Applicant S1140 of 2003 v MIMIA

[2007] HCATrans 266

[2007] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S191 of 2006

B e t w e e n -

APPLICANT S1140 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Office of the Registry
  Sydney  No S192 of 2006

B e t w e e n -

SZFMQ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Applications for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2007, AT 4.01 PM

Copyright in the High Court of Australia

__________________

MR N.J. OWENS:   If the Court pleases, I appear for the applicant in each matter.  (instructed by Allens Arthur Robinson)

MR A. MARKUS:   May it please the Court, I appear for the Minister.  (instructed by the Australian Government Solicitor)

CALLINAN J:   Yes, Mr Owens.

MR OWENS:   Your Honours, may I say at the outset that this application is put solely and squarely on the basis that it is the interests of the administration of justice that make it an appropriate case for the grant of special leave.  Those interests arise by reason of the fact that the applicants have been denied any hearing of their claims that they were denied procedural fairness in the Refugee Review Tribunal and the basis upon which they have been so denied is, with respect, manifestly unsustainable. 

To begin may I identify the six critical steps in my argument before turning to make good each one.  The first is that the basis upon which the court below held that the present proceedings constituted an abuse of process was that they raised matters which were, or could have been, raised in earlier Federal Court proceedings and that, as a result, the present proceedings were an attempt at relitigation of the earlier proceedings.

The second step is to say that the earlier Federal Court proceedings were proceedings brought pursuant to section 476 of the Migration Act as it stood at the relevant time. The third step is to say that denial of procedural fairness was not available as a ground of review in proceedings under section 476. The fourth step is to say that the present proceedings ‑ ‑ ‑

CALLINAN J:   Sorry, I was just distracted, I apologise.  Would you just repeat that please.

MR OWENS:   Yes, your Honour.  The first step is to say that the court below found that these proceedings are an abuse of process because they seek to raise matters which were, or could have been, relied upon in earlier Federal Court proceedings.

HEYDON J:   Could they have been raised before Justice Mathews?

MR OWENS:   That is what his Honour found, they could not, however.

HEYDON J:   You say they could not have been.

MR OWENS:   They could not have been and I will make that good. 

The second step, and this leads towards your Honour, Justice Heydon’s question, is to say that the earlier proceedings, the proceedings before Justice Mathews, were proceedings pursuant to section 476 of the Migration Act as it then stood.  The third step is to say that denial of procedural fairness was expressly precluded by the Migration Act as a ground of review in section 476 review proceedings. The fourth step, and in some senses this is the critical one, is to say that the ground upon which review was sought in the present proceedings is denial of procedural fairness. The fifth step is to say that there has never been any other determination or hearing of these claims and the sixth step is the conclusion which is to say that in those circumstances it cannot be an abuse of process for the applicants to seek to agitate their denial of procedural fairness claims in the present proceedings.

HEYDON J:   The grounds in your draft notice of appeal do not fit comfortably with those six propositions.

MR OWENS:   Does your Honour have the amended draft notice of appeal that I prepared?

HEYDON J:   Yes.  Ground 4, is it, that covers what you have just said?

MR OWENS:   Yes.  Ground 3 is the conclusion, if you like, that there was an error in the finding of abuse of process.  Ground 4 is the basis for the error which is that the sole basis upon which the finding of abuse of process was made was that the current proceedings do not contain any issue that was not or could not have been raised in the earlier proceedings.  Of course, if there is an issue about the notice of appeal I am happy to attend to redrafting of that.

Perhaps then, your Honours, I can turn to the first of those steps which is to explain the basis upon which the judge below, Justice French, found that there was an abuse of process and in that regard could I refer your Honours to page 181 of the application book, paragraph 36. There in the first sentence of that paragraph his Honour notes the fact that there are differences between the jurisdiction available under section 476 of the Migration Act and the jurisdiction that is available in the original jurisdiction of the High Court for constitutional writs and the equivalent jurisdiction in lower Federal Courts available under section 39B of the Judiciary Act.  In the sentence beginning at line 50 though, beginning with the word “However”, his Honour says that those difference “were not material” in the present case because:

the basis upon which the matter was argued before Mathews J which covered the grounds under s 476 that would also have been available in prerogative relief –

That is right but that does not address the critical question which is whether the grounds sought to be advanced in the present proceedings could have been advanced before Justice Mathews.  In paragraph 37, over the page, that conclusion is made explicit where his Honour says:

the attempted re-litigation of this judicial review process invoking the jurisdiction of this Court under s 39B in my view amounts to an abuse of process.

