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High Court of Australia Transcripts |
Last Updated: 25 August 2015
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S260 of 2014
B e t w e e n -
SZTOV
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
REFUGEE REVIEW TRIBUNAL
Second Defendant
FEDERAL COURT OF AUSTRALIA
Third Defendant
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 19 AUGUST 2015, AT 10.08 AM
Copyright in the High Court of Australia
MR S.E.J. PRINCE: If the Court pleases, your Honour, I appear with my learned friend, MR J.E. MACK for the plaintiff. (instructed by Westside Legal)
MS A.M. MITCHELMORE: If the Court pleases, I appear for the first defendant. (instructed by the Australian Government Solicitor)
HER HONOUR: Yes, Mr Prince.
MR PRINCE: Thank you, your Honour. Your Honour has received written submissions from each party.
HER HONOUR: Yes, I have.
MR PRINCE: I do not know if your Honour has had an opportunity to read those written submissions.
HER HONOUR: I have had an opportunity to read them, Mr Prince. If you would just bear with me a moment, I might just raise some matters with you arising out of the submissions filed on your client’s behalf.
MR PRINCE: Perhaps before we traverse the submissions, your Honour, it would be convenient for me to, at this point, read the affidavit of - - -
HER HONOUR: Indeed.
MR PRINCE: - - - my instructing solicitor, Pathmanathan Rama, which was affirmed on 30 September 2014 and contains a number of exhibits. Does your Honour have that affidavit?
HER HONOUR: That affidavit, I think, was before me on the last occasion - - -
MR PRINCE: Yes, I do not know if it - - -
HER HONOUR: I think it was read. In any event, you read that affidavit. I have that before me.
MR PRINCE: Yes, your Honour.
HER HONOUR: That is the affidavit to which, amongst other things, is attached a copy of the reasons of the Tribunal - - -
MR PRINCE: That is so, your Honour.
HER HONOUR: - - - and those of the Federal Court that are the subject of the claims for relief.
MR PRINCE: That is right, your Honour.
HER HONOUR: Yes.
MR PRINCE: There is also, as I understand it, the Minister has filed an affidavit which simply annexes the written submissions which were before Justice Flick below.
HER HONOUR: Yes. An affidavit in that respect has been filed. Is that read - - -
MS MITCHELMORE: Yes, your Honour. It is the affidavit of Andras Markus, affirmed on 11 August 2015.
HER HONOUR: Yes. Any objection to - - -
MR PRINCE: No objection to that, your Honour.
HER HONOUR: Yes. Ms Mitchelmore, do I take it there is no objection to any part of the affidavit of Mr Rama?
MS MITCHELMORE: That is correct, your Honour.
HER HONOUR: Yes. Does that complete the evidence on the hearing?
MR PRINCE: It does, your Honour, subject to this. I expect that, given the nature of the matter, the Federal Court file has been brought up to this Court. I hope that is the case. There is an affidavit before Federal Court below, again by Mr Rama - - -
HER HONOUR: Mr Prince, I understand that the Federal Court file is not before the Court.
MR PRINCE: Well, in that case, your Honour - and it only really arises over something in my learned friend’s submissions, but just for completeness, I provide to your Honour a copy of the affidavit which was before Justice Flick below. It is only very short.
HER HONOUR: Is there any objection to that, Ms Mitchelmore.
MS MITCHELMORE: No, your Honour.
HER HONOUR: Yes.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Very well. This is the affidavit of Mr Pathmanathan Rama which was affirmed on 5 May 2014.
MR PRINCE: Thank you, your Honour. So, I think that concludes the evidence, your Honour, before - - -
HER HONOUR: Yes, would you just bear with me while I read that affidavit.
MR PRINCE: Yes, your Honour.
HER HONOUR: This is the material that I think his Honour accepted respecting the availability of legal advice had the matter been adjourned on the application first made by the plaintiff before the Federal Circuit Court.
MR PRINCE: That is right, your Honour. One can see that it provided a foundation for upholding the appeal in relation to the refusal of the adjournment.
HER HONOUR: Well, now, of course, that appeal was upheld and there is no challenge to his Honour’s orders in that respect.
MR PRINCE: There is no challenge to his Honour upholding the appeal but your Honour will have seen from the written outline of submissions that there is an issue that arises in terms of the framing of the orders to give effect to upholding the appeal in that sense.
HER HONOUR: This this the issue concerning the power of the Federal Court pursuant to section 28 of the Federal Court of Australia Act on the determination of an appeal. Is that so?
MR PRINCE: That is right, your Honour, yes.
HER HONOUR: If I understand the argument, it is that his Honour referred – his Honour in order 2 of the orders made on 2 September 2014 set aside the first decision made by the Federal Circuit Court on 8 April 2014.
MR PRINCE: Yes.
HER HONOUR: The argument is that the powers conferred by section 28 of the Federal Court of Australia Act in subsection (1)(c) include a power to:
set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit - - -
MR PRINCE: Yes, and the juxtaposition of (c) with (a) and the inclusion of the conjunctive in (c), that is:
set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court –
in contradistinction to what appears in 28 (1)(a) which is another choice available to the Court which is to:
affirm, reverse or vary the judgment appealed from -
So the argument is that the power in 28(1)(a) is a complete power. It does not require any remittal. If an appellate court is to affirm, reverse or vary the judgment appealed from it can do that under 28(1)(a), but if it is going to set aside a judgment, either in whole or in part, it also needs to remit the matter subject to further directions and that is because if a judgment is set aside, there is just nothing left in its place. It is simply left hanging.
If, by comparison, the decision below is affirmed, reversed or varied, then there is something from the appellate court which stands in the place of the judgment which has been set aside and, in my submission, that is why 28(1)(a) and (c) are in different terms and his Honour chose (c) but did not take the extra step of ordering a remittal, so that one is simply left with the setting aside of a decision below but nothing in its place.
HER HONOUR: As I understand the defendant’s response to that submission, it is this. His Honour was dealing with two related, interlocutory determinations. The first in point of time was the refusal of the adjournment; the second was the determination of the rule 44.12 hearing. In those circumstances, his Honour determined to set aside the adjournment decision, having identified error but, in light of his conclusion respecting the order for dismissal of the proceeding under rule 44.12, his Honour did not remit the matter. The argument that it was necessary to remit the matter necessarily carries with it, as your submissions acknowledge, that leave had to be granted to appeal against the second determination and that determination had to be set aside.
MR PRINCE: Your Honour, can I clarify that? In my submission, that is what, as a matter of logic, ought to have followed but it would have been open to his Honour, and entirely proper, to uphold the appeal in relation to the refusal of the adjournment, remit the matter back to the Federal Circuit Court to be dealt with according to law, in which case the second appeal may not need to have been dealt with or, if it was dealt with, just simply set aside, because there ultimately has been no remedy provided for the error of the Federal Circuit Court in the adjournment application. There has just been no remedy for that at all.
HER HONOUR: But the error was, if you like, Mr Prince, as I understand his Honour’s reasons, a denial of procedural fairness in the sense that the plaintiff was not given the opportunity to obtain advice to enable him to put his case fully at the rule 44.12 hearing. Is that - - -
MR PRINCE: Well, his Honour, I think went a little bit further than that because the error was in Judge Emmett refusing to grant an adjournment and it must follow that a decision unaffected by error would have granted an adjournment. So, if the adjournment had have been granted, her Honour would never have gone on to consider the show cause hearing there and then. So, on one level, the two are inextricably entwined. However, on another level, by dealing with the second decision in the way that his Honour did, his Honour has failed to give any remedy, relief or effect to what was accepted as an error in the decision to refuse to grant an adjournment.
HER HONOUR: That is the decision to refuse to grant an adjournment was a discretionary interlocutory decision. Your argument carries with it, that notwithstanding the admitted relationship between these two interlocutory decisions, the error tainting the first necessarily dictated the setting aside of the second. Is that a fair way of putting - - -
MR PRINCE: I think that is a fair way of putting it. His Honour was, in my submission, wrong to say that it did not follow that the error in the first decision meant that the second decision could stand because they are interrelated precisely because the application for an adjournment, which was wrongly refused, immediately led into the summary dismissal of the proceedings.
Then his Honour, rather than dealing with that error in process by the judge, tried to reach a practical result by looking at what might have happened if legal representation came in and the arguments had have been advanced, which were advanced at that point. But then, that then went off another tangent because his Honour then applied the test of whether or not advised and on the material available, that legal representation on those grounds would have made out jurisdictional error as opposed to the real question in the second decision which is whether there was an arguable case.
So, my friend says in her written outline of submissions that there is no evidence - your Honour will have seen discussion in the submissions about the “green book” or what is called the “green book”, which your Honour will have seen come up in various forms to this Court through the appeal book process and then up into this Court. That “green book” was never prepared in this case because of a shortcut process that the Federal Circuit Court took.
HER HONOUR: Can I just raise this with you? When you speak of the shortcut process that the Federal Circuit Court took, you are referring to the mechanism under the rules for a Part 44, rule 12 hearing?
