Adam v The Queen

[2000] HCATrans 515

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P30 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

TE WHETU WHAKATAU WHITE

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 5 SEPTEMBER 2000, AT 5.05 PM

Copyright in the High Court of Australia

MR R.R.S. TRACEY, QC:   If your Honour pleases, I appear for the applicant Minister in this matter.  (instructed by the Australian Government Solicitor)

MR H.N.H. CHRISTIE:   I appear for the respondent, your Honour.  (instructed by Legal Aid (WA))

McHUGH J:   Yes, Mr Tracey.

MR TRACEY:   May I proceed on the basis that this is an application for special leave?

McHUGH J:   Yes, you can proceed on that basis.  Before you do, Mr Christie, are you ready to deal with this special leave application?

MR CHRISTIE:   Yes, your Honour.

McHUGH J:   Thank you, Mr Christie.

MR TRACEY:   The Court will be aware that on 4 April last a differently constituted Court granted special leave to the Minister to appeal in a matter entitled Jia.  That matter is listed for argument in the Perth sessions on 25 October this year.  The present case raises precisely the same issues on substantially the same facts.

McHUGH J:   It has an additional issue, what I will call the Coulton v Holcombe point.

MR TRACEY:   Yes.  It differs in a limited extent, your Honour, but the matter that was of principal concern to the Court that granted special leave was the question of whether it was appropriate, as a matter of law, for the Full Court of the Federal Court, by majority, to adopt a different view of the facts by drawing inferences from those facts different from those that had been drawn by the trial judge.

McHUGH J:   I must say the thought occurred to my mind – perhaps more so in Jia than in this case, but in this case as well – as to whether or not, as a matter of law, the Minister could come to no other conclusion than that the applicants were not of good character.  In other words, having regard to what was said in Hope v Bathurst Council, Hayes v Federal Commissioner of Taxation and those cases, as whether on those facts, as a matter of law, you must inevitably find the accused was not of good character.  If that was so, an issue would seem to arise as to whether questions of bias have got anything to do with the case really.

MR TRACEY:   Your Honour, with respect, we would agree with that and, in addition, of course, there is the question that is raised by the joint judgment of your Honour and Justice Gaudron in Laws, that highlights the distinction between a strongly held view, on the one hand, and actual bias on the other.  It is to be conceded to a decision maker that strongly held views may be present, without giving rise to actual bias, provided that the decision maker is prepared to afford a proper hearing to the person concerned ‑ ‑ ‑

KIRBY J:   Can you help me with this:  the provision that excludes apprehension of bias, is that explicitly excluded from the Federal Court in the Act or simply that the Act only refers to actual bias?  How is it excluded?

MR TRACEY:   It is excluded, your Honour, by section 476(3), I think it is, from memory.

KIRBY J:   So this is why the renaissance in actual bias has occurred, as I think Justice Wilcox said in Sen, because the reasonable apprehension of bias is excluded.

MR TRACEY:   The actual ground that is provided for in 476(1) is actual bias.

McHUGH J:   It is 476(1)(f):

that the decision was induced or affected by fraud or by actual bias;

KIRBY J:   I see.

MR TRACEY:   That is the only ground.  There is no general bias ground.

KIRBY J:   Right.  And it does not come up, the apprehension of bias, under any other ground?  Is it explicitly removed or is it simply that the Act only provides for relief on the basis of actual bias?

MR TRACEY:   On reflection, your Honour, it is the latter.

McHUGH J:   Yes.  This is statutory jurisdiction.  Reasonable apprehension of bias might be an issue that can be raised here under the 75(v) jurisdiction.

MR TRACEY:   Yes.  Your Honour, there was an argument at one stage that you might have got it in under 476(1)(a) but that was before Eshetu which, you will recall, this Court held that section 420, which spoke in terms of general fairness and those sorts of things, did not give rise to the ground under 476(1)(a).

