Applicant NAFF of 2002 v MIMIA

[2004] HCATrans 333

[2004] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S112 of 2004

B e t w e e n -

APPLICANT NAFF OF 2002

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 SEPTEMBER 2004, AT 10.07 AM

Copyright in the High Court of Australia

MS M.N. ALLARS:   May it please the Court, I appear for the appellant.  (instructed by the appellant)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR J.D. SMITH for the respondent.  (instructed by Sparke Helmore)

McHUGH J:   Yes, Ms Allars.

MS ALLARS:   Your Honours, as a preliminary matter in this appeal, the appellant seeks leave to amend the notice of appeal.

McHUGH J:   Your opponent apparently does not object to that, is that so?  You have no objection, Mr Williams?

MR WILLIAMS:   No objection, your Honour.

McHUGH J:   Yes, you have leave to file an amended notice of appeal, Ms Allars.

MS ALLARS:   Thank you, your Honour.

McHUGH J:   Yes, Ms Allars.

MS ALLARS:   Your Honour, the question for the Court in this appeal is whether the Refugee Review Tribunal denied the appellant procedural fairness when, following an oral hearing, the Tribunal failed to write to the appellant setting out questions about inconsistencies in his evidence and giving him an opportunity within 21 days to respond to that letter.

McHUGH J:   Is the issue really crystallised in paragraph 2.6 of your reply in the third sentence where you say:

The position is no different from that of a court or tribunal which notifies the parties that it is adjourning the further hearing of a particular contested factual issue to a later day for oral hearing but then without warning to one or both parties makes its decision in advance of that date.  The denial of procedural fairness is established without the necessity for the parties to give evidence of having been misled by indicating what steps they took to prepare the evidence they would have led at the proposed adjourned hearing.

Is that the nub of the case really?

MS ALLARS:   Your Honour, the appellant says that the denial of procedural fairness is based on general common law procedural fairness principles and the nub of the case is the question whether recent cases such as Aala, Muin and Lam in any way detract from that so as to indicate a different conclusion in circumstances such as these.  So, your Honour, I accept that that is the nub of the question.

McHUGH J:   Yes.

GUMMOW J:   What is the relevant date for the Act, and in what form, at what date do we look at the Act?

MS ALLARS:   Reprint No 8, your Honour, of the Migration Act, yes.

GUMMOW J:   What is the date of the application for the protection visa?

MS ALLARS:   There is a chronology set out on the last page of the appellant’s submissions.  The application to the Tribunal was lodged on 10 April 2000.

KIRBY J:   There have been some changes; I think you mention them in your written submissions.

MS ALLARS:   Yes, your Honour.

KIRBY J:   There are now some express provisions relating to what the Tribunal has to do, are there not?

MS ALLARS:   Yes, of course.  Section 422B has been inserted.  That does not affect the substance of this appeal.  The appellant is entitled to common law procedural fairness.  Section 422B does not apply in this case.

KIRBY J:   Did 424A apply at the relevant time, or could you check that?

MS ALLARS:   I can check that, your Honour.  I think it would have done but there was no case put that 424A was breached.

KIRBY J:   You may not know but we had a case recently where that question of the operation of 424A applied in circumstances where a statement had been made at the end of hearing that the Tribunal would get in touch with the applicant and did not and that matter stands for judgment.

MS ALLARS:   I was not aware of that case, your Honour.

KIRBY J:   I cannot tell you the name of it because I can never remember these names.

McHUGH J:   SAAV.

KIRBY J:   SAAV, yes, a South Australian case.

MS ALLARS:   Yes, this was a case where 424A was not in contention.  The matter was argued simply in terms of common law procedural fairness and it certainly was not argued on the basis of Aala or Muin.

KIRBY J:   You say that it is a clear case of a breach of common law fairness because an undertaking or statement was made and then not fulfilled.

MS ALLARS:   That is correct, your Honour, and the argument is that although it would be possible to label that representation as generating a legitimate expectation ‑ ‑ ‑

GUMMOW J:   Well, Ms Allars ‑ ‑ ‑

McHUGH J:   It really is a simple case.  I am not sure that those other cases have much to do with it, have they?  Either your point is right or wrong, it is as simple as that, is it not?

MS ALLARS:   Yes.

McHUGH J:   I do not think even your opponent suggests otherwise, he just denies the basic proposition.

KIRBY J:   Why do we have to get into the muddy waters of legitimate expectation unless we truly, really and absolutely have to do so?

MS ALLARS:   I think that is correct, your Honour.  The only reason we would get into that muddy water is because certain dicta drawn from Lam and from Aala have suggested that we may need to.  The appellant does not seek to get into that muddy water but simply puts the case in terms of basic principles.  A good illustration of that is Muir’s Case, the Queensland case which I have not put on the list of authorities but it is a simple illustration.  It is difficult to find other illustrations.

GUMMOW J:   What is the citation of it?

MS ALLARS:   It is [1980] Qd R and it is mentioned in the written submissions.  It will just take one moment to find.

KIRBY J:   It is towards the end of the submissions.

GUMMOW J:   Justice Callinan says he was in it.

MS ALLARS:   Yes, that is correct, your Honour.

KIRBY J:   I hope he won it.

MS ALLARS: He did. Yes, [1980] Qd R 567, so that is an illustration. I have been unable to ‑ ‑ ‑

KIRBY J:   Just remind us of what the facts of that case were.

MS ALLARS:   Well, that was a motor accident case.  Counsel for the plaintiff who was the appellant before the court sought to make submissions about evidence given by a particular medical practitioner which went to the question of causation.  She was stopped by the presiding judge who said he did not need to hear from her and ‑ ‑ ‑

CALLINAN J:   That is a South Australian case, is it not?  I think Muir was a case about an administrative body, a public service case.

MS ALLARS:   I am sorry, I have launched into Stead.  I do apologise.

CALLINAN J:   I think Mr Muir was the chairman of the Public Service Board.

MS ALLARS:   Yes, this is the Public Service Board Case where it was expected that there would be an opportunity to make oral submissions but without notice to the ‑ ‑ ‑

CALLINAN J:   It was a quite different case really because the Board made its decision in secret and after it made its decision it wrote to the prosecutor and said, “Yes, we will answer your inquiries and we will give you a chance to deal with various matters”.  I think it is a somewhat different case.

MS ALLARS:   Yes, it was your Honour.  I am sorry, I was thinking of Stead.  This is a case where it was made clear to the Board that the evidence and the submissions were not complete.  There was an expectation which one might ‑ ‑ ‑

CALLINAN J:   Actually I think there was not merely an expectation; I think there was an actual statement on behalf of the Board that an opportunity would be given and the prosecutor had earlier said that this was not his complete case and I think he needed to see some documents and something and then he would proceed and in the meantime the Board made a decision.  It is a very fact specific case and I do not know whether it really helps you beyond stating a natural justice principle.

MS ALLARS:   It helps in the sense that it was made clear that the case was not complete and yet the Board made a decision without further notice.

McHUGH J:   But is that critical?  May not much in this case turn on how you interpret the Tribunal’s statement?  Let me give you an illustration.  Supposing a judge on circuit says to counsel at the end of evidence and the end of argument, “This is an interesting case, when I get back to Sydney”, or Brisbane or wherever the judge is going back to, “I’ll put it in for further argument”, and then the judge does not.  Is that a denial of natural justice?  You have heard the full argument, the judge says, “I’d like to have another look at these authorities.  I’m going to put it in for further argument”, and the judge does not do that.  It strikes me at the moment it is hard in that situation to say that there is a denial of natural justice, but it is different if counsel, for instance, said, “If the judge hadn’t made that statement, I would have asked for an opportunity to put in written submissions or call evidence”.  May not much turn on this statement of the Tribunal, “And to put any more information that you wish to the Tribunal”?  Was that an indication that the hearing had not finished or was it really, “That you can put such information as you want in answer to my questions”?  Do you follow the difference?

MS ALLARS:   Yes, your Honour.  The distinction your Honour makes is between a case where an extension of the hearing, whether by written or oral submissions, is sought by one of the parties and a case where the decision‑maker offers that further opportunity without any such request.  In my submission, it should not make any difference, because at the end of the day it is the – and here, I am afraid, I do slide into the word “expectation”, but I use it in a very general sense – it is in the natural course that one would expect that one would have an opportunity to appear again when the matter is re‑listed, and that the hearing is not yet complete.  The decision‑maker has not said, “I reserve my decision.  I’ll give my reasons and decision at a later time.”

GUMMOW J:   What is the actual statement here?

MS ALLARS:   The statement is set out in the judgment of his Honour Justice Downes ‑ ‑ ‑

CALLINAN J:   Page 224:

“So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal.”

MS ALLARS:   At page 232 – the numbering of the appeal book is the handwritten numbering in the top right‑hand corner – at page 232.8 Justice Downes reproduces the extract from the transcript.

GUMMOW J:   What preceded that?

MS ALLARS:   Your Honour, we do not know what preceded that.  That is the only part of the transcript of the hearing that we have.

KIRBY J:   There was agreement, was there not – there was a question of a different dialect of Tamil, but there happened to be somebody in the registry who could assist with this.  Both were sworn in the Federal Court and then they agreed, and the parties agreed, that the two things said at the end of the transcript were those set out at 224 of the joint reasons, or 232 of Justice Downes’ reasons.  That is how they came about, is it not?

MS ALLARS:   Yes, that is ‑ ‑ ‑

KIRBY J:   The Federal Court did not itself listen to the entire transcript.  It just relied on the parties to tell them what assurance had been given, or matter had been said, at the end of the hearing.

MS ALLARS:   That is correct, your Honour.  So it is really a statement by agreement of the parties as to what occurred at the hearing.

KIRBY J:   Could I ask you this?  As you understand the written submissions now put in by the Minister, is the essential point of difference between you that which is raised by Justice McHugh?  That is to say, whether you fail because you did not, before the Federal Court, seek to put in affidavit form or some other way the matters which you would have called if only you had been given the opportunity which the Tribunal promised you, and that you say that that is not what the law requires.  It is not what Stead requires and it is not what the law, properly understood, requires, though that matter might come up separately under the discretion, a separate issue – but that that is the point that is now the issue before us.  Is that correct or not?

MS ALLARS:   I think that is a correct statement of it, your Honour.  It goes to both the substantive question of whether there was a denial of procedural fairness, and it also is raised in the context of the discretion to decline relief.  I think the Minister raises the point in both contexts.