MR PRINCE: Yes.
HER HONOUR: Am I right in my understanding that at that hearing the “green book” would ordinarily not be prepared, that the “green book” is prepared when either following a Part 44, rule 12 hearing, the court orders the Minister to show cause or the court circumvents a Part 44, rule 12 hearing altogether and directs the Minister to show cause.
MR PRINCE: First of all, it should not be assumed that there is automatically a rule 44.12 hearing because often what happens, and what has happened in other cases, is that procedure gets confused and mixed up with a type of procedure that occurs, and has traditionally occurred in this Court, where there will be a nisi hearing and then an absolute hearing but that is not the way rule 44.12 works.
It really is, in effect, a summary dismissal, show cause type of hearing. It is a hearing where the applicant has to show cause. It is not a hearing where the respondent has to show cause. So, in effect, rule 44 is a strike-out application - - -
HER HONOUR: Yes.
MR PRINCE: - - - dressed up in a different way but it is ultimately the same considerations and Spencer v The Commonwealth apply precisely because there is no “green book” at what is called the show cause hearing. The test or the approach to whether or not the proceedings should be dismissed, the threshold must necessarily be very high because inevitably the issue at a show cause hearing is not whether or not there is jurisdictional error. The issue at a show cause hearing is whether or not an applicant should be shut out from his day in court.
HER HONOUR: Well, I think the issue is whether the court is satisfied that the application for an order to show cause raises an arguable case for the grant of that relief.
MR PRINCE: Yes, and that verbal formulation, in my submission, is no different to the formulations which have led to the type of approach in Spencer v The Commonwealth and the type of threshold that is necessary to dismiss a case.
HER HONOUR: Well, Mr Prince, accepting that although under Part 44, rule 12(2), the dismissal of an application under paragraph (1)(a) is interlocutory, it is effectively a final determination of the proceedings.
MR PRINCE: Yes.
HER HONOUR: So one would take from that that a rather different approach to the determination of a leave application to appeal to the approach that is taken for leave to appeal from an interlocutory order on a mere matter of practice would be adopted.
MR PRINCE: Yes.
HER HONOUR: Take that as a given for the present purpose. The matter I am seeking to raise with you is this. What his Honour had before him was an application for leave to appeal from the order of dismissal under Part 44, rule 12.
MR PRINCE: Yes.
HER HONOUR: That directed attention to the prospects of successful challenge to dismissal of his application under that order.
MR PRINCE: That is what it ought to have drawn attention to. That is right.
HER HONOUR: Well, whether or not it did, I understand is an issue of controversy but you accept, Mr Prince, that that was the focus of the discretionary decision that was before Justice Flick, with respect to what I will describe as the second decision.
MR PRINCE: Subject to this, your Honour; not entirely. Whilst the correctness or otherwise of whether or not there was an arguable case before Judge Emmett was an issue in the second decision, also in issue, in the second decision, was whether or not the process by which her Honour achieved or made that finding was tainted by the denial of procedural fairness occasioned by the refusal of the adjournment.
HER HONOUR: This is your argument, is it, that his Honour failed to place the emphasis that you contend he should have on maintaining fair processes in Chapter III courts?
MR PRINCE: Yes.
HER HONOUR: Now, that argument draws, apart from other things, on the statements of the Full Federal Court in the recent decision of SZWBH v The Minister.
MR PRINCE: That is right. Yes.
HER HONOUR: The defendant points to some differences between the two cases. Putting that to one side for the moment, as an ordinary proposition, the denial of procedural fairness may not lead to successful relief of the kind that you claim in a circumstance where it resulted in the failure to have an opportunity to make submissions on a point of law that must clearly have been answered unfavourably to the person, the subject of that denial. I am just directing your attention to some observations in the joint reasons of Justices Gaudron and Gummow in Ex parte Aala.
MR PRINCE: Their Honours also say, and as I recall it is Justice Gaudron who says in Ex parte Aala that where there has been a denial of procedural fairness the constitutional writs would go almost as of right and there is a very limited set of bases upon which discretionary relief would be refused.
That applies a fortiori in an appeal situation which is what his Honour Justice Flick was concerned with and, in my submission, the resort to whether or not it would have made an ultimate difference and whether they would have lost anyway is a very, very slippery slope because ultimately it involves focus being diverted away from the procedure which is adopted and upholding the fair procedure in the courts and the importance of that to the administration of justice, to whether the end would justify the means and whether or not the ultimate result means there is not much point doing anything about it anyway. That is a very dangerous approach and it was treated with caution in Aala.
HER HONOUR: Well, Mr Prince, the relief that you claim is with respect to a discretionary determination of a leave application by Justice Flick.
MR PRINCE: That is right, a discretion which had to be exercised judicially. It is not discretion at large. There are tests for determining whether leave to appeal should be granted, and so on.
HER HONOUR: Yes, I think his Honour referred in that regard to the - - -
MR PRINCE: Decor v Dart.
HER HONOUR: - - - test in Decor Corporation v Dart. That is a test that has been very frequently cited. As I understand it, you do not take issue with the test. You take issue with his Honour’s application of it.
MR PRINCE: Correct.
HER HONOUR: Now, the matters that I am directing your attention to at the moment are, as I understand your submissions, you say that certiorari should issue firstly because his Honour misapprehended his jurisdiction.
MR PRINCE: Precisely.
HER HONOUR: He misapprehended his jurisdiction, as I understand the argument, by proceeding to consider, on the various submissions that were put to him by senior counsel for the plaintiff, whether the reasons of the Tribunal disclosed jurisdictional error. Your contention is that impermissibly shifted from the exercise of the discretionary determination to grant leave or not to grant leave to effectively the exercise of the original jurisdiction vested in the Federal Circuit Court. Is that right?
MR PRINCE: Exclusively vested in the Federal Circuit Court.
HER HONOUR: Yes. Secondly, you put the argument as one involving legal error by reason of the misapplication of the principle that governs the exercise of the discretion to grant the leave. Is that right?
MR PRINCE: That is right.
HER HONOUR: Now, that argument I had some difficulty with. In your written submissions it turns on a suggested failure to apply what I might describe as the second limb of the Decor v Dart test.
MR PRINCE: The second of the limb of the second limb of the Decor v Dart, in a sense.
HER HONOUR: I do not know that I fully understand that argument.
MR PRINCE: May I take your Honour to it and then perhaps I can make it a little clearer than I have done so far.
HER HONOUR: Yes.
MR PRINCE: If your Honour goes to page 3 of the reasons for Justice Flick’s decision, which is a continuation of paragraph 7 - - -
HER HONOUR: Yes.
MR PRINCE: There Rawson Finances, which summarised the test from Decor v Dart is set out conveniently in a numbered form and the second limb is subparagraph (2) of the extracted paragraph [4].
HER HONOUR: Yes.
MR PRINCE: Your Honour will see - and this really is the only question that his Honour ultimately considered. It seems that his Honour moved past the first limb. The question was:
whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
Now, my friend in her written submissions says we can infer from the reasons of Justice Flick that he did suppose the decision, that is the second decision, to be wrong. In my submission, there is nothing in Justice Flick’s decision which suggests that his Honour was alive to that requirement and did suppose it to be wrong. If he did, his reasons, or his Honour’s approach was illogical because, supposing the decision to be wrong in the context of the second decision must mean that Judge Emmett, I should say, her Honour was wrong to summarily dismiss the proceedings under 44.12. Now, if we accept that that is the starting point, the question is to measure substantial injustice if leave is refused in that circumstance.
HER HONOUR: Mr Prince, may I raise a concern I have in my understanding of this whole line of your challenge.
MR PRINCE: Yes, your Honour.
HER HONOUR: I think I understand what I would call the first limb, the jurisdictional limb and I will come to that in a moment but my understanding of the Decor v Dart test is that there are, as it were, two limbs. The first is whether in all the circumstances the decision at first instance is attended by sufficient doubt to warrant its consideration on appeal.
MR PRINCE: Yes.
HER HONOUR: The second is cumulative and it is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
MR PRINCE: Yes.
HER HONOUR: Now, the effect of this test applied to a discretion respecting the grant of leave to appeal from interlocutory orders including, of course, interlocutory orders on practice and procedure, is to impose an additional threshold to the identification of arguable error.
MR PRINCE: Yes.
HER HONOUR: So, one looks firstly to, is there a sufficient reason to think that this interlocutory decision was attended by error and, secondly, if it was, do I consider that substantial injustice would be done if I refused, nonetheless, to grant leave to appeal.
MR PRINCE: Yes.
HER HONOUR: Now, here, what Justice Flick did was to consider whether the decision, namely the order dismissing the proceedings, was attended by doubt or sufficient doubt, to use the language in Decor, and in that regard his Honour considered not only the claims that had been advanced in the application but the additional ground which senior counsel developed fully on the hearing and which was the subject of the further ground in the draft notice of appeal and his Honour concluded that none of those grounds had merit.
MR PRINCE: Or that they had not been made out. His Honour really found that jurisdictional error had not been established and that is the language that his Honour uses.
