DWN042 v Republic of Nauru [2016] HCATrans 310 (16 December 2016)

Last Updated: 16 December 2016

[2016] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M79 of 2016

B e t w e e n -

DWN042

Applicant

and

THE REPUBLIC OF NAURU

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 DECEMBER 2016, AT 9.30 AM

Copyright in the High Court of Australia

MR P.J. HANKS, QC: Your Honours, I appear with MR M.L.L. ALBERT for the applicant. (instructed by Maddocks)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR A. ALEKSOV for the respondent. (instructed by Republic of Nauru)

GAGELER J: Mr Hanks, before you begin, there is a question I would like to ask Mr Kennett.

MR HANKS: Certainly.

GAGELER J: Mr Kennett, in the respondent’s summary of argument at page 139 of the application book in paragraph 27, it is said that if leave to appeal were granted “the Republic would not seek to defend the reasoning of Judge Kahn”. Now, I have a question that is in three parts. You may wish to answer now or you may wish to answer in due course, but the question is this.

Does that mean that the Republic of Nauru (1) accepts that the reasoning of Judge Khan is plainly wrong; (2) would not rely on that reasoning as a precedent in other proceedings; and (3) would not rely on that reasoning in opposition to an application by the present applicant to reopen the present case to further amend the grounds of appeal?

MR KENNETT: I think at least as to parts (2) and (3) I should take instructions before I give an answer.

GAGELER J: Yes, I thought you might. Thank you.

MR KENNETT: I might deal with it later, if that is suitable.

KIEFEL J: Do you require an adjournment for a short period to take those instructions?

MR KENNETT: I am getting a nod, your Honour.

KIEFEL J: Yes, I think so. We might adjourn for a short period then.

AT 9.31 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.40 AM:

KIEFEL J: Yes, Mr Kennett.

MR KENNETT: Your Honours, thank you for that time. I think it is useful if I answer Justice Gageler’s questions now. The answer to the first question is, yes. The answer to the second question is also, yes. In a future proceeding we would consider it necessary to alert the Court to the existence of Justice Khan’s decision but we would not seek to submit that it should be followed for its reasoning.

The answer to the third question is also, yes, in that if there were an application in this proceeding to reopen and to reintroduce the grounds which were struck out, the Republic would likely wish to submit that they should remain struck out but would not say that for the reasons given by Justice Khan.

GAGELER J: Thank you.

KIEFEL J: Thank you, Mr Kennett. Yes, Mr Hanks.

GAGELER J: Well, Mr Hanks, you cannot do better, can you?

MR HANKS: Yes, we could. With respect, your Honour, we could do better. We could have this Court set aside the orders made below and remit the matter to his Honour, to allow his Honour to deal with those two grounds that were struck out. That is how we could do better and we could have an order for our costs. That would also be better than the answers to the questions.

KIEFEL J: Well, then, you should do the best you can.

MR HANKS: Well, I think I can start from the uncontested premise that the reasoning of the primary judge was erroneous and might I embroider that just a little? I think as the question to my friend was put and answered in the affirmative, not only erroneous but, plainly, wrong. His Honour took the view that the appeal on a point of law under the statute somehow could not raise as the point of law something that depended upon the Constitution. That is an indefensible proposition we would say.

His Honour embroidered on that proposition by drawing attention to the fact that were his Honour to decide such a point, there could be no appeal to this Court – a plainly irrelevant matter. No appeal because of the limited nature of appeals to the High Court under both the Nauru (High Court Appeals) Act 1976 and the Commonwealth legislation that controls its ......

GAGELER J: There is no push-back in any of that?

MR HANKS: No. I do not sense any push-back, your Honour. Our friends - - -

KIEFEL J: The point made against you is that there is no connection drawn between the unlawfulness of the detention and the fairness of the hearing.

MR HANKS: Yes. We have dealt with that in our reply, your Honour. We have point out that in the applicant’s affidavit he attests to the facts directly related to his detention which, it is asserted, was unlawful – and I do not need to go into the detail of that. But, it is the premise of the submission I am about to make, your Honours, that the applicant was unlawfully detained by the Republic – he, being the holder of the visa in circumstances where the Constitution prohibited detention of a person who had a visa. That is the short point.

He attested to the facts that, by reason of his detention and the circumstances associated with that detention, he was unable properly to communicate with the person who represented him before the Tribunal. He was unable to give proper instructions and, therefore, he could not advance in a real and practical sense the case that he wished to advance to challenge the determination that Nauru did not owe him protection obligations.

KIEFEL J: Well, understood in that way, the unlawfulness of the detention is irrelevant. It is merely his detention that causes these matters.

