Applicant P12-2002 v MIMA

[2002] HCATrans 416

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P12 of 2002

B e t w e e n -

APPLICANT P12/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 2.47 PM

Copyright in the High Court of Australia

MR M.R.B. HEMERY:   If the Court pleases, I appear for the applicant.  (instructed by the applicant)

MR M.T. RITTER:   If the Court pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   You, again, have read the material, I take it, Mr Ritter?

MR RITTER:   Yes, again, there is no objection on the same basis, your Honour.

McHUGH J:   Yes.  Yes, Mr Hemery.

MR HEMERY:   This matter raises three points, two of which again have been raised in ‑ ‑ ‑

McHUGH J:   Rather than rely on some of those, why do you not place some emphasis on what appears at page 38 of the application book:

It appears that this is the first time that this complaint has been made and that is that it was not raised in the proceedings before Hely J.  This Court, being concerned with an appeal from Hely J, cannot give any effect to the assertions made by the appellant from the bar table ‑ ‑ ‑

MR HEMERY:   This goes to the question of the adequacy of the interpreting services.

McHUGH J:   Yes.

MR HEMERY:   Yes, your Honour, the applicant’s submission in respect of that matter is that what is sought to be agitated here relates to matters that appear from the record of the proceedings from which the judicial review proceedings were brought.

McHUGH J:   The matter may have no substance in it, but it does seem, prima facie, to be an error for the court to say that they cannot give any effect to the point because it was not raised below.

HAYNE J:   Most especially when the applicant was unrepresented, was he not?

MR HEMERY:   No, your Honour.

HAYNE J:   He was represented?

MR HEMERY:   I have to concede he was represented.  Sorry, at the Full Court stage, no.

HAYNE J:   Unrepresented in the Full Court.

MR HEMERY:   But represented at first instance.

HAYNE J:   Seeks to say that the proceedings by review were not translated adequately.  Is it open to the Full Court to say that is a point to which they can give no effect?

MR HEMERY:   In our submission, no, your Honour.  What appears on the tape of the hearing in the Tribunal is the record of those proceedings and the Full Court, regardless of whether or not the matter had been raised below, if that represented a substantial error in the procedures ‑ ‑ ‑

HAYNE J:   He had a right, did he not, to attend before the Tribunal and be heard?

MR HEMERY:   He did and he was also advised, it is conceded, and therefore it might be said against him that he had the opportunity to raise these matters.

HAYNE J:   No, I am talking about the Tribunal.  He had a statutory right to be before the Tribunal and be heard by the Tribunal, did he not?

MR HEMERY:   Yes, your Honour.

HAYNE J:   His contention – I do not know whether it is factually well based or not – was that he was not heard because the interpreter was unable, through no fault of the interpreter, to deal with, what was it, a northern dialect, was it not?

MR HEMERY:   Yes, your Honour, that is the allegation; that was the contention.

HAYNE J:   That there is a want of the statutory procedures, arguably, if that is what in fact has occurred.  Now, there is a great factual premise not established but why were those not matters that the Full Court could have examined or received evidence on?

MR HEMERY:   And were urged to do so by the applicant in person on that occasion, your Honour.

McHUGH J:   We might see what Mr Ritter has to say about this point.  What do you say about this point, Mr Ritter.

MR RITTER:   There is a difficulty in this Court granting special leave in relation to the matter because even if one accepts that there was some error of principle in what the Full Court has said and I will come to that, there is no factual premise before this Court on which the Court could be satisfied that there is an arguable point in this issue.

McHUGH J:   We do not have to.  It is sufficient for our purposes that the Full Court, if the argument of the applicant be right, has failed to do its duty.

MR RITTER:   Yes.  What we say, though, is that ‑ ‑ ‑

McHUGH J:   It is a matter for that court to investigate the factual premise.

MR RITTER:   We say, though, to get a grant of special leave, the applicant should persuade the Court that there is some prospect of success and that in viewing that matter, the Court would have to be seized of such factual material as to think that the complaint that was made before the Full Court had some prospects of success.

