004, AT 10.19 AM

(Continued from 9/8/04)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: Your Honours, may I say that we have been provided with a copy of an amended notice of appeal. The Minister has no objection to the amendments sought to be made in that document.

Before I return to the factual issues that I was addressing when we finished last night, might I seek to set out five broad propositions which we seek to make in this case. The first is this, that the general law principles of procedural fairness were not breached by the course the Tribunal took, and accordingly the factual finding of the primary judge at paragraph 43 of his Honour’s reasons at page 260 of the appeal book should not be overturned. I note that there has never been a challenge to that finding, but it was the issue to which I was going yesterday afternoon and to which I will return in a moment.

KIRBY J: But given that Parliament has expressed a little code of its own, why, except on the discretion question, is natural justice at common law relevant?

MR BASTEN: Why is it relevant? Well, we would accept that it remains relevant as at the date of this Tribunal decision. In the materials we supplied to the Court with the written submissions, we included at page 33 the new section 422B, because it is now in force, but it was not then. That, I think, your Honour, is the provision which seeks to make this some form of code, but it just did not apply then, and I think it is not in contention that the rules of procedural fairness under the general law did apply. I accept what your Honour says, it does go to the issue of discretion, but it also goes to another issue to which I will turn shortly.

KIRBY J: So the provisions of 424A are in addition to the normal rules of natural justice?

MR BASTEN: Yes.

KIRBY J: So Parliament has gone to the trouble of expressing and indicating an additional concern that natural justice should be observed.

MR BASTEN: I wanted to qualify that in a couple of respects, your Honour. Firstly, the rules are inflexible, so that they differ from the general law principles, which are, of course, flexible as to content and circumstance. They also, of course, do not cover the field of natural justice; and, thirdly, they do to an extent do things which natural justice may or may not do in the particular circumstance of a case. I will return to that point, if I may, shortly.

Could I just, as a second proposition, say something in relation to section 424A(1)(b). The first point we seek to make is that it should be understood to condition the content of the giving of particulars and possibly of the opportunity to comment. It is not itself the subject of any further mechanical provision, but that appears to be its purpose in seeking to ensure that the applicant understands why the material is relevant to the review.

The second point in relation to that paragraph is that, as I think my learned friend conceded yesterday to your Honour Justice Hayne, it was not the appellant’s case below that this provision specifically was breached, and we say nor was it in fact breached. That takes me back to the factual issues to which I will return. The third point I wished to make in relation to that provision was that we do not accept that a breach would necessarily be a breach of any general law principle of procedural fairness. It would depend on the circumstances of the case.

The third area I wish to touch on is the operation of section 424A(2). We say, and we said yesterday, that it does not, by implication, impose an obligation to give particulars of information or an invitation to comment in writing and only in writing, if the Tribunal considers that it can deal with its obligation under subsection (1), for example, during the course of an interview. May I add four points to those we made yesterday - - -

HAYNE J: Just before you do that, is an interview something that is to be distinguished from the process that is engaged by 425?

MR BASTEN: No. It is one of the words which is used in relation to that process. Section 424B - - -

HAYNE J: Section 424B speaks of giving information or comments at an interview. On its face, that seems to be different from the process that is followed at 425, which is an invitation to appear to give evidence. One is sworn, one is unsworn. Section 424B on its face may suggest, it may not, that the interview can be conducted by someone other than the member to whom the matter is assigned. How does all that work?

GUMMOW J: Do you not have to look at 425(2)(c)? Is that not the destination of all of this?

MR BASTEN: It is, your Honour.

GUMMOW J: There is an obligation under 425(1) that there must be an invitation to appear to give evidence and present arguments, but that imperative requirement does not arise if 424C(1) or (2) apply, and 424C(1) or (2) are all about failures to take up the earlier steps.

MR BASTEN: Yes, I accept that, your Honour. There may well be two separate steps which are envisaged. Perhaps I should not have assumed that the interview would - - -

GUMMOW J: But they are all anterior to the crucial operation, which is appearing to give evidence.

MR BASTEN: Yes, and present argument.

GUMMOW J: Yes.

MR BASTEN: But it might be that the two, the interview - - -

GUMMOW J: The reason I am trying to - - -

MR BASTEN: I accept what your Honour puts.

GUMMOW J: All of these earlier steps are ordinarily happening on paper.