MR HANKS: No, we do not accept that, your Honour. It is an element in the denial of procedural fairness. The fact of detention is relevant but the unlawfulness of it gives it a particular complexion. If he were lawfully detained, then that would be a fact that he would have to put up with, but if he is unlawfully detained then the fact that that detention interferes with his capacity to present a case to obtain a fair hearing to achieve what Murray Gleeson, the former Chief Justice, referred to as “practical” justice, all of those are relevant matters. They were matters – and can I put this, I think, important point. They were matters that could be described as raising questions of fact that the primary judge, if the primary judge had not, for the wrong reasons, struck out the ground, should have engaged with.

NETTLE J: Does this jurisdictional question, which we are discussing, in any way involve the interpretation of section 48 of the Constitution?

MR HANKS: It does not, your Honour. It does not.

NETTLE J: It is only section 17 of the Courts Act, is it, that is concerned?

MR HANKS: Pardon me a moment, your Honour. We start, I think, from the Act that constitutes the Tribunal, which is the Refugees Convention Act, and we start from section 43, which defines the jurisdiction of the Court to hear an appeal. Now, when your Honour refers to section 17 of the Courts Act, I am not sure that I had turned my mind to that provision, your Honour.

NETTLE J: Well, it exercises all such jurisdiction, as is conferred by, amongst other things, the Constitution.

MR HANKS: Well, the critical, in our submission, conferral of jurisdiction comes under section 43. If your Honour turns to page 166 of the application book there is a conferral of jurisdiction:

A person who, by a decision of the Tribunal, is not recognized as a refugee –

by a decision of the Tribunal –

may appeal to the Supreme Court against that decision on a point of law.

So that is the jurisdiction that we are talking about here. We are not concerned with, as I understand it, delving into the conferral or the definition of jurisdiction in the Constitution. We are seeking, as we are required to, to observe the limits on this Court’s appellate jurisdiction from the Supreme Court. Our short point we think is that there has been a failure, or indeed a refusal, on the part of the Supreme Court of Nauru to exercise the jurisdiction conferred by section 43.

GAGELER J: Mr Hanks, you refer to the paragraph in your reply which outlines the way in which you put the procedural fairness ground. It relies on an affidavit of your client, which is an affidavit in this Court.

MR HANKS: That is so.

GAGELER J: Was that the way the point was put to Judge Khan or is it a new and better way, perhaps a fuller way of putting the case that was not put at first instance?

MR HANKS: Well, I think there are two answers to that, your Honour. The way the point was put to his Honour below was based directly on the amended notice of appeal. That evidence was not before his Honour but his Honour dealt with the case on the basis that he would not receive evidence; he did not need to receive evidence. Indeed, as it was, a strike out, effectively; he was not permitted to receive evidence. That is how his Honour dealt with it, as we understand it.

So the evidence that has been tendered in this Court has been tendered in order to demonstrate that – and it is the evidence of the applicant, giving evidence as to the circumstances in which he was detained and how these circumstances interfered with his capacity to engage with the review process before the Tribunal. That is more than evidence to demonstrate why this is a point of some substance.

GAGELER J: You said there are two answers. Is that both of the answers or was there another one as well?

MR HANKS: I will stop there, your Honour.

NETTLE J: Mr Hanks, I am sorry to trouble you but to come back to this point about the Constitution.

MR HANKS: Yes, your Honour.

NETTLE J: The question which the judge decided relevantly was that, “I”, the judge, “have no jurisdiction to determine whether your”, the applicant’s, “constitutional rights were breached in the way that you say they were by holding the hearing within the confines of the detention centre.”

MR HANKS: Yes, the judge said that.

NETTLE J: He did. In making that decision, your point is that he erred not in any sense in the interpretation of the Constitution but only in the interpretation of section 43 of the Courts Act.

MR HANKS: That is right. His Honour said for example that the point of law that can be the subject matter of the appeal must be a point of law that arises directly out of the reasons of the Tribunal. That is one thing that his Honour said. His Honour also said that the relief that was sought by the applicant, pursuant to those two grounds, was relief that the court could not grant. Of course, the only relief that the applicant sought was relief of the kind provided for in section 44 of the relevant Act – that is, an order setting aside the decision of the Tribunal and remitting the matter for reconsideration. That was the only relief that was sought.

His Honour seemed to think that, by raising those matters in the two new, as we call them, in the amended notice of appeal, the applicant was seeking perhaps – it is not entirely clear to us but perhaps something in the nature of habeas corpus or something in the nature of an order declaring his detention to be unlawful. But the unlawfulness of the detention was no more than a step in the reasoning advanced on behalf of the applicant towards a conclusion that primarily the applicant had been denied procedural fairness, which would be a sufficient justification for setting aside the decision and remitting it.

NETTLE J: And it was not anything about the Constitution it found that the judge’s decision that he had no jurisdiction to decide the issue?

MR HANKS: Well, your Honour, I can only have regard to his Honour’s reasons - - -

NETTLE J: Yes.