McHUGH J:   Not necessarily.  We have said more than once that once a denial of natural justice is proven, then the onus is on the respondent to show that it could not possibly have affected the result, and it is not a conclusion that is lightly drawn.  But here, arguably, he has been denied his proper right of appeal.

MR RITTER:   We say, though, that the matter has not proceeded to that stage of being capable of persuading the Court that there arguably was a denial of procedural fairness because the factual basis underpinning that submission is not before the Court.  But could I indicate to your Honours what we have to say about the paragraph that you have drawn to our attention and that is this, that the Court says that its being concerned with an appeal from Justice Hely cannot give any effect to the assertions made by the appellant from the Bar table about that matter now.

It seems, in my submission, that the court is referring to two composite matters there:  one is the evidential basis upon which to support the submission; and the second is whether the applicant, or the appellant, should have been given the opportunity to raise that matter on appeal, it not having been raised at first instance.

We say that what was before the court was a matter of discretion that the court could have allowed the applicant leave to raise a matter that was not raised at first instance.  It could have adjourned the matter and so obtained the tapes of the hearing before the Refugee Review Tribunal but it decided not to do that.  We say it decided not to do that in a way in which is not attended by any error and we say that because it was correct for the court to say there were only assertions from the Bar table.  It was correct to say that the matter had not been raised before Justice Hely.

Now, if the matter had been raised as it was raised before the Full Court, it is a matter upon which, if raised before the Full Court and allowed to be raised before the Full Court, the respondent may wish to have responded to that issue by evidence being put before the Full Court, evidence such as, for example, affidavit or oral evidence from the interpreter himself as to his perception of how matters of interpretation had proceeded before the Tribunal.

HAYNE J:   But exactly so.  There would have been a factual resolution in the Full Court.

MR RITTER:   Yes, but we say, though, that it comes within that category of cases where an applicant should not be allowed to raise something additional on appeal because the other party may have been able to meet that by evidence if it had been raised at first instance.  So it is within that category of case, and we say that that is one of the notions which is feeding into what the Full Court says in the paragraph which your Honours have referred to.  So our attitude to that point is this, that there is not sufficient factual basis to support the point as having merit before this Court and it being remembered, of course, that it is not a matter simply of procedural fairness because the procedural fairness is not a ground of review under section 476 of the Act.  So we firstly say that.

We say that the evidence supporting the ground is not before the Court.  We say that the Full Court made no error in exercising its discretion to decide not to hear evidence or hear the matter further than it did.  We say that it was not in error in doing so for the reasons that it gives.  It did not have the ‑ ‑ ‑

McHUGH J:   It does not seem to have expressed its reasons in terms of discretion.  It has made the bald statement that the court cannot give any effect to the assertions made by the appellant from the Bar table.

MR RITTER:   Yes.

McHUGH J:   This is a matter involving the liberty of the subject and may have even more dramatic consequences and it is at least arguable that the court was just stating a blanket rule.  The point not having been raised before Justice Hely, they could not now give effect to it.

MR RITTER:   We say that what it is saying is it cannot give effect to assertions made by the appellant from the Bar table about ‑ ‑ ‑

HAYNE J:   That might have weight if he had been represented, but where you have an unrepresented litigant the distinction between the Bar table and the witness box is not evident, even for well experienced litigants in person.

MR RITTER:   But it is not only that point, it is making that point that the issue having not been raised before Justice Hely where, of course, the applicant was represented, and the applicant was represented before the Refugee Review Tribunal and there was no post-hearing submission to the effect that there had been some difficulty in interpretation.  The matter simply was not raised at all until the matter was raised before the Full Court and bearing in mind, of course, as I say, that the applicant was represented at first instance.

