Minister for Home Affairs v MQGT & Anor [2021] HCATrans 130 (13 August 2021)

Last Updated: 20 August 2021

[2021] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B2 of 2021

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Applicant

and

MQGT

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 13 AUGUST 2021, AT 1.28 PM

Copyright in the High Court of Australia
GORDON J: I will announce appearances.

MR G.R. KENNETT, SC appears with MR B. McGLADE for the applicant. (instructed by Clayton Utz)

MR S.B. LLOYD, SC appears with MR M.G.S. CROWLEY for the first respondent. (instructed by William Gerard Legal Pty Ltd)

GORDON J: I note there is a submitting appearance for the second respondent. Mr Kennett, the Court would be assisted if you could address, at least initially, the first proposed appeal ground.

MR KENNETT: Yes, thank you, your Honour. The first proposed appeal ground is, we would submit, the point that is of interest in this case. It arises from how the Full Court dealt with what was the third ground of appeal before it. We accept that in order to succeed on appeal we also need to overturn some other reasoning, which is at paragraph 28 of the court’s reasons, but I certainly did not want to spend long on that, and then, like your Honour’s indication, I would just go straight to the procedural fairness issue. The Full Court approached this by way of looking at adopting this Court’s reasoning in SZBEL ‑ ‑ ‑

GORDON J: What was wrong with doing that?

MR KENNETT: Well, SZBEL, of course, considered a review by the former Refugee Review Tribunal under Part 7 of the Migration Act and there is an important question about the extent to which the reasoning in that case has application in other statutory contexts, including this one where, of course, one had the Tribunal’s general obligation to conduct a hearing which has implicit in it notions of procedural fairness.

GORDON J: There was no suggestion that the statutory framework excluded it.

MR KENNETT: No, your Honour. The Court in SZBEL really cut through what seemed to have been a debate between the parties about general procedural fairness principles by going to section 425 of the Migration Act. One can see that at paragraph 33 of the reasons in SZBEL and the paragraphs which follow.

As your Honours know, section 425 required the Tribunal to hold a hearing upon the issues arising in relation to the decision under review. That phrase was addressed and construed by the Court in SZBEL and the Court considered that in that statutory context those issues would normally be framed by the elements of the person’s claim for protection that the delegate in the primary decision had rejected. That is, if the issues in the Tribunal’s mind went further than that and included, say, the veracity of an element of the claim that the delegate had not questioned, then compliance with section 425 would involve telling the review applicant that to allow presentation of evidence and argument on what were the issues arising ‑ ‑ ‑

GORDON J: I am sorry to interrupt, Mr Kennett. I just wanted to check to make sure that we still have Mr Lloyd, at least in terms of the audio.

MR LLOYD: Yes, your Honour, I can hear everything.

GORDON J: If it gets to the point, Mr Lloyd, where that does not happen, then I ask that you contact urgently the Senior Registrar and we will keep monitoring it from our end.

MR LLOYD: Thank you, your Honour.

GORDON J: Sorry, Mr Kennett.

MR KENNETT: Thank you, your Honour. In the present case, of course, there is no provision in the terms of section 425 or similar to it. As I mentioned there is a far less exact stipulation that the Tribunal has to hold a hearing. Another important difference, we would say, is that ‑ ‑ ‑

GORDON J: Can I test that proposition? At paragraph 32 of SZBEL, the Court expressly endorsed the observations of the Full Court of the Federal Court in Alphaone in respect of the extent to which a person liable to be directly affected by the decision is to be given an opportunity to be heard. Now, that seems to go beyond that which you have just put to me, does it not?

MR KENNETT: There is, we would submit, an Alphaone question in this case on a question about how far the proposition your Honour has just referred to goes.

GORDON J: In that context then, can I ask this question? As I understand it there are a number – a significant number of decisions of the Full Court of the Federal Court that have applied that line of reasoning in this context.

MR KENNETT: I have not checked, your Honour, but I have no doubt that is true.

GORDON J: It has never been suggested until now that the position is different in this context.

MR KENNETT: No, your Honour, and we do not suggest that there is anything wrong with Alphaone, nor anything wrong with SZBEL if it comes to that. But our starting point is that this is a rather different case from SZBEL because the statute ‑ ‑ ‑

GORDON J: Why? That is what I am putting to you – you accept, as I think, from reading your application that the rules of procedural fairness are not fixed, that is, they take into account the circumstances in which they are to be considered, both legislative and otherwise. So, the question here is, in a sense, what is different about this situation that would give rise to a different result – or different application of principles that I have just outlined?

MR KENNETT: Your Honour, perhaps if I could just put SZBEL to one side for a minute and go straight to the deeper principles.

STEWARD J: Before you do that, Mr Kennett, can I ask you a question which I hope goes to those deeper principles? Why is not the answer to your first ground – well, maybe, it just depends on the circumstances, and then you look at paragraph 24 in the Full Federal Court which commences, “In the present case the problem is this.” Then they explain, on the particular facts of this case, a self‑represented person from South Sudan, while it was incumbent as a matter of procedural fairness to indicate to the applicant that his claims to fear harm might not be believed - it is a fairly simple fact case, is it not?

MR KENNETT: Application of the rules of procedural fairness are always dependent on the circumstances. One can accept that. The difficulty here is that the Full Court seems to have proceeded on the basis, starting from what we say is an incorrect application of SZBEL, that there is some duty on a tribunal, when it is doing no more than feeling scepticism about the evidence that has been put to it – there is some duty on the Tribunal to tell a person propounding that case that it is feeling sceptical about it. That is something that ‑ ‑ ‑

STEWARD J: But, again, all these things turn on the particular facts. On this occasion it was the importance of the claim, the fact that the Tribunal decided to deal with it – and perhaps it did not need to – and the fact that you had a self‑represented person, all of these things can come together and coalesce into a duty to disclose that you may have apprehensions about a central claim. Obviously it was a less important claim. Indeed, if they were represented all of these things may have led to the conclusion that there was no need to disclose. Does it not just turn on the facts?