MR BASTEN: Yes, that is so. Could I just say that the first additional point was that I think your Honour Justice Gummow indicated an interest yesterday in how the provisions read before 424A was introduced at all. We have supplied to your Honours this morning a copy of Part 7, Division 4 as it was prior to the addition of any of this material of 424A, et cetera. Your Honours will see that it was simpler. Section 424 provided for the review on the papers and it deals with the possibility of making the most favourable decision to the applicant without taking evidence. Section 425 then says:

(1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear –

So it is a simpler form, but it still contained the inherent elements of what are now contained in 425 itself.

KIRBY J: What follows from that, if anything?

MR BASTEN: Nothing directly, your Honour. I think Justice Gummow asked me whether 424 was - - -

KIRBY J: I know you are answering his Honour, but do you seek to get any strengths for your arguments from the legislative history?

MR BASTEN: I said yesterday I was not sure 424 was in the same form before as it is now. I want to turn, if I may, in a moment, to what 424 itself does. Perhaps I should do that now.

KIRBY J: Is it worth giving us the fifth point, if you said that you had five points?

MR BASTEN: I am sorry, I am still within the third proposition. I am still dealing with the third topic, which is 424A, and I was seeking to make four points in relation to that. I am sorry. The first was the old form. The second was this proposition. There was some discussion yesterday in relation to the effect of subsection (3) on the obligation contained in 424A(1). Subsection(3)(b) has been uniformly held by the Full Court of the Federal Court to exclude only information given by the applicant for the purpose of the review application. So that if the information which might be part of the reason for an adverse decision had in fact been given by the applicant at an earlier stage to the delegate, the obligation in 424A(1) has been held to apply.

That appears from a decision in Al Shamry’s Case, which your Honours do not have. What your Honours do have at tab 9 of our bundle of cases is a more recent Full Court decision of VCAT v The Minister [2003] FCAFC 141. If your Honours turn to paragraphs [41] and [42] in the judgment of the court, at paragraph [42] your Honours will see a reference to the point I am seeking to make in relation to (3)(b). The applicant there had relied on Al Shamry (2001) 110 FCR 27:

for the proposition that the application referred to in s424A(3)(b) is the application for review by the Tribunal.

Now, that obviously extends the operation considerably of 424A(1) if that proposition is correct, and it is not, I suppose, in dispute in this case, because it does not arise. The issue in this case concerns information from third parties. Before I - - -

HAYNE J: What information would an applicant give for the purpose of application for review, which is the construction that seems to be adopted in the Full Court of the Federal Court? Can you identify for me what information an applicant would give for the purpose of the application for review?

MR BASTEN: Can I turn it around the other way, your Honour?

HAYNE J: No, Mr Basten. Can you answer my question, please?

MR BASTEN: I am happy to do it, and then I will – there was a point that worried me in Al Shamry, your Honour, but I did not get anywhere there. The material which the Full Court takes as provided for the purpose of the application for review is the material supplied by the applicant to the Tribunal. So that if the applicant said something at an interview on arrival, but does not provide a copy of that interview to the Tribunal, then that is material which is not supplied for the purpose of the application for review.

HAYNE J: Though it would be material that would come forward pursuant to the Secretary’s obligation to transmit.

MR BASTEN: Precisely, and Al Shamry’s Case said that the failure to give written notice of that to the applicant for review before the Tribunal was a breach of 424A(1). Now, I merely refer to it to say that one - - -

GUMMOW J: Where is the purple passage that excites you so? Is that at [42] and [43]?

MR BASTEN: Yes, it is extracted sufficiently, I think, at paragraph [42] in VCAT, but your Honours will see there is a reference to the judgment in Al Shamry. Before your Honours leave that, can I simply - - -

GUMMOW J: Was that a Full Court decision?

MR BASTEN: Yes, it was, your Honour. Can I simply note that in - - -

KIRBY J: It is 110 FCR 27.

MR BASTEN: Yes, that is right. Before I leave VCAT, may I say that in the previous paragraph, [41], the point that we were seeking to make yesterday about the operation of the adverbial clause in subsection (1)(a) is adverted to without being resolved, and I think it is fair to say that there is no Federal Court decision which takes that argument any further.

The third point I was seeking to make in relation to section 424A(2) is that the word “must” does not, with respect, always impose a mandatory obligation, one would think, in these provisions. May I go back to section 424 in its present form. Section 424 deals with what is called “additional information” which the Tribunal may obtain; 424(2) says that:

the Tribunal may invite a person to give additional information –

Section 424(3) is in the same form as 424A(2):

The invitation must be given to the person –

by one of the methods prescribed with respect to writing. Assuming for present purposes that the sequential operation argument is not correct - - -

GUMMOW J: Wait a minute, Mr Basten. What are you getting out of 424? Section 424(2) is permissive; 424(3) qualifies that by making it imperative in some circumstances.

