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WAAF v MIMIA [2005] HCATrans 12 (4 February 2005)

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WAAF v MIMIA [2005] HCATrans 12 (4 February 2005)

Last Updated: 21 February 2005

[2005] HCATrans 012


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Perth No P6 of 2004

B e t w e e n -

WAAF

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent


Application for special leave to appeal


GLEESON CJ
HAYNE J


TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 12.47 PM


Copyright in the High Court of Australia


MS L.B. PRICE: If it please the Court, I appear for the applicant. (instructed by the applicant)

MR P.R. MACLIVER: If the Court pleases, I appear for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: We have received a communication, Ms Price, that seems to indicate that because of the current state of dealings between your client’s representatives and the respondent, you were proposing that we should adjourn this matter. What is the respondent’s attitude to that?

MS PRICE: As I understand from an email I received yesterday, your Honour, that the respondent’s attitude is not to agree to the adjournment on the basis that the Minister’s policy is not to consider intervening in a matter while there is litigation on foot, and to allow this litigation to be adjourned, I would simply delay the reconsideration of the applicant’s case.

GLEESON CJ: It sounds as though we had better go on with the matter, does it not?

MS PRICE: Your Honour, since I sent that letter to the Court, it has come to my notice last evening that there is another ground of argument for the applicant that in my view is quite a substantial ground and, in my submission, it is a matter that also warrants adjournment of the application.

GLEESON CJ: There is no reason why we should not take at face value the communication that has been received from the Minister, and on that basis we are not doing your client any great favours, are we, by adjourning the matter?

MS PRICE: I appreciate that, your Honour, but if I can just - - -

GLEESON CJ: If it is a question of – you are seized of the new point you want to raise, I presume?

MS PRICE: Yes.

GLEESON CJ: Subject to any protest that might come from your opponent about any matter of surprise, we are capable of understanding and dealing with the point, I hope.

MS PRICE: I am sure you are, your Honour, yes.

GLEESON CJ: Why would you not just put it?

MS PRICE: I am happy to put it. I was only aware of the fact that the papers that have been filed do not deal with this point and my learned friend has only been aware of it since 8 o’clock this morning.

GLEESON CJ: Can we just have a word with him?

MS PRICE: Yes, your Honour.

GLEESON CJ: Mr Macliver, Ms Price wants to raise a new point - I do not have the faintest idea what it is - but are you at any disadvantage in dealing with that point now?

MR MACLIVER: No, your Honour, I think I can deal with the point and certainly my client’s instructions are not to agree to an adjournment as a result of this new point, and I am happy to deal with it.

GLEESON CJ: All right. Ms Price, I take it that you are in a position to put the new point that you want to put and argue it fully today?

MS PRICE: Yes, I can, your Honour, yes.

GLEESON CJ: All right. Let us go ahead.

MS PRICE: The first point, and what I now consider to be the most important point, if I could take your Honours to page 36 of the application book. It concerns lack of compliance by the Tribunal with sections 424A and 424B of the Migration Act. You will see on page 36 of the application book, your Honours, at line 15 that the Full Federal Court says:

The matter was listed for hearing on 29 August 2001. On 27 August 2001, a notice under s424A of the Migration Act was issued to the appellant.

It then sets out the relevant terms of the 424A notice, and if your Honours turn over to page 37 at about point 10 of the page, the notice says:


This information is relevant because it affects the credibility of your later claim to be an Iraqi national.

. . . Your comments are to be given at an interview between you and the Tribunal Member reviewing your case.

The interview will be held in conjunction with the hearing of your case.

As advised in the Tribunal’s letter . . . the hearing of your case will be on Wednesday, 29 August 2001.

So, essentially, your Honours, there were two days notice given to the applicant of when he was required to provide comment on this adverse material. I did ask for the Registrar to provide your Honours with copies of sections 424A, 424B and the relevant regulation 4.35A.

GLEESON CJ: Thank you.

MS PRICE: It is probably fastest, your Honours, to go straight to 424B which says that:

(1) If a person is:
. . .
(b) invited under section 424A to comment on information;
the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

Then section 424B(3) says:

If the invitation is to give information or comments at an interview, the interview is to take place:
(a) at the place specified in the invitation –

and importantly, your Honours –

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.


For the purposes of the prescribed period, your Honour, that occurs in regulation 4.35A which states that:

(1) This regulation applies, for paragraph 424B(3)(b) of the Act, if a person is invited to give additional information, or to comment on information, at an interview.


And importantly, subsection (2) of the regulation says:

If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received.

Your Honours, there is no doubt that the applicant is a detainee and fits within the definition in section 5 of the Migration Act. So my point is if one returns to page 37 of the application book, you will see at about line 25 that the Full Federal Court observes that:

The RRT member indicated that a decision would be made within a few days, or at most a couple of weeks, after receiving further written submissions from the appellant.

