SZGPB v MIMA & Anor [2006] HCATrans 677 (8 December 2006)

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SZGPB v MIMA & Anor [2006] HCATrans 677 (8 December 2006)

Last Updated: 22 December 2006

[2006] HCATrans 677

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S144 of 2006

B e t w e e n -

SZGPB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 11.36 AM

Copyright in the High Court of Australia

MR P.E. KING: If the Court pleases, I appear with my learned friend, MR D.H. GODWIN, for the applicant. (instructed by the applicant)

MR T. REILLY: I appear for the first respondent, if your Honours please. (instructed by Sparke Helmore)

GLEESON CJ: I understand there is a submitting appearance for the second respondent.

MR REILLY: That is so.

GLEESON CJ: Yes, Mr King.

MR KING: Thank you, your Honour. Your Honours, this is an application for special leave to appeal from part of the decision of the learned justice sitting as the Full Court of a Federal Court pursuant to section 25(1A) of the Federal Court of Australia Act. The applicant’s case in brief is that the manner in which his Honour dealt with the issue of discretion at two levels made it impossible for the applicant to succeed for him, that that approach was erroneous and that it would excite or interest the appellate jurisdiction of this Court.

Your Honours, having regard to the written submissions of the respondents, it is now an undisputed jurisdictional fact that the Tribunal, the administrative tribunal in this case, failed to comply with a statutory condition precedent for the exercise of a valid jurisdiction by it, that is to say, it failed to comply with the requirements of section 424A of the Act to provide certain travel details and other related personal information to the applicant in accordance with the procedures laid down in the Act and, hence, that the decision was invalid.

His Honour dealt with this point in the judgment which commences at page 53 of the application book and in particular, page 61, paragraph 30 in the third sentence in which his Honour said:

His Honour considered and rejected the argument that there had been a non-compliance with s 424A in relation to the material in [36] of the Tribunal’s reasons. However, I think that argument was well-founded and the trial judge erred in rejecting it. His Honour dismissed the argument on the basis that [36] was not ‘integral’ to the Tribunal’s reasoning process. In my opinion, that is unlikely to be correct because of the way in which the Tribunal expressed its reasons.

The trial judge or Federal Magistrate’s decision on this point can be found at page 30, in particular paragraph 28 and the consideration of the point at paragraphs 21 and 22 at pages 28 and 29. The fact that it was taken into account by the Administrative Tribunal appears at pages 6 and 9 of the application book, in particular paragraphs 36 and 37.

Your Honours, a second jurisdictional error was put to his Honour and his Honour found in relation to that that there was some substance to that argument as well. That is dealt with in the learned judge’s judgment at page 67 of the application book. The point was simply this, that the invitation to the applicant to appear before the Tribunal was required to be in a certain form, that is, to give him the opportunity to call witnesses and to require that to be done within a seven day period failing which the Tribunal had no power to proceed in his absence having regard to the terms of section 426A. At paragraph 51 of the judgment, his Honour said this in the first sentence:

Bennett J did not, of course, have this argument before her when deciding the case to which I have just referred. In my opinion there is some substance in the argument, but I do not propose to decide it as I think it is appropriate to decide this matter on a different ground.

It is that different ground which is the subject of this special leave application. Your Honours, the applicant contends that at that point in the reasoning of the learned judge, his Honour had, in effect, two choices. He could have allowed the appeal having regard to the findings of jurisdictional error and remitted it to the Federal Magistrate to determine the question according to law or he could have proceeded to exercise the original jurisdiction of the court in place of the magistrate pursuant to section 28(1)(b) of the Federal Court of Australia Act.

His Honour chose the second course. In the next sentence at paragraph 51 his Honour begins his consideration of those issues. He said:

I have already referred to the substantial delays which this matter has had in its progress.

Your Honours, I will not take your Honours through the next few pages of the judgment, but between 51 through to 61 his Honour considers the so-called issue of substantial unexplained delay, but then, in the last sentence at 61 says this on the question of delay:

However, I am not going to do that in this particular case.

So that having raised the issue of delay his Honour then expressly disavows delay as a consideration or factor with respect to the determination of the question before him.