We say what the court is giving effect to there is the exercise of its discretion as to whether to allow these matters to be entered into now and it has decided that it cannot give effect to that assertion made from the Bar table about the matter now, not having been raised before Justice Hely.  So we say that the court is exercising its discretion and what is involved in looking at that is the compound notion, firstly, insufficiency of evidence and, secondly, the fact that the matter had not been raised before Justice Hely and whether it could now be raised on appeal, given that it could fall into the category of cases that the respondent may wish to respond to the matter by providing evidence of its own.

We would say there is also a difficulty in the Court if special leave were to be granted in now receiving evidence of what took place before the Refugee Review Tribunal.

McHUGH J:   No, we would not have to do that.  The question for our decision would be whether or not the matter should be remitted to the Full Court to reconsider the complaint made by the applicant and as to whether it should be further investigated.  At the moment, it seems to me that the court has stated a blanket rule and it has not exercised its discretion.

MR RITTER:   We would say – again, I am repeating myself by way of emphasis – we would say that for the court to get to that stage, there must be some evidence before it as to what took place before the Refugee Review Tribunal to persuade the court that this argument before the Full Court was an argument which was open.

McHUGH J:   But one of the grounds for special leave is that there has been a miscarriage of justice in the particular case and this could be a situation where a person whose liberty is very much at stake has suffered a miscarriage of justice because he is unrepresented and it was imperative to the court to give him some assistance and ask him some questions and facilitate the raising of this point to see whether there was any substance in it.

MR RITTER:   But we would say that this ‑ ‑ ‑

McHUGH J:   This Court, certainly given its workload, is not enthusiastic, to say the least, about taking on matters of practice and procedure, but if there is any suggestion of a miscarriage of justice, then the Court is bound to consider the matter.

MR RITTER:   In that regard we would ask, again, the Court to look at the circumstances of the fact that the man was represented before the Tribunal.  He was represented at first instance and the point was not raised.  We are aware, of course, of the grounds upon which special leave can be granted, including the justice of the individual case, but we would say again, to get to the stage of thinking there was justice in the individual’s case or even if your Honours consider whether the appeal ought to be allowed and the matter sent back to the Full Court, there would need to be some evidence before this Court which would support the proposition that was made from the Bar table to the Full Court.  But we would say if special leave is granted and the matter proceeds to the Full Court for hearing of the appeal, it would be incumbent upon the applicant to try and prove what he asserted before the Full Court.

McHUGH J:   That may well be right.

MR RITTER:   If that is right, your Honour, it gets us into that area where we would say the Court cannot receive additional evidence to the evidence which was before the Full Court and that would have impact in two areas in this case:  one as to whether the Court can receive evidence which the applicant wanted to put before it; and, secondly, whether the Court could then receive evidence which the respondent wanted to be put before it, such as evidence from the interpreter who was before the Refugee Review Tribunal.  The Court has no power, as has been decided in Eastman’s Case, to receive such additional evidence.

McHUGH J:   We would not be receiving fresh evidence and if leave were granted, it may be that those who appear for the applicant might have to give some consideration as to whether they should not bring an application in the original jurisdiction of the court on the basis that there has been a denial of natural justice and therefore a jurisdictional error in the Tribunal, that is, if there is any substance in it.  So material may get before the Court under that application.

MR RITTER:   Your Honour, I do not know that I can state anything further from the respondent’s perspective on that aspect of the application.

McHUGH J:   Yes.

MR RITTER:   Our submissions on the other aspects of the application are that the matters raised go to the facts only and not matters of law for the Court.  If the Court pleases.

McHUGH J:   Yes.  Thank you.  Mr Hemery, what do you say about your other grounds?  Do you put anything other than in your written submissions?

MR HEMERY:   No, your Honour, nothing to add on those.

McHUGH J:   Yes.  There will be a grant of leave in this case, but it will be limited to the ground whether the Full Court of the Federal Court erred in concluding that it could not give effect to the appellant’s complaint in that court that the person assigned to interpret his submissions and evidence to the Refugee Review Tribunal did not do so adequately.

AT 3.05 PM THE MATTER WAS CONCLUDED