MR BASTEN: Precisely, yes.

GUMMOW J: Well?

MR BASTEN: What I want to say is that “must” should not be seen as in all circumstances imposing a mandatory obligation.

GUMMOW J: But 424 suggests it does.

MR BASTEN: I know. My argument is that this formula which is used both in 424 and 424A should not be understood, despite the use of the word “must”, as in all cases imposing a mandatory obligation. That is the point I am seeking to make. The way I do it is this, and it does assume for present purposes that a sequential operation argument is not correct. It would have applied to the evidence of the daughter in the present case. The invitation was given to her orally because she was at the Tribunal hearing. If “must” is to be read as must - - -

GUMMOW J: Now, where does this word “hearing” appear, by the way?

MR BASTEN: Well, I have stopped using the word “interview”, your Honour.

GUMMOW J: Yes, that is right.

HAYNE J: Equally inapt, I would have thought, “interview”.

MR BASTEN: All right, well, the occasion of appearance, perhaps, is the - - -

GUMMOW J: It is the failure, if I may say so, to grapple with the construction of Division 4 as a whole, in these numerous Federal Court decisions, which produces this mess.

MR BASTEN: I am seeking to deal with the provisions as a whole, your Honour, and it does take a little time, I am afraid. The argument, though, which was actually put in this form and has now been abandoned, was that the failure to give the daughter an invitation in writing in accordance with section 441A invalidated the decision which was made, which relied in part on the evidence voluntarily given by the daughter at the hearing. That was an argument that was put before the primary judge, rejected and abandoned. The point I seek to make for present purposes is that that part of the decision was correct, and that “must” in that provision could not be seen as in all circumstances imposing a mandatory obligation on the Tribunal to scribble something on a bit of paper and hand it to the person, when inviting them to give evidence.

The fourth and short point in relation to 424A(2) is that I accepted yesterday, I think in response to your Honour the Chief Justice, that the adverbial phrase in 424A(1), which qualifies the word “give”, could extend to the content of that which is given. I do not seek to depart from that. I simply seek to say that “give” is not so limited, and the adverbial phrase should not be limited to that effect. I meant to refer your Honours to the provision your Honours will be familiar with in the Acts Interpretation Act, section 28A, which speaks about “giving”, “serving”, “providing”, as words of similar methodical content.

Your Honours, may I turn to the fourth proposition. If section 424A can only be complied with by way of written notice, we submit it should not be read as a provision imposing an inviolable precondition of validity in all circumstances. That has been accepted by each of the Federal Court decisions which has addressed this issue. In our bundle at tab 10 we have given your Honours a copy of NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214. The passage which is relevant for present purposes is at paragraph [23] at pages 219 to 220, where their Honours say that the word “must” – at the bottom of page 219 – is not decisive of the inquiry:

In our view, it cannot be concluded that invalidity of the Tribunal’s decision is the necessary consequence of any failure to comply with s 424A(2), irrespective of the absence of any unfairness, whether of a substantive or procedural kind.

And they say that without reaching section 474. That is in our bundle of cases at tab 10, and it has been followed and applied in a more recent Full Court decision.

The fifth proposition, your Honours, is this. If all of the preceding arguments fail, the primary judge was, we say, justified in dealing with the matter by a discretionary withholding of relief. The fact that technical breaches can arise demonstrates that the statutory provision has no necessary link with the requirements of general law procedural fairness. Unlike the general law principle, it is rigid and inflexible, and accordingly, although the primary judge applied the constraint identified instead in Aala, because there was no procedural unfairness, he was correct, with respect, in withholding relief in the circumstances in which he had found a breach of 424A(2)(b) only.

May I then return to finish the discussion of the factual issue which I commenced last night, and I want to do it, if I may, with reference to the complaint which arose from the discussion between your Honour Justice Kirby and my learned friends. It was the most serious complaint because it concerned the abduction of young Mandeans to force conversion to Islam. That gave her daughter’s reason for departure its real significance.