GUMMOW J:   The problem is it all depends in a natural justice case.

McHUGH J:   Yes, exactly.  Justice Gummow and I said in Lam that procedural fairness consists in the denial of a reasonable opportunity that puts your case not in the disappointment of an expectation arising from a representation.

KIRBY J:   In a sense, that is supported by the principle that the courts demand that administrators act in a fair way, not just to salve the expectations of litigants and citizens, but because that is the principle upon which government in our country is administered, that when independent decision‑makers have obligations to act in a judicial manner that they will act in that manner because that is what is the inference in the Act of Parliament and what is expected in our form of society.  So, it is not the pain to the litigant which is a consequence of disappointment, it is the manifest carrying out of the law and proper procedures for all citizens, not just for the litigant.  Is that not the theory behind what Justice McHugh and Justice Gummow have said and is that not a correct theory?

MS ALLARS:   Yes, I think that is correct, your Honour, just going to what his Honour ‑ ‑ ‑

KIRBY J:   Does that not allow us to avoid legitimate expectation, at least in this case, lest it receive its quietus.

GUMMOW J:   In this case your response, I would have thought, would be, “Well, you can’t damn my client because he wouldn’t know until he was told that to which he had to respond” and he was never told that to which he would have responded.

MS ALLARS:   That is correct, your Honour.  I think my learned friend will say he knew because the question of the inconsistencies about the dates of the detentions and the number of detentions arose in the course of the hearing.

GUMMOW J:   Well, “you will have 21 days in which to respond to my questions”.

MS ALLARS:   Yes.  So the opportunity to respond had not yet been triggered because the letter had not been received and the appellant would say the Tribunal member must have – it is a reasonable inference to draw from the Tribunal member’s representation that she believed the appellant did not fully understand what had been said to him in the course of the hearing and he needed to have the issue of the inconsistencies explained to him in the form of a letter and that is simply a matter of ‑ ‑ ‑

GUMMOW J:   Which he would then have to get translated, presumably.

MS ALLARS:   That is correct, your Honour.

CALLINAN J:   He thought he was going to get a set of interrogatories, in effect, so specific inquiries, as Justice Gummow put to you, is no reason why you should anticipate, as it were, at large, what he might have to supply.

McHUGH J:   I think you concede, do you not, in your reply, that the Tribunal was not bound to do anything.  If it, at the conclusion of the hearing, had done nothing, had made no statement, you would have no complaint.  I think you concede that in your reply, if I remember rightly?

MS ALLARS:   Yes, I do, your Honour.  In different circumstances, perhaps, if there were a transcript of the entire hearing it may be possible to mount an argument that in the particular circumstances of the case there was not a fair hearing, but on the basis of the evidence that is available no complaint could be made if the Tribunal member had not indicated that the hearing had not yet been completed and that there would be a further written component to the hearing.

McHUGH J:   I thought you put it better just a little while ago in your oral submissions than you do in your written submissions, where you said it rather indicates that the Tribunal thought that he had not properly understood what the case was about.  I am not sure you make that point clearly in your written submissions, do you?

MS ALLARS:   There is some reference to it in the submissions in reply on the first page where it is argued that certain inferences can be drawn from the fact that the statement was made by the Tribunal member at the end of the oral hearing.  I have done that in a conservative fashion so that in paragraph 1.1(iii) I have argued that at the least one can draw the inference that the member believed the opportunity should be extended.

McHUGH J:   Yes, that is what you have just said orally, yes.

MS ALLARS:   One could seek to draw a stronger inference, that is that the Tribunal member believed the appellant was confused and did not understand because the translation was inadequate, but I have drawn the most conservative inferences and they are adequate, in my submission, for the appellant’s case.

KIRBY J:   The problem with a universal rule that the applicant always has to put on what he or she would have put is that decision making is a complex process and one does not really know, at least in some cases and perhaps this, where given the premise that the Tribunal member was at least a bit confused or uncertain when he left the hearing, what submissions addressed to particularities might have done to the ultimate process of decision making and that, therefore, to demand that the person affected should spell out what he or she would have said is really to demand the unreasonable because you do not know how it would have affected the decision making until the decision‑maker takes the steps that were said to be necessary.

MS ALLARS:   Your Honour, I accept that argument and, in my respectful submission, it has not been part of the general common law principles that an applicant should be required to put on evidence as to what he or she would have said if the denial of the fair hearing had not occurred.  This is a new direction which has occurred as a result of Aala, that part of Aala which does not deal with a discretion, and as a result of Muin ‑ ‑ ‑

GUMMOW J:   A lot of people read these cases I am afraid, Ms Allars, and they do not always bring to them a modicum of common sense as to the particular context in which they are being decided.  Natural justice cases, as we have been saying, are very much fact specific.  People who write articles and textbooks do not seem to grasp that always.  They always try and get general principles.  Well, it is not like that.

MS ALLARS:   Yes, your Honour, and I note that ‑ ‑ ‑

GUMMOW J:   And then that just causes endless trouble.

MS ALLARS:   Yes, your Honour, and I note, of course, in Aala the applicant had put on an affidavit about what the appellant would have done if it had been known to him that the Federal Court papers were not in the file.  Similarly, in Muin there were agreed facts, so the context in which the litigation occurred was very different from the usual context of a procedural fairness case.

GUMMOW J:   It may be that your opponent wants to elevate some general principle.  I do not think you have to assume that and meet it before it has actually been put, if you see what I mean.  On the face of it this is a nice, clear, fact specific case in which you have some mileage at the moment.

MS ALLARS:   Yes, your Honour.  I simply sought to deal with and to ‑ ‑ ‑

GUMMOW J:   I understand that.

MS ALLARS:    ‑ ‑ ‑ respond to these dicta which have obviously led the majority in the Full Court to reach the conclusion they did.

GUMMOW J:   Yes.

MS ALLARS:   Just coming back to your Honour Justice McHugh’s earlier comment about the opportunity, it appears that the majority, perhaps, with respect, misunderstood at ‑ ‑ ‑

GUMMOW J:   What is the particular error that you point to in the majority’s reasons?

MS ALLARS:   The conclusion of the majority is found ‑ ‑ ‑

GUMMOW J:   Where is the particular passage where they go off the rails as you see it?

MS ALLARS:   The majority’s conclusion on the basic question of denial of a fair hearing appears at paragraph 41 which is at page 229 point 10 of the appeal book and it is in the preceding paragraphs that the majority reason their way towards that conclusion.  But, your Honour, there are about six errors which I could point to in that reasoning which occurs from paragraphs 36 through to 41.  If I might just very quickly refer to them.  At paragraph 36, page 228 point 5, the majority refers to the judgment of his Honour the Chief Justice in Lam.  A passage from paragraph 37 in Lam is quoted.

If I can take your Honours to paragraph 37 in Lam, the quoted passage refers to the argument based on Aala and Muin, that is beginning right at the bottom of page 13 of the CLR.  There is reference to “A particular example of such detriment” to an applicant and it goes on to speak of a “statement of intention has been relied upon” and so forth.  With respect, the majority neglected the first part of paragraph 37 where Chief Justice ‑ ‑ ‑

KIRBY J:   Justice Downes pointed that out, with great glee, I thought.

MS ALLARS:   Yes.  Your Honour the Chief Justice refers to Ng Yuen Shiu and Haoucher and that is the more general category of procedural fairness case where the decision‑maker fails to take a procedural step and this results in the loss of an opportunity.  In my submission, the Chief Justice was referring to that general situation and then giving a particular example which was the very special category of Muin and Aala.

But going back to Ng Yuen Shiu and Haoucher and perhaps just focusing on Ng Yuen Shiu itself, that was a case where there was a statement made that the merits of Ng Yuen Shiu’s application for an identity card would be considered by the decision‑maker, but instead a very cursory interview was given, not the full consideration of the merits which had been promised.  So that loss of an opportunity is very similar to the loss of the opportunity which has occurred in this case, the full opportunity was not afforded.

So, in my submission, the majority neglect that.  Also an earlier paragraph in the Chief Justice’s judgment in paragraph 34, on page 12 of the CLR, and this is a passage which he has reproduced in his Honour Justice Downes’ dissenting judgment.  At about point 7 of page 12, the Chief Justice says that the content of procedural:

fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed.  So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers as decision without doing so, it may be easy to demonstrate that unfairness is involved.

CALLINAN J:   Ms Allars, I just invite your comment on this.  There may be a significant factual distinction between Muin’s Case and this case, because in Muin’s Case the Court did have before it the material which was the subject of the proceedings, the material that the Tribunal said it had, when in fact it did not have it.  The Court did have before it, because it was in original jurisdiction in this Court, what that material was.  Some of it was in favour of the applicant and some of it was against the applicant, or the applicants, but at least the Court knew that there was material upon which the Tribunal could have reached a different conclusion from what it did.  That material is summarised in Muin 76 ALJR 1015 at paragraph [295].

The point simply is that the Court had evidence of the material which would have been, or should have been, before the Tribunal as a result of the Tribunal’s representation, and it could be seen from that material that there was in it matter that could have supported, just as there was matter that was adverse to, the applicant.  Now, I do not think you have that.  It may have been, as has already been suggested to you, I think, that in the Federal Court you should have sought to adduce that evidence.  There is no doubt the Federal Court could have received it, or at least had a discretion to receive it.  For example, the inconsistencies were arguably plain.  Perhaps your client should have said, “Well, I would have dealt with the inconsistencies in this way”. 

MS ALLARS:   Your Honour, the appellant did not mount his case as one falling within this particular category represented by Muin and Aala ‑ ‑ ‑

CALLINAN J:   It does not matter.  It seems to me that that is a recent statement in this area of territory, which certainly would be binding on the Federal Court and which this Court would not depart from, if this case is within that territory.

McHUGH J:   You seem to put it in a different light, do you not?  You, in effect, rely almost on an admission by the Tribunal.  You say, looking at what the Tribunal has said, the Tribunal itself is acknowledging that fairness of procedure requires a further hearing of this matter, and that has not been done.  That is the way I understood you to put it.  It is almost an admission by the Tribunal itself that natural justice requires that there be a further hearing of this matter, so that these various matters can be ironed out.  So it is not a question of you having to put on evidence to deal with something.  In effect, you are saying the Tribunal itself acknowledges that up to the moment it spoke, the hearing had been unsatisfactory, and that natural justice, fairness of procedure, required an extended hearing.  Is that how you put it?