What is implicit in those findings, namely, that the present proceedings only raise issues that were or could have been raised in the proceedings before Justice Mathews is, in any event, made explicit in two other passages to which I will take your Honours now.  Back one page, on page 180 in paragraph 30, Justice French there records the finding of the federal magistrate:

that the applicants had raised no new issue since the application for judicial review had been dealt with in 1999.

His Honour does not disagree with that finding.  In any event, there is then the finding in his Honour’s second reasons, if I can call them that, on page 189 of the application book in paragraph 11 where his Honour says that:

the proceedings in this case were an abuse of process because they canvass matters which clearly were, or could have been, raised before Mathews J in 1998.

The point to draw from all of that is simply that, in my submission, the basis and the only basis upon which his Honour found that the present proceedings were an abuse of process was that they raised matters which were or could have been raised before Justice Mathews. 

With that then, I will move to the second step in the argument which can be dealt with quite shortly which is that the proceedings before Justice Mathews were in fact proceedings under section 476 of the Migration Act.  I do not understand that to be contested.  I will not take your Honours to it.  It is apparent from the decision of Justice Mathews.  The references are application book pages 53 and 106.

The third proposition then is that in proceedings under section 476 it is not possible to advance denial of procedural fairness as a ground of review. That flows from section 476(2) – your Honours should have a bundle of authorities. If your Honours are prepared to accept it, I do not think it is in dispute.

HEYDON J:   It is in you supplementary written submissions.

MR OWENS: Yes, thank you, your Honour. Also, section 485(1), which provides that the jurisdiction of the Federal Court is only that jurisdiction conferred by the Magistrates Court so the Federal Court did not have any additional jurisdiction outside of that conferred by the Migration Act and the Migration Act prevented denial of natural justice being advanced as a ground of review.  It thus follows that it was not open to the applicants in the proceedings before Justice Mathews to advance denial of procedural fairness as the basis upon which they should be granted the relief sought. 

The next and as I said perhaps the critical step is to say, is it denial of procedural fairness which forms the basis for the present application? In that regard can I refer your Honours to page 29 of the application book which is the application commencing the present proceedings of the person I will call the first applicant. On page 29, your Honours, I will simply note this that it is described as an “Application under section 39 B of the Judiciary Act 1903 and the Migration Act 1958”. The reference to the Migration Act must be a reference to section 483A of the Migration Act as it then stood. What that does is pick up section 39B and confer that jurisdiction effectively on the Federal Magistrates Court.

Turning over the page, at the top of page 30, it says, “The grounds for the application are: 1”.  Your Honours will note immediately that ground 1 is not a ground of review, it is a pre-emptive response, if you like.  The actual ground of review is found on page 31 under point 2.  Ignoring the heading for one moment, it is headed “Section 424A(1)”.  I will come back to that.  It is clear and it is also clear that this document was not prepared with the advantage of legal advice or legal assistance.  It is clear from the three statements made under point 2 that what the applicants are asserting is a denial of procedural fairness.  The first is:

The Tribunal committed a jurisdictional error which brings the facts of the case within the framework of principles of breach of natural justice established in Muin v Refugee Review Tribunal;  Lie v Refugee Review Tribunal –

Those cases, as your Honours will no doubt remember, were cases where prosecutors I think in the High Court were found to have been denied procedural fairness on the basis that the Tribunal suggested to them that it had looked at certain documents when in fact it had not.  The second ground:

The Tribunal did not give the applicant an opportunity to comment on information, which was significant to the decision to be made –

Again, clearly an allegation of denial of procedural fairness.  The third is:

The failure to give particulars to the applicant as well as to ensure that he understood the relevance of it and to give him an opportunity to comment –

That is where we find the specific reference to section 424A.  That section, I accept, was not in force at the relevant time.