If your Honours go to page 10, at lines 10 to 15 we find the older daughter’s story as to why she left Iran. That was where the issue of her husband being a drug addict was raised. The question of conversion appears, but only because the divorce court said she could not get a court order unless she changed her religion to Muslim. So that was how the issue of forced conversion first arose. Then at line 25, consistent with having a problem with her husband, she says her father arranged the trip to leave Iran. The applicant deals with this issue in her first statement at page 18 at line 12 where she says, in effect, generally speaking:

We are under pressure from Muslims to convert to Islam.

No reference to her older daughter there. Again, the general proposition, at the next page, at line 5:

Our daughters and sons are taken away by Muslims (no names) and are forced to become Muslims –

No reference to her older daughter there.

KIRBY J: What page is that last - - -

MR BASTEN: Page 19, your Honour, at line 5. The next statement she makes is a second statement at page 49, the second page of a statement prepared by her solicitors, which commences at 48. At line 10 on page 49 she says the older daughter:

was chosen to go first because she is very beautiful and her husband was concerned that the Muslims would try to kidnap and harm her.

First reference to her older daughter. The delegate, at page 60, at lines 20 to 25 sets out three statements that the older daughter had made in her application including “no mention of any forced entry of her house”, which “would have been of paramount importance”, the delegate says, and that “it was her father . . . who arranged her departure”. She claimed that “her husband was unaware that she . . . had travelled to Australia”. In the preceding paragraph the delegate says that is different from the applicant’s story, who says, at line 16, “the Komiteh had forced their way into her daughter’s home one night and tried” - - -

KIRBY J: What are we reading here? I am getting a bit lost.

MR BASTEN: This is the delegate’s decision. This is the delegate’s reasons for rejecting the appellant’s application for a visa.

HAYNE J: The delegate finding at 56 that there was subjective fear of “harm or mistreatment for a Convention reason”, is that right? Line 12, page 56:

I find that the applicant fears harm or mistreatment for a Convention reason.

MR BASTEN: Yes.

HAYNE J: This is a consideration of whether that fear is well-based.

MR BASTEN: Well-founded, yes.

GLEESON CJ: Is the appellant illiterate?

MR BASTEN: It is said so, yes.

GLEESON CJ: That is part of the context in which we consider the argument about the importance that the legislation attaches to handing to her things in documentary form, rather than explaining them to her orally.

MR BASTEN: Indeed, and I will come to the assistance she obviously had. At line 16 the appellant said that:

the Komiteh had forced their way into her daughter’s home –

which was in Ahwaz –

and tried to kidnap her. Her son in law brought her daughter to her parent’s home and had organised a smuggler to arrange her departure from Iran.

Then at page 72 there is the first of the responses written on behalf of the appellant, which make it clear that the discrepancies were understood and were addressed. Thus, at 72, line 1, after “Dear Sir” at about line 14 on the page, she says:

Studying the refusal sent by the DIMA, I wish to explain some issues which I think will be of use for the hearing of R.R.T.

1. I wasn’t aware of my son-in-law’s addiction to drugs . . .

2. I was told by my son-in-law that he organized my daughter’s departure –

and at lines 25 to 30 she seeks to take some advantage from the discrepancies by saying it shows that she had not corroborated with her daughter. If one goes to the bottom of page 73, there is reference, from 73 to 74, to:

The group who tried to kidnap my daughter . . . called “Komiteh”. They pointed gun to and threatened us –

suggesting for the first time that the attempted abduction had occurred in the appellant’s house, which was not in Ahwaz, but in a different city. At page 80 in the solicitor’s submission on behalf of the appellant, that story is repeated at the top of page 80, line 3. At page 104, at the top of the page, there is a statement – this is in her migration agent’s submission on her behalf. At lines 6 to 10:

[The elder daughter] and her husband lived some 120 kilometres away from Khoramshar in Ahwaz. [She] did not tell her mother what was going on and so the applicant relied for information on her drug-addict son-in-law who informed her that [her daughter] had been kidnapped.

No longer an attempt, but an actual kidnap. So we move from a fear to an attempt to a kidnapping and now in Ahwaz, not Khoramshar. At the Tribunal hearing she adheres to all three statements.