HER HONOUR: What I had in mind is his Honour’s statement at paragraph 41 of his reasons. He expressed it as that:
such arguments as were now relied upon lack sufficient merit to warrant the grant of leave to appeal.
MR PRINCE: His Honour in 41 said:
Indeed, each of those arguments should be rejected.
HER HONOUR: Putting that flourish to one side, his Honour’s conclusion in paragraph 41 was a conclusion that the arguments lacked sufficient merit to warrant the grant of leave to appeal.
MR PRINCE: My submission, your Honour, is that is not the effect of what his Honour says because if your Honour reads the whole of the judgment, for example at paragraph 38, it is clear that what his Honour is doing is analysing the claimed errors and concluding or determining that they do not demonstrate jurisdictional error. For example, 38, his Honour says:
is free of jurisdictional error –
Paragraph 37, his Honour says that:
Nor does the Applicant’s reliance upon the difficulties confronting his father expose any jurisdictional error.
His Honour, indeed, at 39 goes even further than determining whether there is jurisdictional error and goes on to find that even if there had been some sort of jurisdictional error in terms of approaching “significant physical harassment” and significant “physical ill-treatment”, the facts as exposed in the RRT decision would have difficulty in being presented as systematic for the purposes of 91R(1)(c) which is not a matter of jurisdictional error or judicial review but that is really getting into the merits of the case before the RRT and finding an alternative basis for downing the applicant in the RRT.
HER HONOUR: Mr Prince, for the moment, just so I understand the argument - and I am particularly focusing attention on your challenge that Justice Flick misapplied principle to the determination of the leave application - - -
MR PRINCE: Yes, your Honour, I understand that.
HER HONOUR: Now, your jurisdictional argument contends that his Honour, as it were, went beyond that which was required of him to determine the question of whether the Tribunal’s determination was attended by jurisdictional error.
MR PRINCE: Yes.
HER HONOUR: I understand that argument, but looking at his Honour’s conclusion in paragraph 41 that the arguments that had been advanced on the application before him lacked “sufficient merit to warrant the grant of leave to appeal”, against that conclusion, what is the contention respecting the reference that his Honour made additionally to that to the lack of substantial injustice. I simply do not understand the argument.
MR PRINCE: Well, your Honour, leaving aside whether or not that statement by his Honour fairly reflects the totality of his Honour’s reasons and what his Honour in fact did, putting that to one side because that is really the jurisdictional argument, in terms of even accepting it at face value and assuming that is what his Honour did, again, it is not the correct test because the correct test in Decor v Dart is whether or not substantial injustice would flow assuming the decision appealed from to be wrong.
The decision appealed from is not a question of whether or not the applicant would succeed on judicial review or whether there was sufficient merit to justify the grant of leave. The error that needed to be corrected was that my client’s case was wrongly dismissed at a summary stage before my client had the opportunity to have a trial, before my client had any of the material in the “green book”.
Now, his Honour has switched from determining whether there is a substantial injustice in denying my client a trial with access to all of the material rather to the question of whether or not, frozen in time, looking at the material as it was, the applicant would succeed in establishing jurisdictional error and - - -
HER HONOUR: Can I just stop you there, Mr Prince. You speak of substantial injustice in denying your client the opportunity for a trial but it is necessary to focus on the order that was the subject of the leave application and that was an order for dismissal under Part 44, rule 12, so that the focus was upon whether, applying the principles in Decor v Dart, but accepting the seriousness of the decision, whether the decision below, that is a decision to summarily dismiss the application, was attended by sufficient doubt to warrant its consideration on appeal.
MR PRINCE: That is in my – I am sorry - - -
HER HONOUR: Could I raise with you this?
MR PRINCE: I do not think that is what his Honour is doing at 41, your Honour.
HER HONOUR: Could I just raise with you this, Mr Prince? Having regard to the effective finality of a dismissal under Part 44, rule 12, it might be thought that it would be an unusual case in which, on an application for leave to appeal, the discretion would be exercised by a judge determining. There are sufficient doubts to warrant this matter being reconsidered by the Federal Court on appeal but there is no substantial injustice to be done by refusing to grant leave to appeal except upon the supposition that the decision is wrong. That would be an unlikely exercise of discretion, one might think.
MR PRINCE: Yes, but I can envisage circumstances where it might happen. This morning’s case is not a bad example. It may be that there was a decision which was wrong and wrong on a point of law, obviously interlocutory, let us say practically final, but the person has subsequently left the jurisdiction and the subject matter of the appeal or the proceedings would be completely moot. That would be an instance where you might have a case which is attended by sufficient doubt to warrant its reconsideration but no substantial injustice would result if leave were refused.
HER HONOUR: Indeed. So one can posit cases of that character but the matter that I am raising with you is your argument constructed on the second limb substantial injustice contention seems rather difficult to grasp. It is hard to read his Honour, looking at the decision as a whole and particularly his conclusion in paragraph 41, as doing other than carefully considering the merits of the various challenges made that were sought to be propounded on appeal as in the draft grounds of appeal and concluding that none had sufficient merit to warrant the grant of leave.
MR PRINCE: Yes, and that, in my submission, is the wrong question because the real question is, was there sufficient basis in those grounds to have warranted the refusal of a dismissal by a Federal Circuit Court, properly instructed on the test to be applied. It is a different question because by bringing the test in to warrant the grant of leave the Spencer v Commonwealth-type approach to summary dismissal is put to one side and, indeed, the real focus of the question and what would have been the subject matter of an appeal had leave been granted is whether Judge Emmett wrongly summarily dismissed the proceedings which were before her Honour. Now, that, in my submission, is a different question to whether or not the proposed grounds of amended application would have been made out or - - -
HER HONOUR: Are you moving now to your jurisdictional issue?
MR PRINCE: No, your Honour. This is the Decor v Dart issue because when one comes back to it, it is the decision of first instance which is the subject matter of whether or not it is attended by sufficient doubt.
HER HONOUR: But an appeal is from the order, is it not?
MR PRINCE: Yes.
HER HONOUR: So that the consideration of whether there is sufficient doubt attending the order, the subject of the leave application, must focus, must it not, on the prospects that that order would be set aside upon appeal.
MR PRINCE: Well, the order is for the proceedings be dismissed pursuant to rule 44.12.
HER HONOUR: Yes.
MR PRINCE: So the order and the decision, which travel together obviously and it is the decision at first instance which is what is described as the subject matter of inquiry in the first limb, address whether or not there was error in Judge Emmett’s decision to summarily dismiss the proceedings in the circumstances in which her Honour did so.
HER HONOUR: Is this a submission that, had Judge Emmett made some error in the statement of her reasons that the Federal Court considered had no bearing on the correctness of the order that she made, leave should nonetheless be granted - - -
MR PRINCE: I do not know that that hypothesis or that possibility or that situation was the subject of any consideration.
HER HONOUR: Well, then I simply am failing to grasp the argument that you seek to put on the question of the claimed failure to apply the proper principle to the exercise of this discretionary determination.
MR PRINCE: The discretionary determination by Justice Flick or by Judge Emmett?
HER HONOUR: We are concerned on this application with the grounds for relief in the nature of certiorari to quash a discretionary determination of Justice Flick.
MR PRINCE: Yes.
HER HONOUR: As I read your submissions, I discern three suggested bases for the grant of that relief.
MR PRINCE: Yes, your Honour.
HER HONOUR: One going to jurisdiction, the second going to legal error on the face of his Honour’s reasons, and the third being an argument based on the asserted failure to address the procedural fairness that attended the refusal of the adjournment. Am I right in that respect?
MR PRINCE: Yes, into the second decision, that is right.
HER HONOUR: Yes. Turning to the legal error in applying the test for the grant of leave, if you could distil for me the basis of the challenge - I simply do not understand the way you put your argument respecting his Honour’s asserted failure to consider whether substantial injustice would be done to the plaintiff, assuming the decision to be wrong.
MR PRINCE: Okay. Can I start, your Honour, with paragraph 27, which is where the error starts to occur.
HER HONOUR: Yes.
MR PRINCE: Counsel who then represented the first respondent before his Honour Justice Flick urged on Justice Flick an approach which would go beyond whether or not the additional grounds:
were sufficient to show “arguable error” - that being sufficient to resist the dismissal of his application –
at a show cause hearing and, in my submission, that is where it should have gone. The Minister contended that the court should go further and that the court:
should in the present proceeding resolve the arguments –
about jurisdictional error in the RRT –
as if on a final hearing.
His Honour immediately, at the top of paragraph 28 says:
The cautionary restraint urged on behalf of the Applicant has been resisted.
HER HONOUR: Can you just explain a further matter, and it is in paragraph 28, just after the reference to which you have just made. His Honour said:
The arguments were fully developed by Senior Counsel for the Applicant and Counsel for the Minister was content to present argument as if on a final hearing.
MR PRINCE: Yes.
HER HONOUR: It does appear from the material annexed to Mr Markus’ affidavit that full submissions on the asserted errors attending the Tribunal’s decision were ventilated on the plaintiff’s behalf before his Honour.