CALLINAN J:   There is now a provision in the Act, is there not, that requires the Tribunal to give an applicant ‑ ‑ ‑

MR OWENS:   Certain information.

CALLINAN J:   Yes.  When did that provision come in?  Your Tribunal decision was in 1998, was it not?

MR OWENS:   My friend may know.  I think it was 2001.

CALLINAN J:   In any event, there was nothing like that at the time?

MR OWENS:   It certainly does not apply here, I do not suggest it does.

CALLINAN J:   Was there anything in the Act like that at the time?

MR OWENS:   No, there was not.

CALLINAN J:   Can you show us the matter that was relied upon by the Tribunal that you say was not put to the applicants and should have been?  Where do we find that in the Tribunal’s decision?

MR OWENS:   The Tribunal decision, your Honour, if I can go to that, starts at page 1of the application book.  On page 8 where there is independent evidence, the complaint made in Muin and Lie was that ‑ ‑ ‑

CALLINAN J:   Do not worry about Muin and Lie, you show me, please, the reliance by the Tribunal upon information which your clients did not have an opportunity of addressing and the denial of their opportunity to do that constituted procedural unfairness.  Which matters were taken into account that should have been put to your clients?

MR OWENS:   It is, as I understand it, the independent evidence, in other words, the evidence available ‑ ‑ ‑

CALLINAN J:   Is that other country information?

MR OWENS:   Country information, in other words, not information provided by the applicants.

CALLINAN J:   There is a lot of stuff there that is a matter, I would have thought, of general knowledge.  Where do you say particularly there is something that would have taken your clients by surprise and which they could have commented on and dealt with?

MR OWENS:   Your Honour, the particular grounds upon which the denial of procedural fairness is alleged have not been formulated by way of pleading or evidence.  What has happened is the application was put on and immediately an application to strike it out as an abuse of process on the basis that the mere assertion of denial of procedural fairness was something that was or could have been raised in earlier proceedings.

CALLINAN J:   Yes, but we have to consider what the ultimate fate of this might be, so to succeed here and to succeed on your appeal, the matter ultimately goes back to the Tribunal, does it not, assuming you were to succeed?

MR OWENS:   Yes.

CALLINAN J:   That is going to be a futility and that is a reason for not giving you special leave.  You really do have to show us something at least which might be of a kind which you could and should have dealt with and which could be regarded as having been influential in the Tribunal’s decision.  Do you understand what I am putting to you?

MR OWENS:   I understand exactly what your Honour is putting to me.  My response is perhaps an unhelpful one but it is simply that my instructions are that it was reliance on independent information upon which my clients would have wished to comment and I cannot take the matter any further than that.

CALLINAN J:   You take at page 13, line 17:

the applicant was able to study, obtain qualifications and travel on numerous occasions –

That was taken as a basis for a refutation of any claim of persecution, perhaps not the only basis, but you have to be able to link something that was denied to you, some critical piece of information that you could have commented on which could have affected the outcome favourably to your clients.

MR OWENS:   I know I am repeating myself now, your Honour, all I can say is that, on my instructions, I am now aware with sufficient particularity as to the precise nature of the response that my clients would have wished to have made to ‑ ‑ ‑

CALLINAN J:   When the strike out application was made, could you have put on that information in an affidavit?

MR OWENS:   My clients were not represented at that point ‑ ‑ ‑

CALLINAN J:   No, I understand that.

MR OWENS:   They could have, yes, but in that regard, everything that has happened below has been that the mere fact that they are bringing these proceedings is an abuse of process.  It was not put on the basis that they had not provided a sufficiently particularised or demonstrated a sufficiently arguable basis for ultimate relief, it was put that they did not have a right to bring these proceedings because it was an abuse of process and the proceedings were dismissed on that basis.  So, yes, evidence of the sort that your Honour has referred to could have been put on but it would not have been directly responsive to the way in which the matter was approached by the courts below. 

CALLINAN J:   Mr Owens, you really at the moment – and I am not suggesting it is your fault – you are flying blind and we are flying blind because we do not have the transcript of the proceedings before the Tribunal so we do not know what was put, we do not know how country information was raised and whether it was raised, as we know from our own experience it sometimes is.  This is a special leave application, it is not an appeal, so facts that go to the question of special leave can be the subject of an affidavit and can be received by the Court.

