Addai v Min for Imm and Multicultural Affairs

[2000] HCATrans 452

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S5 of 2000

B e t w e e n -

JOSEPHINE ADDAI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 OCTOBER 2000, AT 2.53 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   If the Court pleases, I appear for the applicant.  (instructed by Susan N. Goodsell)

MR J.D. SMITH:   If it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Mr Killalea.

MR KILLALEA:   This matters concerns an application for special leave from the decision of the Full Court of the Federal Court of 10 December 1999.  The matter came to the Full Court from – it was an appeal from the decision of her Honour Justice Branson.  It was an extempore decision of 5 August 1999 and the application before her Honour Justice Branson was for an application for review of a decision of the Refugee Review Tribunal of 26 November 1998.

In the event, the matter that came before Justice Branson was an application – there was a substantive application before her Honour, but an amendment was sought the night before the hearing before her Honour to have the application heard only on the ground of actual bias, that is, review under the grounds of section 476(1)(f) of the ‑ ‑ ‑

GUMMOW J:   There had been a supervening decision of this Court, had there not?

McHUGH J:   In Eshetu.

MR KILLALEA:   Yes, in the matter of Eshetu, your Honours.  In the event, her Honour Justice Branson heard from the parties and there was agreement between the parties that there would be a need to inform the member of the Refugee Review Tribunal that actual bias was asserted and, accordingly, the matter could not go ahead on that day.  Application was made to adjourn the hearing and her Honour Justice Branson exercised her discretion and refused the adjournment.  At that point the applicant’s case, effectively, was dismissed.  It was from that decision that the matter was taken to the, I think, Full Court of the Federal Court.

The applicant’s case before you today is that the Full Court of the Federal Court erred, as did her Honour Justice Branson below, in not ruling that her Honour’s discretion had miscarried in relation to the application for an adjournment.  The applicant submits that special leave should be granted in this matter because it raises a question of law as to the exercise of discretion.

McHUGH J:   What is the question of law that you say arises?

MR KILLALEA:   As to whether the discretion was properly exercised.  I have referred your Honours in the applicant’s reply at 66 to the passage in House v The King.

GUMMOW J:   That is all settled law.

MR KILLALEA:   Yes, quite.  Just to answer your Honour Justice McHugh’s question.

McHUGH J:   No, I appreciate that, but I was seeking some particularisation of this question of law.

MR KILLALEA:   Yes.  What I take from the reference in the applicant’s reply at 66 and the reference to House v The King is that the discretion reposes in the judge, as a matter of law, and it is in the exercise of that discretion that if one errs there is the error of law.

GUMMOW J:   What do you mean by “err” you see?

MR KILLALEA:   I take up what the Court held in House v The King that:

“If upon the facts it is unreasonable, or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

McHUGH J:   Yes, but they are the principles that will be applied by an appellate court in reviewing a discretionary judgment, but when you seek special leave to appeal you have to do something more than show that perhaps the discretion went astray.  What is there that is special about the case that would warrant the grant of special leave to appeal?

MR KILLALEA:   Because in this case the applicant is left with absolutely no answer in respect of the matter to which he came before the court and that is a matter that, as I understand it, has not been addressed by this Court and in the context of Australia’s international obligations arising under the Refugee’s Convention and the provisions of the Migration Act which reflect those obligations the applicant was entitled under section 475 and 476 of the Migration Act to seek review of the Tribunal’s decision, but she has not been able to have that review.

McHUGH J:   She was able to have the review and she had abandoned a ground which she then wished to reinstate.

MR KILLALEA:   Yes.  She had the opportunity in the sense that a day was set down but her Honour below held to that day to the detriment of the applicant who did not get a hearing ‑ ‑ ‑

McHUGH J:   That means, does it not, that the question is whether the judge’s discretion miscarried?  Even if it miscarried, is that a ground for special leave to appeal?  This Court’s docket would be full of cases if we took on every case in which it was said that there had been an error of a discretionary judgment.  After all, damages cases are often said to be discretionary judgments.

MR KILLALEA:   Yes.  There is an aspect to this which is not present in what I see as the critical case determined by this Court and that is the matter of Queensland v JL Holdings Pty Ltd (1996-97).

GUMMOW J:   Yes.  You have to say, I think – it seems to have been said in the Full Court that Justice Branson placed too much weight on the case management consideration.

MR KILLALEA:   Well, indeed.  To place weight at all ‑ ‑ ‑

GUMMOW J:   You may be right and you may be wrong about that, but then, ultimately, if we were to re-exercise the discretion, I am not at all persuaded at the moment that we would come to any different result, given the history of this litigation.

