Singh v Minister for Immigration and Border Protection & Anor [2018] HCATrans 125 (21 June 2018)

Last Updated: 26 June 2018

[2018] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S282 of 2017

B e t w e e n -

SULTAN SINGH

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON THURSDAY, 21 JUNE 2018, AT 10.06 AM

Copyright in the High Court of Australia

MR J. WILLIAMS: May it please the Court, I appear for the applicant. (instructed by Jay Williams)

MR B.D. KAPLAN: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

KIEFEL CJ: Yes, Mr Williams.

MR WILLIAMS: Yes, your Honours. The applicant contends a single ground of appeal: that the justice below erred in three critical ways. The principles to be applied have been frequently stated in House v The King and do not need to be restated here.

To the first issue, your Honours. The applicant contends that the justice below erred at paragraph 52 of the FCA judgment that on the assumption that section 357A of the Migration Act had not been enacted, the Tribunal had discharged its obligation under the common law fair hearing rule to afford the applicant procedural fairness regarding the dishonesty finding by the Tribunal at paragraph 27 of the decision record and the ultimate decision by the Tribunal at paragraph 25 of the decision record to decline the applicant a further adjournment pursuant to section 361B of the Migration Act.

Your Honour, in terms of the case law, it is established that the common law fair hearing rule of procedural fairness applies to the adjournment power of the Tribunal pursuant to section 363(1)(b) of the Migration Act as per the judgment in Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332.

EDELMAN J: Mr Williams, is not really the effect of your argument, putting aside what was said about ignoring the statute and just having regard to the general rules of procedural fairness, your argument requires 363(1)(b) to embody a principle of procedural fairness that would require the Tribunal to notify in advance of the possibility of a dishonesty finding.

MR WILLIAMS: That is correct, your Honour. In terms of the requirements of the common law procedural fairness rule under 363, the applicant contends that there was an obligation, according to the test in SZBEL and Alphaone, to place him firmly on notice. Now, the common law test in those two cases clearly states that there is an obligation to raise those issues but if those issues are already apparent within the proceedings themselves then there is not a need to do so.

Indeed, your Honour, in our respectful submission, that is a lower threshold than perhaps what is applied in 357A(3), where there is a requirement by the Tribunal, there is a statutory obligation to provide the applicant a hearing that is fair and just. So, your Honour, in that regard the justice below has proceeded on three principal areas. The first is that, was there an error under the common law procedural fairness ground and we say that on any objective test from SZBEL and Alphaone that that was not met. The applicant was clearly denied an opportunity to respond, to address the dishonesty finding against him.

But if your Honours are minded to find that her Honour was correct in that regard and that the test was satisfied, the real controversy then becomes whether there was an obligation to consider under 357A(3) the obligation to be fair and just and conduct this hearing in a fair and just way. We would say, your Honour, that was the key mistake by the justice below, with great respect.

At paragraph 39, her Honour assumed that it would not go any higher than the common law procedural fairness ground. We say that the obligation under 357A does go higher. It said there is an obligation that the Tribunal must act in a way that is fair and just. We would say that would require the Tribunal to place the applicant in express terms on notice that the Tribunal was considering making an adverse dishonesty finding but then - - -

EDELMAN J: In other words, do you say that the 25 June 2014 letter needed to say not merely that the Tribunal had been informed by the authority that not much notice was required to arrange the test, but also the Tribunal considers that this may mean that you are dishonest?

MR WILLIAMS: Most certainly, your Honour. There was not enough in that letter in that regard. There were two aspects of that letter that said: one, there is inconsistent information that you have provided the Tribunal about the testing dates and then the second aspect about that letter was that not much time was needed to arrange the special needs test. Now, that was not enough to place the applicant on firm notice that there was a dishonesty finding going to be made against him. It just simply was not - in the terms of SZBEL and Alphaone or, in other words, the common law procedural fairness grounds that was not enough.