Can I just take your Honours to pages 110 to 111. At the bottom of 110, there was no doubt in the migration agent’s mind, as there had been no doubt in the mind of whoever prepared her statement in Woomera, the handwritten statement, that her credibility was in issue. At 111, in the first half of the page, submissions are made about the discrepancies and why the Tribunal would accept her as a witness of fact - - -

KIRBY J: Of course, these discrepancies emerge through a filter of people who are trying to help, but who are having to deal with the matter through the filter of a language problem, and, no doubt, cultural and other barriers. The fact is you cannot read the decision on pages 80 to 85 concerning the human rights situation in Iran without really understanding what people of this faith would suffer in that country, and therefore it does not, one would think, take very much to bring a case where the generalised source of fear would be manifest in the particular case. I have not read this, but I am just skimming through it now and it is really a shocking story – a really shocking story – of deprivation of human rights of people simply because their religion is different from that of the majority. It seems to be targeted at the Sabians and they are a very small minority - - -

MR BASTEN: I do not disagree with anything - - -

KIRBY J: It is a very disturbing story to read, and I am only reading it now for the first time. It is a shocking story, if it is true, and the Tribunal appears to accept it.

MR BASTEN: I accept everything your Honour says.

KIRBY J: All I am saying is that it does not take very much to lift the particular into the category of a well-founded fear of persecution, and if you add to the general discrimination against people of this faith the fact that particular members, one, the daughter, sought a divorce and could not get it unless she was forced to convert to another faith, it is not a big step to say that in that family they would draw their inferences.

MR BASTEN: Your Honour, I might have reached a different decision from the Tribunal and I do not doubt the force of everything your Honour puts to me. What I am seeking to address, though, is the question as to whether or not there had been a breach of 424A(1)(b), which requires that she not understand or not have been explained what the problem is with this discrepancy.

KIRBY J: I appreciate that and I appreciate we are not here to retry the merits, but the fact is that you are latching on to discrepancies - - -

MR BASTEN: Yes.

KIRBY J: - - - and that is a very proper and understandable thing. All I am saying is that we have to approach discrepancies remembering that this is not the appellant herself speaking to these people; it is her speaking to other people who are generally, one would think, probably pro bono or acting at very little reward, and they are trying to interpret what she is saying to them. And in the Tribunal the Tribunal interpreter had difficulty, and he was speaking her own language.

MR BASTEN: Yes. The question, though, really is whether, for the purposes of 424A, there was some failure to put material to her. The discrepancies formed part of the reason why the Tribunal, as I will indicate in a moment, rejected her story. The question is whether those discrepancies were put to her and the Tribunal took what steps it could to ensure that she understood what was the inference which might be drawn. My point is simply that these discrepancies were very well known to all of those assisting her before she got anywhere near the Tribunal, and there is no evidence from her to suggest that what happened, either at that stage or before the Tribunal, left her in some state of misapprehension.

GLEESON CJ: Should we take it, from what appears on page 111, line 6, that she would be unable to read a document written in her own language, let alone one written in English?

MR BASTEN: That is my understanding of her position throughout the proceedings, your Honour, and it does, of course, affect the usefulness of 424A(2) to her personally, as opposed to her advisers.

KIRBY J: I had not seen the passage that the Chief Justice drew attention to, but that is strength to what I have just said. This is an illiterate, uneducated person. One just gets an impression, Mr Basten – I have to say it – that some members of the Tribunal approached this matter with a vigilance equivalent, not to the case of a person who is seeking the application of our law for the protection of a relatively small number of refugee applicants, but with a vigilance appropriate to a criminal investigation by a vigilant police officer. If you add to that Professor Crock’s evidence about the fall-off in the number of applications that are successful following the failure to renew the appointments of members of the Tribunal, then we have, as a Court, to look with great vigilance at these decisions.

MR BASTEN: Your Honour, in a sense, all of that might be a legitimate basis for challenge, so long as one could bring it within a legitimate ground. The challenge was not raised in those terms in this case.

KIRBY J: I know it was not, but it is the background of it. We are not ignorant.

McHUGH J: That is part of the problem. I have to say, when you read the country information, it seems to me there is a real case that, as a matter of law, every one of these people following this religion has a well-founded fear of persecution. It is a ground that has never been raised, I appreciate, but I just cannot understand how anybody could come to the conclusion that these people did not have a well-founded fear of persecution.

MR BASTEN: There is, arguably, a discrepancy between the approach in S395, for example, in this Court, but obviously, your Honour, I would want to say something about that, if that matter were raised. I understand the difficulty your Honour points to. Can I stick with the case that has not been raised, but I am addressing. I was simply going to say that there is a supplementary statement at 114. The paragraphs at lines 10 and 15 address the problems with the daughter’s evidence and knowledge of her husband’s circumstances. In the Tribunal transcript the appellant’s evidence starts at page 185. The issues I have been identifying were put to the appellant at the bottom of page 187, line 30:

I think you’ve told the department that the Komite tried to abduct your daughter . . . Is that correct?

