Applicant NAFF of 2002 v MIMIA [2004] HCATrans 64 (12 March 2004)

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Applicant NAFF of 2002 v MIMIA [2004] HCATrans 64 (12 March 2004)

Last Updated: 17 March 2004

[2004] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S133 of 2003

B e t w e e n -

APPLICANT NAFF OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2004, AT 11.04 AM

Copyright in the High Court of Australia

APPLICANT NAFF OF 2002 appeared in person.

MR S.B. LLOYD: May it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

GUMMOW J: Yes, Mr Lloyd. You have an application to make?

MR LLOYD: Yes, your Honour. My brief in this matter arose only some 40 minutes ago. I would ask either that the matter be stood down in the list or, alternatively, if the applicant is heard and if the Court is minded to call upon me, then my response to be stood down in the list. That would facilitate me to know better what the issues were of concern to the - - -

GUMMOW J: Well, we would be minded to call on you because we are worried about the significance of the dissenting judgment of Justice Downes.

MR LLOYD: In that case, perhaps I would ask if the matter could be stood until the end of the list.

GUMMOW J: Just sit down for a minute, please. We will stand the matter down so that we will take it after matter No 8.

MR LLOYD: Thank you, your Honour.

AT 11.10 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.30 PM:

GUMMOW J: Is there a translator present?

THE INTERPRETER: Yes, your Honour.

GUMMOW J: You go into the box please.

EDILBERT RAJADURAI, sworn as interpreter:

GUMMOW J: Thank you, Mr Interpreter. If you would go back to the Bar table and sit next to your client. Yes, Mr Lloyd, we will hear from you first.

MR LLOYD: Thank you, your Honour.

GUMMOW J: We have indicated earlier, I think, some reaction to Justice Downes’ dissenting judgment, which seems at the moment quite cogent to us.

MR LLOYD: Certainly, your Honour. The Minister’s answer to that is that it is flawed in a couple of respects. If your Honour turns to page 64 of the application book, your Honour will see at about line 18 or 19, according to the numbering, there is a sentence which begins:

We do know that the appellant says that if given the opportunity he would have made submissions dealing with “[i]nconsistencies regarding the evidence”.

Now, that statement is a statement drawn from the applicant’s submissions. The position of the evidence is stated correctly by the majority of the Full Court on page 59 at what is, in fact, line 2:

There was, moreover, no evidence that, in reliance on the Member’s statement, the appellant was prompted to take, or to refrain from taking, any course of action which otherwise he would not, or would, have taken.

The matter is further affected in Justice Downes’ judgment by his discussion in paragraph 59, which appears at the bottom of page 64. That is in circumstances where, prior to the handing down by the Tribunal of its reasons, the Tribunal sent out a letter indicating that it was proposing to hand down its reasons on a particular date. The applicant did not challenge that or seek to change the position.

CALLINAN J: Why would not the applicant then infer, as suggested by Justice Downes on the next page, that he might have thought the decision was going to be favourable to him in view of the fact that there had been no intervening letter?

MR LLOYD: Your Honour, he may have inferred that and if the applicant had have given evidence and subjected himself to cross-examination then that could have been tested. It makes this case an inappropriate vehicle to test the broader point because the applicant has never said that he relied in any way on the proposition that he would have done or would not have done anything. This is just another matter that could have been dealt with in cross-examination.

I do not say that his Honour Justice Downes’ inference would not be open, but in fairness my client should have had the opportunity to cross-examine if the applicant were going to rely upon a proposition to this effect. I should also note that his Honour, in paragraph 59, just at the very bottom of the page, says:

In any event, the decision had been made and signed before the letter was sent.

There is a line of authority in the Federal Court to the effect that notwithstanding that a decision is signed, it is not final until handed down and, indeed, the Tribunal is obliged to consider anything sent up to the point of handing down. So, in that respect, his Honour Justice Downes is premised upon a line or a conception which is not consistent with authorities. There is also a position - - -

CALLINAN J: I do not think he is saying that. He is simply saying he had made up his mind. He said the decision was made. He just added that it was signed. And that is true, the Tribunal had made up its mind.