KIRBY J:   Anyway, your points are the respondent is in detention, the issue is very similar to Jia, there is a small additional issue, the case of Jia is going to come before the Court soon, and it is in the interests of the Court, in a sense, to have a second case in which one can differentiate the facts and test propositions by reference to different fact circumstances.

MR TRACEY:   That, your Honour, and obviously the economy involved in dealing with both matters together, given the substantial similarity of ‑ ‑ ‑

KIRBY J:   Just picking up Justice McHugh’s point about the constitutional writ.  If the applicant in this case, and perhaps Jia, were to seek to return before the Court at the same time a constitutional writ seeking, as it were, to enlarge the issues to apprehended bias by that way, could there be any objection to that, given that the respondents are in immigration detention?

MR TRACEY:   I cannot tell your Honour that the respondent in this case is in detention.  He was.  No doubt my learned friend will be able to advise you ‑ ‑ ‑

KIRBY J:   But he has been denied the visa which, I think, means that he has to be in detention, does it not?  I may be wrong.

MR TRACEY:   Your Honour, my understanding is that he has been released, but my learned friend will tell me if I am wrong about that.

KIRBY J:   We can ask him when he gets his turn.

MR TRACEY:   Yes.  But, your Honour, I do not want to answer in an unqualified way your Honour’s question about the prerogative relief for this reason, that there may be some evidentiary problems in that regard and we would need to consider quite precisely ‑ ‑ ‑

KIRBY J:   It is just that one would hope to try to deal with all issues in contention between the parties in the one sitting, rather than have a second bite of the cherry.

MR TRACEY:   With respect, your Honour, we would agree with that and we would not likely raise an objection.  It is just that ‑ ‑ ‑

McHUGH J:   One difficulty that appears to me is that if proceedings were brought in the original jurisdiction, a question may arise as to whether or not you wanted to call evidence from the Minister in the original jurisdiction. 

MR TRACEY:   Your Honour, obviously I do not have precise instructions about that but your Honour will be aware that the Minister was, in a sense, on notice about giving evidence personally in this matter as a result of things that were said in Jia and he chose not to.

McHUGH J:   Yes.

MR TRACEY:   I imagine he would adopt a similar position, but I cannot tell your Honour that with certainty.  But in a nutshell ‑ ‑ ‑

McHUGH J:   We do not want to hear any more from you at the moment, thank you, Mr Tracey.  Yes, Mr Christie.

MR CHRISTIE:   Thank you, your Honour.  The initial point as to the position of the respondent is that he is a New Zealand citizen who had his normal residence visa cancelled but, following the decision of the Full Court of the Federal Court, of course, that decision was overturned so he remains a permanent resident of Australia at the present time, subject, of course, to this application.

McHUGH J:   So is he at large at the moment?

MR CHRISTIE:   He is in the community.  He spent 15 months in detention but he is in the community at the present time, as indeed is Mr Jia, because Mr Jia was granted a permanent visa which was then cancelled by the Minister.  That, again, was set aside by the Full Court, so he equally is at large in the community.

KIRBY J:   Is that by reason of the grant to him ‑ ‑ ‑

MR CHRISTIE:   Turning to the respondent’s position in this matter, it is submitted that in effect the decision made by the Full Court was a finding of fact that the Minister was biased and that is not a matter normally that would attract a special leave application.

McHUGH J:   An argument that seems to me that might be put against you is that it really – although the question of good character is usually one of fact, that given the various facts concerning your client’s convictions, that as a matter of law one would have to find that he was not of good character.  I mean, you start off he had convictions – you say they were minor convictions when he was in New Zealand – he committed further offences in Australia between 1988 and 1999 and then he got 4½ years or four years, did he not, in 1994 for manslaughter and other matters.  Then he is released from prison in 1997, he gets two suspended sentences of 12 and 15 months and it appears that the magistrate had not drawn to his attention the fact of the earlier convictions for manslaughter.  Why, on those facts, as a matter of law, was the respondent not of good character?

