SZAYW v MIMIA [2006] HCATrans 46 (10 February 2006)

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SZAYW v MIMIA [2006] HCATrans 46 (10 February 2006)

Last Updated: 14 February 2006

[2006] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S423 of 2005

B e t w e e n -

SZAYW

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2006, AT 12.14 PM

Copyright in the High Court of Australia

MR I.E. DAVIDSON: May it please the Court, I appear with my learned friend, MS E. ITO, for the applicant. (instructed by Michael Jones)

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR M.A. WIGNEY for the respondent. (instructed by Clayton Utz)

GLEESON CJ: Yes, Mr Davidson.

MR DAVIDSON: Your Honours, I will seek first to deal with the section 429 Migration Act issue before coming to the SAAP point that was only raised yesterday in the note that the Minister has also responded to. Dealing with section 429 of the Migration Act, the key issue concerning this section is helpfully identified at the beginning of the dissent of her Honour Justice Kiefel at page 151 of the application book in paragraphs 23 and 24 where her Honour notes that:

At issue was a joint hearing of the cases of four applicants for protection visas in the background of s 429 of the Migration Act - - -

KIRBY J: Let me get the facts clear. Your client I think joined in an application to the Tribunal, did it not, that the cases be heard by the same member?

MR DAVIDSON: That the cases be heard by the same member, that is correct, your Honour.

KIRBY J: But did it go beyond that? Did your client ask that they be all heard together or was that just how it was run on the day?

MR DAVIDSON: More than that, your Honour. On the day, if your Honour goes to page 2 of the application book at about line 5, what the Tribunal member told the four applicants was:

I will talk to all of you first about how the Tribunal decides on refugee cases, I will explain the convention to all of you, and then I will talk to all of you individually.

There is another reference to that on page 5, line 15 of the application book. She said that the four of them were going to be heard individually.

KIRBY J: It was the Tribunal member who decided the way in which the matter would proceed and it did then proceed.

MR DAVIDSON: That is correct, your Honour. Indeed, it took three hours, the hearing or the interview with the first applicant, and that was just the first applicant and not with the three applicants, including my client, present. Then after three hours the Tribunal member changed her mind and decided to hear all three of them, then to deal with three of them together and, in my submission, that has caused a range of problems. There were three Arabic-speaking with one interpreter speaking at the same time. That occurred for about two hours and then the first applicant was brought back into the melee, so that there were four together for the remaining part of the hearing.

KIRBY J: Where do we find that change of pace? Is that recorded in the transcript?

MR DAVIDSON: Yes, your Honour, it is recorded.

KIRBY J: Was your client asked to consent to the procedure or was it just the way the Tribunal member did it?

MR DAVIDSON: In my submission, your Honour, it is the way the Tribunal member decided. The Federal Magistrate in his reasons suggests that it might have been because of the time pressures. Indeed, I think that is quoted by Justice Moore actually.

KIRBY J: It does not really matter. If your construction of the Act is correct, the Act says “must” and it just has to be done separately and in private of other strangers to the particular application.

MR DAVIDSON: Yes. Your Honour, if our construction is correct, that is right and it would not even matter if we had really asked to do it, but I think it is an important part of the factual position here that the only request was that the matters be heard together and also that the other three applicants be witnesses. That was also part of the request but there was no request that all four be heard together. Indeed, the Tribunal originally was not going to do that.

GLEESON CJ: What should actually have happened according to your argument in relation to dealing with the four applications? How should the procedure have been conducted?

MR DAVIDSON: Your Honour, at the very least – there are lots of interesting questions about the construction of section 429 but - - -

GLEESON CJ: There is an interesting question about what you envisage actually going on. That is what I would like to understand.

MR DAVIDSON: At the very least, your Honour, each of the applicants in terms of giving their evidence and in terms of being questioned by the Tribunal, that should have occurred without the presence of the other three applicants.

GLEESON CJ: They had a common representative?

MR DAVIDSON: That is correct, your Honour, a migration - - -

GLEESON CJ: Let us call them A, B, C and D. So the representative would be there at all times presumably.