MR LLOYD: Indeed, but if the applicant had have raised something, it would have been obliged to and no doubt would have considered it.

GUMMOW J: Do we see the actual letter anywhere that was sent?

MR LLOYD: It is not in the application book.

GUMMOW J: Is it set out in any of the judgments?

MR LLOYD: I think it is only referred to in paragraph 59. I could provide the Court with a copy of the letter. I imagine my instructing solicitor has it, and it would normally have been in the book.

GUMMOW J: Well, it is part of the record, so we can look at it, I am sure.

MR LLOYD: While my instructing solicitor finds that letter, I would also submit that the approach of the majority was right, in particular, in paragraphs 45 and 46, that it applied the correct principles as enunciated in Lam and it was certainly open to come to the view that in the absence of evidence of any measure of reliance or inducement – and perhaps I should also say this in a context in which there had already been questioning on the inconsistencies during the hearing. This was an observation made, or a statement made, at the very end of the hearing, that it would give this additional opportunity to comment.

It may well be that the Tribunal at the end – and certainly the inference drawn by the majority is that the Tribunal did not rely upon the inconsistencies. As a result, nothing turned on it. Certainly, on the Tribunal’s reasons, it does not rely upon the internal inconsistencies in relation to the dates of detention. The Tribunal’s reasons do turn on obviously other adverse credibility factors but not that.

CALLINAN J: The trouble is, Mr Lloyd, it really amounts to the Tribunal saying, “We will give you an opportunity to be heard on that” and then the Tribunal never provides the opportunity in fact. Even if everything you say is otherwise correct, it is a fairly unattractive proposition that a Tribunal will indicate that it will give a person a hearing on a matter and then not do it.

MR LLOYD: I accept that, subject to one observation, or perhaps two. The first thing is Justice Downes, in my submission, is erroneous on page 64, paragraph 57, where at the end his Honour says:

Fairness required the appellant to be given the opportunity of seeing what were the Tribunal member’s concerns relating to inconsistencies –

Absent any offer, there was certainly no obligation to do that.

CALLINAN J: It would be a different case altogether, if there were not an offer.

MR LLOYD: Indeed. Then in circumstances where there is an offer, I certainly can accept your Honour’s proposition that it looks unfair and all the applicant needed to do to make out unfairness was put on evidence that he would have done something or that he did not do something. Maybe if he had have said, “Well, at the hearing I was going to go on and say certain things but I didn’t do it because I thought I’d have this opportunity”, then that would crystallise the unfairness, but in the absence of any evidence that he would have done anything, then what this Court has said in Lam, there just is not a crystallisation of the unfairness. Now, I have handed up what I think was the court book from the court below which has that letter.

GUMMOW J: Whereabouts in the judgment is the relevant letter referred to?

MR LLOYD: In paragraph 59 on page 64 of the application book.

CALLINAN J: The last line, is it not, second-last line? It begins about the fourth line.

MR LLOYD: I assume that the letter is the letter of 25 February at the beginning of the paragraph and then it - - -

GUMMOW J: Where is the invitation to put any more information, if he wished, to the Tribunal? That is what I am trying to find. It is referred to in paragraph 60.

MR LLOYD: That is referrable to what the Tribunal said - - -

CALLINAN J: That is at page 61, paragraph 49, is it not?

MR LLOYD: That is so.

GUMMOW J: Well, they never wrote to him.

MR LLOYD: In the second paragraph it says, “and to put any more information that you wish”.

CALLINAN J: Yes. The only letter that he received was a letter telling him that the decision was going to be given. Is that not right?

GUMMOW J: The only letter he receives is the one you have handed up.