MS ALLARS:   Yes, your Honour.  In my submission, that is a proper inference to draw from the material before the Court:  the statement itself by the Tribunal, combined with the references in passages in its reasons to the complaint made by the adviser of the appellant that the translation was inadequate.  I think that appears at the appeal book page 94.2. 

CALLINAN J:   But the answer to that may be – I am not saying it is – the answer to that may be that when the Tribunal thought further about the matter, the Tribunal decided that everything that was required was before it and that any resolution of the inconsistencies would not alter the decision.  I am not saying that is necessarily so, but it may be an answer, because what the Tribunal did contradicted any earlier position that the Tribunal was unable to decide or would be wrong to go ahead to decide the matter without further information.

MS ALLARS:   Yes, your Honour.  Sorry, I just need to correct that reference.  It is at the bottom of page 90 and across onto the very top of page 91 that we find the passage where the adviser says he had concerns with the interpreting, so that indicates the Tribunal was aware of that problem.  To return to your Honour’s question, there are two ways in which evidence about what an applicant would have said or how the decision might be different could play a role in determining the procedural fairness issue. 

The first area is in relation to the substantive question as to whether there is a denial of a fair hearing.  The appellant’s case there is that that arises only in a narrow category of special cases, such as Muin and Aala.  The second area where it could arise is in relation to the discretion to decline relief, but the appellant says even there, if one reads Stead’s Case carefully, Stead’s Case having been approved by this Court in Aala, the Court is not requiring evidence to be given to prove, in a sense, that there was a possibility ‑ ‑ ‑

CALLINAN J:   It might be different in a prerogative writ case, because the prerogative writs are discretionary.  Whereas if you have a good point on appeal, that may be enough. 

GUMMOW J:   Stead is not a prerogative writ case.

MS ALLARS:   No, it is not.  That is the case that I launched into earlier on.  It is a motor accident case.

GUMMOW J:   But you are right in saying it has been later looked at in prerogative writ cases.

MS ALLARS:   It was affirmed in Aala as setting out the proper test.

CALLINAN J:   I am saying you might have a stronger point if it is a pure appeal than you may have if it is a prerogative writ case, because of the discretion to refuse relief in a prerogative writ case. 

MS ALLARS:   Certainly in Aala this Court did not draw any distinction between prerogative writ cases and other kinds of cases where the issue of procedural fairness arises.  In my respectful submission, when one looks carefully at Stead’s Case, the kind of situation where there would be no possibility of a different outcome is a situation where the law is against the party.

CALLINAN J:   But Stead is different, too.  In Stead the judge said, “I don’t want to hear you any more”.  He could not have given a plainer indication, I thought, than that that side was going to win on that point and then he went away and found against them on precisely that point.

MS ALLARS:   That is correct, your Honour, and it was important that it was a factual issue as this case is concerned with a factual issue.  Had it been a situation where the decision‑maker said, “I don’t want to hear you any more on the law because the law is against you” that would have been the kind of situation where the discretion to decline relief would be exercised if the decision‑maker ultimately reached a different conclusion.

CALLINAN J:   In Stead I think that counsel was talking about the medical evidence, was he not, saying in effect, “You will win on that”.

MS ALLARS:   That is correct, your Honour.

CALLINAN J:   That is how I would have interpreted it if I had been counsel and I would have said, “Well, that is good.  Tick that off.  No need to worry about that.”

MS ALLARS:   Your Honour, that is what counsel did.  It was medical evidence which went to the issue of causation but the decision-maker then made a very different decision about that evidence.

McHUGH J:   Could I ask you about something.  Your opponent does not seem to rely this and I think there is an answer to it.  On one view, none of these questions of discrepancies had the slightest thing to do with this case because the Tribunal, in effect, said, “Well, even if what you say is right in every respect, this is an internal relocation case and that is a complete answer to your case.”  What is your answer to that?

MS ALLARS:   My answer to that, your Honour, is that the question whether an error vitiates a decision is part of the substantive principles in the area of abuse of power but it is not part of the substantive principles in the area of procedural fairness and that is because the focus is on procedure rather than on the actual decision and the outcome.  So it is inappropriate, in my submission, to ask whether the denial of procedural fairness vitiated the decision in the sense that the decision could still be supported by reason of other findings.  It is the procedure which matters.

McHUGH J:   That is one of the problems I have always had with Stead, that Stead seems to think that you can justify the outcome.  I would have thought that since denial of natural justice goes to jurisdiction the decision made in breach of the rules of natural justice is a decision made without jurisdiction and, therefore, the outcome could only go to discretion in terms of giving relief prerogatively, but if there is a breach of natural justice it is a breach of natural justice.  It does not seem to me that it affects the substantive outcome of the case but Stead seems to suggest that in some cases it might possibly do so.

MS ALLARS:   Your Honour, in my submission, there is a distinction between the issue as to whether an error vitiates a decision and the issue of discretion to grant relief and the overarching principle that was being considered in Stead was whether it would be futile to grant relief.  Of course, that is a principle which applies ‑ ‑ ‑

McHUGH J:   Was it?  It was an appeal in Stead, you see, and if the Court had approached the matter in the way I suggested a moment ago they would have just had to allow the appeal but it did consider this question of whether or not the decision could be supported.

MS ALLARS:   In my respectful submission, your Honour, in Stead the Court was considering whether it would be futile to grant relief rather than whether the denial of procedural fairness vitiated the decision.  It accepted that there was a denial of procedural fairness and there is very little discussion of that in the decision of the Court.  It focuses its inquiry on whether it would be futile to grant relief and asks the question whether there was no possibility of a different outcome, and that was a question which went to the issue of futility and it was purely a matter of the discretion to grant relief.

McHUGH J:   But how could futility arise in an appeal?  Either you have made out a ground of appeal or you have not.  If you have made out your ground of appeal, you should have had a new trial.  I have always had ‑ ‑ ‑

CALLINAN J:   There is no proviso for civil appeals.  There is no substantial miscarriage of justice.

McHUGH J:   I have always had that problem with Stead.  I have tried to apply it and, in fact, I dissented applying what it stated once, but it always just seemed to me to be conceptually wrong on that.  Once there is a breach of natural justice, there is a breach of natural justice full stop.  It is hardly in the prerogative writ area that you get into this issue of discretion.

MS ALLARS:   I understand what your Honour is saying, yes, and that may well be true.  The discretion has developed in conjunction with those remedies.  I understand your Honour’s point and that had not occurred to me in relation to Stead for Stead has been picked up and applied in Aala in the prerogative writ area in order to fill out and expand upon what the test should be.

KIRBY J:   But Aala was a constitutional writ, was it not?

McHUGH J:   Yes.

MS ALLARS:   Yes.

KIRBY J:   So that has also been held to invite the discretion.  The common law and the prerogative law does not tend to like absolutes.  It tends to be practical.  As Justice Gummow said, the facts are very much important in fashioning the outcome.  So what is wrong with taking such considerations into account at the second stage in the discretion, if you say, “Well, I have come to the conclusion that there was a departure from the rules of procedural fairness in this case but they are inconsequential, they are trivial, they are unimportant.  They did not bring about any established or even reasonably inferred injustice in the outcome, so we will not trouble ourselves to provide relief because it involves a lot of delay, expense, inconvenience”?  Is your client in immigration detention?

MS ALLARS:   No.

KIRBY J:   Well, often that would be another consequence that somebody is kept in detention.  So what is wrong with that way of approaching things?

MS ALLARS:   Your Honour, in my submission, the test ‑ ‑ ‑

KIRBY J:   I do not think you deny that in your written submissions, do you?  You just say that it has to be kept separate and taken into account at the point of the discretion and not bundled in and confused with the question of substance whether there is a breach of the principles of procedural fairness or natural justice.

MS ALLARS:   That is correct, your Honour.  There tends to be a conflation of that issue and that test in Stead with the substantive question as to whether there is a denial of procedural fairness.  In addition, there tends to be an assumption that in order to apply the test in Stead an applicant should put on evidence about what the outcome would have been in the hypothetical situation of ‑ ‑ ‑

KIRBY J:   Does Stead actually say that?

MS ALLARS:   Stead does not say that at all, your Honour.  Stead poses a very narrow test, not a test of whether the breach is technical, but simply a question as to whether there was no possibility of a different outcome, and that is a test one can apply without the need for any evidence to be given.

KIRBY J:   Indeed, that is a very stringent test.

MS ALLARS:   Yes, your Honour.

GUMMOW J:   They are talking about an outcome at a new trial, what would be the outcome at a new trial?

McHUGH J:   Yes, in Stead they said if you get the same result at a second trial, we will not make an order.  I think there are some real difficulties about that.  If it is a denial of natural justice and if the authorities are right that it goes to jurisdiction and the decision below is made without jurisdiction, therefore it just does not exist.  You have no discretion, it seems to me, in those circumstances, to say we will not allow the appeal.

KIRBY J:   That would be a very absolute rule.  I mean it may be that it is what strict logic requires but we have said that the constitutional writs - and it is established that at least most of the prerogative writs, discretion stands as a protection against technical but meritless remedies.

McHUGH J:   I have no problem with it in terms of the prerogative writs; the courts have a discretion there.  I was concentrating on the appellate procedure that ‑ ‑ ‑

MS ALLARS:   Yes.

McHUGH J:   You are appealing and you say, “This is my ground of appeal.  I am entitled to have the verdict set aside”.

MS ALLARS:   Your Honour, I accept there is a question why there was a discretion to be considered in Stead’s Case but that does not damage the appellant’s position in this case.

McHUGH J:   No, this is a different case altogether.

MS ALLARS:   Yes.

CALLINAN J:   And if Justice McHugh were not correct in what he put to you there would be no need for the proviso in criminal legislation, so that you would not need a provision of that kind but the court has a discretion not to quash a verdict even if the court below has been in error unless there is no substantial miscarriage of justice.

MS ALLARS:   Yes, your Honour, in the criminal ‑ ‑ ‑

CALLINAN J:   That is a necessary provision, in other words, and if the law were otherwise you would not need it.

MS ALLARS:   Yes, your Honour.

CALLINAN J:   That is other than what Justice McHugh put to you.

MS ALLARS:   In the criminal context there are other ways of dealing with it as well.

