Applicant VCAT of 2002 & Ors v MIMIA [2005] HCATrans 970 (18 November 2005)

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Applicant VCAT of 2002 & Ors v MIMIA [2005] HCATrans 970 (18 November 2005)

Last Updated: 24 November 2005

[2005] HCATrans 970

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M224 of 2003

B e t w e e n -

APPLICANT VCAT OF 2002, APPLICANT VCAU OF 2002, APPLICANT VCAV OF 2002 AND APPLICANT VCAW OF 2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 10.06 AM

Copyright in the High Court of Australia

MR B.F. KISSANE: If the Court pleases, I appear for the applicants. (instructed by Clothier Anderson & Associates)

MR S.P. DONAGHUE: If the Court pleases, I appear for the respondent. (instructed by Clayton Utz)

GUMMOW J: Now, we have looked at the useful revised supplementary arguments. At present there does seem to us much to be said for the position that we should deal with the matter now and produce a result that it goes back to the Full Court of the Federal Court for consideration by that court of the points previously not considered because of the view they took as to the state of authority that then obtained in advance of our decision.

The problem with that course at the moment, Mr Donaghue, and we have you in our mind, is that there needs to be an adequate notice of appeal on which you could properly proceed to not dissent from the course we proposed. So we would have to allow the appeal today on a redefined ground and a revised notice of appeal which the two of you would have to prepare some time in the course of the day.

MR DONAGHUE: But the difficulty we apprehend with that course, your Honour, is that your Honours would be allowing the appeal in circumstances where my instructions are that were leave to be granted we would file a notice of contention. That would then raise issues that would stand in the way of the Court allowing the appeal, absent the determination of those questions.

GUMMOW J: Well, we will just proceed. You and those behind you had better think about what we have just been saying, Mr Donaghue. Yes, Mr Kissane.

MR KISSANE: There are two issues, your Honour, that I seek to address in this matter. Those two issues are the issue of section 424A of the Migration Act and, secondly, in the supplementary contentions there is reference to breach of procedural fairness. In relation to the section 424A issue, the Full Court resolved this issue, as your Honours would be aware, on the assumption without deciding that the Refugee Review Tribunal had failed - - -

GUMMOW J: How does all this fit in the document which appears at page 73, which is the draft notice of appeal? “The decision of the Tribunal was affected by bias”. At the moment there does not seem much in that.

MR KISSANE: There was an amended draft notice, your Honour, that was filed - - -

GUMMOW J: Where do we see that?

MR KISSANE: It was filed, I think, after the application book was prepared. It was filed on 13 October of this year and there were supplementary contentions or summary of argument provided by - - -

GUMMOW J: We have the summary of argument. None of us seem to have a revised notice of appeal.

KIRBY J: Do you say that that was filed by your solicitors?

MR KISSANE: Yes, I do, your Honour.

GUMMOW J: We have a document headed “APPLICANTS’ SUPPLEMENTARY SUMMARY OF ARGUMENT” filed on 13 October.

MR KISSANE: Yes, your Honours, and on the same day and maybe attached to it there was a draft notice - - -

GUMMOW J: It is not attached to it. Do you have copies there?

MR KISSANE: I have a copy that I can hand up. We can provide another copy if that would assist.

GUMMOW J: Yes, it would. Yes, that seems adequate.

MR KISSANE: Yes, thank you, your Honour. So the two issues are section 424A and breach of natural justice. In relation to section 424A, it is the applicants’ submission that there was a - - -

GUMMOW J: We will go back and hear what Mr Donaghue has to say.

MR DONAGHUE: Your Honours, I am stating the obvious perhaps, a necessary precursor of any remittal order from this Court are that two steps - - -

GUMMOW J: At the moment you are opposing a grant of special leave.

MR DONAGHUE: Yes, that is right. That is the first step and the second step would then be the allowing of the appeal. Special leave, in my submission, should not be granted because while there is a conceded error in the basis upon which the Full Federal Court actually disposed of the matter, it disposed of the matter on the assumption that there had been a jurisdictional error by reason of the breach of section 424A. In fact, the Full Court favoured the view that there had been no such breach and it made the assumption just to proceed to what it regarded as a convenient way of disposing of the appeal.

If your Honours were to remit the matter to the Federal Court, in our submission, the very strong likelihood is that their Honours would accept what they described as the strong argument that the document that is said to have given rise to the breach of section 424A fell within an exception to that provision because it had been provided - - -

HAYNE J: Why should not all of these issues be argued out in full in the Full Court of the Federal Court rather than in the 20 minutes provided on a leave application?

MR DONAGHUE: Your Honour, they were. They were argued out in full last time we were before the - - -

GUMMOW J: Yes, through the wrong spectacles.

KIRBY J: And they were dealt with on a hypothesis and not on the actuality of the statement of the law which you accept.