In the next paragraph, 62, his Honour turns to the public interest in the finality of litigation and makes general observations about that. In 63:

quite unfair to the respondent Minister . . . in the fifth separate application to the Court -

In fact, to be accurate, there had only been two applications but five different court appearances. However, no final or conclusive determination of that point was reached by his Honour for in the next paragraph - - -

HEYDON J: There was an application to a federal magistrate – one; there was an application to the Federal Court judge – two; then there was a special leave application – three; then there was an application to another federal magistrate – four; and then there was Justice Rares – five.

MR KING: The first application was to the Federal Court one month after the decision and the second application was to the Federal Magistrates Court in 2005. But there were five separate hearings in relation to those two applications. Perhaps it is just a matter of terminology, your Honour. Then in 64 his Honour said:

I see no error in the way that his Honour would have exercised his discretion had there been a jurisdictional error.

But, of course, his Honour pointed out that was a matter of no moment because in fact he had found there had been a jurisdictional error. Then at 65 his Honour uses language reminiscent of special leave matters:

I do not think that this case is a proper vehicle in which those arguments should be raised -

that is, the jurisdictional error arguments, and then makes the point that the applicant, in the third sentence:

He had the opportunity to attend and give evidence to the Tribunal, albeit that there is some explanation for his not doing so, the fact is he did not give his account to the Tribunal in writing even after the scheduled but unattended hearing.

We have respectfully submitted that that is a novel approach to dealing or curing a defect in jurisdiction. Your Honour, then comes paragraph 66, in the second sentence, which is really the ratio, and it is this:

The explanations, such as they are, that have been given do not satisfy me that in the exercise of my discretion I should grant relief. In my opinion the appeal should be dismissed with costs.

Your Honours, the explanations that his Honour refers to there are possibly twofold: first, that which appears in the second sentence at 64, but that refers back to delay, which is a factor his Honour had already rejected as a moving consideration and then, secondly, the explanation for non-attendance at the Tribunal hearing in 65.

Be that as it may, what we submit respectfully is that the ratio that appears at paragraph 66, second sentence, is defective and erroneous for two fundamental reasons. The first error, your Honour, appears in the judgment of Justices Gaudron and Gummow in Ex parte Aala, which is in the second case in the bundle, if your Honours please. At page 106, paragraphs 51 and 52, their Honours refer to the decision of Chief Justice Sir Harry Gibbs in R v Ross-Jones and say, in short:

If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right –

That same phraseology is utilised by Chief Justice Spigelman in the Solution 6 Case, which is on our list of authorities, which I will not take your Honour to now. The decision of the Chief Justice with respect to the exercise of discretion in that case was upheld by this Court recently.

What we say, your Honour, is that his Honour simply failed to exercise a discretion in accordance with the authorities and that having regard to the fact that in this case the error was patent and on the face of the record, his Honour’s approach should have been to have issued prohibition against the Minister and certiorari and mandamus against the Tribunal almost as of right.

The second fundamental error, we respectfully submit, is this, that what his Honour did in the way his Honour expressed himself in paragraph 66, second sentence, was this, that it was for the applicant notwithstanding the findings of jurisdictional error to satisfy him that in the exercise of his discretion he should grant relief. With respect, that is to put the onus upon the applicant and to reverse an onus which should have been on the respondents because where jurisdictional error had been found it was for the respondents to satisfy him that relief should not be granted, not the applicant’s to satisfy him that he should grant relief.

GLEESON CJ: Could I take you to page 42 of the application book, Mr King.

MR KING: Yes.

GLEESON CJ: The jurisdictional error of which you are speaking occurred at what stage of the proceedings listed?

MR KING: It occurred prior to 29 April 2003 and on 29 April itself. Two jurisdictional errors, as found by his Honour.

GLEESON CJ: Right. It was not complained of in the RRT hearing?

MR KING: He was absent, your Honour. That decision was a complete nullity.

GLEESON CJ: And it was not complained of in the Federal Court application?

MR KING: The 424A point was not complained of in the initial application. That was because that was before the decision of this Court in SAAP.

GLEESON CJ: It was not complained of in the special leave application of this Court?

MR KING: No. At that stage he had no legal representation. The Court looked at it on the papers and there were two judgments of the Federal Court in neither of which reasons had been given. It was an interlocutory appeal, in effect, and there was no determination of the present issues; no consideration of them.