Your Honours, if I could then ask you to turn over to page 39 of the application book at about line 25 of the page, the Federal Court acknowledges that:

Subsequent evidence provided to the Magistrates Court indicates that the –

translated letter was received by the applicant on 25 September 2001, but appeared to have been sent from Iraq to Australia on 21 September 2001. Just for ease of looking at the chronology of this, your Honours, if you could please turn to page 56 of the application book, and it is my submission that on the chronology the failure of the Tribunal to comply with the 14 days notice provision was severely prejudicial to the applicant, that if the 14 days notice requirement in the regulations had been complied with - - -

GLEESON CJ: Just let us come back to - the 14 days notice requirement is where?

MS PRICE: That is in regulation 4.35A, your Honour, which is - - -

GLEESON CJ: The prescribed period for giving the information starts when the invitation is received and ends 14 days after?

MS PRICE: Yes.

GLEESON CJ: It is really section 424B(2), is it not?

MS PRICE: No, with respect, your Honour, it is subsection (3) that the - - -

GLEESON CJ: Because it is to be given at an interview, and that says when the interview is to take place. The interview is to take place at a time specified in the invitation being a time within a prescribed period, that is, a time within 14 days.

MS PRICE: Yes, your Honour.

GLEESON CJ: There is a difference, is not there, between saying, “You must provide this information within 14 days”, which is subsection (2), and saying, “You must provide this information at an interview and the interview can take place at any time within 14 days”? Have I misunderstood something there?

MS PRICE: With respect, your Honour, I think you may have. My understanding is that 424B(3) is a provision where an:

invitation is to give information or comments at an interview –

and that is what the 424A notice did, required that - - -

GLEESON CJ: It tells you when the interview is to take place, right?

MS PRICE: Yes, your Honour, yes, I accept that.

GLEESON CJ: At a specified time within 14 days. It does not say the interview has to take place after 14 days. Correct me if I am wrong, but could you not say, “You are invited to give information at an interview and the interview will take place tomorrow”?

MS PRICE: I would suggest, your Honour, that that is entirely inconsistent with the regulation which invites the comment to be given at an interview 14 days after the invitation is received, which is what regulation 4.35A(2) provides.

GLEESON CJ: So you say notwithstanding what 424B(3)(b) might mean on its face if it stood alone, when you read it together with regulation 4.35A, and in particular paragraph (2) of that, it produces the consequence that the interview does not take place within a prescribed period; it takes place at the end of a prescribed period?

MS PRICE: Yes. It is my submission that the person asked to comment on adverse information has 14 days to essentially prepare what they wish to comment.

HAYNE J: I may well be misremembering because we have had occasion to look at 424A and 424B before, but my memory – it may well be mistaken – is that these amendments came in where the second reading speech was speaking of the need to ensure that the process of review was not protracted, and setting outer limits to the time within which steps are to be taken rather than setting time limits for the giving of notice and permitting consideration of material would be consistent with 424B(3)(b) being given the meaning which its words seem to bear, namely, “You will do it at the time specified in the invitation. The time must be not longer than - that is to say within - 14 days”.

MS PRICE: Yes, your Honour. I am afraid given the short time I have had to deal with this I have not explored through all the legislative changes, but I understand that this provision or regulation has been in the statute from at least 1999.

HAYNE J: It went in by Act 113 of 1998.

MS PRICE: Yes, your Honour. Notwithstanding all of that, my submission is that in this case clearly the legislation requires 14 days to comment. This applicant was given two days. The impact on him is significant in that if he had been allowed that 14-day period the information he obtained from Iran and Iraq as to his nationality would have been before the Tribunal and he would not have had his claims assessed on the basis of being an Iranian when he is in fact an Iraqi, a matter which is obviously of considerable prejudice to him, to the point where, as your Honours would be aware from the papers, that all judicial officers who have looked at this matter so far have commented that it appears that the process has miscarried and have encouraged the Minister to intervene in the case.

GLEESON CJ: So that is your new point?

MS PRICE: That is the new point, your Honour. It raises, in our submission, a matter that is in the interests of the proper administration of justice. It is also is in the general public interest of upholding the laws that give effect to Australia’s international obligations. It leads to a consideration of whether the failure to comply with this regulation invalidates the section 424A notice or has generally led to a denial of procedural fairness and a proper and adequate opportunity to answer adverse material, and that those are matters which properly should have been considered below. I have to accept some responsibility that this point was not raised and did not come to my attention until last night.

GLEESON CJ: Is there anything you want to say in support of the other argument or arguments further to what you have put in your written submissions?