McHUGH J:   In a special leave application you have to show more than that there may have been some error in the exercise of discretion.  You have to show, I would have thought, as a minimum, that you would more probably than not succeed if this Court then re-exercised the discretion which had miscarried in the courts below.

MR KILLALEA:   Yes.  The applicant says this:  that her Honour was wrong.  She erred in law in even looking to considerations of case management in the circumstances as being a factor relevant to the exercise of discretion because in terms of the court’s management of its load what was critical in this case is that the applicant, if she was not heard, her – well, in the normal course, if one looks to a commercial case, the applicant can go to her legal advisers and perhaps look to sue them to get redress, to get the damages from them that she might have got from the court.  This, in a real sense, is not open to the applicant because what she seeks is not compensable in monetary terms.

What she seeks is refuge in this country and she cannot now raise that point in the Federal Court because she was not given a hearing on it.  So, with respect, it was improper of her Honour Justice Branson to take into account the court’s docket when ‑ ‑ ‑

GUMMOW J:   Yes, but there were other things she took into account as well.

MR KILLALEA:   Quite, yes, and I have addressed ‑ ‑ ‑

GUMMOW J:   I do not think you are really responding to what Justice McHugh has been putting to you in that way.

MR KILLALEA:   Yes, and if I come to the second – and so I do say there is a particular public interest point here where one looks to the particular circumstances of a refugee applicant being denied a hearing and as ‑ ‑ ‑

GUMMOW J:   You say “denied a hearing”.  That is not quite right, is it?

MR KILLALEA:   She did not have a hearing.  She turned up for a hearing but she was not able to present her case to the court.

GUMMOW J:   I think refugees in this country get access to judicial decision making which is very extensive compared to a lot of other countries.  In a lot of European countries you would not get within cooee of a court.

MR KILLALEA:   In the broad, I do not cavil with that proposition, your Honour, but for the applicant, of course, she has not had that because when she came to the court, and the point is made in the submissions ‑ ‑ ‑

GUMMOW J:   Her situation is the product of backing and filing and shifting over the grounds.

MR KILLALEA:   Yes, but critically ‑ ‑ ‑

McHUGH J:   I mean, she started off with four broad grounds, did she not:  failure to observe the procedures required by 476(1)(a); error of law being an incorrect interpretation of the applicable law to the facts as found by the decision maker ‑ that relied on 476(1)(e) ‑ a ground that the decision was induced by fraud and by actual bias and that there was no evidence to justify the decision.  Now, she gave particulars of those grounds on 10 February 1999 and stated that grounds 3 and 4 were no longer relied upon.  The matter came before Justice Branson on 5 August, seven months later, and she then stated that she wanted to argue the ground of actual bias.

MR KILLALEA:   Yes, but I submit that fairly one has to see the proper role of her legal advisers in this and while, in a simple sense, technically, she makes those grounds – I mean, they are legal grounds – and properly the inference can be drawn that the way the case has been managed has been subject to the advice of her legal counsel.  There are no factual particulars, as it were, asserted, that the ground of bias is only raised against the written decision.

McHUGH J:   Yes, I appreciate that, but the Full Court pointed out that there is a public interest in these matters being disposed of quickly and as a result of this abandonment of the bias ground and then its reinstatement seven or eight months later the proceedings had to be adjourned because the Tribunal member might want to give evidence and, in any event, the respondent would not want to interview the Tribunal member, there being an allegation of actual bias.

MR KILLALEA:   Yes, but what the Full Court also pointed out at 46 that there had only been a modest delay in the case to date.  That is at about line 10 on page 46.  At line 15 and following the Full Court has referred to what her Honour Justice Branson said and that is that:

the matter could not be heard by me before late October at the earliest –

This was in August.  So we are not talking about inordinate delay in terms of bringing the matter on and I do not think I will lead evidence from the Bar table just to say the practice of the Federal Court, generally, is to have refugee matters heard one in the morning and one in the afternoon.  So we are not talking about a long case.  We are not talking about setting aside a long period time or a significant period in the future to hear the matter.

Now, your Honour put to me the issue of the prospects of success should the matter go back.  Both counsel for the Crown and her Honour allowed that there was an arguable case.  That was an arguable case which was only on the basis of the written decision of the RRT.  The adjournment, if it was given, would have allowed the member to be approached and, of course, the transcript to be brought forward.  So the case may have strengthened in the time if an adjournment had ‑ ‑ ‑

GUMMOW J:   No, I do not think you quite understand.  The discretion that would be re-exercised would be the discretion as to adjournment.