GLEESON CJ: What is it that actually brings to an end this sort of cycle of applications by people in your client’s position? How do they ever terminate?

MR KING: They terminate either by a decision on the merits of the particular point or, as was attempted by the respondent in this case, on a strike-out application. But his Honour rejected that because his Honour pointed out continuously since the impugned decision had been made the applicant had been agitating the correctness of the decision. That is why I suspect that his Honour took no account of the delay.

GLEESON CJ: We noticed that your client went to New Zealand - - -

MR KING: That was his wife, your Honour.

MR GLEESON: I see, your client’s wife went to New Zealand. Your client has been in Australia at all material times up to the present?

MR KING: At all material times, yes. Your Honours, if the principle of legality or a core value the rule of law has moment, it is not sufficient for the learned judge to simply sit there implacably, if I can put it that way, and say rather Kafkaesque like, “Notwithstanding the finding of jurisdictional error, I am not moved to exercise my discretion in favour of the grant of relief”.

Rather, the proper way, we would respectfully submit, or in accordance with the rule of law, was to take the approach that having found jurisdictional error in accordance with this Court’s significant decision in the case of SAAP, which rendered the whole decision before his Honour invalid and completely void, was to make orders in accordance with that unless the respondent - and the onus was on them to convince him that he should not issue such relief.

So that the two fundamental questions that arise in respect of errors on the face of the record such as in Yirrell v Yirrell and such as in the case of Ross-Jones in the decision of the Chief Justice, Sir Harry Gibbs, cited with approval in Ex parte Aala applied in full force.

Your Honours, we say that in addition the learned judge’s judgment in relation to the admission of evidence was in error. That is found at application book page 46 and at page 50 his Honour said that he would refuse to admit evidence on the question of jurisdiction by him because that evidence would have been available at the trial.

With the greatest respect, that was a completely improper approach to take because, having decided himself to exercise original jurisdiction in circumstances where the trial judge had not done so, there was, we would respectfully submit, a fully enlivened discretion to admit evidence in relation to the question of delay and on the question of non-attendance, both of which were dealt with in the affidavit that was put before him by way of motion.

If I could hand your Honour a recent decision of this Court on the very point in which this Court held where a discretion was enlivened that evidence should have been admissible, namely, the decision of Allesch - - -

GLEESON CJ: We will need two copies of this.

MR KING: Yes, I have given my friend a copy.

GLEESON CJ: Thank you.

MR KING: Where a discretion was enlivened that it was proper to receive evidence so as to ensure that the circumstances as at the time the discretion was exercised was done properly. It was to test it this way. If his Honour had allowed the appeal and sent it back to the magistrate, it could not be suggested that the magistrate would not have admitted evidence in relation to the question as to the proper order to make. He, having decided to proceed to do it, it was incumbent upon his Honour, we respectfully submit, under section 27 of the Federal Court of Australia Act to do likewise and to reject evidence on the basis that his Honour did at page 50 - was to take into account an irrelevant consideration or to misapply the decision in CDJ v VAJ.

Your Honours, so far as the requirements of section 35A of the Judiciary Act are concerned, we respectfully submit that this case does engage the appellate attention of the Court. It is, in a sense, the converse of Ex parte Aala. Ex parte Aala was a case involving a jurisdiction not on the face of the record; this one is.

GLEESON CJ: Thank you. Yes, Mr Reilly.

MR REILLY: Your Honours, I will start by correcting my friend. We do not concede that there was a breach of section 424A and we never have conceded that at any stage, including in our summary of argument. So I have no idea why my friend commenced by saying that that was some agreed situation.

His Honour found the breach of section 424A. We submitted to his Honour that in circumstances as here, where an applicant does not attend their Refugee Review Tribunal hearing, they must be taken as relying on what they have put to the Department within section 424A(3)(b). We relied on the decision of Justice Bennett to that effect. Plainly that approach did not appeal to his Honour but we maintain it in these proceedings.

Your Honours, my friend has not mentioned the new evidence that he sought to lead before the Court in this special leave application. I am not sure if your Honours wish me to address that or not. We oppose fresh evidence being led in this application but it is just not entirely clear to me - - -

GLEESON CJ: You put whatever arguments you want to put about it.