MS PRICE: The other arguments, your Honour, there are a few points I would like to make in respect of those, that the Full Federal Court has erred, in our submission, in that in the circumstance it is clear that procedural fairness was denied. The applicant did seek an extension of time to provide the proof of his nationality and that request was never dealt with in the sense of a decision to either refuse further time or to allow further time. I certainly acknowledge there was a letter that went to the applicant’s solicitors asking what the information was. I probably do not need to labour that one, your Honours.

There are another couple of points that arise. The Full Federal Court, in our submission, should have also determined that the Tribunal had relied on irrelevant material in deciding nationality. The Tribunal rejected the evidence that the applicant did produce at the time of hearing. That was his brother’s Iranian green card, and the evidence of a witness who gave oral evidence that he had seen the applicant’s green card. Having rejected that evidence of the applicant, the Tribunal then decided nationality on the basis of the experience that the witness had on his arrival in Australia in that he had disclosed to the interviewing officers that he was an Iraqi fleeing Iran, whereas, as your Honours would be aware, the applicant here had told a story on his arrival that he was an Iranian, and it was that story he told on arrival that assumed some significance to the Tribunal in determining his nationality.

It is our submission, your Honour, that the matters upon which the Tribunal determined nationality are matters that go to credibility and not logically probative of nationality. The proper basis on which to draw an inference as to nationality is on some documentation of the relevant governments concerned as to what is the nationality of the applicant, and it is our submission that there was jurisdictional error in the Tribunal’s reliance on this material in determining the applicant’s nationality.

Your Honours, the final point upon which we say that the Full Federal Court fell into error draws upon the meaning of “jurisdictional error” set out in Craig v South Australia which the Court repeated and endorsed in the Yusuf Case. It is our submission that here a question arises of whether there has been a mistaken conclusion or erroneous finding of the kind referred to in Craig as leading to jurisdictional error.

In our submission, a finding of nationality is so fundamental in assessing national protection and refugee status for the purposes of section 36 and section 65 of the Migration Act that an error on nationality, whether it was open to the RRT on the evidence before it or not, undermines the exercise of its power. So, your Honours, it is our submission that there is a question there of the interpretation and meaning of “jurisdictional error” in the words “erroneous finding and mistaken conclusion” that arise for consideration in the circumstances of this case. Your Honours, there is nothing much more I can say on those points.

I do wish to make submissions that there should be no order as to costs in this case, whatever your Honours’ decision is. Do you wish me to make those submissions now?

GLEESON CJ: Yes, go ahead and say whatever you want to say now.

MS PRICE: On the question of costs, if your Honours refuse the applicant’s application for special leave, it is our submission there should be no order for costs. There was no order for costs below. Neither the Federal Magistrate nor the Full Federal Court considered this an appropriate case in which to order costs against the applicant.

The discretionary matters upon which we say you should consider this is that the applicant has not been at fault in this process. He obtained the information to prove his nationality. It arrived with him and in Australia on or shortly after the Refugee Review Tribunal decision, and he had sought an extension of time to provide this information. The documentation has been available to the respondent since the Federal Magistrates Court’s process, and the Federal Magistrate was of the view that the Minister should intervene, and not only the Federal Magistrate but the Full Federal Court, and both in April and December 2003 respectively the courts encouraged the Minister to intervene and correct the miscarriage of the Tribunal process in this case.

The applicant also formally requested the respondent’s intervention in May 2004 and, in our submission, the applicant is entitled to have his status determined on the basis of his true nationality, and that is Australia’s international obligation and he is only here today because he is attempting to get his status reviewed on a proper basis, and it is, in our submission, an appropriate case for no order as to costs. Those are my submissions, thank you, your Honours.

GLEESON CJ: Thank you, Ms Price. Yes, Mr Macliver.

MR MACLIVER: Your Honours, dealing firstly with the new point raised by my learned friend, that is, the effect of section 424B(3) and regulation 4.35A(2), we would adopt your Honour’s view that the requirement in 424B simply sets out a period within which any interview to provide further comment must take place. We say that that is supported by the terms of section 424B(5) which is in the following terms:

If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period -

So, your Honours, we would submit that when one looks at subsection (5) in conjunction with subsection (3), it is clear that what is provided for is a period within which an interview may take place.

GLEESON CJ: It is not entirely easy to relate the language of regulation 4.35A to section 424B(3). I mean, looking at 424B(3) alone, my personal reaction is that what you say is entirely correct, that it is talking about a time within which an interview was to take place or, to put it in another way, is there to ensure that there is not a delay beyond the prescribed period in holding the interview.

If you looked at 4.35A(2) on its own and not with reference to section 424B, you could be forgiven for thinking that that prescribes a minimum time for allowing the provision of information so that people would have not less than a certain time, 14 days, to provide information. But, as is evident from regulation 4.35A(1), this is exegetical of section 424B(3)(b) and it has to be understood in that light.