MR CHRISTIE:   Your Honour, the facts were that for his conviction for manslaughter he was sentenced to four years.  He served, after the sentence, only three months.  It was directed that he would serve a total of 12 months and he was released in 1994.

McHUGH J:   Yes, I appreciate that, but supposing it was a criminal trial.  You would be hard pressed, would you not, to say that a judge would be entitled to tell a jury that they could find that the accused was a person of good character?

MR CHRISTIE:   In my submission, the proper approach is that, given that at the time the Minister came to consider these matters that it was more than four years following that conviction for manslaughter, and that he had had no convictions of any sort from 1996 onwards, that it was possible that he had recovered his character by that time and that is the correct approach that should have been taken by the Minister, to at least consider it on that basis. 

Obviously, as was stated, I think, by Justice Nicholson in the Jia Case, it may well that the Minister having considered it on that basis, could conclude that he was not of good character.  That is not in issue.  Indeed, in the White Case, when it first came before the Administrative Appeals Tribunal, my understanding is that was the approach the Tribunal took in exercising its discretion but it still remained, in my submission, open, as a matter of law, that he may have recovered his character.  It was certainly not argued before the Federal Court that, as a matter of law, it was bound to find that he was not of good character.

KIRBY J:   But if we put aside the point concerning what the law requires and just look on it as whether or not it was open to the Minister to so decide, the matter that influences me, Mr Christie, is that the Court has already listed, in the Perth sittings, a matter Jia which has some similarity.  That is coming on pretty soon. 

MR CHRISTIE:   Indeed, your Honour.

KIRBY J:   And experience teaches that it is helpful, when you have an issue of principle, to have a case with slightly different facts so that you can test the principle by reference to different fact situations and, in a way, the fact – and I have read your written submissions – that you say if you look at the circumstances of the manslaughter and you look at the lack of any convictions in the last four years, you look at the reason why character is relevant in the Migration Act, you look at his connections with the Australian community that, in a sense, this is, on one argument, an argument that lends itself to the factual assertions on which you succeeded in the Full Federal Court.  So that, looked at from the point of view of the Court, the application is before us, it has similar issues to Jia, we are going to have to listen to and hear and determine Jia, and this matter may assist the Court in reaching a conclusion which is appropriate to both this case and Jia.  So it seems convenience argues for hearing it, and the point is very similar and has attracted special leave already.  That is what is in my mind.

MR CHRISTIE:   Yes, your Honour, I appreciate that.

KIRBY J:   Tell me if that is wrong?

MR CHRISTIE:   I would concede that the overall factual matrix is obviously similar, with certain differences.  I am concerned, your Honour, that the primary matter it would appear that special leave was granted in the Jia matter, as my learned friend, Mr Tracey, raised, was the issue as to whether it was wrong for the Full Court to make different findings of fact, except where that is absolutely clear, than the Court at first instance.

That issue does not arise, of course, in this matter because the findings of fact were made directly and, in a sense, at first instance by the Full Court.  The issue of bias was first raised and considered in the Full Court.  So that particular issue ‑ ‑ ‑

KIRBY J:   Are those matters you rely on in your written submissions relevant to counsel assigned to your client at the first instance level, are they proved by evidenced?  Are they matters that would be before the Court otherwise than by assertion?

MR CHRISTIE:   That evidence is asserted, I think, in an affidavit of Mr Corbould for the applicant Minister, that he had discussions with the previous counsel of the current respondent.

KIRBY J:   But you assert that the counsel who was assigned in effect did not look with the assiduous attention that he should have to the issue of actual bias.  I am just concerned that was that before the Full Court and would it be before this Court?

MR CHRISTIE:   Yes, it would depend whether it was an affidavit – I think it was an affidavit formed before the Full Court; an affidavit sworn, of course, by the client.

KIRBY J:   You see, the Full Court can receive additional evidence but we cannot following Eastman or Eastman confirms Mickelberg, and this Court cannot.  So that it will have to be before this Court in an appellant jurisdiction in some appropriate way.