MR PRINCE: Well, they are not full because they are uninformed by any “green book”. They are as good as it can get on the limited material available.
HER HONOUR: But, Mr Prince, again, can I just focus on what was the subject of his Honour’s consideration.
MR PRINCE: Yes, your Honour.
HER HONOUR: That was the rightness of the, if you like, summary dismissal order so that one is looking to the question of the rightness of an order reflecting a conclusion that no arguable case was raised.
MR PRINCE: In my submission, that is not what his Honour is referring to at paragraph 28. His Honour is referring to a full resolution of the asserted jurisdictional errors with the Tribunal’s decision on the material before him. That is what his Honour did. It was not a question of resolving, which is what the applicant asked his Honour to do, whether or not those arguments were sufficient to show arguable error so as to forestall a summary dismissal.
His Honour went further than that at the urging of the Minister and resolved, looked at those arguments, looked at the record of the Tribunal’s decision, determined for his Honour’s self and, to use his Honour’s own words, finally resolved whether or not those asserted grounds, such as they could be put at that stage without all of the material, could be resolved against the applicant and that is resolved in a way where his Honour considered whether they disclosed jurisdictional error and found that they did not.
What his Honour was not doing was ascertaining whether or not there was error in Judge Emmett’s decision to summarily dismiss the case. Nor was his Honour determining, as his Honour was asked to do, whether or not there was error in Judge Emmett’s decision that there was no arguable error sufficient to forestall a dismissal at a summary stage. His Honour went beyond that.
That is the argument about legal error and that is where it starts and the argument by my learned friend, Mr Dixon, who appeared in the appeal, was done over objection. It was the best that he could do in the circumstances and, indeed, as your Honour would have seen from my written submissions, his Honour Justice Flick did touch on this where his Honour said:
A different approach could well be pursued where (for example) an applicant seeking leave to appeal may not be in a position to place before the Court all materials relevant to the hearing of an appeal as opposed to an application for leave to appeal.
HER HONOUR: Yes.
MR PRINCE: Well, in this case the applicant was never armed with the materials necessary to make a full final hearing on whether or not jurisdictional error was established. The most that the applicant was armed with was a basis or sufficient material to deal with whether or not there was arguable jurisdictional error sufficient to resist the dismissal of the application at a show cause hearing.
Now, by stepping beyond that more limited question, as his Honour did, to a final resolution of whether there was jurisdictional error his Honour has shifted the ground under the applicant because the applicant now has to meet a substantive final hearing about the correctness or otherwise of the asserted jurisdictional error, but without any of the forensic materials available that would be available at such a final hearing, in circumstances where the only subject matter of the application for leave before his Honour was whether or not there was sufficient to show arguable error in the Tribunal’s decision, sufficient to resist the dismissal of the application. That is the correct test.
HER HONOUR: A conclusion that the arguments challenging the Tribunal’s decision on jurisdictional grounds should be rejected, which is what I earlier described as added flourish, in paragraph 41, one might think necessarily carries with it the conclusion that they are arguments that do not disclose an arguable basis for resisting an order for dismissal under Part 44, rule 12.
MR PRINCE: No, your Honour, if that were the case trials could be significantly shortened. Just because somebody ultimately loses a case or a case is ultimately rejected does not mean that the case was not arguable and - - -
HER HONOUR: Mr Prince, the Federal Circuit Court Rules make provision for the court or a registrar to give orders including for a hearing under Part 44, rule 12.
MR PRINCE: Yes, your Honour.
HER HONOUR: In the event such an order is made, the issue for the court is whether it is not satisfied that the applicant has raised an arguable case for the relief that the applicant claims in the show cause application.
MR PRINCE: Yes.
HER HONOUR: On appeal from a dismissal under that rule, the issue is the rightness or otherwise of that order. Now, the matter I am directing your attention to and, again, it is in relation to the second way you put your argument, the principles governing the grant of leave to appeal, the matter I am raising with you is if the appellate court concludes that the arguments have no merit, that is the arguments relied upon to raise that arguable case do not do so, that surely is the end of the matter.
MR PRINCE: Well, your Honour, there is a significant difference between prospectively dealing with whether arguments raise arguable error, which is the true test, and a post hoc, propter hoc process of reasoning where one purports to hear the substantive case, reach a decision but it fails and then says well, then, therefore it is not arguable, because that analysis, in my submission, is not the correct analysis that one would address on a show cause hearing or any strike-out application to say well, let us deal with the substantive hearing but we will not give you any of the protections of a substantive hearing and then we will come to a view about whether you are going to lose the substantive hearing and then once we have done that, it necessarily follows that there was no arguable error.
That approach, in my submission, is exactly the wrong approach that his Honour Justice Flick was invited to take by the Minister in paragraph 27, that the balance of what is in 41 is not a flourish. It is clear that his Honour was directly confronted with a dispute between the parties about his Honour’s task and my learned friend, Mr Dixon, put to his Honour Justice Flick that the real question on whether or not the appeal from Judge Emmett, exercising power under 44.12, was whether or not the arguments were sufficient to show arguable error - - -
HER HONOUR: At paragraph - - -
MR PRINCE: - - - that is sufficient to resist the dismissal of the application when called upon by the Federal Circuit Court to show cause.
HER HONOUR: Mr Prince, just in relation to the second strand of your argument, not the jurisdictional argument, how, in light of a conclusion that the arguments as were relied upon by the plaintiff before Justice Flick lacked sufficient merit to warrant the grant of leave to appeal, how is that conclusion inconsistent with his Honour’s correct understanding of the legal test for the grant of leave?
MR PRINCE: Because his Honour was referring to error in the Tribunal’s decision, not error in Judge Emmett’s decision. His Honour was saying that there is insufficient error in the Tribunal’s decision to justify the grant of leave to appeal.
HER HONOUR: I see.
MR PRINCE: His Honour should have been asking whether there was sufficient merit in the argument that Judge Emmett was wrong in her Honour’s approach to justify the grant of leave to appeal.
HER HONOUR: Is this a contention that his Honour was not concerned with the correctness of the order, the subject of the leave application?
MR PRINCE: Yes. His Honour was concerned with the practical result, the practical effect.
HER HONOUR: I am not sure that we may not be at cross-purposes now, Mr Prince. I understood any appeal would be an appeal from the order of dismissal as distinct from the reasons.
MR PRINCE: I understand your Honour has raised that with me, but the dismissal is not a dismissal at large following a trial. It is a dismissal following a summary dismissal hearing, if one could call it that. So, the error was in dismissing the proceedings in a summary way where there were arguments sufficient to show arguable error, that being a sufficient basis to resist the dismissal of his application in a show cause hearing.
HER HONOUR: The submissions as to arguable error were arguable error in a conclusion that the application, including the amended new ground of appeal, did not establish an arguable case for the relief.
MR PRINCE: An arguable case, yes, such as to resist the summary dismissal.
HER HONOUR: All right.
MR PRINCE: In my submission, there cannot be any doubt that there was an arguable error in Judge Emmett’s approach to the dismissal application because inevitably the denial of procedural fairness in the adjournment application involved a denial of procedural fairness in the show cause application, so clearly the second decision was affected by error, at least on that basis and, in any event, in ascertaining whether or not the second decision was affected by error in wrongly summarily dismissing the case, his Honour should have taken the more narrow approach, that is, whether the applicant had established that there was a sufficient basis to show arguable error before Judge Emmett.
But what his Honour did was to go further at the invitation of the Minister, to finally resolve whether or not jurisdictional error had been established in the Tribunal’s reasons and that is a shift of the appropriate standard because it then means it is obviously a lower standard to find after what one purports to be a full final hearing, although in the absence of the “green book”, that a jurisdictional error is not made out, tempting though that may be because of the quality of counsel who appeared before him, but it is going off onto the wrong test.
HER HONOUR: All right, all right. May I ask, do you press your submissions that complain that his Honour misapplied Decor Corporation v Dart with respect to the substantial injustice limb?
MR PRINCE: Yes, your Honour.
HER HONOUR: All right, very well.
MR PRINCE: The reason I do that - my friend said in her written submissions that one can see an implicit finding in his Honour’s reasons that in applying the second limb that his Honour assumed or supposed the decision to be wrong. In my submission, there is just no way of reading that inference in.
His Honour was looking at substantial injustice in a practical way, rather than with a starting point that the decision of Judge Emmett was wrong because once you start at the point of accepting that Judge Emmett was wrong to summarily dismiss the proceedings, the focus is not on whether the applicant has been robbed of a case that he might or might not win in the full light of day with full argument, the question is whether or not, being deprived of his day in court and including, for example, being given the “green book”, works a substantial injustice on the applicant and it does.
Regardless of whether he would win, lose or draw in the final result, there is a fundamental value in people having their day in court and that was taken away from him and that is the substantial injustice that he suffered by reason of a wrongful decision to summarily dismiss the proceedings. Can I just make one final point, your Honour, in answer to my learned friend’s submissions?
HER HONOUR: Yes.