MR MACLIVER: That is right, your Honour, and getting back to that subsection, it is in terms of:

If the invitation is to give information or comments at an interview, the interview is to take place:
. . .
(b) at a time specified in the invitation, being a time within a prescribed period - - -

GLEESON CJ: Yes, the purpose of prescribing the period is to set the outer limits of the period within which the interview must take place.

MR MACLIVER: And the information or comments given at that interview.

GLEESON CJ: That is the second step in the process of reasoning, but the first step in the process of reasoning is that what 424B(3) is about is defining the time within which the interview must occur. Now, by hypothesis, the information is to be given at the interview, not after the interview.

MR MACLIVER: That is right, your Honour, yes.

GLEESON CJ: So by defining the time within which the interview must take place in connection with a requirement to provide information at an interview, you are defining the time within which the information must be given.

MR MACLIVER: Yes, logically, that must be the case, your Honour. We would submit that really, all that section 4.35A(2) does is to prescribe that particular period, that is, within 14 days after the invitation is given to the particular detainee, and should not be read in any wider sense, as my learned friend has urged the Court to do. We say it is even clearer when one has regard to the provisions of section 424B(5) which again talks about:

a person is to respond to an invitation at an interview at a time within a prescribed period –

and we would stress the “within a prescribed period”. Your Honours, of course, this was not a matter that was taken up in the court below or before the Federal Magistrate but in any event we submit that the meaning of the provision is clear and is not properly the subject of a grant of special leave. If I could just briefly then turn to the existing grounds for the special leave application - - -

GLEESON CJ: We do not need to hear you on those grounds, Mr Macliver. What did you want to say about costs?

MR MACLIVER: In relation to costs, your Honour, while it is the case that costs were not ordered below, that, in my respectful submission, should not affect the position of costs in this Court. The applicant has chosen to take the additional step of bringing this application and coming before this Court, and in those circumstances we submit that the usual order as to costs should apply. If it please your Honours.

GLEESON CJ: Yes, Ms Price.

MS PRICE: Your Honours, there is little I can add to the argument on the matter. We take a view on the interpretation of the regulation. Either your Honours are with us or you are not. Unfortunately, given the short timeframe, I similarly have not been able to research the extrinsic material as to what the Parliament intended was the purpose of this regulation and the provisions when they were enacted.

GLEESON CJ: The problem you seem to have, Ms Price, is that regulation 4.35A only exists for the purposes of section 424B(3), and 424B(3) fairly plainly talks about the interview at which the information is to be given taking place within a prescribed period, that is, not later than a certain time.

MS PRICE: Yes, I appreciate that - - -

GLEESON CJ: You can understand the purpose of that. These are people whose liberty may be at stake, and it is to ensure that they are dealt with promptly.

MS PRICE: Yes, I certainly appreciate that, your Honour, but I also have some concern that no reasonable time is given to an applicant to deal with adverse information when two days is given, first to receive the notice from the Tribunal, and then to obtain what information you need or assistance you need to comment at a hearing in two days’ time.

GLEESON CJ: There would be certain kinds of information for which 14 days might be an unreasonably short time.

MS PRICE: I accept that, your Honour, yes.

GLEESON CJ: There might be information which, particularly from the point of view of a person in detention, might take weeks or even months to get.

MS PRICE: Yes, and that is certainly what we say the applicant should have been allowed here.

GLEESON CJ: Yes, but we can only apply the language of the statute.

MS PRICE: Yes, I appreciate that, your Honour.

GLEESON CJ: Thank you.

MS PRICE: Thank you.

GLEESON CJ: The applicant seeks to raise a new point that was not agitated before the Federal Magistrate or in the Federal Court.

In the circumstances of the case we have thought it appropriate to hear full argument from the applicant and the respondent on the merits of that new point. However, we have come to the conclusion that even if we were to permit that point to become a ground of appeal, there would be insufficient prospects of success of that ground to warrant a grant of special leave.

In relation to the other points relied upon by the applicant we consider that they do not enjoy any prospects of success, although we would, for our part, endorse what was said by the Federal Court in paragraph 35 of the reasons for judgment of Justices Tamberlin, R.D. Nicholson and Emmett. The application for special leave to appeal is dismissed with costs.

Just before you go, Ms Price, is it 20 past 10 in Perth?

MS PRICE: Yes, it is, your Honour.

GLEESON CJ: Well, then, it is 20 past 1 in Canberra. We will adjourn for 15 minutes for lunch and we will resume at 25 to 11 Perth time to deal with Mr McCusker’s case.

AT 1.22 PM THE MATTER WAS CONCLUDED


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