MR KENNETT: This Court said quite clearly in SZBEL at paragraph 48 that decision‑makers, as a general rule at least, are not required to give “a running commentary” on the evidence.

STEWARD J: As a general rule.

MR KENNETT: And are not required to disclose their reasoning in advance and invite comment on it - give a draft decision, as it were. We rely heavily on that and we would seek to submit that those basic principles do not change because of who the applicant is.

GORDON J: If that is right, Mr Kennett, then – assume for the moment that is right to accept that it is that there is no obligation usually for a tribunal to have to give an applicant a running commentary, here we are not in running commentary. Here, we have findings that the Tribunal decided a potentially critical matter adverse to the first respondent in circumstances where nothing had occurred which had given him any notice that his representation was in doubt and where he had no real opportunity to substantiate the representations.

So, we are not about running commentary, we are back at the first base, in a sense. I think that is the difficulty here. It may very well be that another case might be an appropriate vehicle to run the matter you are raising, but here we have findings of fact which are just very difficult to even get off first base, do we not?

There is one further thing before you answer that. Justice Mason’s decision in Kioa v West where he talks about the particular degree of procedural fairness might be strengthened where the making of the decision has consequences, say for here for deportation - I know that Chief Justice Allsop in Hands picked it up.....2018. I mean, here, this is a very serious issue having very serious consequences for an unrepresented litigant.

MR KENNETT: Your Honour, another point that Justice Mason made in Kioa – and I accept this is against – put as a general proposition, but important nevertheless, and it is referred to in the case of Broussard which our learned friends have sent in to the Court at page 189. Justice Mason said in the context of what were then entry permits, that ordinarily an applicant for an entry permit was entitled to put whatever material they want to put but then cannot complain if the decision‑maker does not find that persuasive without notice.

That is a proposition that, of course, is fairly strongly echoed, we would say, in the observations in SZBEL to which we have referred. So, our proposition is that fundamentally – and to apply that here – the applicant was entitled to put his claim that he feared harm in South Sudan as strongly as he could and by any evidence that he wished to and the Tribunal then was entitled to believe or disbelieve it, but did not have to tell him in terms that the proposition was in doubt. There was nothing arising from the delegate’s complete silence on the question that would have, or could have, led the applicant to somehow think that it was accepted or no longer in contest.

So, there is a fairly substantial question then, we would say, as to whether the fact that the applicant was unrepresented and, it would seem, poorly educated somehow displaces that general principle ‑ ‑ ‑

GORDON J: I think my difficulty with putting it in those terms is it is putting, or seeking to put or create a level of principle out of two facts, which are only two facts, in circumstances where, if one looks at all of the facts and takes into account the additional observation that I identified by Justice Mason in Kioa v West and also Chief Justice Allsop, is the way in which the Tribunal handled the matter, including the way in which the Minister himself dealt with it in submissions to the Tribunal. One cannot just pick up two facts - he is unrepresented and poorly educated, although they themselves might be sufficient.

MR KENNETT: Clearer contradiction by the contradictor would obviously have assisted our position here and, indeed, might have made a very great difference in the Full Court. We have to accept – and your Honours will have seen this material rehearsed in the Full Court’s judgment – the Minister’s statement of facts and contentions was not exactly clear on this point. It did not really come to a head in any way until the Minister’s closing submissions.

GORDON J: But even then he did not submit to the Tribunal that the representation was false or should not have been believed, did not point out that nothing had been asked of him during the hearing which called for him to expand on his claim. I mean, there is an obligation on the Minister in these circumstances to make clear what the position is if they wish to subsequently rely upon it.

MR KENNETT: The Minister’s proposition in closing submissions in the Tribunal, as your Honours will have seen, was to say that this claim has not been added to and that, we would submit, is a way of saying that the Minister’s position is that it ought not be accepted, or ought not be given any weight, albeit I have to accept, not put expressly.

But if the Minister had been clearer at that stage, that would have made this a clearer case, but there is, we submit, in the absence of that clarity, a significant issue as to whether the Tribunal was required of its
own motion to alert the applicant to the possibility that something he had said might not be accepted.

Your Honours, I think that is what we can say on the procedural fairness point which is, as we say, the real issue of significance in the matter.

GORDON J: Yes, thank you. Do you wish to say anything else in relation – I think you accept that unless you can get up on that ground then the other two fall away?

MR KENNETT: I am sorry, I missed that, your Honour.

GORDON J: I think that you accept that grounds 2 and 3, in effect, are dependent on ground 1.

MR KENNETT: In the Full Court’s reasoning they seem to be put as dependent, although we are not quite sure how. They were advanced in that court as quite separate grounds. What we do accept is that we would need to - given that the court seems to have upheld all of the grounds advanced by the present respondent we would need to succeed on all of them. So, we need to persuade your Honours on the procedural fairness ground, but also on the other matters.

GORDON J: Yes, thank you, Mr Kennett. We do not need to hear from you, Mr Lloyd, thank you.

The Court is of the opinion that no question of principle is raised. The Court is of the view that the decision of the Full Court of the Federal Court is the result of the application of settled principles to highly specific facts. The application for special leave is refused.

Do you seek your costs, Mr Lloyd?

MR LLOYD: Yes, we do, your Honour.

GORDON J: Mr Kennett?

MR KENNETT: I have nothing to say against that, your Honour.

GORDON J: Thank you. Special leave to appeal is refused with costs.

AT 1.47 PM THE MATTER WAS CONCLUDED