MR PRINCE: It is said against us that we have not put on any evidence to show how material which we have never seen and which was never made available to us could have made a difference to the outcome of the case. Of course, that simply cannot happen. We could never put on such evidence because we cannot put on evidence about things that we do not know.
HER HONOUR: Mr Prince, can I just raise this with you? That submission must be true on the hearing of any Part 44, rule 12 application in which no “green book” has been prepared and served.
MR PRINCE: That may well be right except - this is why it is so important to focus on whether there was an arguable case rather than whether or not jurisdictional error was made out and that distinction is so important. Secondly, there were directions. The Minister could have filed evidence in the lead up to the show cause hearing but did not do so, so that the applicant is then put in a position where all of the material which the Tribunal took into account is within the exclusive and peculiar knowledge of one of the parties and not the other.
The burden is shifted back to the plaintiff to establish a case in circumstances where he does not have the fundamental materials available to do so. In terms of the way in which – the point is made that there is nothing in the grounds that would have required or called for further material. That should be rejected.
For example, in some of the findings about – if your Honour goes to paragraph 37, there was an argument made that the Tribunal had not considered the fact that the father was arrested and beaten by the Sri Lankan army as an integer in his claim for fear of persecution. Your Honour would see that in paragraph 37, and that is a reference to paragraph [57] of the reasons of the Tribunal, which can then be immediately compared with paragraph [14] of the reasons.
Paragraph [14] of the reasons – I will not take your Honour to it in too much trouble, save as to say this. Paragraph [14] of the Tribunal’s reasons is a summary of the evidence, which is then picked up and repeated in a finding in [57]. Everything is there, except these words, in the finding – “They beat him and threatened that if a person died then he would die” – this is in relation to the father. Those are very important words. They were eliminated from the consideration of the claim in paragraph [57] of the Tribunal’s reasons.
That was being dealt with by his Honour at paragraph 37, and what his Honour said was that the claims by the applicant below, as set forth in paragraphs [13] and [14] of the Tribunal’s reasons, exposed the fact that no claim was made in respect to the father subsequent to 2009. Well, for a start, reading paragraphs [13] and [14] do not indicate any limitation of the claim in relation to the father in the way that his Honour suggests.
But more fundamentally, if there is to be an issue about the nature of the claims that were put before the Tribunal in order to ascertain whether the Tribunal has considered the full integers of the claim, that is an example of the best kind of the type of information that would be obtained from the “green book”, because the “green book” would contain the claims which were made by the Tribunal, what material the Tribunal had before it.
The factual question of whether or not a claim fairly and squarely arose on the material put to the Tribunal by the applicant really can only be determined by reference to the material put before the Tribunal, all of which would be contained in a “green book”, none of which we had. There are other examples of where material would have been relevant, but I will not go into - - -
HER HONOUR: The complaints that were pressed on the plaintiff’s behalf were complaints about the Tribunal’s understanding of an application of section 91R and rather less to its application of sections 424A and 424AA.
MR PRINCE: Well, if they were to be ranked, that is probably right. But the question at 37 - or the issue at 37 that was raised included a claim about a failure to resolve the full integers of a claim, in particular in relation to the impact of the father’s arrest and beating by the army, on the applicant’s position and profile and how he would be treated in Sri Lanka. So it was not exclusively – it cannot be isolated and reduced to some academic debate about the metes and bounds of 91R. This was a – there were facts in this case that needed to be looked at.
There were issues that were before the Tribunal which needed to be analysed and that is not something we can do without the “green book”, but we did the best that we could in putting up what were arguable cases on the material available, obviously subject to the capacity to develop them in the normal course by reference to material that would have been provided which was in the exclusive knowledge and control of the respondent.
HER HONOUR: Is there anything further you want to put on the question of the jurisdictional challenge?
MR PRINCE: I think I have canvassed all of the matters with your Honour.
HER HONOUR: Thank you, Mr Prince.
MR PRINCE: Thank you, your Honour.
HER HONOUR: Yes, Ms Mitchelmore.
MS MITCHELMORE: Your Honour, if I can perhaps go to the substantive relief that is sought in the application for an order to show cause. Your Honour will see that on page 2 of the application for an order.
HER HONOUR: Yes.
MS MITCHELMORE: Your Honour limited argument to the relief claimed in Orders 1 and 2, 9 and 10. Order 1 relates to quashing orders 4 and 6 and that the matter be remitted. Orders 4 and 6 of his Honour’s orders of course relate to the refusal of leave in relation to the second decision that Judge Emmett made which I will refer to as the show cause decision.
HER HONOUR: Yes. Can I just interrupt you for one moment?
MS MITCHELMORE: Yes, your Honour.
HER HONOUR: Was my order for the hearing of paragraphs 1, 2, 8 and 9?
MS MITCHELMORE: I am sorry, your Honour. Your Honour is correct, yes, 8 and 9. Yes, I apologise. Yes, 8 and 9.
HER HONOUR: Yes, very well. No, not at all.
MS MITCHELMORE: Now, your Honour, there was no challenge made to the order of his Honour Justice Flick in Order 2 that the decision – the Federal Circuit Court in relation to the adjournment decision be set aside, that was the terms of his Honour’s order. There is no challenge made to that order. Rather, there is a perhaps collateral challenge to that decision insofar as the plaintiff now argues that there was a failure to correct the adjournment decision in effect by reason of the decision that was made with respect to the show cause decision.
In my submission, your Honour, it assumes that the power or the orders that were being made by his Honour were being made pursuant to section 28(1)(c) of the Federal Court of Australia Act. As I indicated in my written submissions, there is also 28(1)(b) of the Act which empowers the Court to:
give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order –
and in circumstances where his Honour was dealing with, as your Honour put to my friend, two interlocutory decisions, one of which related to an adjournment but the other of which related to the show cause decision in circumstances where after the adjournment decision the plaintiff had obtained the benefit of legal representation and in the course of the leave to appeal proceedings had put all of the arguments that he might have put had he been given the adjournment, it was well open to his Honour to set the decision aside finding that it was attended by error but not to remit the matter in circumstances where his Honour found that the test in Decor v Dart was not satisfied with respect to the show cause decision.
So, in my submission, your Honour, there is certainly no jurisdictional error, which is what my friends would need to engage relief in this Court in making the order pursuant to section 28(1)(b). Now, coming then to the show cause decision, his Honour’s reasons for refusing the plaintiff’s application for leave from that decision commence at paragraph 21 of his Honour’s reasons and his Honour there acknowledged – sorry, perhaps paragraph 20, where his Honour acknowledged that, in my submission correctly, what I have just put, that the refusal of the adjournment did not lead to the conclusion that leave to appeal should be granted in respect to the show cause decision.
His Honour’s reasons then follow from paragraph 21 through to 41. At paragraph 25 I just note, your Honour, what the grounds were in the draft notice of appeal. Your Honour will see paragraphs 10 and 11 are related to the 424A point, which was a ground that was raised before her Honour Judge Emmett.
HER HONOUR: Yes.
MS MITCHELMORE: Then your Honour will see the amended application proposed a further ground of appeal, which was:
Judge Emmett erred by finding that there was no jurisdictional error apparent on the fact of the record.
What his Honour Justice Flick considered to be encompassed or embraced by that ground was the additional grounds that related to section 91R and the contention that section 91R had been misapplied by the Tribunal.
HER HONOUR: Yes.
MS MITCHELMORE: What his Honour then went on to do was to evaluate the merits of those grounds, noting it in his introductory paragraphs at paragraphs30 and 31, dealing with section 91R, that in his Honour’s view the arguments missed their mark and then considered the merits of those accordingly.
Insofar as his Honour did that on the basis of the material that was before him at the time of the leave application, which is what his Honour is referring to in paragraph 28 where he said it was possible to deal with the application on the basis of what was before the Tribunal, and a different approach could well be pursued where an applicant was seeking leave to appeal which might require further evidence, in my submission that was a correct approach in circumstances where the applicant was not raising, pursuant to ground 14 or otherwise, grounds that would have required further evidence.
It can be contrasted, for example, with the Full Court’s decision in SZWBH where when the applicant in that case – or the appellant before the Full Court - was given the opportunity without notice to articulate what his grounds were he actually raised a failure to consider information that had not been put, or that he had put before the Tribunal but which had not been considered which would require consideration of material beyond the Tribunal’s reasons.
Similarly, the Full Court’s decision in Shrestha which I think my friends might also refer to – it is a decision of the Full Federal Court – similarly involved a section 359A issue in the course of the Tribunal hearing where resolution of whether or not there had been compliance required the transcript because the Tribunal had purported to comply with section 359AA putting particulars orally to the applicant in the course of the hearing but that was disputed by the applicant.
So resolution of the issue really required additional evidence and one of the issues in respect of which the Full Court found that Judge Street had erred in that case was that his Honour had determined that the 359A issue had no merit, when his Honour could not do so because to resolve the dispute actually required some evidence.