KIRBY J:   But also in civil cases involving jury trials, I remember there is a provision in the New South Wales Supreme Court Rules that says that if there has been an error in a ruling on evidence or some other error in a direction to the jury in civil matters then that is not enough, you have to find that there is a miscarriage of justice.  So it may be that is the way the law deals with them, but ‑ ‑ ‑

McHUGH J:   That was also the common law rule, the differences in the question of onus of proof.  At common law the plaintiff has the onus – I am sorry, no it was the other way around I think, I cannot remember which way it was but the rules of court changed it.  Once you established onus under one set of rules, the onus switched to the other side to show it had not affected it and the other one had the contrary.

KIRBY J:   Was this an application under section 39B of the Judiciary Act?

MS ALLARS:   Yes, your Honour.

KIRBY J:   So this imports the constitutional writs and, therefore, this does import the notions of discretion or it did in the Federal Court.  On our review of the Federal Court by way of appeal, we are looking at whether, even if they found an error they would have been entitled to refuse relief on discretionary grounds.

MS ALLARS:   Yes, your Honour.  The appellant says that if that discretion is considered at the distinct stage when it should be, there is no question that the discretion to decline relief would not be exercised, because there is a possibility of a different outcome if the questions had been put to the appellant in writing by the Tribunal member and 21 days had been ‑ ‑ ‑

GUMMOW J:   Well, we do not know what the questions would be.

MS ALLARS:   We do not know what the questions would be.  We do not know what ‑ ‑ ‑

KIRBY J:   But we do know that there was a discretion.

MS ALLARS:    ‑ ‑ ‑ would have been said.  So it cannot be said there is no possibility of a different outcome, and that is as far as it needs to be taken.

GUMMOW J:   Now, we were looking at paragraph 36 and 37 of the Full Court.  You took us to the Chief Justice in Lam and you said they had incompletely stated what he had said at paragraph 37, as Justice Downes had pointed out.

MS ALLARS:   Yes.

GUMMOW J:     You said there were six errors in their reasoning ‑ ‑ ‑

MS ALLARS:   Yes, your Honour.

GUMMOW J:    ‑ ‑ ‑ in paragraphs 36 and following.  You have five to go.

MS ALLARS:   Only if your Honours wish to hear me on them.  It really just unpacks all of those references which are made by the majority.

GUMMOW J:   Well, we have to write a judgment saying why they are wrong.

MS ALLARS:   I am happy to go through it, your Honour.  The second error occurs at paragraph 37, which is at page 228.7 of the appeal book, where the joint judgment refers to the judgment of their Honours Justices McHugh and Gummow in Lam at paragraph 59.  If your Honours could go to Lam (2003) 214 CLR 1 at 19 to 20, paragraph 59. The passage which the majority in the Federal Court rely upon appears under a general discussion of “The applicant’s submissions”, and it is right at the bottom of page 19, going on to page 20. It is true that that passage ends with a footnote reference, footnote (33), to Stead and to Aala but, in my respectful submission, that passage is not intended to convey that Stead and Aala are part of ‑ ‑ ‑

GUMMOW J:   It says compare.  It says “cf”.

MS ALLARS:   Yes, it does say “cf”, your Honour.  In my respectful submission, it is not intended to convey that Stead and Aala type principles apply to the question of the substance of the content of procedural fairness.  It is clear that in Aala’s Case, their Honours Justices Gaudron and Gummow, at paragraphs 79 to 81 of Aala, kept the question of discretion quite distinct from the substantive question of denial of procedural fairness.

The third error occurs at paragraph 37 of the joint judgment in the Full Federal Court, where their Honours accept what was said – this is at appeal book 228.9 – by their Honours Justices McHugh and Gummow in Lam at paragraphs 81 to 82.  Those paragraphs in Lam are really the core or ratio of that joint judgment, in my submission, where there are two passages referred to.  One is drawn from the judgment of his Honour Justice McHugh in Teoh’s Case and the other is drawn from the judgment of his Honour Justice Brennan in Quin’s Case.

Now, in my submission, those two passages do not indicate that procedural fairness cannot be denied simply because a particular statement or representation is capable of being labelled as a legitimate expectation or as generating a legitimate expectation.  Indeed, in the passage drawn from Justice Brennan in Quin, acknowledgement is made that the legitimate expectation can be a “useful” indicator of the proper content of a fair hearing in a particular case.  Even though it may have served its purpose of extending the test for implying procedural fairness, it continues to serve that purpose in particular cases.

The use of that passage from Justices McHugh and Gummow in Lam also tends to fail to take into account the passage which occurs later on in paragraph 93 ‑ ‑ ‑

McHUGH J:   Paragraph 105, is it not?  What we said in 105 is not adverse to you; it helps you, if anything.  In the middle of paragraph 105 we said: 

But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome.

MS ALLARS:   Yes, your Honour, and that approach was emphasised by his Honour Justice Hayne as well.  In my submission, it does help the appellant in this case because ‑ ‑ ‑

GUMMOW J:   Was there any reference in the Full Court to paragraph 105?  There was not, was there?  It might have been an idea.  It is near the end and ‑ ‑ ‑

MS ALLARS:   No, there is a reference to 103 which is the next step in the reasoning in the Full Court, but not to 105.  Just responding to your Honour Justice McHugh, focusing on a procedure is the important point.  There is no suggestion that one needs to focus on subjective expectations of the appellant.  That is not necessary.  What is important is the procedure.

The fourth error also occurs in paragraph 37 of the joint judgment at page 229, point 1 of the appeal book where, again, there is a reference to the judgment of their Honours Justices McHugh and Gummow in Lam at paragraph 103 in Lam.  In my submission, that passage does not take the position any further in terms of the joint judgment in the present case.  It simply says that in that particular case, in Lam, the failure to send the letter did not amount to a denial of an opportunity to make submissions. 

In my respectful submission, that is consistent with the argument that I have put in the submissions that in Lam’s Case sending the letter to the carers was just a mere machinery for getting the submissions in from the carers.  It really did not matter how the submissions were obtained.  In the event they were sent in quite independently and it really did not matter that the letter was not sent.  So there are different kinds of representations.  That was one about the machinery for ensuring the opportunity occurred and honouring that representation became redundant once it was recognised that the submissions had been made by the carers anyway. 

The fifth error, your Honours, occurs in paragraph 38 of the joint judgment at 229, point 3 of the appeal book where a passage from the judgment of his Honour Justice Hayne in Lam is quoted.  It is a passage occurring at paragraph 111 of Lam’s Case.  There his Honour Justice Hayne says that it is important to focus on the procedure, not on expectations.

KIRBY J:   Where is that?

GUMMOW J:   Page 35

MS ALLARS:   Yes, page 35, thank you, your Honour, paragraph 111, right at the bottom of page 35.  Your Honours, the appellant has no difficulty with that approach of his Honour Justice Hayne.  In fact, that approach indicates quite clearly that it is inappropriate for evidence to be required about the subjective expectations of the appellant in the present case.

McHUGH J:   In certain cases it can be.  The real issue is whether the procedure has been fair and in some cases, and you say this is one of them, you can determine that objectively.  If a judge says, “I am not hearing any evidence” you do not have to put on any evidence about what your expectations are or what you would have done or anything of that nature but in another case it may objectively seem fair but somebody may have been misled or led into taking the course of action which they otherwise would not have.  So the procedure has been unfair in that sense, but they seem to me to be two different cases.  Your case, as I understand it, is that objectively when you see what the Tribunal said and what you can infer from that there has just been an objective failure of procedure in this case, proper procedure.

MS ALLARS:   I accept what your Honour says and I think it all depends on the circumstances of the case.  Some examples are given in the joint judgment of your Honour and his Honour Justice Gummow at paragraphs 91 to 93 in Lam where there is reference to FAI Insurances where Chief Justice Gibbs said it was a “natural expectation” that the company would have an opportunity for a hearing before its application for renewal of its workers compensation insurance approval was refused.  A similar approach in Sanders v Snell.  Then in paragraph 92 it is said:

What is “reasonable” may properly involve the attribution or inferring of states of mind, thereby reflecting an understanding of what is usual in human affairs.

In my respectful submission, that goes to the core of the issue before us.  There is no need for evidence to be given if, on the facts as they appear, it would be natural in terms of human affairs and interaction for particular states of mind to occur.  That has always been the approach taken in the procedural fairness area.  I accept what your Honour Justice McHugh says that sometimes a case might arise where you cannot rely on those sorts of inferences and an applicant may need to put on evidence in order to ensure that the inference can be drawn, but that is not the present case.

GUMMOW J:   Is that the whole six?

MS ALLARS:   Your Honour, I have one more.  The sixth one appears at paragraph 39 at appeal book 229 point 5 where there is a reference to his Honour Justice Callinan’s judgment in Lam.  If your Honours could turn to paragraph 145 in Lam which is on page 47.  The passage there refers to the difficulty with the expression “legitimate expectation” and expresses the view that it might be preferable for that expression to refer to “an actual expectation”.  However, his Honour Justice Callinan then goes on to say:

at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances . . . would reasonably have believed and expected that certain procedures would be followed.

It would be my respectful submission that passage is consistent with what their Honours Justices McHugh and Gummow said earlier on at paragraphs 91 to 93 that inferences can reasonably be drawn. 

Your Honours, that takes us back to the conclusion in the joint judgment at paragraph 41.  The appellant’s submission is that that conclusion was based on a faulty process of reasoning which involved the six errors or misconstructions of dicta in Lam’s Case, and paragraph 41 as well, at the top of page 230 of the appeal book, contains the reference to Stead and Aala where their Honours seek to distinguish the position of the litigants in Stead and Aala.  In my respectful submission, that brings into the question of the ‑ ‑ ‑

GUMMOW J:   This use of the phrase “existing right” is troublesome.  Conversely, the appellant did not have an existing right to attempt to clear them up following the hearing compared with the positions in Stead and Aala.  The notion of existing right seems to come out of legitimate expectation doctrine and to be counterproductive really.  It is an illustration of a counterproductive operation of legitimate expectation doctrine.  It is not a question of finding existing rights to this, this or that.  The question is whether – and this is indicated in Lam in various ways in the judgments ‑ ‑ ‑

MS ALLARS:   Your Honour, I have to confess it is difficult to understand what “existing right” is intended to refer to.  Perhaps it does refer to a legitimate expectation and it may be, as your Honour has suggested, a situation where simply bringing to bear that expression “legitimate expectation” has unfortunately led their Honours to conclude that ordinary ‑ ‑ ‑

GUMMOW J:   It gets hooked up with notions of estoppel, sub silentio too, and the word “rights” starts creeping in.