MR REILLY: Your Honours, it could have been put before all of the evidence, both the evidence that was sought to be led before Justice Rares and the evidence that is now sought to be led before your Honours, could have been put before Federal Magistrate Smith. There was an application to strike out the application before Federal Magistrate Smith and in response to that application evidence going to questions of delay or evidence going to the reason why the applicant did not attend his Refugee Review Tribunal hearing could have been led and was not.

Your Honours, Justice Rares was well entitled to take the view that even if the previous proceedings did not constitute an abuse there was extensive delay that justified the refusal of relief despite the error that his Honour found in terms of section 424A.

GLEESON CJ: Looking at page 42, the chronology there, I will ask you the same question as I asked Mr King, but you are probably the more appropriate person to ask it, what is it that brings these series of proceedings like this to an end?

MR REILLY: Well, your Honours, if your Honours look at the learned magistrate’s decision, your Honours will see that we sought and received from his Honour an order that the applicant not be permitted to refile. If your Honours look at page 32 your Honours will see order 3 and his Honour gives reasons for making that order at page 31 in paragraphs 31 and 32. So that order was made and that will at least – and Justice Rares dismissed the appeal, so that order should at least have the effect that no further applications - - -

GLEESON CJ: That looks like an order of the kind that you would get against a vexatious litigant.

MR REILLY: Well, it is similar, yes, though it is directed to issues of challenging the Refugee Review Tribunal decision. But, your Honours, of course, the other thing that can be done and we sought to do in this case is have the second application before Federal Magistrate Smith struck out as an abuse of process and his Honour said that that application was properly brought, but in the end thought it was unnecessary to address it because his Honour held a final hearing on the merits. That is paragraphs 30 and 31, and paragraph 4 my friend says.

GLEESON CJ: Is part of the background to all this, and this repetition of applications is something that we see a great deal of and no doubt the Federal Court sees even more than we do, is part of the background to this that people are not deported so long as they have a live application?

MR REILLY: Yes, that is so, your Honour, and usually they receive a bridging visa for bringing an application. Your Honours will have seen that this applicant was in immigration detention at the time of bringing the second application before Federal Magistrate Smith. If your Honours look at page 12 your Honours will see down the bottom that the applicant at that stage was in stage 3, which I think is the area where people go before removal in Villawood. Now, I do not know, but I infer that as a result of bringing this application before Federal Magistrate Smith he was granted a bridging visa.

HEYDON J: So it is a question of a fresh grant from time to time, is it? It is not some automatic operation conferred by regulation?

MR REILLY: I am sorry, your Honour?

HEYDON J: Is it the case that there is a regulation which says that so long as one has an application before a court in Australia one cannot be deported or does one have to make an application for a new visa to cover one that is - - -

MR REILLY: There is a class of visas called a bridging visa and one of the criteria for grant of a bridging visa is that one is engaging in judicial review proceedings challenging the refusal of a visa. However, the grant of a bridging visa under the Act is discretionary, but I infer that probably in this case the applicant was granted a bridging visa on that basis.

HEYDON J: I have seen examples of cases where – this case is in its second stage up the ladder – where there have been three trips up the ladder. Do you say that it is the practice to grant bridging visas in favour of applicants in that position?

MR REILLY: Well, your Honour, as a matter of practice, it can happen, as I understand. Part of the difficulty is that in these cases the material that is before the court and before practitioners will not include material relating to bridging visa decisions because they are not under review. So I can only give answers in general terms as to what happened in this case in terms of being granted a bridging visa or more generally. But I gather that because the applicant, by the time of the appeal before Justice Rares and in the special leave application, is no longer in immigration detention he must have been granted a bridging visa and I assume the reason for the grant of a bridging visa was because these proceedings had been brought.

GLEESON CJ: Thank you.

MR REILLY: Your Honours, my friend relied on Aala and quoted part of a sentence of Chief Justice Gibbs in paragraph 51 of Aala. I will just read the whole sentence because my friend did not read the last half of it:

“If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue
almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems a proper course.”

Now, it is well-established in case law of your Honours dealing with migration decisions, most recently in SAAP, that delay is a basis on which relief may be refused in the exercise of a court’s discretion. In my submission, it was well open for Justice Rares to take that approach in this case despite his Honour having found a breach of section 424.