So, in my submission, this case is quite different to those decisions where it is necessary to have a “green book”. As your Honour has put to my friend, a “green book” is not necessarily before the Court at a show cause stage, the practice varies, but it is not the case that a “green book” has to be before the Court at that stage.
Insofar as my friend contended that the Minister could have put it on, well, that is so but at the show cause stage the applicant bears the onus and the Minister is not required to put anything on, the onus being on the applicant to show they have an arguable case for relief at that point.
HER HONOUR: What do you say to the submissions concerning the disagreement to which his Honour referred at paragraph 27 and, as I understand the plaintiff’s argument, it is that his Honour misapprehended his jurisdiction, proceeded to determine the question of jurisdictional error, standing as it were in the shoes of the Federal Circuit Court?
MS MITCHELMORE: Yes. In my submission, what his Honour was looking at, his Honour had an amended application which proposed a ground of appeal that her Honour had erred by finding there was no jurisdictional error apparent on the face of the record. What his Honour was looking at in paragraphs – well, looking at in relation to the test as stated by Dart, was whether the decision being the dismissal was attended by sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused.
In my submission, his Honour has canvassed in detail – I accept that, it is a detailed consideration and a determination that the grounds had no merit, but one cannot say, in my submission, that his Honour’s embarking on that course is outside of an application of the test for leave as stipulated in Decor v Dart.
HER HONOUR: Yes.
MS MITCHELMORE: So, in my submission, the conclusion at 41, as your Honour has put, noting that Decor v Dart is cumulative, that the first conclusion is lacks sufficient merit to warrant the grant of leave and, as his Honour goes on to find, has not suffered any substantial injustice. That finding has to assume, in my submission, that his Honour has assumed her Honour’s decision to be wrong because otherwise there would be no point embarking on a consideration of the merits and looking at substantial injustice in that instance.
So, in my submission, his Honour certainly has not exceeded the jurisdiction. His Honour has applied it and, in my submission, it has not been shown that his Honour went beyond the task that he was charged with in the course of the application for leave. Just two further things, your Honour.
HER HONOUR: Yes.
MS MITCHELMORE: The first is noting, to the extent that this is how it is put, that the “green book” needed to be before his Honour in order to reach the conclusions that he did, I perhaps dealt with that but obviously that material was not before Judge Emmett, so to the extent that that is raised it does not follow that that had to be before Judge Flick to determine
the merits because, as I put to your Honour, the points that were being raised stood or fell on the proper reading of the Tribunal’s reasons.
HER HONOUR: I understand.
MS MITCHELMORE: Yes. The other matter is just to make clear that although my friend has referred to summary dismissal a number of times and to the Spencer test, that is not what either the Federal Circuit Court or his Honour Justice Flick was examining. Judge Street, of course, in the decision of SZWBH, which was the subject of the Full Court’s reasons, did summarily dismiss under section 17A of the Federal Circuit Court Act. What her Honour Judge Street was dealing with was an application to show cause and a dismissal on the basis that an arguable case was not raised under 44.12.
HER HONOUR: In circumstances in which the listing of that matter for hearing had been arranged at an earlier directions hearing.
MS MITCHELMORE: Yes, that is right, and in circumstances where, in my submission, her Honour Judge Emmett had sufficiently explained not only the overall processes involved in the court but also what would happen at the show cause hearing and the potential, under 44.12, that the matter would be dismissed at that point.
HER HONOUR: Yes, thank you, Ms Mitchelmore.
MS MITCHELMORE: If the Court pleases.
HER HONOUR: Yes, Mr Prince.
MR PRINCE: Thank you, your Honour. My learned friend took your Honour to some selected grounds of the application which were extracted by his Honour Justice Flick. Could I ask your Honour to have regard to the full amended application to extend time and leave to appeal which is at Exhibit TE2 to the affidavit of Mr Pathmanathan.
HER HONOUR: Can you just bear with me one moment while I turn that up?
MR PRINCE: Yes, your Honour.
HER HONOUR: Now, TE2, did you say?
MR PRINCE: That is right, your Honour. It is on page 3 at the top.
HER HONOUR: Yes, I have that.
MR PRINCE: If your Honour has a look at numbered paragraph 10, the first matter appearing under “Summary Dismissal”:
Judge Emmett erred by dismissing the proceedings pursuant to R44.12 where the appellant was not permitted legal representation by reason of the refusal to grant an adjournment. Had the applicant been legally represented, additional grounds could have been identified which would have clearly indicated that there was a reasonably arguable case of jurisdictional error warranting the issue of the constitutional writs.
It was always the case, as is plain from the exchange recorded by his Honour Justice Flick in the reasons for decision, that the applicant proceeded on the basis that the matter before his Honour, being an appeal from a decision of Judge Emmett to summarily dismiss the proceedings, when it came to the issue of error in Judge Emmett’s decision involved a consideration of whether or not there was arguable error sufficient to resist the dismissal of the application when called on to show cause.
HER HONOUR: Mr Prince, you direct my attention to paragraph 10 of the amended application for extension of time and leave to appeal, on the hearing did senior counsel for the plaintiff develop a submission in reliance on paragraph 10 and can you direct my attention to that submission?
MR PRINCE: Yes, your Honour. It is clear from paragraph 27 that that is the foundation. That is the way in which senior counsel for the applicant at the hearing put the case. The question - - -
HER HONOUR: That was a case that it was appropriate for his Honour to resolve the question as to whether the arguments were sufficient to show arguable error. The reference to the arguments on page 11, forming part of paragraph 27 of his Honour’s reasons, was to the arguments presented by senior counsel. The matter I am raising with you is what arguments were presented that directed attention to grounds in addition to the grounds that were contained in the draft notice of appeal that was filed pursuant to the Court Rules?
MR PRINCE: Well, your Honour will see the grounds which had been developed, which were then the subject of findings by his Honour below at paragraph 35, that is, his Honour addressed whether there had been a “misunderstanding of the correct statutory test” by the Tribunal, and then in relation to whether there was a real chance, so that is number one. Then at 36, he addressed the argument that being required by the army, upon pain of being beaten, to perform manual labour when Tamils were rounded up from a village for that purpose was not a mere unpleasantness but there was an error in relation to serious harm in relation - - -
HER HONOUR: Well, this was the section 91R argument that his Honour said was fully developed in front of him.
MR PRINCE: Well, fully developed to the extent that it could based on the record of the Tribunal which was all that was before him. For example, there is no country information to identify. In a court book there would normally be country information which would have been considered by the Tribunal identifying how these sort of round ups happen and what would be involved. We just do not know what is in the “green book” because, of course, we never saw it.
HER HONOUR: That point has been made on a number of occasions, Mr Prince, and you understand a difficulty that stands in your way in relation to it, having regard to the nature of the subject matter of the leave to appeal - - -
MR PRINCE: Can I make this point?
HER HONOUR: - - - which we are concerned.
MR PRINCE: I am sorry, I did not mean to cut your Honour off. Can I also give your Honour a reference in SZWBH?
HER HONOUR: Just bear with me a moment, I will just turn that decision up. Yes.
MR PRINCE: If your Honour looks at paragraph [7], page 3.
HER HONOUR: Yes.
MR PRINCE: This is a set of submissions from the Minister to Judge Street.
HER HONOUR: Yes.
MR PRINCE: At the bottom of that passage your Honour will see it was said:
Given that, if the matter were the subject of an application for leave to appeal –
that is, for summary dismissal –
to the Federal Court, the Federal Court would order the Minister to put on that full complement of documents and the matter would then be reviewed with the benefit of those documents that your Honour didn’t have before him and that’s quite standard.
HER HONOUR: Yes.
MR PRINCE: So the notion that there is some fixed rule in these sorts of cases where they are being dealt with summarily, the full complement of documents will never see the light of day and would not see the light of day on an appeal had leave been granted, in my submission just does not - - -
HER HONOUR: Mr Prince, I did not understand the Minister to put that submission. I understood the Minister to resist a submission that the “green book” would always be before the court determining the Part 44, rule 12 question - - -
MR PRINCE: I did not put that submission, your Honour.
HER HONOUR: - - - and to direct my attention to paragraph 28 of Justice Flick’s reasons, noting that his Honour recognised that a different approach might be pursued in cases where, for example, the applicant seeking leave to appeal is not in a position to place all the material before the court. I am not sure – his Honour’s decision I think may have predated the decision of the Full Court in SZWBH but his Honour was clearly contemplating a circumstance of that kind and, as I understood it, the Minister accepted the rightness of that, that is, that there is not, as it were, a blanket approach to practice with respect to the “green book”. The point, I think, that the Minister is making, unless I misapprehend it, is that it would be wrong to proceed upon a view that absent the “green book” the determination of a hearing under Part 44, rule 12, cannot proceed.
MR PRINCE: I have never put the submission in that way, nor would I. If the application contained an allegation that the Tribunal member was in fact an alien from Mars, clearly it would be taken out without a “green book” being there, or if the complaint had no connection with any known notion of jurisdictional error that could be taken out without a “green book”.