MR DAVIDSON: Yes.

GLEESON CJ: Then A would give evidence and go out, is that right?

MR DAVIDSON: That is correct, yes.

GLEESON CJ: So A was not entitled to hear B’s evidence or C’s or D’s and B was not entitled to hear A or C or D, and so on?

MR DAVIDSON: As I think your Honour the Chief Justice has pointed out in the SAAP Case, the hearing under section 425 has considerable differences to the average court hearing.

GLEESON CJ: I understand that. I just want to get clear in my mind what you say should have gone on, should have actually happened.

MR DAVIDSON: What should not have happened, your Honour, is the four applicants together being asked - - -

GLEESON CJ: I am not asking what should not have happened. I know what happened and what you say should not have happened. What do you say should have happened?

MR DAVIDSON: Your Honour, the applicants should have been – each of them should have been not in the presence of the other three when giving their evidence and when being questioned.

GLEESON CJ: So A was not entitled to hear B being questioned?

MR DAVIDSON: A will ultimately be entitled to be aware of any inconsistencies arising from what B has said, given section 424A, but A is not entitled to be physically present when B is being questioned, that is correct.

GLEESON CJ: You may be entirely right. I just want to know what is going to happen in practice so that people would not laugh at us if we said that your argument was correct. A would give evidence and then go out of the room while B gave evidence?

MR DAVIDSON: Yes.

GLEESON CJ: What is the procedure by which A is going to be made aware of any problems for A’s case arising out of B’s evidence?

MR DAVIDSON: Your Honour, there are a number of ways that could occur, given the very large discretions that the Tribunal has, although the effect of the SAAP Case of course is that there will need to be something in writing pointing out any matters there that might be adverse, but that would not limit the ways in which A could be informed of difficulties. Here we have four people. Essentially the four applications cannot, in my submission, be truncated into the one application, so that there would have to be four occasions where people were interviewed in private. How that was dealt with thereafter would be a matter for the Tribunal’s judgment, given its obligations of procedural fairness.

Taking an example that I think Justice Kiefel might have mentioned of a planeload of these people coming in together and all having joint applications, you just could not have them all in a stadium together being questioned; it would have to be done separately. If that increased the amount of time required for an individual so that, say, each of them had two or three hours in private, then that would be a necessary consequence.

KIRBY J: I think Justice Kiefel did acknowledge that there might occasionally be a case where the mischief that she was concerned about would not arise as within immediate family members. She did not resolve it but she took the view that in those cases it might be permissible to have the family member present, but where there is a stranger in the sense of somebody who on her interpretation would cause a peril of embarrassment, difficulty in material getting back to the home country and so on, that required separate hearings.

MR DAVIDSON: Yes. Indeed, your Honour, it would be my respectful submission that the applicant here does not have to go as far as the reasoning of Justice Kiefel and the Federal Magistrate. There may be a context where there could be an adequately and sufficiently informed consent to a different arrangement. This would perhaps be a different construction of 429, but even if there were an exception to 429 which would enable in a situation where after having proper notice of the proposal and legal advice a group of applicants gave such an informed consent, there may be an argument that 429 would not require what I have submitted is required.

KIRBY J: We do not have to deal with either Justice Kiefel’s exception or your exception in this case.

MR DAVIDSON: Even in that case, we would submit that we are not caught in that sort of circumstance. There was not that style of consent that might give rise to some of those more difficult questions.

GLEESON CJ: Is the circumstance that they were all represented by the same agent and that the agent raised no objection to this procedure relevant to any question of consent?

MR DAVIDSON: In some circumstances it might be but, your Honour, in the circumstances here of being told what is going to happen after three hours, it would not be. The position of these migration agents – the only authority that I really have in mind, which is not directly relevant to that question, is the comments of Justice Weinberg in Percerep v Minister where there had been failures by a solicitor. At 504 he talked about oversights and issues but that would not cause the refugee to be treated as having waived the position. That does not entirely answer your Honour’s question.