MR KILLALEA:   Yes, and I am saying that if there was an adjournment ‑ ‑ ‑

GUMMOW J:   Not as to ultimate decision.

MR KILLALEA:   Yes, I am just taking up – his Honour Justice McHugh raised the question, as I understood it, of prospects of success.  The prospects of success may well have enlarged when one had the opportunity to look at the transcript, but just looking at the decision itself, and I take your Honours to page 5.

GUMMOW J:   This is on the actual bias point?

MR KILLALEA:   Yes.  I take your Honours to page 12 and I will just very quickly refer your Honours to just half a dozen points and then refer your Honours to the critical case of Sun Zhan Qui and how an analysis of the Tribunal’s decision sits quite squarely with that case.  At page 12, line 20:

But it is of the view that it is implausible that it would take the applicant one year before obtaining the required information necessary for lodging his application for a protection visa.

I will just highlight the finding of implausibility and then I will take your Honours just quickly to the other points on which implausibility were found.  You will find it, again, at line 45:

The Tribunal finds that it is implausible that if Stella’s relatives were so virulently opposed to their relationship, as the applicant claims –

and so on.  At page 13, line 25, 26:

It is therefore implausible that the applicant was unable to relocate in such circumstances.

And at page 14, line 5, 6 and 7:

he would have been able to have hunted her down, is an exaggeration, fabricated by the applicant to create a refugee profile.  Although it is possible that the head of the family was able to arrange for the killing of his own son, it would appear to be beyond the realm of plausibility for him to have the resources to locate and punish the applicant anywhere in Ghana as well as two other countries.

And at line 15:

The Tribunal finds it is implausible that the applicant did not report being raped ‑ ‑ ‑

CALLINAN J:   Why are you referring us to these?  They are just findings of fact, are they not?

MR KILLALEA:   Yes, quite.

GUMMOW J:   Findings of this nature are not unusual in these cases.

MR KILLALEA:   No, quite, but her Honour Justice Branson at 37 at the end of paragraph 4 where she discusses, in a sense, the prospects of the case:

It is not, in my view, as presently advised –

and I say that is important because there is still no transcript ‑

a strong one.  The circumstances upon which I understand that the applicant wishes to rely fall well short, in my view, of those considered by the Full Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs.

If I can pass your Honours – because I have not referred to this – just a copy of the headnote in that case.  The reference is there, Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505. Can I just refer your Honours at the second page, at 506, on the bottom of 506, and paragraph (v) – there is (iv) and (v) under the heading of “Actual bias”:

Per Burchett J, North J in agreement:  The tribunal repeatedly drew extremely adverse conclusions against the appellant upon what, upon examination, turned out to be the flimsiest grounds.  The overwhelming inference is that the tribunal proceeded to consider the case from a preconceived opinion.  As a result, the decision was affected by actual bias within the meaning of s 476(1)(f).

GUMMOW J:   There is other decisions of the Federal Court that might suggest the contrary as to the construction of that term in 476(1)(f), I think.

MR KILLALEA:   Yes, your Honour, and properly matters to be ventilated at a hearing.  If I can just take your Honours back to the decision I was taking your Honours through.  The plethora of matters upon which the Tribunal found that the applicant’s case was implausible and perhaps one of the critical ones which begs the question of why the Tribunal took that attitude and fairly raises the question of actual bias, and that is at the foot of page 14, beginning at line 45 or 46 in the last paragraph:

In any event, the Tribunal does not accept that the applicant is or was a lesbian.  On her own evidence she was a member of a Pentecostal Church for 15 years.  The Tribunal is entitled to take judicial notice of the fact that the Pentecostal Church has a strongly anti‑homosexual stance.  Therefore, she must have been aware that the Church was fundamentally opposed to any form of homosexuality.  She had ample opportunity to leave the Church in order to avoid being “found out” as a lesbian, which she failed to do.

The Tribunal has essentially found that she was not a lesbian because she was a member of the Pentecostal Church.  That is a patent nonsense.  When one looks to the plethora of matters upon which the Tribunal has found her case to be implausible, one fairly asks the question, “Is there actual bias?”.  As the Court in Sun Zhan Qui said, it is not necessarily a matter of overt bias by the Tribunal member, but it may well be a subliminal bias which becomes apparent in the reasoning of the Tribunal rather than through an overt appearance of bias on the part of the Tribunal member.