But my point to your Honour is, and the point indeed that was made by the Minister’s solicitors to Judge Street in its ill-fated attempt to head off what ultimately became SZWBH, was that there can be a situation where things are dealt with summarily which ought not to be dealt with summarily because the material is not before the court.
So when the court says we are making this determination on the material before it, like an expert might say I am basing this on the instructions that I have got, the decision is only as good as the material that is available. Here, to say that there was full legal argument is to miss the point that the full legal argument was based on the materials such as were available at the time, which were not materials that would normally be available at a hearing of the merits.
Ultimately, what paragraph 27 together with 28 makes absolutely plain is that what his Honour Justice Flick did was to conduct a substantive hearing on the merits as to whether or not there was any jurisdictional error. I do not want to repeat myself but that is the position.
So there is no point going to the draft notice of appeal to somehow suggest that these points were not put before Justice Flick and that he was just doing what he was asked to do in the amended notice of appeal. It was squarely put to his Honour that his Honour’s task was to ascertain whether there was error in Judge Emmett’s decision and that in turn only concerned whether or not the putative grounds disclosed a reasonably arguable case such that it would not be summarily dismissed.
HER HONOUR: I am sorry, Mr Prince, I simply do not understand. Senior counsel for the plaintiff developed his principal argument on the section 91R issue which had not been before Judge Emmett. That surely was an acknowledgement that what was in contention before his Honour was the correctness of the order for dismissal.
MR PRINCE: Well, in my submission, your Honour, that does not stand with what was said to be the limited question raised by senior counsel and recorded by his Honour at paragraph 27. My learned friend, Mr Dixon, put that submission. It was unsuccessful. He was forced on to argue the merits on the expanded basis that he had lost that argument. What else was he to do?
He argued the merits as best he could in the face of having an argument that it should be a more limited inquiry rejected, and he should not be hoist by that petard, your Honour. He had to make those arguments because he was confronted with a determination by his Honour Justice Flick that there would be a substantive hearing on the merits and, in my submission, that is where the matter went wrong. In terms of my learned friend’s submissions on Decor v Dart, clearly the second limb follows the first limb, that is, the second limb really does not arise if the first limb is not satisfied, they are cumulative.
HER HONOUR: Indeed.
MR PRINCE: So one is left with the question, did his Honour Justice Flick make a determination that the decision by Judge Emmett was
attended by sufficient doubt to warrant its consideration by the Full Court? If he made the determination that it was not so affected, then one wonders why his Honour went on to consider questions of substantial injustice.
There is nothing in his Honour’s reasons which would ventilate or place the approach with the precision that my friend urges on your Honour. It just did not happen. That is just not the way his Honour Justice Flick dealt with the matter. Likewise, and this is my final point, in terms of the orders and section 29(1)(c) or 29(1)(b) - - -
HER HONOUR: Yes.
MR PRINCE: Sorry, 28, to rely on 28(1)(b), which looks like a catchall, in my submission is just unrealistic. Justice Flick did not purport to rely on section 28(1)(b). He clearly relied, and the words of his orders reflect 28(1)(c), that is what the reality is, that is what his Honour really did, but his Honour just did not go the next step, as his Honour ought to have, and remit the matter to the Federal Circuit Court as he had been requested to do so by the applicant, once his Honour upheld that appeal. If the Court pleases.
HER HONOUR: This is an application for an order to show cause why certiorari to quash orders made in the Federal Court of Australia on 2 September 2014 should not issue. A number of other claims are made in the application. It is convenient to refer to the procedural history before turning to the claims that are the subject of this hearing and to the parties’ submissions.
The plaintiff is a national of Sri Lanka. In November 2013, the second defendant, the Refugee Review Tribunal (“the Tribunal”), affirmed a decision of a delegate of the first defendant, the Minister for Immigration and Border Protection (“the Minister”), not to grant the plaintiff a Protection (Class XA) visa.
In December 2013, the plaintiff filed an application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. The Tribunal’s decision is a privative clause decision under the Migration Act 1958 (Cth). Original jurisdiction is conferred on the Federal Circuit Court in relation to such migration decisions under section 476 of the Migration Act. Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) applies to proceedings for a remedy to be granted in the exercise of the Court’s original jurisdiction under section 476.
Rule 44.12(i) provides that, at a hearing of an application for an order to show cause, the Court may dismiss the application if the Court is not satisfied that the application raises an arguable case for the relief claimed. Rule 44.11 provides that the Court or a Registrar may give orders or directions, including for an immediate hearing under rule 44.12, a future listing of a hearing under rule 44.12, or dispensing with a hearing under rule 44.12. In the latter event, rule 44.11 provides that the application is to be listed for final hearing on the grounds set out in the application. An order dismissing an application under rule 44.12 is an interlocutory order.
On 12 March 2014, the plaintiff’s application came before the Federal Circuit Court for a directions hearing. It appears that the plaintiff was unrepresented on that occasion. The plaintiff’s application contained three grounds:
It appears that the plaintiff was provided with the contact details of legal services and translating and interpreting services at the directions hearing. The plaintiff was given leave to file and serve an amended application, together with any evidence and submissions by 28 March 2014. The proceeding was adjourned to 8 April 2014 for a rule 44.12 hearing.
On 8 April 2014, the plaintiff applied to adjourn the rule 44.12 hearing on the ground that the first available appointment that he had been able to secure with a lawyer was on 23 April 2014. Judge Emmett delivered ex tempore reasons refusing to grant the adjournment (“the first decision”)[1]. Her Honour proceeded to hear and dismiss the plaintiff’s show cause application under rule 44.12 for reasons which were also delivered ex tempore on 8 April 2014 (“the second decision”)[2].
The plaintiff applied to the Federal Court of Australia for an extension of time in which to apply for leave to appeal from the first and second decisions. Justice Flick extended time in each case. His Honour considered that Judge Emmett’s discretion had miscarried in her Honour’s determination to refuse the adjournment. His Honour granted leave to appeal and allowed the appeal against the first decision, which his Honour set aside with costs.
Recognition that the refusal of the adjournment had the consequence that the plaintiff had been confined to the grounds set out in the application filed in December 2013 informed Justice Flick’s decision to extend the time in which to apply for leave to appeal against the second decision[3]. However, his Honour did not accept that the refusal of the adjournment necessitated that leave should be granted in respect of the second decision[4].
The plaintiff was represented by junior and senior counsel on the hearing of the applications for leave to appeal. An amended application filed in the Federal Court proposed an additional ground to those contained in the draft notice of appeal. This ground, which asserted error in the finding that there was no jurisdictional error apparent on the face of the record of the Tribunal’s reasons, was developed by senior counsel on the footing of a claimed misconstruction and misapplication of section 91R of the Migration Act. Justice Flick concluded that leave to appeal from the second decision should be refused. That conclusion, expressed in paragraph 41 of his Honour’s reasons, was in these terms:
Even if the adjournment had been granted and the Applicant afforded an opportunity to obtain legal advice in respect to potential challenges to the decision of the Refugee Review Tribunal, such arguments as were now relied upon lack sufficient merit to warrant the grant of leave to appeal. Indeed, each of those arguments should be rejected. The Applicant has not suffered any substantial injustice as to warrant the grant of leave to appeal.
Justice Flick’s orders refusing leave to appeal from the second decision, and that the plaintiff should pay the Minister’s costs of that application, are Orders 4 and 6 respectively of the orders made on 2 September 2014.
Section 33(4B) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) provides that an appeal must not be brought to this Court from a judgment of the Federal Court in the exercise of its appellate jurisdiction if the judgment is, relevantly, a determination of an application of the kind mentioned in subsection 25(2). An application for leave to appeal is an application of that kind.
On 30 September 2014, the plaintiff filed the present application. Among other claims for relief, as earlier noted, is the claim for an Order in the nature of certiorari to quash Orders 4 and 6 made by Justice Flick on 2 September 2014 and an Order remitting the plaintiff’s application for leave to appeal against the second decision to the Federal Court. In the alternative to the claims for certiorari and remitter, which are found in paragraphs 1 and 2 of the application for an order to show cause, the plaintiff claims a declaration of invalidity respecting section 33(4B) of the FCA Act (paragraph 3), a grant of leave to file an application for special leave to appeal from Justice Flick’s orders (paragraph 4), the grant of special leave to appeal (paragraph 5), leave to file an application seeking the issue of certiorari directed to the Tribunal to quash its decision dated 5 November 2013 (paragraph 6), and an injunction restraining the Minister from giving effect to the Tribunal’s decision (paragraph 7). Consequential costs orders are claimed in paragraphs 8 and 9. It is unnecessary to address the procedural difficulties attending the grant of some of the relief the subject of the claims in paragraphs 3 to 7.
At a directions hearing on 23 June 2015, the plaintiff acknowledged that the relief claimed in paragraph 1 of his application would address the errors that would be the subject of any appeal to this Court[5]. The claims for relief in paragraphs 1, 2, 8 and 9 were fixed for hearing today and directions were given for the filing and service of any evidence and written submissions. The parties have filed written submissions. The plaintiff relies on the affidavit of Pathmanathan Rama affirmed on 30 September 2014, to which are annexed the reasons of the Tribunal and the decision of Justice Flick.