KIRBY J: We have a conflict of interpretations in the Federal Court and in the lower. The question is whether “in private” means just not in the presence of the whole public or whether it means in private of other applicants. Is there anything more to be said than you have said in your written submissions for preferring the second interpretation over the first? The problem is pretty well disclosed to us.

MR DAVIDSON: It is well articulated in the judgments. The only additional comment on that I think, your Honour, would be we would submit that in Selliah v Minister, while it was not precisely on this point - - -

KIRBY J: I do not remember Selliah. What is that about?

MR DAVIDSON: It is both referred to in some of the judgments – but it is hopefully the one case that was sent up to Court yesterday.

KIRBY J: What were the details of it?

MR DAVIDSON: There was a dismissal of an application where there had been what you would call a tandem hearing where, unlike this situation, the two applicants had been questioned separately, so what I have submitted should have occurred had occurred, and that was a significant factor in the dismissal of the applicant’s appeal. The decision in 1999 was an occasion before the current law and breach of jurisdictional facts. Justice Moore I think in paragraph [10] says that the Full Court decision may not really be particularly relevant. There is elucidation by Justice Emmett in paragraphs [36] and [37] on the purposes of the section, where I would respectfully enlist Justice Emmett’s comments as being in support of the approach adopted by Justice Kiefel and by the Federal Magistrate.

KIRBY J: It is not unusual where there are joint claimants in cases, damages cases, for example, to require them to sit outside the court while somebody else gives evidence in case their evidence will be contaminated.

MR DAVIDSON: Yes, that is correct, your Honour, but the position, with respect, is far stronger here because the Act itself has 429 with the words “must be in private” in contrast to the position for many other tribunals in the Act such as the Migration Review Tribunal. The purposes include the importance under the Convention that people are able to tell their story without fear that it will get back to the authorities in the home country.

KIRBY J: Where does that purpose come into the Act, or do you say that is inherent in the statute giving effect to the Convention?

MR DAVIDSON: Yes, and a comparison of the sections and the carefully drawn differences between the sections of the Act that deal with the Migration Review Tribunal and those that deal with the Refugee Review Tribunal – there is discussion of some of that purpose in the judgments but the position of a refugee is in such a special position that the ordinary court position that hearings must be open and in the public is fundamentally changed. There are, in my submission, two reasons for that which are dealt with in the judgments. The first reason is the protection of people who are being persecuted so that they can tell their story and it will not get back to damage them or their families.

KIRBY J: Your client did say that he was worried about being present but I do not know that that was accepted, was it?

MR DAVIDSON: He was disbelieved on that, your Honour, and it is for that reason that we have said if special leave is granted, there will not be a submission that if there is a loss on the statutory points that there is a common law procedural fairness that is sufficient to be jurisdictional error. He was disbelieved but he was disbelieved in the circumstances of what, in our submission, was in breach of the statute of having the people in together and where he asserted that he was reluctant to give additional information in the presence of those other applicants. He was disbelieved on that, so we are not seeking to restore his credit findings but, as the courts have - - -

KIRBY J: You say whether he was believed or not, it must in these circumstances mean effectively this is mandatory in the old terms and if he was disbelieved, there will be others who might be believed and in any case they should not be exposed to this problem.

MR DAVIDSON: And more so. If the statute had been followed, he might well have been believed. As is pointed out in the Aala Case by your Honour the Chief Justice in paragraph 4:

Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.

The transcript here shows people talking over each other. There are 12 pages in the transcript where the paralegal who transcribed it was unable to identify which applicant was giving answers. I say 12 pages in a row – there are more than 12 pages in total. So if the proper procedure had followed, there might well have been a different result. That is what the magistrate said. He said, “I also disbelieve the evidence that’s put on”, but one of the reasons why he gave the relief that he gave was he said, “I or other people might have come to a different view if the proper procedures had been followed”.

KIRBY J: But really if the statutory requirement is what you say it is and if it is obligatory and for the reasons of public policy Justice Kiefel identified, then the disbelief of this applicant is neither here nor there really.

MR DAVIDSON: Yes, that is correct.