CALLINAN J:   It is later explained at page 15 that the Tribunal just did not accept in this case that that was so because the Tribunal thought that she had tried to develop or build a “lesbian profile”.

MR KILLALEA:   Yes.  They found against her again.  That is another point on which they found against her.

CALLINAN J:   That is a reason why the Tribunal found that she was not a lesbian.

MR KILLALEA:   Yes.  The reasoning is there.

CALLINAN J:   That is a further reason why.

MR KILLALEA:   Yes.

McHUGH J:   But this is a new hazard for judicial officers if manifestly unreasonable findings of fact are going to constitute evidence or a conclusion of actual bias.  After all, under the Independent Commission Against Corruption Act in New South Wales actual bias constitutes corruption for the purposes of that institution.  This is a far‑reaching proposition that is put forward in Sun Qui that merely because these mistakes are ‑ that the court makes findings on flimsy grounds that it is evidence that they have acted on a preconceived opinion.

MR KILLALEA:   Yes, but what the Court has said in Queensland v JL Holdings Pty Ltd ‑ ‑ ‑

McHUGH J:   That is another point altogether.  I mean, that concerns case management and, speaking for myself, the emphasis that was placed on that is perhaps the strongest ground you have for saying that the discretion miscarried, but it is a question of whether it is enough.

MR KILLALEA:   Yes, and as to the other points, they are addressed in the applicant’s reply.

McHUGH J:   Yes.  I see your time is up.

MR KILLALEA:   Yes.

McHUGH J:   Yes, Mr Smith.

MR SMITH:   If the Court pleases.  In my submission, there are two reasons for which special leave ought not to be granted.  The first is that the decisions under attack in this Court are those of practice and procedure and involve the exercise of the primary judge’s discretion.

CALLINAN J:   What is the matter of practice and procedure?

MR SMITH:   Namely, whether or not to grant an adjournment and the matters to take into consideration when considering that matter.

McHUGH J:   But as a result of the refusal of the adjournment the applicant lost her right of judicial review, did she not, because it resulted in her application being dismissed?

MR SMITH:   Yes, that is quite right, your Honour.

McHUGH J:   So I do not know whether it is right to characterise it as a mere matter of practice and procedure, although you did not use the word “mere”.

MR SMITH:   No, your Honour.  The second reason is that the matter has insufficient prospects of succeeding if the special leave were to be granted.

CALLINAN J:   You know, case management is not an end in itself.

MR SMITH:   Yes, your Honour, that is what ‑ ‑ ‑

CALLINAN J:   It is not something that is to dictate the course of proceedings or, indeed, substantive decisions that judges are to make.  One sometimes has the impression that it is some kind of an end in itself, you clean up the docket and it does not matter what casualties are inflicted in the course of doing it.  Speaking for myself, that is an impression I have.

MR SMITH:   Your Honour, that may often be the case but, in my submission, it is not the case in this matter.  Her Honour Justice Branson made it clear that although she took that into account, the other three matters that she took into account were also weighed, if not equally, then very strongly in the equation.  Primarily, in my submission, the weakness of the apparent case was bias which, as your Honour Justice McHugh rightly pointed out earlier, had earlier been abandoned and was raised and, as her Honour Justice Branson pointed out, without explanation.  There was no evidence whatsoever from the solicitors who had acted for the applicant throughout the application before the court and continued to act as the matter was before her Honour, and it was that ‑ ‑ ‑

GUMMOW J:   I cannot help but think that this Sun Case really construes 476(1)(f) in the light of the unavailability of Wednesbury unreasonableness in the Federal Court.

MR SMITH:   Yes, that may be so, your Honour.  I understand that there is a matter of Minister for Immigration v Jia.

McHUGH J:   Yes, next week in Perth.  We will be hearing a case of actual bias alleged against the Minister himself.

MR SMITH:   Yes, and the Full Court found that there was actual bias against ‑ ‑ ‑

McHUGH J:   Yes.

CALLINAN J:   I thought we said something about Sun Qui in Abebe, did we?  It may have been on a different point, but I ‑ ‑ ‑

McHUGH J:   Yes, I think that was on the 420 point.

CALLINAN J:   Yes.

McHUGH J:   Yes, on the section 420.

MR SMITH:   That is how I understand it, your Honour.  In any event, the only thing I wish to add in respect of the first reason, namely, that the not mere, but the procedural question, is that what this really raises, this application, is the question of case management and that is a matter which has recently been dealt with fully by the Court in Queensland v JL Holdings in 1997.