The Minister relies on the affidavit of Andras Markus affirmed on 11 August 2015, to which are exhibited the written outline of submissions prepared by junior counsel on the plaintiff’s behalf and by junior counsel on the Minister’s behalf, which were before Justice Flick on the hearing of the leave applications.
The Tribunal and the Federal Court of Australia, the third defendant, have filed submitting appearances. The plaintiff founds the claim to certiorari upon three contentions: firstly, that Justice Flick misapprehended his jurisdiction, wrongly embarking upon a determination of whether the Tribunal’s decision was affected by jurisdictional error; secondly, that his Honour erred in law, misapplying the principles governing the grant of leave to appeal from an interlocutory order; and thirdly, that his Honour’s determination was tainted by the failure to address the denial of procedural fairness that arose from the refusal of the adjournment in his consideration of the challenge to the second decision. There is some overlap in the way those three contentions are developed.
The first way the plaintiff puts his case is that Justice Flick wrongly approached the leave application as if the Federal Court stood in the shoes of the Federal Circuit Court with the result that the Federal Court, in effect, exercised the exclusive original jurisdiction of the Federal Circuit Court. The other way the argument is put is to say that a correct application of the principles governing the exercise of the discretion required Justice Flick to consider whether arguable error attended the decision rather than to proceed, as it is said his Honour did, to consider whether relief would ultimately be granted on the plaintiff’s show cause application.
The plaintiff submits that in the result his application has been effectively finally determined on limited material which did not include the “green book”. The plaintiff relies in this respect on statements of the Full Federal Court in SZWBH v Minister for Immigration and Border Protection[6]. That decision is also called in aid in support of the procedural fairness aspect of the plaintiff’s challenge. It is said that it was wrong for Justice Flick to determine the leave application on the footing that any prejudice occasioned by the refusal of the adjournment and consequent denial of access to legal advice had been remedied by the time of the hearing in the Federal Court[7]. The plaintiff submits that the correct approach was to assess the denial of procedural fairness by reference to the importance of maintaining fair processes before Chapter III courts. On this analysis, his Honour was bound to set aside the second decision and remit the matter to the Federal Circuit Court.
The second decision was the dismissal of the plaintiff’s show cause application under rule 44.12. The “green book” is a compilation of documents prepared by the Minister and will always be available on the hearing of an application where the Minister is required to show cause, at a final hearing, in a case in which the Federal Circuit Court is satisfied that the application raises an arguable case for the relief claimed and adjourns the proceedings pursuant to rule 44.12(1)(b), or where the matter is listed for final hearing on the grounds set out in the application, without a rule 44.12 hearing. It is common ground that hearings under rule 44.12 may proceed in circumstances in which no “green book” has been prepared and served.
I accept the Minister’s submission that the circumstances considered by the Full Court in SZWBH materially differed to the circumstances that are raised here. Justice Flick recognised that an applicant seeking leave to appeal from a rule 44.12 dismissal may not be in a position to place before the court all the materials relevant to the hearing of any appeal[8]. However, his Honour approached this application upon the footing that senior counsel had fully developed the grounds of the plaintiff’s challenge, and that none of the arguments in support of those grounds involved consideration of material apart from the Tribunal’s reasons which were before the Court[9].
To the extent that the plaintiff contends that the decision to set aside the first decision necessitated the setting aside of the second decision on procedural fairness grounds, the challenge should be rejected[10]. So, too, should the submission that Justice Flick’s order setting aside the first decision was a purported exercise of power under section 28(1)(c) of the FCA Act, which required for its effective exercise the addition of an order for remitter.
Contrary to the plaintiff’s submission, the orders setting aside the first decision and refusing leave to appeal against the second decision are not incongruent. They are within the wide powers conferred on the Federal Court under section 28(1)(b), to mould such orders as, in all the circumstances, the Court thinks fit.
Justice Flick referred to decisions applying the principles stated in Decor Corporation Pty Ltd v Dart Industries Pty Ltd[11] with respect to the grant of leave to appeal from an interlocutory order. The Full Federal Court approved an approach to the exercise of that discretion which asks first, whether in all the circumstances, the decision below is attended by sufficient doubt, and, secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong.
In his written outline of submissions, the plaintiff complains that “the whole of his Honour’s inquiry concerning ‘substantial injustice’ was addressed to establishing no error by Judge Emmett” as distinct to whether substantial injustice would be done upon the supposition that her Honour’s decision was wrong. The submission misconceives the statement of the test, and Justice Flick’s reasons.
The two limbs of the test are cumulative. It is a test that accepts, in the case of interlocutory orders, that more is required than demonstration of an arguable case of error. There is a distinction between interlocutory orders on matters of practice, and interlocutory orders which have the effect of determining substantive rights. The decision to dismiss an application to show cause under rule 44.12 is within the latter category. It follows that leave to appeal will be more readily granted.
The circumstances in which the appellate court might find that a decision to dismiss an application under rule 44.12 is attended by real doubt, but in which the court concludes that no substantial injustice would be occasioned by refusing leave, are likely to be few. However, that is not this case.
Justice Flick’s consideration of the arguments in support of the plaintiff’s draft grounds of appeal, and his Honour’s conclusion that the arguments were without merit, were directed to the correctness of the order dismissing the plaintiff’s show cause application. That consideration was not limited to the arguments that had been relied on in the Federal Circuit Court.
His Honour’s reference to the absence of substantial injustice in the final sentence of paragraph 41 of his reasons appears to reflect his conclusion, to which earlier reference has been made, that the denial of access to legal advice at the hearing before Judge Emmett had been remedied by the time of the leave application. However, the determinative conclusion was that such arguments as were relied upon on the hearing of the leave application lacked sufficient merit to warrant the grant of leave to appeal. The conclusion did not mistake the principles governing the grant of leave to appeal from an interlocutory order.
To the extent that the plaintiff’s argument depends upon acceptance that, in circumstances in which Judge Emmett wrongly proceeded to dismiss the proceedings following the refusal of the adjournment application, the question on the determination of the application for leave to appeal from the order of dismissal was whether the plaintiff had been deprived of his day in court, I reject the contention.
The issue presented for determination was whether the dismissal of the proceedings pursuant to rule 44.12 was attended by sufficient doubt to warrant its reconsideration on appeal, and whether substantial injustice would result if leave were refused supposing the decision to be wrong. The latter, I note, would not present a high threshold with respect to the refusal of a leave application respecting a rule 44.12 decision.
However, as noted, the determinative conclusion here was that none of the arguments that might be advanced, were leave granted, had merit. That consideration was undertaken in the exercise of the Federal Court’s appellate jurisdiction and did not involve the exercise of the original jurisdiction of the Federal Circuit Court.
None of the ways in which the plaintiff challenges the legality of the exercise of the Federal Court’s discretion to refuse leave to appeal from the second decision supports the claim for certiorari to quash the Federal Court’s order. Orders 1, 2, 8 and 9 of the application are dismissed with costs.
Ms Mitchelmore.
MS MITCHELMORE: Sorry, can I just raise an issue with your Honour’s orders? Your Honour on the last occasion did not make any orders with respect to the balance of the application on the basis that your Honour would deal with all of them on a final determination. I just wonder whether your Honour needs to make orders in relation to the - - -
HER HONOUR: I do, but I thought I should raise the matter with Mr Prince.
MS MITCHELMORE: I am sorry, I have jumped the gun. I apologise.
HER HONOUR: Not at all, Ms Mitchelmore. Mr Prince.
MR PRINCE: I do not think there is anything I can say in light of what your Honour has said.
HER HONOUR: Yes, very well.
I withdraw the orders last pronounced and, in substitution thereof, I order that the application for an order to show cause filed on 30 September 2014 be dismissed with costs.
MS MITCHELMORE: If the Court pleases.
HER HONOUR: Yes, thank you both.
MR PRINCE: If the Court pleases.
AT 12.36 PM THE MATTER WAS CONCLUDED
[1] SZTOV v
Minister for Immigration and Border Protection (No 1) [2014]
FCCA 708.
[2]
SZTOV v Minister for Immigration and Border Protection (No 2) [2014]
FCCA 735.
[3]
SZTOV v Minister for Immigration and Border Protection [2014]
FCA 942 at
[20].
[4] SZTOV v
Minister for Immigration and Border Protection [2014] FCA 942 at
[20].
[5] Edwards
v Santos Limited [2011] HCA 8; (2011) 242 CLR 421 at 442 [58] and following per
Heydon J; at 425 [1] per French CJ, Gummow, Crennan, Kiefel and
Bell JJ.
[6]
(2015)
321 ALR 371.
[7]
[2014] FCA 942 at
[23].
[8] [2014]
FCA 942 at
[28].
[9] [2014]
FCA 942 at
[28].
[10] Re
Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at
109, [58], per Gaudron and
Gummow JJ.
[11]
[2014] FCA 942 at [7] citing [1991] FCA 655; (1991) 33 FCR 397.
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2015/203.html