KIRBY J: How many cases do you get, can you say, from – I do not remember. Most of our cases seem to be cases of individual applicants. Is it common that you get multiple applicants?

MR DAVIDSON: Your Honour, this is a jurisdiction that is refreshingly new to me and I cannot help you. What I can help you with though - - -

KIRBY J: Mr Williams is an old-timer in this area. He will - - -

MR DAVIDSON: What I can help you with, your Honour, though is that Justices Einfeld and North in the Selliah decision, where the position was not as serious as here – this is in paragraph [6] of their reasons – because it was a tandem hearing without the applicants being forced together. They said that that procedure should stop, and they gave a forceful denunciation of it occurring in 1999. We at least know that those words of advice have not been followed and we at least know that in 1999 that was occurring. But the short answer is I cannot really assist your Honour.

GLEESON CJ: Thank you, Mr Davidson. Yes, Mr Williams.

MR WILLIAMS: Your Honours, if I might say something very briefly in relation to the facts as to the manner in which the form of hearing came about. My friend has taken the Court to the beginning of the transcript showing the Tribunal raising and outlining the procedure that it intended to follow at the outset. That is a procedure whereby each of the four applicants would be heard separately from the other. Somewhere between that announcement and page 5 of the book a change occurred. The evidence does not show how the change came about. The evidence does not show whether the suggestion of three witnesses coming in together was a suggestion of the adviser of one or more of them or - - -

KIRBY J: Sometimes first thoughts are best. Apparently the first thought was that she had to hear them separately and then something happened. Anyway, if the statute requires it, it does not matter much how it happened. It is either right or wrong.

MR WILLIAMS: That is so, but the inference arises at least that the course that was followed was followed with the consent of the advisers of the applicants. At page 5 at about line 40 - - -

KIRBY J: This is the Lebanon, Palestinian and Hezbollah, so we are talking about potentially serious matters, and one would not infer from an absence of anything in the transcript, anything like a waiver if that is possible, because the applicant would not really know what our Act says and what it requires and he is in the hands of the Tribunal which has to conform to the procedure laid down by Parliament.

MR WILLIAMS: But as far as an inference from the material goes, the material goes no further than to show that the applicants came back into the room without demur from the advisers who had been present throughout and that the only complaint raised by the advisers subsequently was that all four had not been heard together, that the first applicant had been disadvantaged - - -

KIRBY J: It is not very satisfactory if six pages cannot really be understood. You cannot see who is speaking and they are speaking over each other and they have translators and - - -

MR WILLIAMS: The transcript admittedly is inadequate but it was put on for the very - - -

GLEESON CJ: What were you going to say earlier?

MR WILLIAMS: The only objection that the advisers raised subsequently to the procedure that was followed was that all four had not given evidence concurrently. Your Honours find that in material which is attached to submissions that we sent up to the Court this morning. It was before the Federal Magistrate and the Full Court but is not in the book. Immediately after the three-page submission that we filed there is a two-page “RESPONSE TO HEARING OFFER” and immediately after that is a facsimile cover sheet of the Refugee Advice and Casework Service. On the page bearing the number 197 at the foot of the right-hand side a submission is put in, a 23-page submission, dealing with matters of inconsistency arising in the hearing. In the second full paragraph your Honours will note a complaint about the style of procedure that was used:

Apart from an obvious intent to cause division between testimony of applicants we were concerned to note that despite evidence put forward that [the first applicant] was receiving counseling . . . the Member proceeded to use that same memory loss to highlight inconsistencies in the evidence. We also noted that the three together were able to consult and agree as to events and dates, something that was not available to [the first-named applicant].

GLEESON CJ: What is the point that you are making about this and how was the point dealt with in the Full Court of the Federal Court?

MR WILLIAMS: The point that we make about this is that the proper inference is that the Tribunal adopted the course of calling three of them together.

GLEESON CJ: That is a proposition of fact. What is the submission of law that you make?

MR WILLIAMS: The submission of law that we make is that if waiver is possible, the proper inference in the present case would be that there has been waiver.

GLEESON CJ: How was that dealt with by the Full Court of the Federal Court?