MS ALLARS:   Yes.  Your Honour, in my respectful submission, one of the ironies of the developments that we have seen is that whereas in the United Kingdom the term “legitimate expectation” has been used in a way which is possibly too activist in that representations about substantive matters in Coghlan’s Case have been held to give rise to something akin to estoppel.  In Australia, given the way in which some of the dicta have been picked up and, in my submission, misunderstood, we have a situation where applicants are being required to fulfil the elements applying in the estoppel area in order to establish a right to a fair hearing.  So it is almost as though we are going in exactly the opposite direction.

GUMMOW J:   Exactly.  That is the point I am making.

MS ALLARS:   That concludes the appellant’s submissions on the substantive issue.  It is a matter for your Honours as to whether you wish to hear me on the third ‑ ‑ ‑

KIRBY J:   You also support Justice Downes’ at paragraph 60, I think it is, where he says:

Undertakings such as those given by the Tribunal in this case should always be strictly observed, should ideally be recorded in a document, and should be couched in careful terms . . . given an expansive and not a confined construction. 

After all, we are dealing here with people most of whom are unrepresented, many of whom are dealing with the Tribunal through a foreign language, in unfamiliar and probably rather frightening circumstances where a lot hangs on it for them.  I think in your notice of appeal you were permitted to advance the ground and did advance the ground that Justice Downes was right in those approaches.

MS ALLARS:   Yes, your Honour, in my respectful submission, Justice Downes was correct in making that statement.  There are not usually general principles about the content of procedural fairness but there are, in my submission, signposts.  That is what the entire case law is about, giving signposts as to appropriate content, and in my ‑ ‑ ‑

GUMMOW J:   Some robust English judge said it was fair play in action.

MS ALLARS:   Yes, your Honour.  Well, that is the same idea.

GUMMOW J:   There is some wisdom in that.

MS ALLARS:   This statement is made about what is the proper approach where an undertaking is given by an independent merits review tribunal in a relatively formal context, it is a very different context from that of the primary decision‑maker or perhaps some more informal situation of a decision‑maker making a comment over the counter to an applicant.  It is a formal, independent tribunal review proceeding and, in my respectful submission, this is an appropriate general approach to the way in which such a statement should be understood or can be expected to be understood by the representee.

McHUGH J:   Sorry to interrupt you, the Tribunal has not been served with this notice of appeal, has it?

MS ALLARS:   I am sorry, no it has not, your Honour.

McHUGH J:   No.

CALLINAN J:   Well, that will have to be done.

McHUGH J:   Yes, you will have to serve it.

MS ALLARS:   Yes, that will be done, your Honour.

KIRBY J:   I hope there is no procedural unfairness in our proceeding without giving them the chance to come along and contest, if they dare, following the Bond decision.

GUMMOW J:   Yes, their task is to submit.

MS ALLARS:   The amended notice has been served on the solicitors acting for the Minister who I would assume will also act for the Tribunal.  Thank you, your Honours.

McHUGH J:   Yes.  Yes, Mr Williams.

MR WILLIAMS:   Your Honours, in our submission, the appeal turns on one crucial fact and what is more, it is an agreed fact.

KIRBY J:   Can I just interrupt to ask, you know how in the criminal field the Crown always comes along - and I have seen it in this Court - if they do not feel they can defend a case they come along and say, “Well, we accept that this is not a case which we can defend”.  It is a sort of notion that the Crown is a model litigant.  Does that rule apply in this field to the Minister?

MR WILLIAMS:   The Commonwealth has guidelines for the conduct of Commonwealth agencies, model litigant guidelines and the Minister is subject to them.

KIRBY J:   I do not think I ever remember in a migration case the Minister coming along and saying we do not support this.

McHUGH J:   I have.

MR WILLIAMS:   The reason for that, your Honour, is that they are conceded before your Honours sit.

McHUGH J:   There have been quite a number of cases where we have granted ‑ ‑ ‑

GUMMOW J:   We have made consent orders.

McHUGH J:   Yes.

GUMMOW J:   Not just perhaps because there has been an attitude taken by anxious consideration of being a model litigant but a rather savvier idea that let us not have another reasoned decision in the High Court which we lose.

MR WILLIAMS:   No, I will not speculate as to the reasons but it is not an uncommon occurrence.  The appeal, in our submission, turns on one crucial fact, an agreed fact and that is that the representation was made at the end of the hearing, at the end of the Tribunal’s hearing.

McHUGH J:   That is the beginning of the inquiry, is it not, not the end of it?

MR WILLIAMS:   The inquiry that naturally leads to is what was the hearing that had already been afforded?  The hearing that had already been afforded was the one foreshadowed in a letter that was before the primary judge but is not in the appeal book but has been distributed with the number “49a” at the top.  The appellant had been:

invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.

That is in the first paragraph.  On the following page in the first full paragraph he had been invited to supply “any new documents or written arguments”.

GUMMOW J:   What section was this given under?

MR WILLIAMS:   Section 425, your Honour.

GUMMOW J:   Yes, that is right.  It was in response to a statutory requirement.

MR WILLIAMS:   That is so.  We refer to it in our written submissions.  The appellant had attended in answer to that invitation and had dealt with in his own evidence stated matters that raised inconsistencies.  The Tribunal had asked him about those.  He had, at the end of the evidence, returned to them and said what he wanted to say about them that is, that page 90, I think, of the book:

that he is confused by certain dates but that he has been telling the truth. 

He then went onto something else.  The adviser then raised concerns, not with the interpreting generally – this is at the top of page 91 – but “with some of the interpreting”.  That is as far as the evidence goes as to what occurred in the hearing, apart from the agreed fact that it was at the end of the hearing, at the conclusion of the Tribunal’s hearing, that the representation was made.

McHUGH J:   But accepting all that, accepting that there had been a hearing in accordance with the letter given under section 425, why is not the proper inference to be drawn from what the Tribunal said that the Tribunal itself regarded the hearing as incomplete because the appellant had not had a proper opportunity to deal with the issues?  If you accept that, then the only thing you can put in response is that it must have changed its mind.  But why can you not draw an adverse inference from what the Tribunal itself said, that there is an admission that to cut off the hearing at that moment those statements were made would be a denial of natural justice to the appellant? 

MR WILLIAMS:   In our submission, that is not the proper inference.  It is at least an equally available inference that the Tribunal regarded not the hearing as being unsatisfactory, but his answers as being unsatisfactory, and it proposed at that point to pursue him further about them.  There was no suggestion, there is no evidence, that the interpretation of those passages was put forward as a problem. 

The problems are specific problems with interpretation, recalling what the adviser said, recorded at the top of 91, problems with some of the interpreting.  The specific problems are referred to in the judgment of Justice Tamberlin, the specific problems that the appellant himself raised, referred to at page 209 of the book.  There were three.  They start at about line 20:

the number of members in [a] particular body to which he belonged –

That is the first paragraph.  The second matter, at about line 30, was “the question of the applicant’s relocation”, interpretation in relation to relocation, and the third question was departure and payment in an amount of 300,000 rupees.  There was never any suggestion put – there is no evidence before this Court to suggest that interpretation of the answers concerning dates of detention was ever an issue.

KIRBY J:   Well, there was an application in the special leave application related to it, but the Court did not grant special leave on that ground, and one can understand why.

MR WILLIAMS:   There certainly was an issue raised about interpretation, but there has never been any evidence that the interpretation of the answers concerning inconsistencies about dates of detention was a problem.  That being the case ‑ ‑ ‑

McHUGH J:   But the Tribunal said it was:

“Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those.”

MR WILLIAMS:   Well, that is about the inconsistencies, not about the interpretation.

McHUGH J:   I know.  I was talking about inconsistencies.  But why do you not draw the inference that the Tribunal thought that the hearing had been unsatisfactory and required a further hearing for justice to be done to the appellant?  That is what it must have had in mind, must it not?

MR WILLIAMS:   Well, “must have” is the way it must be put by the appellant, but the evidence does not support that conclusion, in our submission.

GUMMOW J:   What is the evidence we are talking about?

MR WILLIAMS:   The evidence, incomplete as it is ‑ ‑ ‑

GUMMOW J:   Exactly, and if it is incomplete it was within your capacities to make it complete, was it not?

MR WILLIAMS:   Or the appellant’s, he bore the onus.

GUMMOW J:   There may have been a shift in the onus at some stage.

KIRBY J:   But it may be that if we have, as it were, a blank page as to what actually happened but we do have this agreed fact, that without something else that, as it were, takes away the force of this agreed fact, that the inference that would then be drawn is that a very simple one, an assurance was given, “I will have to write to you about these”.  Then there was no letter but the decision supervened and that is just plainly unjust because there has been a statement, “I’ll have to write to you about these”, and then there was no writing at all and a decision of significance for the applicant, or appellant, was made. 

McHUGH J:   The problem I have, Mr Williams, at the moment is that the Tribunal member seems to be saying, “I cannot discharge my duty to decide this case without taking these further steps”, and she does not do it and we have no explanation why she did not do it, not what the appellant would have done, but was her perception about the process.

KIRBY J:   You have to say that when you read the reasons of the Tribunal that they resolve whatever doubt was in the mind of the Tribunal at the time that statement was made and that from the reasons emerges the clarity of mind and just outcome which was the matter that was troubling the Tribunal when the hearing finished but evaporated on greater thought about the matter.

MR WILLIAMS:   We certainly do say that the reasons assist us because following the hearing, in our submission, it is tolerably clear the Tribunal decided not to draw adverse inferences in relation to the inconsistencies, not to treat them as material.

McHUGH J:   The Tribunal did draw adverse inferences about credibility and credibility was extremely important in this case, particularly on the internal location point, because the Tribunal ultimately found that his problems were local and rejected everything he had to say about his relationship with Ibrahim.  If you accepted what he had to say about Ibrahim, you could not regard his problems as local.  They were not a local problem.  They were a national problem so no question of internal relocation could arise if he had this relationship with Ibrahim that he claimed.  It was only because the Tribunal seemed to think his problem was local that they decided the case on the internal relocation point.