MR CHRISTIE:   That evidence, your Honour, goes to the question as to whether leave ought to have been given to amend and to adduce further evidence, rather than to ‑ ‑ ‑

McHUGH J:   But that is another point in the case, is it not?  Because certainly at first instance what was done in this case seems contrary to what was decided in Teoh in 1994.  It seems contrary to what this Court said in Coulton v Holcombe, you are allowed to run a completely different case.  It is true that the Minister said he did not suffer any prejudice, but the fact is that his failure to give evidence was a factor used against him to hold that he was actuated by bias when he made his decision of 14 October 1998.

MR CHRISTIE:   Well, that is when he had the opportunity to give his evidence.

McHUGH J:   I appreciate that, but the question is whether he should ever have been put in that position to let you run a completely new case which depended not on the record but on new evidence.  But can I put another matter to you:  you have a finding of fact by the Full Court that the Minister, the applicant, is actuated by bias.  Now, I do not know whether that is an unprecedented finding in the law against a Minister of the Crown, but, to say the least, it is very unusual.  Surely it is a matter, having regard to the public importance and the Minister’s role in relation to matters of national and international importance, that this Court should have a look at the matter.  Realistically, if the finding stands, it surely must raise some question about whether the Minister can continue to exercise this portfolio.

MR CHRISTIE:   Your Honour, the finding of bias is as was stated by Justice North in the Sun matter, is not to be regarded as a finding of wrongdoing by the person involved.  Bias can be unconscious, it can be a question of unconscious prejudices.  Particularly in the current case, the bias rested on the Minister having made up his mind that the Full Court said in this matter, is a matter of political principle that persons such as the present respondent should be regarded as criminals and should not be permitted to remain in Australia.

McHUGH J:   Yes, but the point is that if this decision stands, and given the lapse of time between the Minister’s letter to the AAT and his statement on – what was the station – 2UE, that nevertheless some many months, over a year later, he was actuated by bias, there must be a number of his decisions at risk, one would assume, but in any event, it must certainly hamper him discharging his duties under his portfolio.

KIRBY J:   Which are constitutional duties.

MR CHRISTIE:   Well, your Honour, in regard to that statement, I appreciate your point and if it is regarded – if the Minister is regarded in a special position, I have regarded it, I think, in my submission as he should be treated like any other citizen but if the Court sees him in a special position, that is, I must concede, a very strong reason for granting special leave.

McHUGH J:   Well, Ministers of the Crown, like the ordinary citizens, are subject to the rule of law but we cannot shut our eyes to the fact that here is a Minister who administers a portfolio of international importance and you have two findings now, of Full Courts, of the Federal Court of Australia, that he made decisions which were induced by actual bias against the persons involved.  That seems to me a serious finding against the Minister, and when you add to it the fact that leave has already been granted in one of the cases, you have this possible collision between Teoh and this case on the leave to amend point, I would have thought that there is quite a strong case for the grant of special leave, Mr Christie.

MR CHRISTIE:    Yes.  Your Honour, all I can add to that is, as I said, if there are any errors in the approach that the Court took in Teoh that could be corrected in that matter without affecting this matter which is, in a sense, subsidiary to it, but I can really add nothing further than that, your Honour.

KIRBY J:   Mr Christie, I have two practical questions.  The first relates to the question of the funding of the respondent before this Court.  Mention is made of the impecuniosity of the respondent.  Has an arrangement been made concerning, in the event that special leave is granted, that the respondent would be properly represented before the Court; in short, that the Minister would arrange for his representation?

MR CHRISTIE:   Your Honour, thank you for raising that point.  I am concerned that this is a matter where the two respondents will need to be separately represented.  It is not that their issues are – that their claims are in any way in conflict but there are different arguments presented and I think it would be improper for me to attempt to represent them both.  So if the matters are heard together there will be substantial extra cost for the Legal

Aid Commission and it may well, in my submission, be appropriate that special leave is granted on terms.