MR WILLIAMS: The Full Court of the Federal Court did not find it necessary to deal with the question of waiver because they took the view that the prohibition had not been breached.

GLEESON CJ: Where do they refer to waiver?

MR WILLIAMS: I do not believe that they do, your Honour.

GLEESON CJ: Was waiver argued before the Full Court of the Federal Court?

MR WILLIAMS: This point was advanced before the Full Court of the Federal Court.

KIRBY J: Was advanced?

MR WILLIAMS: Was advanced.

KIRBY J: They had the factual material before them?

MR WILLIAMS: Yes.

KIRBY J: The question would be: can you waive something? The statute is addressed to the Tribunal and is expressed in terms of “must”.

MR WILLIAMS: The answer to the question that your Honour has raised may be that for the majority in the Full Federal Court there was no question of waiver because there was no breach, and for Justice Kiefel there could be no question of waiver.

GLEESON CJ: I am surprised that you would have put it only as a question of waiver. It is also, is it not, a question of what is involved in the concept of privacy? Forget about a case like this. Suppose somebody turns up before the Tribunal with the next-door neighbour and says, “This is my great friend. It’s a great comfort to me to have this person with me. The person knows nothing about the facts of the case but I want him or her here to hold my hand. I’ll feel a lot better”. That would not destroy the privacy of the occasion, would it, if on the occasion there is somebody present at the express request of the person whose privacy is being protected?

MR WILLIAMS: In our submission, no, and we did rely on that in the Full Court. Justice Kiefel took a different view. Your Honours will see an example of precisely this occurring at page 2 of the book and page 2 of the transcript at about line 20. A person entered the room soon after the Tribunal member had begun to address the applicants. The Tribunal member asked at about line 20:

And could I now ask who’s come into the room?

Advisor: I’m sorry, this is [the girlfriend of one of them] and this is the other applicant.

Tribunal Member: Ok, fine.

Advisor: She is just here as an observer for moral support.

[MANY PEOPLE TALKING]

Tribunal Member: Ok fine. Well, she can be in the room as [that particular applicant] is being questioned but not when the others are being questioned.

We place reliance on that as showing that the Tribunal member was astute to observe privacy to a proper degree, yet astute also to permit for the purposes of facilitating the review a person to be present to support them.

KIRBY J: It is one thing to have the girlfriend and moral support but it is another thing to have other applicants. I can see Justice Kiefel’s point that that could in particular cases lead to embarrassment or difficulty and contamination and the risk which the Act seems to stand against by the requirement of anonymising names and so on, that word will get back.

MR WILLIAMS: That in the present case could not be a concern because each applicant had asked not only for the same Tribunal member but for each other applicant to be a witness in their case. That necessarily involved that the evidence that each applicant gave would have to be disclosed to each other applicant for procedural fairness to be given. Presence, absence, in writing or oral, it does not matter. Each applicant was going to find each detail.

KIRBY J: To be a witness does not mean you have to be there when the applicant gives evidence. Indeed, there might be good reasons why you should not be.

MR WILLIAMS: When each requested each other applicant as a witness, it presupposed that each would find every detail of the evidence that each gave. Moreover, each would be invited to comment on any inconsistencies that arose. If, following the procedure my friend suggested, they were sent a transcript after individual hearings, each would have to be invited to comment on inconsistencies and then each would have to be invited to comment on the submissions that the other had put as to inconsistencies. Potentially there could then be a third or a fourth round of procedural fairness where each was asked to comment on the other’s comments. Once each requested the other as a witness and a common Tribunal member, this was - - -

KIRBY J: I do not see that it is quite as complicated as that, Mr Williams. You have a tribunal which this Court has said is acting in a sort of inquisitorial manner. It hears the applicant first and hears the witness and then it has to bring to the attention of the applicant any matters that cast doubt on the applicant’s statement and give the applicant an opportunity to respond.

