MIAC v SZIZO & Ors [2008] HCATrans 401 (5 December 2008)

Last Updated: 8 December 2008

[2008] HCATrans 401

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S343 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZIZO

First Respondent

SZIZP

Second Respondent

SZIZQ

Third Respondent

SZIZR

Fourth Respondent

SZIZS

Fifth Respondent

SZIZT

Sixth Respondent

REFUGEE REVIEW TRIBUNAL

Seventh Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 DECEMBER 2008, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR N.J. WILLIAMS, SC : May it please the Court, I appear with MR S.B. LLOYD, S.C, for the applicant. (instructed by Clayton Utz Lawyers)

MR B.W. WALKER, S.C: May it please the Court, I appear with my learned friend, MR B.K. NOLAN, for the respondents. (instructed by the respondents)

GUMMOW J: There is a submitting appearance from the Tribunal.

FRENCH CJ: Yes, Mr Williams.

MR WILLIAMS: There are two questions. The first appears from the passage quoted at page 79 of the book by the Full Court quoted from Tasker v Fullwood - - -

GUMMOW J: Just before you get too deeply into it, we looked at page 101 and we saw in paragraph 47 the position as to costs. Is that still the Minister’s position?

MR WILLIAMS: It is, your Honour. Page 79 of the book, paragraph 83 at about line 30 in the middle of a quote from the judgment of the Court of Appeal of New South Wales in Tasker v Fullwood is the passage, of course, that formed a foundation of this Court’s approach in Project Blue Sky. There are a series of numbered observations there quoted. The observation numbered (4) at about line 28 on the page is the critical one for present purposes. The intention being sought is the effect upon the validity of the Act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement.

The approach adopted by the Full Court in the present case is inconsistent with that approach. That appears from the following page, page 80 of the book, paragraph 87 at about line 25. The Full Court asked whether:

Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing. Each of the procedural steps is imperative and must be complied with in the manner described in the Act.

The significance of that approach, focusing upon strict compliance with an imperative provision, is seen on the facing page – page 81 of the book. At about line 8 the court observes that:

any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error.

Then in paragraph 91 is the critical passage. The court first refers:

to the rather absurd conclusion that is demonstrated by the facts of this case -

that despite the non-compliance:

the appellant husband was aware of the invitation as early as early as 6 March -

Your Honours, if I can interpolate there - - -

GUMMOW J: Well, I suppose, looking at that, one might think that if there is a construction that can give rise to that situation, which seems odd, and if the relevant statutory factor was a jurisdictional fact, you would not rush to embrace a construction which could produce that result, if there was another construction fairly open.

MR WILLIAMS: Yes. There is another construction fairly open that is pointed to by a decision of another differently constituted Full Court at about the same time, one that was argued after this case, but decided before. That is the decision – it is in the applicant’s authorities; it is the second of those and it is just a few pages from the end. It is SZKGF. The passage in question is numbered at the top of page 4; it is about three pages in from the back of the book.

GUMMOW J: .....like Project Blue Sky.

MR WILLIAMS: Yes, if your Honour starts from the back of the book it is three or four pages from the back of the book. It is an unreported judgment.

GUMMOW J: Just go on, Mr Williams.

MR WILLIAMS: It is three or four pages from the back at page numbered 4. This was a case in which the letter was correctly addressed, but the postcode was wrong.

FRENCH CJ: The postcode was wrong, yes. That is sudden death.

MR WILLIAMS: Yes.

FRENCH CJ: So the constructional question is whether this is, putting aside the jurisdictional taxonomy, a condition on power of the Tribunal to proceed.

MR WILLIAMS: Yes, that was the first question below. But the constructional question is whether breach of it - - -

FRENCH CJ: Is a jurisdictional error.

MR WILLIAMS: Yes.

FRENCH CJ: That is the construction of a particular section. I mean it is put against you that, given the mandatory language of the provision, if there is a problem this can be fixed up by legislative amendment.

MR WILLIAMS: We do not put the constructional question in this Court. The point that we put is that that I have adverted to in the passages from the book that I have taken the Court to. Whether that passage in Tasker v Fullwood that I called attention to on page 79 of the book, the effect upon
the validity of the Act in question, having regard to the nature of the precondition – its place in the scheme – and we emphasise the extent of the failure to observe its requirement. That is a question that is unexplored following Project Blue Sky.

In the present case, the extent of the failure to observe its requirement was such that there was no adverse consequence whatever for the hearing, which is the finding that the court makes on the following double page – page 81, paragraph 91 at about lines 23 or 24:

all of the appellants attended the hearing and those that wished gave evidence. In fact, no unfairness or prejudice was visited upon any of the appellants by reason of the Tribunal’s failure to comply –

So the point that we make is in construing the statute and in determining whether there is jurisdictional error, it is imperative that the Court have regard to the matter referred to in Tasker v Fullwood that spoke to the non-compliance. It is manifestly not Parliament’s intention, in our respectful submission, that any breach however inconsequential should invalidate an otherwise perfectly effective hearing. In particular, in the present case there was no impact whatever upon the central function – the critical function – of the Tribunal in conducting a hearing.