MR WILLIAMS:   But the Tribunal did not decide the case generally on credibility.  Its reference to credibility is very specific.  It is not about his credibility, his demeanour as a witness or anything of that kind.  The reference is, and it is at the top of page 94 of the book, the credibility of his claims, having regard to the independent evidence.  It regarded his claims, not him or his demeanour or manner of giving evidence ‑ ‑ ‑

McHUGH J:   I appreciate that it says that, but then at line 20 it says:

The Tribunal finds it implausible that Dawood Ibrahim, a man being actively sought by the Indian authorities would be able to travel to India and meet with the applicant.

. . . The applicant gave evidence that he is based in ‑

et cetera.

MR WILLIAMS:   But this is all by reference to the independent evidence.  It is not a reference to inconsistencies in his account.  It is a comparison of the claims that he makes ‑ ‑ ‑

McHUGH J:   Yes, but the independent evidence does not irresistibly lead to the conclusion you must reject his account.  There is reasoning and the Tribunal says, in effect, given that Ibrahim is wanted, it is highly unlikely that you would be meeting him in Bombay.

MR WILLIAMS:   That was a finding that was certainly open to the Tribunal, that there was a significant implausibility in the claims in light of the independent evidence.  The appellant’s claims painted Dawood Ibrahim as some kind of social worker who he met casually in Bombay in 1993.  The independent evidence, on the other hand, described him as – and it is quoted in the Tribunal’s reasons – a well‑known mafia don who in 1993 was in Dubai, who was widely suspected of involvement in an atrocity early in 1993 and was very actively sought by the Indian police. 

It was certainly open to the Tribunal to draw an inference from the independent material that the claims were not credible.  That was not a matter that reflected or derived in any way from a general perception of the applicant’s credibility.  It was simply a comparison of the claim with the independent material.

McHUGH J:   Well, except that they thought his claim was – if you look at the bottom of 94:

There are notable inconsistencies between the applicant’s claims and evidence on the one hand, and the independent evidence on the other.  The Tribunal gives weight to the independent evidence over and above that of the applicant.  In light of these inconsistencies, and further, in light of the significant implausibility in his claims surrounding his involvement with Dawood Ibrahim Movement, the Tribunal cannot be satisfied the applicant has even been involved with Dawood Ibrahim and gives this claim no weight.

It is a credibility issue.  It does not matter how you approach it.

MR WILLIAMS:   But the way in which the Tribunal approached it was by comparing the claim with the independent evidence.

McHUGH J:   I appreciate that, but you are still disbelieving the man.  It does not matter how strong the evidence is.  If seven bishops go into the witness box and give an account contrary to the applicant, it is always open to the applicant to be believed.  It does not matter how powerful the other evidence is, you can still be believed; but he was not accepted, so his credibility was affected.

MR WILLIAMS:   He was not accepted for a specific reason or a series of specific reasons that the Tribunal has stated.  They are set out, they are cogent, there is no basis for regarding them as unavailable or implausible ‑ ‑ ‑

KIRBY J:   Except for this, Mr Williams, that the closing words were:

Given that there are some inconsistencies with regard to the dates of the detention and the number of detentions –

and then the matter turns ultimately on credibility and inconsistency.

MR WILLIAMS:   But not upon internal inconsistencies within his own account.  The Tribunal has set out and set out quite fully its reasons and that is not among them.  The Court is entitled to infer that, as was said in Yusuf, if a matter is not referred to in the statement of reasons, it was not regarded by the Tribunal as material.

McHUGH J:   What about at page 94, line 6:

His claims and evidence in regard to these organisations is so far‑fetched as to be fanciful, and moreover, his claims and evidence are inconsistent with independent evidence.

That puts it on two bases.

MR WILLIAMS:   Neither connected with internal inconsistencies in his own account.

McHUGH J:   It follows like night follows from day, does it not, that it is all these inconsistencies and other matters that leads them to regard his claims as far‑fetched.

MR WILLIAMS:   Our submission is that it specifies the inconsistencies that it is relying on.

KIRBY J:   Can I ask, so that I can get it clear in my mind, is your point that the matter that is revealed as troubling the Tribunal is not inconsistency at large or inconsistency generally or inconsistencies about his dealings with this Dawood Ibrahim group, but specific inconsistencies relating to detentions and the number of detentions, and that that was not a matter which, in the result, loomed large in the outcome of the Tribunal’s decision?

MR WILLIAMS:   That is our submission, and the agreed statement recorded at 224 of the book, in our submission, is clear.

KIRBY J:   I can understand the force of that and it has to be given thought, but, as I said earlier to Dr Allars, the making of decisions is a complex matter and if you have a view that somebody is inconsistent on one matter and you can be satisfied on that matter, that can help a decision‑maker to look with a different light upon another matter of inconsistencies where the decision‑maker is troubled.  Therefore, though it is true that, parsed and analysed, it is not exactly the inconsistency that was relied on, the point that can be made for the appellant is, “If only I had had the chance to deal with that inconsistency, maybe you would have looked with greater favour on the inconsistency which took such a toll on the outcome of my case”.  And it was a matter which you said you “have to write” to get further – you said it twice.

CALLINAN J:   That does seem to be the problem, I must say, because if you read the Tribunal’s reasons without reference to that you might well think that the Tribunal exposed all of its concerns, because there is a great deal of detail in the questioning of the appellant, but nonetheless, on the Tribunal’s own admission, as it were, the Tribunal needed to ask further questions.

MR WILLIAMS:   In our submission, the proper inference from what occurred was that the Tribunal at the end of the hearing intended at that time to pursue further the question of internal inconsistencies in his accounts, given the unsatisfactory nature of the explanation that he had given, indicated that it would do so, subsequently decided those matters were not material to its decision, because it sets out the reasons for its decision and they are not included.

CALLINAN J:   The Tribunal does not say anything to the effect of what you have just said.  You say we should infer that.  The Tribunal certainly does not say that.

MR WILLIAMS:   The Tribunal, in our submission, is not obliged to, because its obligation is to set out its findings and reasons in the evidence.

CALLINAN J:   The real problem is the very explicit nature of the – not intimation, but of the certain course – the certainty of the course which the Tribunal would take.  Compile, as it were, a set of interrogatories and send them to the appellant.

MR WILLIAMS:   Not suggestive, in our submission, an inference that the Tribunal had decided that its hearing was unfair. 

CALLINAN J:   No.

MR WILLIAMS:   Rather of an inference that it wished to pursue this matter further.

CALLINAN J:   Well, nobody sets out to be unfair and no doubt the Tribunal would not think it was acting unfairly.  The unfairness emerges from the fact of the explicit statement that there would be questions.

MR WILLIAMS:   Our submission that there may be an element of repetition – the proper inference is not that the Tribunal was making the offer because of a concern about the fairness to date but rather, quite explicitly, it was foreshadowing that it was going to proceed to ask a series of detailed questions about these inconsistencies.  Now, stopping at the point at which that representation was made, there had already been a full hearing in relation to these matters and if the representation had never been made, there could be no question of a ‑ ‑ ‑

CALLINAN J:   I think that is probably right but the problem is there was the representation.

MR WILLIAMS:   The question then arises what inference can be drawn from the representation.  If the proper inference is that the Tribunal had decided that it could not decide the matter without a further hearing, as suggested by your Honour the presiding judge there had not been a fair hearing on this issue to date then, no doubt, that is one thing.

In our submission, the proper inference is quite different, that the Tribunal’s inclination at that point was to think that it wished to pursue these inconsistencies, matters that had not been suggested as arising from the interpretation, that inconsistencies that had arisen that the Tribunal itself had raised directly with him that he then had a further opportunity to address but on which the Tribunal obviously regarded his answers at that point as unsatisfactory.  But within 17 days of making that statement – unlikely the Tribunal would have forgotten in the meantime – the Tribunal handed down a decision or rather made a decision that relied on quite different grounds and did not set out the internal inconsistencies as being in any way material.

The proper inference from that, in our submission, was that it decided after the hearing that they were not.  If that be the proper inference of fact, the position is really no different to one in which the Tribunal in its reasons - as it may have - makes a statement.  I did indicate at the end of the hearing that I proposed to write but on reflection decided that the inconsistencies were not material in my decision.

GUMMOW J:   Yes, but they did not say that in their reasons.

MR WILLIAMS:   It did not, but it is a question of what is the proper inference from all the circumstances.  It certainly would have been an easier case ‑ ‑ ‑

GUMMOW J:   Exactly.

MR WILLIAMS:    ‑ ‑ ‑ if it had but given that its obligation is to state its reasons and its findings and not the things that it does not treat as material or the reasons that it does not rely on, we say the proper inference is that the conclusion was the same.

GUMMOW J:   Are you saying it would be in breach of its duty if it had done that?

MR WILLIAMS:   No, but it was under no obligation to do that but equally, from Minister for Immigration v Yusuf (2001) 206 CLR 323, if I can take the Court briefly to two passages. The passage in the judgment of the Chief Justice at 5, starting halfway through the paragraph:

The Tribunal is required . . . to set out “the findings on any material questions of fact”.  If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. 

KIRBY J:   Which paragraph was this, I am sorry?

MR WILLIAMS:   That was paragraph 5 in the judgment of the Chief Justice, and in paragraph 69 in the joint judgment of Justices McHugh, Gummow and Hayne, again, in the middle of the paragraph:

[Section 430] ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion.  Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion.  The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.

That, we say, is the position here.  It was not mentioned and the proper inference is that the Tribunal decided it was not material – an inference reinforced by the proximity of the date of decision to the date on which the representation was made.

So, in our submission, it is not a case in which a procedure was promised and then truncated or, indeed, a case such as that in Stead in which the party was led to believe that a matter had been decided in its favour.  Rather, a full procedure was promised and the full procedure was delivered, including going beyond what was required, specifically raising the question of inconsistencies, a matter which the appellant himself addressed not once but twice during the hearing.  So in that sense the Full Court were correct, in our respectful submission, to conclude at the foot of page 229:

that the Tribunal . . . was not obliged, independently of the Member’s statement made at the end of the hearing, to give the appellant a post‑hearing opportunity to clear up the inconsistencies –

The passage that follows that troubles your Honour Justice Gummow at the foot of page 229 we take merely to be indicating the corollary of the previous sentence, that is, in the first sentence:

the Tribunal . . . was not obliged . . . to give a post-hearing opportunity . . . Conversely, the appellant did not have an existing right to attempt to clear [the inconsistency] up –

They are two sides of the same coin, in our submission.  But the crucial passage is in what follows at the top of the following page:

There was, moreover, no evidence that, in reliance on the Member’s statement, the appellant was prompted to take, or to refrain from taking, any course of action which otherwise he would not, or would, have taken.