MR HANKS: - - - and we have attempted to summarise what those reasons are in our summary of argument. The first was that idea that the point of law must arise from the matters contained in the decision itself. We say that is much too narrow. The second was that the grounds were seeking orders that go beyond the scope of section 44. We say that is plainly incorrect.

The third was – and this can be found in appeal book 27 in paragraph 24. This is a matter that his Honour mentioned and therefore one must conclude that it was seen by his Honour as relevant. His Honour points out that no appeal lies to the High Court:

Where the appeal involves the interpretation or effect of the Constitution.

NETTLE J: Yes.

MR HANKS: True, but how can that constrain or limit the jurisdiction of the Supreme Court? It is, with respect to his Honour, a bootstraps proposition.

NETTLE J: At the moment I certainly do not know, I confess, but whether not rationally or otherwise it does appear to involve some degree of interpretation of the Constitution informing his Honour’s judgment, does it not?

MR HANKS: Well, it would arise directly out of the – I think not, your Honour. It arises directly out of the Appeal Act. Your Honours will find - - -

NETTLE J: You mean our Act, Article 2, et cetera?

MR HANKS: Yes.

NETTLE J: Yes.

MR HANKS: But the Appeals Act 1972 (Nauru), which our friends have included at pages 143 and 144, tells us that no appeal shall lie – that is an appeal to the High Court – where the appeal involves the interpretation or effect of the Constitution. That is what his Honour is referring to, and as your Honours know, there is a parallel provision in the Nauru (High Court Appeals) Act of the Commonwealth which is set out on page 142 of the application.

So this is, in our submission, a simple case where the primary judge has misconstrued his jurisdiction under the Refugees Convention Act and by doing that assumed that the grounds which did raise unlawfulness of detention were grounds that could not be agitated in such an appeal. Now, they could only not be agitated if they did not raise a point of law.

GAGELER J: So, he was wrong, everyone accepts that, it is an interlocutory decision.

MR HANKS: Yes.

GAGELER J: You have the ability to make a further interlocutory application and you have the ability to seek leave to appeal from the High Court decision. Why should we be bothering with these difficulties now, particularly in light of the case for procedural fairness not being spelt out before the primary judge in the way in which you now seek to spell it out quite properly with your affidavit evidence in this Court?

MR HANKS: Well, there are two reasons, your Honour. It is an interlocutory judgment and one would need some special indulgence – I am using that very loosely – from the appellate court before we brought it here, but there are two reasons why that indulgence ought to be granted. The first of them is the one that your Honour has just referred to and our friends have acknowledged that this reasoning is plainly wrong, but the second is that the question is one, we would say, of very high public importance. It goes beyond the position of our client. It goes to the position of any other person who seeks to appeal from the Tribunal and to agitate a point that might involve the application or the effect of the Constitution.

While this judgment stands, those people face a hurdle. Even if our friends say, well, we will not press the significance, the correctness of this judgment. There it is. It is on the books. It is, in our submission, a matter of considerable public importance that it be corrected. It is a blot, if I might use that language, on the proper administration of justice that applicants for review of Tribunal decisions should be faced with this decision.

KIEFEL J: Mr Hanks, is the Supreme Court’s decision on the remaining grounds – is it still reserved?

MR HANKS: It is still reserved, your Honour. I think there has been a significant delay, not only in this case but in many other cases that are received by the Supreme Court.

KIEFEL J: They could be awaiting the decision on this application, I suppose, to - - -

MR HANKS: It might be – that is a pure speculation, with respect, your Honour.

KIEFEL J: Quite. Yes, thank you, Mr Hanks.

MR HANKS: Thank you, your Honour.

KIEFEL J: We will not need to call upon you, Mr Kennett.

MR KENNETT: If the Court pleases.

KIEFEL J: In light of the assurances which have been given by the Republic of Nauru to this Court and, taking into account the interlocutory nature of the decision, this Court does not consider that there should be a grant of special leave to appeal in this matter. Is there any application for costs?

MR HANKS: Yes, your Honour, we do apply for our costs. It is a simple point. We had to come here in order to get those assurances and in the absence of those assurances we would have been justified pressing on.

MR KENNETT: Your Honours, as the successful party would usually be us that would ask for costs, I am instructed we do not. But, we would resist any order that we pay the applicant’s costs.

NETTLE J: Were any such assurances that are now given, given before the hearing?

MR KENNETT: No, your Honour, no. It is not something that has been asked for, for what that is worth. We have – I think it would have been plain - - -

NETTLE J: Apart from what you have said in your submissions, of course.

MR KENNETT: Our written submissions that the Republic would be likely to take certain positions if different avenues were agitated but that is as far as I can take that.

KIEFEL J: In the circumstances, the Court will make no order as to costs. So the order is application dismissed.

AT 10:20 AM THE MATTER WAS CONCLUDED