FRENCH CJ: Perhaps we can just stop here, Mr Williams, and just call on Mr Walker to tell us why special leave should be refused.

MR WALKER: Your Honours, could I supplement what my friend has, with respect, correctly noted in paragraph 91 at page 81. For what it is worth there is a somewhat different flavour given on page 83, the last sentence of paragraph 98. I am bound to say it is difficult to see how that can contradict the force of what is said in 91, but I draw it to attention. It may blur somewhat, for the purposes of considering special leave, the nature of the factual case. Otherwise, of course, it is very apparent that this is a stark factual case.

Can I point to another stark factual case, namely the other Full Court decision to which my learned friend has referred. On page 4 of the transcript of the reasons in SZKGF, one can see by the combination of paragraphs 12 and 13 and on the next page, paragraph 16, that that was not a case in which the Full Court addressed the issues, either of the kind or in the way that my learned friend has suggested for this case. Their Honours quite explicitly declined to decide whether there was jurisdictional error in that case and went straight to the question of the so-called discretion.

Now, as to the so-called discretion and dangerously, for someone seeking to resist special leave, I am bound to point out that the case that leads to the “rather absurd conclusion” does provide a real test of the matters adverted to, for example, by Justices Gaudron and Gummow in Aala, the passage – classic, if I may call it so – in paragraph 94 found at application book pages 81 and 82, if it be correct, which we respectfully urge it plainly is, that that is the informing principle for the exercise of the so-called discretion in cases where Parliament has prescribed, in this case a validly – in an exhaustive fashion – and also it is manifest in a detailed fashion for what are called the requirements of the natural justice hearing rule – and the combination of the words “requirements” and “rule” is most evocative, then in our submission the case simply comes down to what Justice Gummow has raised, namely, is another canon of statutory interpretation of the importance and vitality in play in a way that justifies a grant of special leave, namely, that it is legitimate, proper and necessary to take into account consequences, particularly if they may be characterised as unreasonable or absurd in testing the correctness of a proposed reading of the statute.

In this case, however, it is not that straightforward because what one has is section 422B of the Act which, as has been noted in subsection (2), renders Division 7 in which the critical provision section 441G is found:

an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

There is nothing in this Court’s jurisprudence which permits any detraction, we submit, from the importance in terms of jurisdiction of the natural - - -

GUMMOW J: It is an untested question of the validity of section 422B.

MR WALKER: Now, that has not been raised, your Honour.

GUMMOW J: I know. I am not suggesting it should be.

MR WALKER: No, and so what I note is responding as I do to the argument against me, which has its own challenges - we will not go to unraised questions of validity and clearly enough our opponents will not naturally enough ever, one would expect, be in the position to be raising questions of validity.

GUMMOW J: No, his client would support the most exiguous statutory forum of procedural fairness, I suppose.

FRENCH CJ: Section 422 excludes anything but – it does not necessarily elevate particular procedural divisions into sudden death.

MR WALKER: Can I put it this way? There is a spectrum of the nature of law when it comes to regulating certain conduct and its consequences. There is that which might be called the tailor-made, case-by-case solution which satisfies the parties but defeats the interests of predictability. That would be one that could look to what your Honours have from time to time described as “so-called trivial breaches” and the perhaps invidious investigation of when is a breach trivial or not, tracing through hypothetical consequences, that is the things that did not happen because that earlier step was not taken, with all the factual uncertainties and the ultimate unsatisfactory nature of a determination of fact about something that did not happen - so that is at one end of the spectrum.

The other end of the spectrum is the one that, with respect, Parliament has plainly adopted through Division 7A. One could be forgiven for reading in those provisions a preference for a parliamentary general rule over judicial custom made – each case on its own circumstances - determination of the importance of consequences in a particular case, compared to what is, ex hypothesi, always a breach of law. These cases only arise because there has been a breach, a failure to comply. Question: does it matter in the particular case?

Now, Parliament has said of something that it took the pains to use those two words, “requirements” and “rule” - Parliament has said, “Now, we Parliament are prescribing the entirety of the content of that which is to be understood as at the very heartland of the judges’ supervision of administrative conduct”. So, the common law is displaced if this provision be valid as we are all presuming.