MR WILLIAMS: Yes, which - - -

KIRBY J: I do not see that that is such a complicated matter at all. The Act says “in private”. The question is: what does that mean? Is it just addressed to the general public or is there, as Justice Kiefel suggests there might be, a problem with applicants present together, that that not only contaminates the evidence but runs the risk of material going back to the country of nationality. It is contrary to a number of provisions of the Act.

MR WILLIAMS: Once each requested the other as a witness with a common Tribunal member, each was going to hear about the other’s evidence.

KIRBY J: You have this waiver view but I am not at all sure that that is correct. If the Act says “must be done in private”, then - - -

MR WILLIAMS: I am not putting that aspect as waiver, your Honour. It was implicit. Once each requested the other as a witness and a common Tribunal member, it was implicit that each would find the evidence that had been given.

GLEESON CJ: Was it put to the Federal Court that the concept of privacy is one that involves some flexibility and that something can happen in private which is not necessarily in isolation if you have present somebody you want to be present? I might go to see a solicitor and the solicitor would consult me in private, but if I take a friend along, a person that I want to be present when I am talking to the solicitor, that does not destroy the privacy of the occasion. Was that an argument that was put to the Federal Court?

MR WILLIAMS: It was, your Honour.

GLEESON CJ: Where do we find that being dealt with? I suppose it is an argument you do not need to get to if you take the view that it just means not in the presence of the public, but for my part I would have thought there is an intermediate position in between the view just not members of the public and the sort of idea that it has to be in total isolation. There is a court reporter there, for example, who is there for the purpose of assisting the Tribunal member.

MR WILLIAMS: Yes, or advisers for that matter. The submission that we put to the Federal Court was that the Tribunal could permit a person to be present for the purposes of the Act and specifically for purposes of and in connection with the performance of the Tribunal’s hearing functions.

GLEESON CJ: My question is slightly different. If a person is present at the request of the applicant, then in those circumstances does that mean that the hearing of the applicant is not in private?

MR WILLIAMS: On the applicant’s view and Justice Kiefel’s view, yes. That is not a proposition that we accept. In the submission that we put, a supporter, a friend, an aid worker, a church person supporting claimants, any person of that kind who the applicant requests and the Tribunal accepts could be present without a breach of the privacy provision.

KIRBY J: I am not sure you are being fair to Justice Kiefel. In paragraph 47 she addresses what is of concern to her and it is what is of concern to me:

it seems that s 429 recognises the need for privacy in a hearing to achieve this end and overcome the possible consequences for an applicant if details of their evidence to the Tribunal were published, especially in their homeland.

That is not a risk when you talk of friends and hand-holders, girlfriends and others. That is a risk if you have other people who are making applications.

MR WILLIAMS: My unkindness to Justice Kiefel may come from paragraph 34 on page 154, the centre of the page. I hope I have not misstated her Honour’s view in that respect.

KIRBY J: It may be that there is an inconsistency between paragraph 34 and paragraph 47 and Justice Kiefel got it right by the time she came to 47. She does refer to the principles in Project Blue Sky and the move towards a purposive interpretation of legislation and the purpose and mischief that she is concerned about, and I must say I am concerned about and I infer is the reason behind “in private” in the statute, is the mischief not of hand-holders but of other people who have an involvement and who come from the country of nationality.

MR WILLIAMS: In one sense, with respect, why draw the line at such persons? If any person is present on Justice Kiefel’s reasoning in 34, that could lead to disclosure. Equally, where four claimants, as here, come together, put the same claims, rely on each as a witness, there is reason to think that there is no inconsistency with the purpose of the statute and the purpose of the Convention maintaining confidentiality.

KIRBY J: We have to test and not just by this case. We have to test it by the operation of the statute. We have the situation where we have two judicial officers who have come one way and two who have come the other. This would be a matter of general concern to the practice of the Tribunal, one would think. It looks as if the Tribunal member started with the Kiefel view, or at least what I will call the modified Kiefel view, and said the hand-holder can stay but then ended up doing exactly the opposite.

MR WILLIAMS: The Tribunal member started with the view that an efficient way of doing it would be to have all four separately.

KIRBY J: So efficiency is the only concern – “must be in private”.