KIRBY J:   The second arises out of a point raised earlier by Justice McHugh concerning the invocation of the original jurisdiction of this Court where the limitation to actual bias would not be controlling this Court.  Now, do you know if any consideration has been given to that?  Is that a matter that could be returned before the Court in the Perth sittings or is that a matter on which you have no instructions?

MR CHRISTIE:   I understand, your Honour, that an application or a prerogative writ in relation to apprehension of bias has been filed or is in the process of being filed, certainly in the Jia matter.

KIRBY J:   It would seem to me desirable, if this matter is to come to the Court, that the Court should be in a position to dispose of all issues in controversy between the parties.

MR CHRISTIE:   Yes, your Honour.  It had not yet been considered in this particular matter because, of course, we were waiting to see whether special leave was granted but I anticipate that it would be appropriate in both matters to make the appropriate application.

Your Honour, you have been very faint.  I hope I have answered your questions but I have not properly been able to hear you.

KIRBY J:   Yes, thank you.

McHUGH J:   Thank you, Mr Christie.  Have you any further submissions?

MR CHRISTIE:   No, your Honour.

McHUGH J:   Yes.  Mr Tracey, what about terms?

MR TRACEY:   Your Honour, there were no terms in Jia.

McHUGH J:   I know there were no terms in Jia.

MR TRACEY:   With respect, we would have thought that rather than our friend having a difficulty in representing both Mr Jia and Mr White, he would be ideally placed to do so at very little additional cost.

KIRBY J:   This is very economical of you to suggest this but at one end of the Bar table is highly experienced Queens Counsel; at the other end is one counsel for two applicants who have slightly different cases and in this case

there is an additional point that does not arise in the Jia Case, namely, the Holcombe v Coulton point, so whilst prudent use of public funds is laudable, it seems a little potentially unjust to the applicants that they should not be separately represented, if that is their wish.

MR CHRISTIE:   The Court is not audible at this end, your Honour.

KIRBY J:   I just said that I thought there should be – if the applicants wished, that there should be two representatives and that all the weight should not be up the Minister’s end of the table in the form of Mr Tracey.

MR CHRISTIE:   Thank you.

McHUGH J:   Well, Mr Tracey, these are matters of great moment to the Minister and the Court would be assisted by the best possible arguments that can be put in support of the respondents in both those appeals.  Can you get some instructions as to what – and I have in mind senior counsel appearing, if possible, on behalf of the respondents.

MR TRACEY:   Yes, your Honour.  Would you like me to do that immediately?

McHUGH J:   Yes, see if you can get some - - -

MR TRACEY:   Would your Honour excuse me?

McHUGH J:   Yes.

MR TRACEY:   Yes, I have instructions not to oppose the application, your Honour.

McHUGH J:   Mr Tracey, subject to what you say, we have in mind making an order that, in this matter, the special leave be granted upon the terms that the Minister pay the reasonable legal costs incurred by or on behalf of the respondent, including the costs of briefing senior counsel.

MR TRACEY:   I could not oppose that, your Honour.

McHUGH J:   The matter can be got ready, I take it, for the October sittings of the 23rd to 27th?

MR TRACEY:   Certainly, from our perspective, yes, your Honour.

McHUGH J:   I direct that the matter be listed for hearing in the sittings commencing on 23 October, to be heard consecutively or concurrently with the matter of Jia.

MR TRACEY:   If your Honour pleases.

McHUGH J:   The costs of today’s application will be costs in the proceedings.  I certify for counsel.

Is there anything further?

MR TRACEY:   No, thank you, your Honour.

McHUGH J:   Just to make it clear, the grant of special leave is conditional upon the Minister paying the reasonable legal expenses of the respondent, including the costs of senior counsel.

MR TRACEY:   That is understood, your Honour.

McHUGH J:   Thank you.  That being so, there will be a grant of special leave. 

Adjourn the Court.

AT 5.35 PM THE MATTER WAS CONCLUDED