It is not a case in which, as in the case of Stead, someone was interrupted mid‑submission, as it were, and prevented from putting a further submission on the point, either by a further promise or an indication that the matter had been decided in their favour.  That passage at the top of 230, in our submission, indicates the correct approach was adopted prior to the making of the representation.  There was no obligation and it was necessary in that event, there being no evidence of objective unfairness, for the appellant to show some subjective reliance, either by a failure to put some matter at the hearing or subsequently.

KIRBY J:   Of course, we have to look at this from the point of view of the role of this Court, vis a vis the Federal Court and the Tribunal.  Why does one not say, you look at it in terms of is this the standard, is this something that is a good standard?  It just seems to me that if we had applied it to ourselves, if we said to you at the end of argument, “Well, I am very troubled about some aspects about this matter, I just do not know and I might like to get some submissions.  I will write to you and I will specify what we want”, and then in we whip the judgment, you do not have that.  Would you not be entitled to think that that was not fair play in action?  You would be there grumbling in your chambers about the High Court of Australia and saying, “They were not very fair there.  They said they were going to write to me and they did not, and then they delivered their judgment and it was against me”.

MR WILLIAMS:   Your Honour, there are two points of distinction.  The first, in your Honour’s hypothetical, depends upon whether the submissions had been completed.  If the Court gave that indication while submissions were ongoing, it might be a quite different position.  Just as here, if the Tribunal had given its indication at the moment when the inconsistency arose that it proposed to deal with the matter via an opportunity for further submissions, then the position would be quite different.  So that is one point of distinction.  The second point of distinction is that your Honour’s hypothesis involves the matter being decided adversely.  In this case, the Tribunal did not decide the matter on which there was a further opportunity ‑ ‑ ‑

KIRBY J:   Decided the case adversely ‑ ‑ ‑

MR WILLIAMS:   That is so.

KIRBY J:   Then we are back to the point about the interconnections of matters when they are under consideration for decision.  It really comes back to that.  I think that by parsing and analysis you can make a good point, but it is just a question of whether or not that is the way decision making is actually done.  It is a complicated, interrelated business.  All the facts are in there in your brain and then your subconscious is actually working on it whilst you are doing something else.

MR WILLIAMS:  But the Court determines the issues on the basis – as is indicated in Yusuf – of the reasons that were given, and those reasons do not indicate that the internal inconsistencies were treated as being in any way material. 

McHUGH J:   That is very difficult to maintain, is it not?  If you look at what appears at pages 87 to 88 concerning detention, running through those two pages is the Tribunal’s absolute scepticism concerning his answers about detention.

MR WILLIAMS:   If your Honour is referring to the passage that goes from the bottom of 87 to the top of 88 ‑ ‑ ‑

McHUGH J:   Yes, starting at line 36: 

The Tribunal asked the applicant why he did not leave India in December 1998 or early 1999 after his first detention, given that he claims to have feared for his life?  The applicant responded that his departure was not much after this. 

It looks like:

It [w]as a matter of a year.  He stated that he was hiding in an area –

Then:

The Tribunal asked the applicant why he did not leave India until some four months after [the] second detention (which he claims was severe) given that he claims to have feared for his life at that time?  The applicant stated that he was trying to get a visa.

Then the paragraph goes on to deal with these dates.  Then: 

The Tribunal asked the applicant why he did not use his visa for Germany given that it was still valid at the time he was released –

and dates were relevant on that.

MR WILLIAMS:   The dates became relevant, your Honour, because of the answer that the appellant gave at the top of page 88.  He gave an account that shifted from minute to minute, from answer to answer.

McHUGH J:   Yes, but that only goes to indicate that it was because of that his credibility was very much at issue.  It is hard to read those pages without coming to the conclusion that the Tribunal just did not believe him on these matters.  It did not believe his answers.

MR WILLIAMS:   So far as internal inconsistencies are concerned, there can be no question that the answers that he gave at the top of 88 were unsatisfactory.  They shifted on each account given as recorded by the Tribunal.

McHUGH J:   Look at 88, line 28:

The Tribunal asked the applicant why he made no mention previously of Ashraff?  The applicant stated that in the document he mentioned to the Tribunal. 

He had been asked a series of questions, he seemed to be shifting his ground and the Tribunal obviously did not accept him on any of these matters.  So I do not think it is right to say that somehow or other his claim was looked at in some objective sense by simply comparing its content with the independent evidence.  I think the inherent implausibility and contradictions in his own evidence played a significant part in the Tribunal’s view and if that is so you just cannot dismiss what the Tribunal said at the end of the hearing as not really bearing on the issue.

Does it not indicate that the Tribunal thought that those inconsistencies in his evidence affected his credibility and that just to give him an opportunity to do justice to his case, a further hearing was required, further questions and answers and to put any more information that you wish to the Tribunal.  It was not merely a question of answering the questions, to put any more information that you wish to the Tribunal.

MR WILLIAMS:   Your Honour raises at least two points.  First, the proper basis for approaching the reasons that the Tribunal adopted is to look at the reasons in the statement and to give weight to the reasons that it gave in preference to things that it said during the hearing in the same way that one would not endeavour to read judgments to the Court by reference to the course of argument put by reference to the considered judgment.  The reasons that it gives are, indeed, set out under the heading, “Findings and Reasons”. 

The second point, your Honour, I think would be essentially repetitive, that the proper inference is not that the Tribunal had decided that it was obliged by some inadequacy of the hearing to that point to give the further opportunity but rather that, in light of the claimed inconsistencies in the evidence, it proposed to pursue them further.  Your Honour raises the question implicitly of the scope of the Tribunal’s representation.  The representation in the two passages that are referred to at 224 has to be read as a whole:

there are some inconsistencies with regard to the dates of the detention and the number of detentions, I will have to write to you about those (interpreted).

What follows from that, in our submission, is to be read in light of the first passage.  The writing is to be about the inconsistencies and the intention is to ask in further questions.

McHUGH J:   As a matter of textual analysis, your argument makes the second clause redundant, does it not?  On what you are putting the Tribunal concerns would be answered by saying you have 21 days in which to respond to my questions.  The Tribunal did not say that, it went on to say not only that and to put any more information that you wish to the Tribunal.

MR WILLIAMS:   But to be read properly, in our submission, in light of what followed from that, not simply to restrict him to answering the questions and answering the questions only, but to give him the opportunity to put further matters in relation to that as well, in other words, evidentiary answers and submissions.

McHUGH J:   I think you have to read these words in the context of the Tribunal.  You have to try and project your imagination just to see what was going on.  We do not have the entire transcript but obviously there were problems.  You have a man giving evidence through an interpreter, the interpreter raising some problems about interpretation and the Tribunal making this statement.  It all rather indicates that the Tribunal was not terribly happy with what was going on.  If the Tribunal had a clear view that he had done himself justice, why were they going on?  Why did it go on and make these statements?

MR WILLIAMS:   The proper inference, in our submission, is that the Tribunal wished to pursue the inconsistencies further.  It did not make a statement.  The one thing that is clear from the agreed fact, it did not make a statement at large.  The statement started off, at least, quite specifically:

inconsistencies with regard to the dates of detention and the number of detentions –

There is no reference to interpretation, although that is a matter that had been raised, but it had not been raised in this respect.  What the Tribunal said was highly specific and it concerned only those internal inconsistencies.  The proper inference from that, in our submission, is that the Tribunal wished to pursue them further, not that it was concerned about the adequacy of the hearing.

Your Honours, we have already put the point that the proper reading of the Tribunal’s reasons indicates that the internal inconsistencies were not taken into account and we put the submission that there is no injustice, no practical injustice, no procedural unfairness in deciding not to pursue further inconsistencies in an applicant’s own evidence.  That, again, is a matter of the proper reading of the Tribunal’s reasons in light of what occurred and I will not repeat our submissions in respect of that.  We say in light of that that there is no denial of procedural fairness.  Moreover, we would say that the principle in Stead would apply in relation to any relief that this Court would give in that having regard to the reasons a further opportunity to deal with internal inconsistencies could not have made a difference.  The most that the appellant could have achieved by that opportunity is to persuade the Tribunal not to draw adverse inferences from the internal inconsistencies, and a proper reading of the Tribunal’s reasons in light of section 430 is that it did not draw adverse inferences.

Finally, in relation to relocation or internal flight, we do rely upon it.  Perhaps we did not put it sufficiently directly in the submissions, although we do put it in the submissions.  His claims of detention and mistreatment were local.  They were claims relating to his particular village.

McHUGH J:   Yes, but Mr Williams, if the Tribunal had accepted his relationship with Ibrahim, it would be hard to say that it was purely a local problem.

MR WILLIAMS:   That is so.  It rejected his claims in relation to Ibrahim for the reasons it gave.

McHUGH J:   Yes.

MR WILLIAMS:   It did consider on the hypothesis, the alternate hypothesis, of accepting that he had problems at the local level arising from his involvement with the Muslim League, whether he could relocate.  So on the hypothesis that he did have problems and the detentions occurred, nevertheless it found that he could relocate.  That finding, in our submission, given that the detentions were all local and that his problems were all local, is itself an independent line of reasoning leading to the decision.  It is independent of any question of the credibility of his claims or the internal inconsistency in his claims.

In answer to the point that your Honour the Presiding Judge raises about jurisdictional error - if there is denial of procedural fairness there is jurisdictional error, therefore, there is nothing to uphold in effect - the question is always whether the error is vitiating.  If the error goes to a point that is not material on one of the lines of the Tribunal’s reason, that is, if the Tribunal’s conclusion would stand notwithstanding the error, then there is no relevant jurisdictional error and there is no basis for setting aside the decision.  It can equally be put on the basis of the discretion in ‑ ‑ ‑

McHUGH J:   That proposition is no doubt right in respect of many types of jurisdictional error.  I am not sure it is correct in relation to breach of natural justice.  If there has been a breach of natural justice why does it not mean that the decision itself is made without jurisdiction?

MR WILLIAMS:   Because the breach might have related to something which could not have made a difference.  It might have been a denial of procedural fairness embodied in a refusal to give an opportunity to put submissions on a question of law that could only have been decided adversely, for example.  It could have been a refusal to give a hearing on a question of fact that was decided unequivocally in the appellant’s favour.  In those cases there would be no vitiating error, and there are no purposive rules of procedural fairness that would be favoured by the opposite conclusion.  That is not to say clearly if we are wrong in the construction we put on the reasons then a denial to give an opportunity in respect of that could be material.