MR WILLIAMS: Whatever motivated the Tribunal member’s initial view, the view was separate hearings. There is no evidence as to how that changed. The only complaint raised – and I will not repeat my submission in that respect.

GLEESON CJ: I want to get the facts clear. Is it your submission as a matter of fact that A, B, C and D were all heard together because each of A, B, C and D requested to be heard in the presence of the others?

MR WILLIAMS: Each of A, B, C and D requested the other to be called as a witness in their case. The evidence does not disclose how the three of them came to give evidence together.

GLEESON CJ: How did it come about that you got this complaint after the hearing that there had been a separation between three of them on the one hand and one of them on the other?

MR WILLIAMS: The inference from that, your Honour, as far as it goes – and the advisers were not called by the applicants to give evidence – was that the advisers preferred a joint hearing procedure and their complaint was about separation.

GLEESON CJ: How did the separation come about?

MR WILLIAMS: The Tribunal member announced at the outset that they would be separate hearings and proceeded to hear the first. After three hours in circumstances that are not disclosed in the transcript, the procedure was changed and three of them gave evidence together.

KIRBY J: And it is not disclosed by the transcript that that was at the request of, or even with the concurrence of, the applicants. It is just left to inference.

MR WILLIAMS: That is so.

GLEESON CJ: What I am trying to ask you is how did it come about that three of them were heard together and not four of them heard together?

MR WILLIAMS: As far as the evidence shows, the Tribunal member – page 61 is the Tribunal member’s observations in relation to it from about line 15 to about 25.

GLEESON CJ: It looks as though in practice they were all ultimately heard together because it says:

The applicant in decision N98/26228 afterwards rejoined the hearing - - -

MR WILLIAMS: And the issues were then canvassed.

KIRBY J: Can you not see that that would on some occasions be embarrassing and risky to some applicants?

MR WILLIAMS: Your Honour, where each applicant requests the other as a witness, a procedure of disclosure is - - -

KIRBY J: It is one thing to be a witness. It is another thing to hear what the applicant says. The witness might be on a limited matter.

MR WILLIAMS: In the unusual case in which each of four applicants wants each of the others as a witness, disclosure of the evidence of each is unavoidable. If that carries with it some risk, that is implicit in the procedure that the applicants seek.

KIRBY J: It is pretty clear that the Tribunal member started with the view that you could have a hand-holder but not otherwise, because she asked those questions on page 2, and then somewhere in the course of the next few pages she changed her mind.

MR WILLIAMS: The Tribunal member started with the view that they should each be heard seriatim.

KIRBY J: First thoughts are often best.

MR WILLIAMS: How the change came about is a matter that the evidence does not disclose beyond the passages that I have taken you to.

GLEESON CJ: A possible point of view which is not all that fantastic is that the Tribunal member took the view that they were entitled to be dealt
with separately if that is what they wanted, and then she heard them all together because she came to the conclusion that they all wanted to be heard together. They were entitled to be dealt with separately if that is what they wanted, were they not? Does anybody dispute that?

MR WILLIAMS: They were entitled to be heard separately?

GLEESON CJ: Has anybody suggested at any stage of this litigation that these people were not entitled to be heard separately if they wanted to be heard separately?

MR WILLIAMS: No, your Honour.

KIRBY J: If your view of the Act is right, it is up to the Tribunal to decide this, not the applicant.

MR WILLIAMS: It is certainly up to the Tribunal in circumstances where each requests the same Tribunal member.

KIRBY J: The answer to the Chief Justice’s question is if your interpretation is right, then in some cases where an applicant wants to be heard separately, the Tribunal could say, “Well, for efficiency – we have a planeload here – we’re going to hear you all together”.

MR WILLIAMS: In circumstances where there is no objection to that course, the statute does not prohibit a tribunal from following it. There is a specific finding by Justice Weinberg on 166, paragraph 87, that the proper inference was that there was a failure to object to the course and that there had been waiver.

GLEESON CJ: Thank you. Yes, Mr Davidson.