But if your Honours are minded to find, as her Honour found, that given that there were four different adjournments and that it was clearly an issue and that the applicant should have assumed that there was going to be an issue of honesty around that, then the issue comes into play, how does the section 357A(1) and (3) obligation come into play and that is the real controversy in this matter.

If your Honours are minded to find under issue 1, putting aside 357, that the common law procedural fairness argument was not satisfied and the applicant was denied procedural fairness, it goes no further and that is according to the plurality in Li.

But if your Honours are minded to find that her Honour was correct, the justice below was correct and that the tests were satisfied, given that it is a lower threshold, then clearly the issue then becomes, does 357 import an element of a substantive obligation of acting fair and just and did her Honour err in not - - -

KIEFEL CJ: What you must also be arguing is that 357A(3) somehow imposes a larger obligation than procedural fairness which might then suggest some kind of internal inconsistency in the provisions of the Act.

MR WILLIAMS: Most certainly, your Honour, and that is also identified in - - -

KIEFEL CJ: That actually does not favour you.

MR WILLIAMS: In this respect, your Honour, that 357A, if it imports the intention of the Parliament, which is what former Chief Justice French identified in paragraph 20 of Li, that that statement is not exhortative or aspirational but that it has some substantive element to it, then we would say that in the first instance the common law procedural fairness test was not met.

But if you go by the test in SZBEL and Alphaone, which we say is a lower threshold, then the question comes in, does 357A(3) come into play and place on the Tribunal a substantive obligation to act fair and just and we would say that that most definitely does and then the question is whether it is declaratory or substantive and the clear current status of the law according to Li is that it is substantive.

KIEFEL CJ: But it not just a question of whether there is an obligation on the Tribunal to be fair and just. The question is what the content of the obligation - - -

MR WILLIAMS: Yes, your Honour, and that is where the - - -

KIEFEL CJ: And whether it rises higher.

MR WILLIAMS: Most definitely, your Honour, and that is a question that has not been addressed yet. The plurality saw in Li that - - -

KIEFEL CJ: There could be a reason for that.

MR WILLIAMS: There may be a reason for it but there would seem to be some conflicting views on that point. The plurality in Li said we do not need to go to 357. We have our way home through the common law procedural fairness but they did not rule it out. They did not rule out that - - -

EDELMAN J: What you are really arguing then is that “fair and just” in 357A(3) on this argument means something more than procedural fairness or natural justice and that something more requires a tribunal to disclose its reasoning processes prior to its decision.

MR WILLIAMS: Most certainly, your Honour. Most certainly and that is the key to the difference between acting “fair and just” under 357. To act “fair and just” would mean to expressly put to the applicant that the Tribunal was considering an adverse finding but two, to give the applicant an opportunity to particularise what that was and then three, to give the applicant an opportunity to do so. It was not enough under the fair and just statutory provision, given that Parliament saw that this was important, important enough to come in, it was not enough for the Tribunal to assume that the applicant would have guessed that his credibility, his honesty was at play on the basis of that letter.

That letter said only two – really two points: one, that there was inconsistent information that he provided; and two, that not much information was required – not much time was required to arrange the test. That was not enough we say under either rule but, more importantly, the real controversy and where there needs to be certainty in this space is the interplay between the common law and the statutory law.

We have at one – at one stage here we have the common law procedural fairness rule as it applies to 363, and then we have a statutory override in principle that act fair and just, and this – if you like, the principle of coherence, the interplay between statutory and common law has a deep history and it is an area that needs, in my respectful submission, further development by the wisdom of this Court. Your Honours, that would be in a nutshell the applicant’s case.

KIEFEL CJ: Yes, thank you. Mr Kaplan, we do not need to trouble you.

The Court considers that there are insufficient prospects of success in this matter to warrant the grant of special leave. Special leave is refused with costs.

AT 10.18 AM THE MATTER WAS CONCLUDED