GUMMOW J:   Say that again?

MR WILLIAMS:   If the submission that we put as to the Tribunal’s reasons to the effect that the Tribunal did not take this matter into account, if that be wrong, that be inferred that the Tribunal did take account of the inconsistencies, then the position is different.

GUMMOW J:   To what?

MR WILLIAMS:   The internal inconsistencies.

GUMMOW J:   Yes, different to what end?

MR WILLIAMS:   Well, in that case clearly the denial of procedural fairness would be material to the decision.

GUMMOW J:   Yes.

CALLINAN J:   Mr Williams, the proceedings – I think it has already been pointed out – were under section 39B of the Judiciary Act.  Justice Tamberlin seems to have treated it as a review under the Migration Act.  Is that right?

MR WILLIAMS:   We do not read his Honour’s reasons in that way, your Honour.  The application was couched as ‑ ‑ ‑

GUMMOW J:   The application was okay.

MR WILLIAMS:   Yes.

CALLINAN J:   Am I wrong?  I thought Justice Tamberlin pleaded it simply as a review under section 474, whatever the section is, of the Migration Act which allows ‑ ‑ ‑

MR WILLIAMS:   His Honour refers to section 474, your Honour, which was the privative clause.

CALLINAN J:   Yes.

MR WILLIAMS:   Which, of course, came in when the previous scheme ‑ ‑ ‑

CALLINAN J:   Where does his Honour refer to that, Mr Williams?

MR WILLIAMS:   Page 211, I am told, your Honour.

CALLINAN J:   Right.

GUMMOW J:   The Full Court did not seem to know what they were doing there – the first line of the joint judgment of the Full Court, “dismissing his application for judicial review”.

CALLINAN J:   That is what I was thinking of ‑ ‑ ‑

MR WILLIAMS:   There is some law in the Federal Court on the scope of the phrase “judicial review”, but it is generally understood in that court as being wide enough to embrace statutory review, AD(JR) Act review and 39B review.  We do not take their Honours to be referring to it in the technical sense.

CALLINAN J:   It may be very important in some cases to keep in mind the distinction, the discretionary considerations applying – I am not saying necessarily in this case, but the discretionary considerations applying to prerogative writ cases.

GUMMOW J:   And the necessary, constitutionally driven, fixation upon jurisdictional error.

MR WILLIAMS:   Well, it is clear that the joint judgment had that firmly in mind, quoting as it did from the decision of the Court in Plaintiff S157.

GUMMOW J:   The AD(JR) Act is much wider, as we know.

MR WILLIAMS:   In many respects, at least, yes, though in each case discretionary. 

GUMMOW J:   I am talking about jurisdictional error.

MR WILLIAMS:   But it cannot be said that the joint judgment proceeded on a different basis.  Your Honour, I should say something very briefly about the third ground of appeal.  We do address it in our written submissions.  In effect, the question is whether there was jurisdictional error.  If the procedure followed amounts to jurisdictional error, then clearly there is scope for a review.  It the statements ‑ ‑ ‑

GUMMOW J:   Well, I think you just dealt with that in answer to me a minute ago.  That is what I took you were dealing with.

MR WILLIAMS:   Yes, but, equally, if statements such as undertakings should always be strictly observed ‑ ‑ ‑

KIRBY J:   I think this is only part of Justice Downes’ reasoning on the point of jurisdictional error for procedural unfairness.  I think that is all that it can be, is it not?  Or at least it is all that can be the subject of relief. 

MR WILLIAMS:   If it is taken to be a statement of the grounds upon which relief for jurisdictional error can be obtained, it is, with respect, much too wide.  We put the point in our written submissions.  Your Honour, those are our submissions.

McHUGH J:   Yes, Ms Allars.

MS ALLARS:   Your Honours, I have two very brief matters I would like to raise in reply.  The first one relates to the textual analysis of the Tribunal’s decision.  I just seek to take the Court back to a passage which your Honour the Presiding Judge noted on page 94 at point 2.  That passage in the Tribunal’s reasons occurs under the general heading of “FINDINGS AND REASONS” and under the subheading “The applicant’s credibility” and it precedes the more detailed analysis of the particular claims.  In that sense, in my submission, it is a general conclusion as to which the later parts are at a more particular level, and in that passage the Tribunal says it:

has grave doubts about the applicant’s credibility –

and then it goes on and says:

His claims and evidence in regard to these organisations is so far fetched as to be fanciful, and moreover, his claims and evidence are inconsistent with independent evidence.

So, as your Honour the Presiding Judge pointed out, there are two limbs to the conclusion about credibility, and the first limb is based simply on the appellant’s evidence.  It is the second limb which follows the word “moreover” which involves a comparison of his evidence with the country evidence.  So, in my submission, that general opening comment prior to the more detailed analysis of the particular claims indicates that the inconsistencies in the evidence about the detentions was material to the Tribunal’s decision about credibility.

The second point I seek to make concerns this question of vitiating a decision.  That, of course, is part of the principles which are applied in the abuse of power area.  A familiar statement of them is found in his Honour Justice Mason’s judgment in Minister for Aboriginal Affairs v Peko‑Wallsend where one of the five principles his Honour sets out is that if a relevant consideration were not taken into account, but it was so insignificant that it could not have affected the decision, then the decision is not vitiated.

Now, that idea of not vitiating a decision, in my submission, is part of the substance of the ground of review.  It is very separate from the issue of the discretion to grant relief.  The submission is made in paragraph 7.7 of the appellant’s submissions that the idea of vitiating a decision has never been part of the substance of the ground procedural fairness.

GUMMOW J:   Paragraph 7.7?

MS ALLARS:   Paragraph 7.7 of the written submissions.

GUMMOW J:   Of yours?

MS ALLARS:   Yes, your Honour.  My learned friend has not offered any authority to the Court ‑ ‑ ‑

GUMMOW J:   I was wondering about that.

MS ALLARS:    ‑ ‑ ‑ to support the submission that it is part of the principles relating to procedural fairness.  At paragraph 7.7 of the appellant’s submissions reference is made to a passage in the joint judgment of your Honours Justices Gaudron and Gummow in Aala which refers to the debate about what is the proper foundation for judicial review and the question whether procedural fairness stands on a different basis than does excessive power.

If one takes the view in that debate that procedural fairness does stand on a different basis, more of a common law rights basis, then one can readily see that it is about procedure and the question of vitiating a decision is not pertinent to that ground of review.

McHUGH J:   That is what I put to Mr Williams, that those issues apply in certain questions of jurisdictional error, but not natural justice.

GUMMOW J:   I think that is what Justice McHugh and I were saying in Lam 214 CLR 34 at paragraph 105 that we looked at earlier this morning.

MS ALLARS:   Yes, your Honour.  I note that in paragraph 105 the emphasis again is being placed on the procedure, rather than the fairness of the outcome, and that assists in taking a position in this debate about the proper foundation for the two broad doctrines of excessive power and procedural fairness.  I have not sought to enter into the detail of that debate.  It is true that we now say that procedural fairness is a matter which goes to jurisdiction – that was clarified in Aala – but, in my submission, that should not alter the position with regard to whether or not you need to show the decision is vitiated.  That is not part of the ground of procedural fairness.

GUMMOW J:   It probably does not arise in this case if you are right as to the force to be given to the particular facts here.

MS ALLARS:   Yes, your Honour.  If the Court accepts that the inconsistencies relating to the detentions was material to the decision, then there is no need to resolve the question of whether there is a vitiating force to the failure to give a hearing.  The only authority that bears tangentially on this is the observation made by his Honour Justice Brennan in Kioa v West 159 CLR 550 at 629, point 4, that prejudicial information once before a decision‑maker:

creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person . . . an opportunity to deal with the information.

That observation is made in a different context than the context of this case.  It was the context of failure to disclose adverse allegations from another source.  It is not of assistance in that kind of case for the decision‑maker to disavow any reliance on the adverse information.  That is no defence to denial of procedural fairness but, in my respectful submission, the approach should be similar in the present context, that is that the prejudicial aspect is the failure to give a full opportunity to answer the inconsistencies in the evidence.  The hearing was not completed and, in my submission, the question of whether or not the Tribunal relied on those inconsistencies should not enter into the question of whether there was a denial of a fair hearing.

GUMMOW J:   What was the passage in Peko-Wallsend in Sir Anthony Mason’s ‑ ‑ ‑

MS ALLARS:   I am sorry, I do not have the reference, your Honour, but in that passage where his Honour Justice Mason sets out (a) through to (e) the relevant principles relating to the relevant considerations ground of review.  I think it is paragraph (d) where his Honour says it may be that a relevant consideration is not taken into account but it is not sufficiently significant to vitiate the decision.  I do not think his Honour uses the word “vitiate” but he has that meaning in mind.

GUMMOW J:   Thank you.

MS ALLARS:   Those are the submissions for the appellant.

GUMMOW J:   Yes.

KIRBY J:   Can I just ask you, is there a risk that if you succeed in this case that the lesson that might be derived by this Tribunal is never promise to get any more information, never say you will do anything after the case, never say you will need further submissions or give leave for further submissions; because if you do the High Court is going to come down on you like a ton of bricks if you do not strictly fulfil what you have said.

MS ALLARS:   Your Honour, one would hope that is not the outcome.  There could be other kinds of situations which arise; for example, if the Tribunal were to adjourn the hearing and make a statement about what would occur at the adjourned hearing and then not be prepared to abide by the statement that would be a similar context.  It may be the Tribunal would wish to address questions of practice directions to cover some of these issues.

KIRBY J:   I suppose the other possibility is that the Tribunal will ask questions when it needs to ask questions and will then give those to whom it has asked questions the opportunity to respond, will put the questions as they promise and give chances to reply.

MS ALLARS:   Yes, your Honour.  It may be that if a situation like this were to recur, the Tribunal would form the view that the hearing should stop and recommence with a new interpreter.

KIRBY J:   The interpreter question is another issue.

MS ALLARS:   Yes, your Honour.

KIRBY J:   Thank you.

McHUGH J:   Thank you, Ms Allars.  The Court will reserve its judgment in this matter and we will now adjourn until 9.30 am in Sydney tomorrow and 9.30 am tomorrow in Melbourne.

AT 12.15 PM THE MATTER WAS ADJOURNED