MR DAVIDSON: On that question about the reasons for the Tribunal changing its view, the only other reference I would take your Honours to is at page 130 in paragraph 32 of the Federal Magistrate’s decision, about line 35. He says:

The presiding member heard the evidence of the first of the four applicants separately but the problem appears to have been that the process took so long that the presiding member considered, for reasons of time efficiency, and because the claims all appeared to be the same, that the other three applicants should be heard together.

GLEESON CJ: What page is that, Mr Davidson?

MR DAVIDSON: That is at page 130, paragraph 32, the sentence commencing at line 35. That, in my submission, is the most likely interpretation of what the transcript shows. It took three hours for the first person and they were able to concertina by taking two hours for the next three and then the remaining time with the four together.

GLEESON CJ: Certainly the interpretation that the magistrate put on the facts was that this was the result of an election by the presiding member.

MR DAVIDSON: Yes. I am not aware of that part having been overturned, but it is the interpretation, that is correct, your Honour. I have not discussed anything about the lately put in submission relating to section 424A which is apparent was something it was only realised upon the proper checking of the transitional provisions.

KIRBY J: What is the short point on that?

MR DAVIDSON: The short point is that the material shows that the requirements of section 424A as elucidated in the SAAP decision have not been followed. In particular, written notice has not been provided. The legislation was assented to in December 1998. The hearing was on 7 April 1999. The provisions put in 424A came into force on 1 June and the transitional provisions make it clear that they apply to hearings that are not concluded. This was not concluded. You might say that is not a highly meritorious point because there was obviously some discussion of the - - -

KIRBY J: But you did not argue these below.

MR DAVIDSON: No.

KIRBY J: Then why would the High Court of Australia become involved in a point that – it may visit us again but we would not normally deal with a point for the first time.

MR DAVIDSON: I accept that, your Honour. One point is though that it is, in my submission, clear here that it has not been complied with and that this case – SAAP would have been a stronger case to come to a contrary decision than this case where the person was illiterate in both Farsi and English but the Court may decide it is not going to deal with it but it is a point that, in my submission, would be a very strong point and could be dealt with on the materials.

GLEESON CJ: Is it covered by your draft notice of appeal on page 171?

MR DAVIDSON: Yes, your Honour, although not elegantly. So it is not as if it is a total surprise. Indeed, that comment was responded to in the
respondent’s submissions actually pointing out that point had not been raised before.

GLEESON CJ: Then how could you reframe the draft notice of appeal to eliminate the point? It might improve your chances of getting special leave to appeal.

MR DAVIDSON: I would be happy to attempt that, your Honour, yes. It would be reframed to the error of law in the failure to provide written – the failure to provide - - -

KIRBY J: Are you adding the point or subtracting it?

MR DAVIDSON: It would be narrowing it, I think. There was only one error of law, as I understand, identified in SAAP and that was the failure to provide a written notice. So the expression “error of law” would just be spelling out - - -

GLEESON CJ: The way to eliminate the point, may I suggest – correct me if I am wrong – would be to say the majority of the Full Court of the Federal Court erred in finding that the Refugee Review Tribunal did not breach section 429 of the Act by not conducting the hearing in private. That would limit it to the point that has been argued, would it not?

MR DAVIDSON: Yes. That is if the Court was minded not to give leave for – yes.

KIRBY J: I think that is what the Chief Justice is hinting at.

GLEESON CJ: Yes, and you are getting the message there.

MR DAVIDSON: Yes, your Honour; it has even reached me now. That will be done.

GLEESON CJ: All right. We will adjourn for a short time to consider the course we will take in this matter.

AT 1.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.03 PM:

GLEESON CJ: In this matter there will be a grant of special leave to appeal limited to the following ground: “The majority of the Full Court of the Federal Court erred in finding that the Refugee Review Tribunal did not breach section 429 of the Act by conducting the hearing other than in private.”

Is there any comment you would want to make about the form of that ground of appeal, Mr Davidson?

MR DAVIDSON: No, your Honour.

GLEESON CJ: Very well. We will adjourn to reconstitute.

AT 1.04 PM THE MATTER WAS CONCLUDED