GLEESON CJ: Thank you. Yes, Mr King.

MR KING: Your Honour, the answer to your Honour’s question is that the applicant never got a hearing on the merits. That is the short answer to the question. Indeed, if your Honour goes to the application book at page 21, paragraph 4, this is a decision of Federal Magistrate Smith, in the last sentence:

Having further examined the papers before today’s hearing, it appeared to me most appropriate to proceed with a final hearing on the merits of the principal application, and I have conducted the hearing today on that basis.

Now, that was the first time that that had happened since the invalid and void decision of the Tribunal in April 2003 and, your Honour, the matter was conducted on that basis. It was conducted on that basis with the consent of the respondents and the appeal before his Honour was an appeal from that decision on the merits. So there is nothing unusual, with respect, so far as this sort of decision is concerned in the particular circumstances of this case. The real question is did his Honour address the proper question in accordance with the principle of legality.

GLEESON CJ: Justice Rares you mean?

MR KING: Justice Rares, in accordance with the principle of legality to which I have referred and for the two reasons I have mentioned that is, firstly, that it was an error on the face of the record and a clear breach of section 424A of the Act that his Honour did not so find and, secondly, because his Honour held it was a purely discretionary decision for him, without expressing any reason for so finding, simply was unmoved to express any reason why he should grant relief when the proper approach, we respectfully submit, was for his Honour to say, having regard to the findings I have made of jurisdictional error and the decisions of the High Court in SAAP in particular, the onus was on the respondent, not on the applicant, to show why relief should not be granted, not upon the applicant to show why relief should be granted.

As to the issue of delay, your Honour, in several cases such as Yirrell v Yirrell dealt with by Justice Heydon in Solution 6 in particular, a delay of 20 years where there has been an error on the face of the record did not prevent the Court from acting and setting aside an otherwise invalid decision. If this case is allowed to sit as it currently is, there is a void or invalid decision on the face of the record. The applicant has not had a lawful opportunity to have his decision heard by the Tribunal and that is not in the interests of administration of justice, we respectfully submit.

The other point is this, your Honour, that as Mr Godwin points out, the evidence in relation to explaining the delay was not admitted by his Honour in the circumstance where his Honour decided to proceed to exercise original jurisdiction himself.

GLEESON CJ: What does his Honour mean, or to what is he referring on page 71, paragraph 66. In the second sentence of that paragraph he refers to, “The explanations, such as they are”. What were the explanations to which he is referring?

MR KING: Well, when one carefully reads this decision, and I have read it many times, it is not possible to work out what they are. He is simply saying “I remain unmoved that the applicant should get relief”. We submit that is the wrong approach. If one goes back through the judgment, as I mentioned, your Honour, in paragraph 64 in the second sentence his Honour says this:

But for the reasons that I have given, I am of the opinion that no adequate explanation for the delay has been given and that the interests of justice would not be served having regard to the delays with or without any such explanation by granting prerogative relief.

But at paragraph 61 he had already said in the second sentence, “I am not going to take into account delay in this case as a factor against granting relief”. Then the other explanation that might be referred to in paragraph 66, the first two words, is in paragraph 65 in the third sentence:

[The applicant] had the opportunity to attend and give evidence to the Tribunal, albeit that there is some explanation for his not doing so, the fact is he did not give his account to the Tribunal in writing even after the scheduled but unattended hearing.

It has never been held in any case, your Honour, so far as I am aware, or Mr Godwin who is very experienced in these matters is aware, in which it is suggested that a jurisdictional error, an invalid decision can be cured by the applicant being required after a void hearing has occurred to cure it by
submitting written submissions. With respect, it is just a wholly inappropriate approach.

The proper approach is that taken by this Court in Yirrell v Yirrell referred to by Justice Heydon in Solution 6 and simply to say as of right, or to use the phraseology of Sir Harry Gibbs, almost as of right prohibition should have issued in this case and a fresh hearing should have occurred. If your Honours please.

GLEESON CJ: A judge of the Federal Court declined constitutional relief to this applicant on discretionary grounds. We are of the view that there are insufficient prospects of success of an appeal against that exercise of discretion to warrant a grant of special leave.

The application is dismissed with costs.

AT 12.09 PM THE MATTER WAS CONCLUDED