And there is an answer. The Tribunal:

Where did the Komite – which town did they try and steal your daughter from?

There is an answer. Then the Tribunal says:

I thought you told the department that they tried to take her away from her home –

which was Ahwaz, and that is affirmed –

MR LYNCH: In Ahvaz, did you say?

INTERPRETER: That’s what she said.

MR LYNCH: And they came?

INTERPRETER: She mentioned something about in Khoramshar –

which is where the appellant comes from, and so on. So the issue was raised in terms of the evidence that had been given.

The Tribunal makes findings at page 232, line 23, over to page 233 at line 5; perhaps I can simply leave those two paragraphs with your Honours. The quotation at line 28 is from page 49, to which I took your Honours. We say that in the circumstances that finding was open to the Tribunal and there was no procedural unfairness involved in reaching it, nor was there a breach of section 424(1)(b). I appreciate, your Honours, that in seeking to address that point, I may have highlighted some of the difficulties of the merits of the case. I really cannot say any more about that. If the Court pleases.

GLEESON CJ: Thank you, Mr Basten. Yes, Mr Hayes.

MR HAYES: Very quickly, on that last point, the appellant says where the Tribunal failed was to have regard to the wording of section 424A(1)(a).

GLEESON CJ: On page 185, which Mr Basten has just been taking us to, in the middle of the page, the Tribunal member says:

There are three matters I wanted to raise with you.

Do you see that?

MR HAYES: Yes.

GLEESON CJ: Is the essence of the argument that you make that he should have raised those matters with your client in writing?

MR HAYES: Yes.

GLEESON CJ: Should the writing have been in English or in some other language?

MR HAYES: That is a matter which the Tribunal should have given some attention to in relation to 424A(2). It might have been appropriate in these circumstances to raise them in writing in her language, in order for her to properly understand them.

GLEESON CJ: Would she have been able to read it if he did?

MR HAYES: I cannot answer that, your Honour. The evidence suggests she was illiterate and uneducated, but I am not sure whether that was simply she was not able to understand the English language. Notwithstanding that - - -

KIRBY J: Well, I would not understand that to mean that at all. I would understand “illiterate and uneducated” in this country, in a woman of this age, to mean she cannot read or write in her language, let alone English.

MR HAYES: Yes, I accept that, your Honour. I am simply not in a position to say definitively one way or the other. However, if she had been given the opportunity to address these issues in writing, she would have had the benefit of being advised in relation to them and she would have had the time in which to address them through assistance by a lawyer, an interpreter or an adviser.

GLEESON CJ: What that must amount to, in practice, is that she should have had an adjournment. I am using the language of adversarial hearings even by using that word.

MR HAYES: Yes, because in the circumstances of this case her adviser was in Sydney and it would not have assisted at all to provide her with the information at the time and ask her to address it then. It would have involved a deferring or adjournment. All of the documents would suggest, as Justice Kirby points out, she was illiterate, she signed all the applications just with a cross. She was not able to sign her name.

KIRBY J: Where is that shown?

MR HAYES: It is at page 45.

GLEESON CJ: We saw one of the documents that she signed earlier, signed with a cross, which prompted my original question about her literacy.

MR HAYES: Yes, at page 45, and that is the application which commences at page 34 of the book. Going back, just by way of reply, to that last point, the applicant’s case is that it is not simply enough to draw the appellant’s attention, as has been pointed out, to these issues. The Tribunal was under an obligation to go further, get her to understand why it was relevant to that decision, and, looked at as a whole, the section required it to be provided in writing, to give her an opportunity to address them. Just on that, one more point in relation to the NAHV Case, the passage with my friend pointed out, which is at paragraph 23 – the court was there concerned with section 424A(2), but it did say, in terms of whether or not it is a mandatory provision:

Quite different considerations might attend the analysis had there been a breach of s 424A(1).

What we are inviting this Court to do is to look at section 424A as a whole. Sections 424A(1) and 424A(2), looked at compositely, in our respectful submission, makes it a mandatory obligation. It appears that at least if the Full Court had looked at the first part, judging from that overtone, they might have found it to be mandatory. If the Court pleases.

GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn to reconstitute.

AT 11.04 AM THE MATTER WAS ADJOURNED