Parliament has displaced the common law content and when it does that, in our submission, for an entirely statutory tribunal of no judicial power and with no general jurisdiction, then what it has said in terms is that in relation to so-called procedural fairness – and I call it that in order to pick up the importance the common law attaches to that – this is what you must do. True it is the cue has not been taken from Project Blue Sky then to add “and if you do not do it the edifice falls”, but it does say this is what you must do.

Parliament has not said – and this would have raised critical validity questions – that the requirements of the natural justice hearing rule are not requirements jurisdictional in nature and they would have to have said that, given the jurisprudence in this Court. They have not. So that the combination of Parliament’s prescription ousting the judges, as it were, concerning the content of the rule is against the background of the importance that the judges have pronounced and Parliament has not presumed to detract from of the natural justice jurisdictional aspect, that is, it is an aspect of jurisdiction.

So you have an entirely statutory tribunal doing an entirely statutory task and it is told by Parliament that it must do it in a particular way. Parliament – and here is where absurdity comes in - at the risk of inviting derision has said in those jurisdictional provisions – and now I am making this up, “You have to have an envelope of a certain size, you have to put the postage stamp on the right-hand corner, et cetera”.

In other words, if you do that that will strike observers as absurd and applying it jurisdictionally will produce so-called absurd consequences. But it is not an absurdity in the reading of the statute; it is not an absurdity in the judicial application or obedience of the statute. It is simply an irrelevant political comment on the degree to which Parliament has, if you like – and this is a political statement – over-prescribed.

But the judges’ duty, in our submission, is to observe what the prescription is, perhaps privately to raise an eyebrow at the lengths that Parliament has gone to avoid judicial determination case by case of what is important and what is not and simply to say, “Well, if Parliament has prescribed this, our duty is to observe of these jurisdictional provisions” and our friends do not say they are not jurisdictional. In effect, it is an Orwellian proposition. Some are more jurisdictional than others and with respect that cannot be right.

For those reasons, in our submission, the proposition in 91 which is at first sight dead against us in relation to special leave is rather one that observes the plain nature of the kind of legislative project undertaken by Division 7A to remove the judges’ case-by-case determination, to remove the possibility that was made concrete in Lam’s Case where the common law rule of procedural fairness attaches a matter of statutory interpretation to those administrative decisions as the statute then stood came to be supplied as to content by reference to the particular circumstances between the parties in question. That has been displaced by Division 7A.

Now, if it matters, to go to the other case that my learned friend has drawn to attention, the postcode, with great respect to their Honours below, could as easily have been dealt with by nothing other than compliance with the statute given falsa demonstratio. The statute did not say that every particular, including spelling of street names had to be correct in the addressing.

That is a case where their Honours do not interpret the statute so as to say that trivial breaches do not matter, they certainly do not interpret the statute to say startlingly that procedural fairness requirements are not jurisdictional in nature. They rather go straight to the so-called discretion and with respect another route home, which well and truly justifies the result in that case was to say, well of course it was addressed. A slip in the postcode – now, that is one of the reasons one has both street names, suburbs and postcodes no doubt. You put the suburb in, you put the
postcode in. A redundancy ensures that an error in one or the other probably will not defeat delivery.

In our submission, that case is of no moment and adds nothing to the merits for special leave of this case. The merits for special leave of this case are then dominated, in our submission, by the fact that as the Chief Justice has pointed out, this kind of prescription, this kind of regime, being peculiarly legislative can be amended. Now, that is a statement which is good in our submission from a respondent for special leave generally. In this case it is particularly strong because not only can it be amended – this is not potential – it has been.

One would dismiss, in our respectful submission, the riposte to that by our learned friends that it was not retrospective. That is a way of saying it does not catch us. Well, that is not a reason for special leave. It cannot be of general importance that our case be caught by amendments. So for all those reasons, in our submission, notwithstanding the immediate first sight striking character of a decision which the judge making it describes as involving a rather absurd conclusion in a statutory interpretation area, this is as it must be and as it had to be in relation to avowedly jurisdictional provisions, the absence of any jurisprudence from so-called trivial breaches being forgiven at the point of characterising jurisdiction and the evidence intent of Parliament to remove from the judges in place of and substitute a statutory prescription, for all those reasons, in our submission, there should not be a grant of special leave.

FRENCH CJ: Thank you, Mr Walker. We will not need to hear from you, Mr Williams.

There will be a grant of special leave. That is on the basis set out in the applicant’s submissions that the Minister agrees to pay the costs of the first to sixth respondents as agreed or taxed, regardless of the outcome of the application. If the application is allowed, the Minister will not seek to disturb the costs orders below and will also agree to pay the first to sixth respondents’ reasonable costs as agreed or taxed on appeal.

Should this be any longer than half a day?

MR WALKER: No, your Honour.

FRENCH CJ: Thank you. Thank you, gentlemen.

AT10.38 AM THE MATTER WAS CONCLUDED