MR DONAGHUE: They were disposed of on that basis ultimately, the discretionary basis, but - - -

KIRBY J: The judicial mind is much better when it is focused on the statement of the law as it is, not just on a hypothesis.

MR DONAGHUE: But, your Honour, the Full Court on remittal would not need to address itself to the principles discussed by this Court in SAAP because the argument would be focusing on a different question, that is the meaning of the exception that the information was provided by the applicant.

KIRBY J: If we were against you on that argument and thought it unfair and undesirable that the matter should be dealt with in the 20 minutes of a special leave hearing rather than on the correct principle of law, would you oppose the Court here and now dealing with the matter and sending it back to the Federal Court?

MR DONAGHUE: If your Honours are against me - - -

GUMMOW J: Before you rush to concede that, the order we perhaps have in mind is, if you go to paragraph 3 of the draft notice of appeal, the supplementary notice of appeal, paragraph (c), it would be:

an order that the orders made in proceeding V 894 of 2002 in the Federal Court by the Full Court on 27 June 2003 be set aside and the matter be remitted to the Full Court of the Federal Court for redetermination.

MR DONAGHUE: For redetermination.

KIRBY J: That is all I had in mind.

GUMMOW J: Yes.

MR DONAGHUE: Yes. Your Honours, all I can say in opposition to that is that on the basis of a fairly short argument, in my submission your Honours could be satisfied that very little purpose would be served in doing that. This application has already been on foot challenging a decision of the Tribunal since early in 2002.

GUMMOW J: Exactly, and if we grant special leave today it will go into our list for next year.

MR DONAGHUE: Yes.

GUMMOW J: The Full Court of the Federal Court has rather greater facilities than we do for carrying the heavy appellate load.

MR DONAGHUE: There is perhaps one other issue I should raise, your Honours, which is this. One of the matters that will be debated on remittal, or if the matter stays in this Court, is whether or not an earlier decision of the Full Federal Court in Minister of Immigration v Al Shamry is correct.

GUMMOW J: Yes, that is right.

MR DONAGHUE: If we go back to the Full Federal Court, the Minister will be in a position where it is necessary to persuade that court that that decision is plainly wrong and there is a very real prospect, either in this case or in some other case, that that matter, that question of law is on its way, will return to this Court. This matter is a convenient vehicle for the disposition of that - - -

KIRBY J: Well, let it be. So what?

MR DONAGHUE: So, your Honour, if it goes back to the Full Federal Court and the matter is determined there, we may find ourselves back here yet again on a leave application on the Al Shamry point.

KIRBY J: It would be a great pleasure to see you again, but at least then the matter would have been dealt with by the Federal Court on the correct footing.

MR DONAGHUE: Your Honour, can I take you to just one passage in the application book at page 66. This is the joint judgment of the Court. There the Full Court, having noted in the previous paragraph that there was a debate about Al Shamry, say at the top of the page in paragraph 43:

It is not necessary for us to consider the question raised in Al Shamry. There is a strong argument in this case that the police report was produced for the purposes of the application before the Tribunal by the reference to it in the submissions dated 4 March 2000 by the solicitor for the appellant.

Their Honours, having expressed that view, moved on and that discussion that follows is the discussion that is infected by the error. There is nothing in SAAP that casts any doubt upon the provisional conclusion, the conclusion that it seems the Full Court would have made if they had not regarded the discretionary basis for refusal as an alternative.

If your Honours send the matter back, the applicants will again be in a position where they are seeking leave from the Full Federal Court to raise arguments not raised at first instance. They need to obtain that leave by demonstrating that they have reasonable prospects of success. That is the procedural position they will be in, in our submission, and they cannot jump that hurdle. If that is right, then leave should be refused today. But if your Honours are against me on that point, we accept that an order in the form that your Honours proposed, rather than leaving the matter in this Court, would be an appropriate disposition. We do not therefore oppose your Honours allowing the appeal today if your Honours reject the submissions just advanced.

GUMMOW J: Thank you. Anything in response, Mr Kissane?

MR KISSANE: No, your Honours.

GUMMOW J: We will take a short adjournment.

AT 10.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.24 AM:

GUMMOW J: Having regard to the basis upon which the Full Court of the Federal Court determined the appeal in this matter and to the subsequent decision of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, we are of the view that the appeal to the Full Court should be redetermined by it. Accordingly, we make the following orders:

1. Special leave is granted and the appeal is treated as heard instanter;

2. The orders made in proceeding V894 of 2002 in the Federal Court by the Full Court on 27 June 2003 are set aside and the matter is remitted to the Full Court of the Federal Court for redetermination.

3. The respondent in this Court will pay the costs of the special leave application and any additional costs of the appeal itself.

AT 10.26 AM THE MATTER WAS CONCLUDED