CALLINAN J:   I would have hoped so, but I wonder, in view of her Honour’s remark, whether perhaps there might have been some misunderstanding about what that case decided.

MR SMITH:   The Full Court certainly had no misunderstanding as to what that case had – the effect of that case.  On the last page of its judgment the Full Court referred it because the matter had been argued before it.  At page 48, paragraphs 21 and following, the Full Court referred to that decision and also to the waiting of the consideration of case management by her Honour and the finding that, at the last line:

We do not regard the decision in JL Holdings (supra) as obliging the judge to grant the adjournment.  Firstly, the case does not enunciate any such general proposition.  Secondly, the circumstances of that case were very different from the present.

GUMMOW J:   Well, yes, but so what?

MR SMITH:   In respect of the first reason given by the Full Court, it is clear that ‑ ‑ ‑

GUMMOW J:   You cannot have one rule for commercial litigants and another for individual litigants, one rule for public law cases and one law for actions in contract or tort, can you, and, if so, why?  It is all the judicial power of the Commonwealth.  It is not segmented.

MR SMITH:   As I understand, your Honour, the reference there to the public interest is simply the parliamentary intention that these matters be heard quickly and that is a different matter ‑ ‑ ‑

GUMMOW J:   That is a question too.

MR SMITH:   That is a question which the Full Court ‑ ‑ ‑

GUMMOW J:   It is a question for the courts to determine these matters.  Legislative exhortation is one thing.  The administration of the courts exercising judicial power of the Commonwealth is another.

MR SMITH:   Yes, I cannot disagree with that, your Honour.  However, the public interest in such a matter is something which is a relevant consideration in determining whether or not a person has the right to have the matter finally heard in the circumstances that were before her Honour Justice Branson, in, I might submit, fairly special circumstances which were before her Honour where a matter has been, we would say, elected not to have been continued with and raised in the light of two decisions in this Court.

So in answer to Justice Callinan’s statement, my submission is that the Full Court did not misunderstand the full extent of JL Holdings and, particularly, the decision of the majority which, as far as I read it, went so far as to say that case management ought not to supervene or overcome entirely the attainment of justice or the principle that courts ought really to

strive towards that attainment rather than, as your Honour Justice Callinan pointed out, simply have itself as an end.

So far as the case is authority for that, then it was misunderstood neither by the Full Court nor by the primary judge before it.  Then in respect of the second reason, namely, the insufficient prospects of success, I need not say too much except to say that in light of the earlier comments from the Bench to my friend, except to say that the outcome of the appeal, if it were successful, would be that the matter would be remitted to the Federal Court for determination of the question of bias and in light of my submission, which was agreed with by the Full Court and by Justice Branson, of the slight prospects, then that ought to weigh in the prospects of the Full Court of this Court not only granting special leave but also allowing the appeal and granting the orders, although they are not sought they ought properly to have been sought, in the application.  Those, your Honours, are my submissions.

McHUGH J:   Thank you, Mr Smith.  Yes, Mr Killalea.

MR KILLALEA:   Yes.  I can only answer Mr Smith referring your Honours to what the majority held in Queensland v JL Holdings at 154.  I will just read the short line that:

However, nothing in that case –

and that was a reference to Sali ‑

suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable.

I would submit that on the submissions made that the applicant’s case was fairly arguable.

McHUGH J:   Yes, thank you, Mr Killalea.

In this matter the applicant was refused an adjournment, and her application in the Federal Court for judicial review was dismissed.  The Full Court of the Federal Court dismissed her appeal against the refusal of the adjournment.  The substance of the appeal to the Full Court was that the exercise of discretion respecting the adjournment had miscarried.  Among other matters, the primary judge had referred to the disturbance of her docket which would ensure were the adjournment to be granted. 

In State of Queensland v JL Holdings (1997) 189 CLR 146, this Court held that while case management principles ‑ such as those involved here ‑ were a relevant consideration in determining interlocutory applications they could not be used to prevent a party from litigating an issue which was fairly arguable. We would affirm again what was said in that case.

However, it does not follow that special leave should be granted here.  This is because, even if undue weight has been given to the efficient maintenance of the primary judge’s docket so that it was necessary for this Court to re-exercise the discretion, the other matters which influenced her Honour were of such weight as to point clearly to the same result.  For those reasons, special leave must be refused and must be refused with costs.

AT 3.24 PM THE MATTER WAS CONCLUDED