MR LLOYD: Yes. The paragraph 60 is referring to what the Tribunal said at the hearing and, as I understand it, Justice Downes is responding there to what is said in the majority at paragraph 29. In essence, the majority in the court below say those comments should not have been seen or understood as a general invitation to put any additional information, but it was in the context of information relating to those consistencies. That is what their Honours say at paragraph 29.

What his Honour Justice Downes is saying is he does not have to come to a view on the construction of the Tribunal’s invitation at the hearing, given the view that he has already otherwise taken. However, his Honour obviously thinks that more care should be taken by a Tribunal than the relatively loose language that was used. While that may be a fair observation, again, in the absence of evidence from the applicant that he did or did not do anything as a consequence of the observation - - -

GUMMOW J: Yes, that is what worries me at the special leave level. Instead, was there any evidence of what would or would not have been done? It may be as an absolute proposition you do not have to have that, but if you are going to get special leave maybe you do.

MR LLOYD: I am afraid I cannot recall the facts from - - -

GUMMOW J: And Lam?

MR LLOYD: In Lam it was a very unusual situation. In Lam the proposition was that a third person would be invited to give information. That invitation was never given. However, the third person had, in fact, already given the information which would be sought, but there was no evidence that there was any sort of reliance aspect, if I put it in that sense. Certainly, the majority deal with that at page 57 in discussing Lam. They cite an extract from his Honour Chief Justice Gleeson’s judgment, which is quoted in paragraph 36 on page 57. An emphasis of that is also noted in paragraph 37, at the very bottom of the page:

Consistently with those passages, in the present case it does not, without more, entitle the appellant to relief that he reasonably believed, as no doubt he did, that the Member would follow the course she foreshadowed –

Now, the emphasis there is “without more”. The “more” is some aspect of reliance. Then their Honours go on to refer to the judgments of Justice Hayne and your Honour Justice Callinan.

CALLINAN J: This is different, for the reason Justice Downes says, that having been informed that he was going to get a decision, he might well have inferred that the decision was going to be favourable. I just do not know whether in those circumstances he is necessarily obliged to put on the evidence as to his state of mind, either when he was not sent the first letter, or was not sent a letter, seeking information and then later when he was sent a letter saying that the decision would be given. The circumstances may be different. It may not make a difference in the long run, but it looks a somewhat different case, Mr Lloyd.

MR LLOYD: Well, I would certainly accept that there are some points of distinction. In Lam it was, I think, clearly accepted that Mr Lam would not have done anything.

CALLINAN J: We were talking about the doctrine of legitimate expectations there too. The emphasis really was upon the application of Teoh to - - -

MR LLOYD: Indeed. In Aala, which is another one of these misleading cases, there was evidence that Mr Aala would have done something.

CALLINAN J: Yes, that was a clear case - - -

MR LLOYD: So where there is evidence that the person clearly would have done something, that would establish unfairness. Where there is evidence – or the position is that the person would not do something, then, in my submission, Lam says that does not establish unfairness. The onus, of course, is on the applicant to make out his case. Although it is somewhat unsavoury, in my submission, he has not made out the onus. If it please the Court.

GUMMOW J: We will take a short adjournment.

AT 12.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.48 PM:

GUMMOW J: We do not need to hear from your client, Mr Interpreter.

Having looked at the written materials and heard what has been said by counsel for the Minister, there will be a grant of special leave limited in nature. The grant will be limited to grounds set out in paragraphs d), e) and f) of ground 2, appearing at page 69 of the application book. The matter will be listed as a half day appeal. Efforts should be made to obtain counsel to appear for the appellant on the hearing of the appeal. A copy of the transcript of our remarks today will be made available to the applicant, who should then approach the New South Wales Bar Association to see what can be done.

Is that understood?

APPLICANT NAFF OF 2002 (through interpreter): Yes.

GUMMOW J: We will take a short adjournment to reconstitute.

AT 12.51 PM THE MATTER WAS CONCLUDED