HEYDON J:   It completes the record.

CALLINAN J:   You might be better off seeking an adjournment and dealing with the matters that you say you cannot deal with at the moment, through no fault of your own.

MR OWENS:   In light of what has fallen from your Honours I would make an application for an adjournment for that purpose.

CALLINAN J:   What is your attitude to that, Mr Markus?

MR MARKUS:   Can I make some very brief submissions in relation that issue.  Your Honour, my friend has submitted that immediately upon the filing of the application there were applications made for summary dismissal of the proceedings.  That statement is manifestly incorrect.  If your Honours look at the date of the notice of motion, it is dated 13 January 2006.  The applications were filed in January 2005.  This issue, and the whole of the basis of the special leave application has changed earlier this week, your Honours, and certain documents have not been included in the application book but relevantly, your Honour, the directions made on 9 February 2005 regarding the filing of amended applications and evidence, none of the applicants filed any evidence and one of the applicants has filed an amended ‑ ‑ ‑

CALLINAN J:   Was that in the Federal Court or here?

MR MARKUS:   That is in the Federal Magistrates Court, your Honour.  None of the applicants have filed any evidence supporting ‑ ‑ ‑

CALLINAN J:   Were the applicants represented then?

MR MARKUS:   No, your Honour.  The context of this is that this is a 1998 decision of the Tribunal.  There was an application before the High Court which was dismissed by his Honour Justice Emmett in 2004 and your Honours may recall that it was dismissed on the basis that the applications for orders nisi were totally unparticularised and not supported by evidence. 

CALLINAN J:   Were the applicants represented then?

MR MARKUS:   Yes, they were represented, your Honour.  Your Honours will see set out in the supplementary summary of argument, paragraphs 22 and 23 of the judgment of his Honour Justice Emmett which appears at page 77 of the application book, and relevantly his Honour said as follows:

It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief.  There is a bald assertion that the Tribunal failed to accord the applicant procedural fairness, coupled with the reference to either the Lie or the Muin proceeding in which generalised assertions are made, but in respect of which no particulars are furnished.  It is fair to say that counsel for the applicants in all of the proceedings currently before the Court, did not contend that this Court would entertain an application for an order nisi on the basis of the material filed in any of the proceedings.

The order made by Gaudron J, to which I have referred, clearly contemplated the making of an application for an extension of time within which to file an application for an order nisi, supported by an affidavit that showed at least an arguable case.  Indeed, as I have

said, an extension was obtained so that the applicant would be in a position to file an application for an order nisi that showed an arguable case.  In fact, none of the applications as lodged, exhibits an arguable case.

CALLINAN J:   We need not hear you, we are not prepared to adjourn this application.  Is there anything further you wish to say?

MR OWENS:   Nothing, no, your Honour.

CALLINAN J:   Thank you.

MR OWENS:   Thank you.

CALLINAN J:   Is there nothing further you wish to say on the application itself as opposed to the application for the adjournment?  I interrupted you, I thought you had finished. 

MR OWENS:   I am sorry, did your Honour say that your Honour was going to grant the adjournment.

CALLINAN J:   No.

HEYDON J:   Do you have anything further to say either in answer to Mr Markus’s submissions on the adjournment or in support of your own argument in support of the application for special leave?

MR OWENS:   In response to the matters just raised by Mr Markus, it is, of course, the fact that the applicants were represented in the proceedings before Justice Emmett.

CALLINAN J:   And they have been on long notice obviously that they needed material and they needed material that might make good the sort of point that you are trying to make now.

MR OWENS:   Two matters, whether it is by way of evidence or by way of assertion in one of the documents that they have filed, the applicants have said that they were not aware of the orders that Justice Emmett made at the time he made them.  Your Honours will remember, this was in the fall out from the Muin and Lie ‑ ‑ ‑

CALLINAN J:   We cannot disregard clear orders and we cannot act upon the basis that ‑ ‑ ‑

HEYDON J:   They did not comply with the direction of 9 February 2005.

MR OWENS:   Until this very minute I was not aware of that direction, your Honour, that, assuming it were made ‑ ‑ ‑

CALLINAN J:   The simple point is they seem to have had years to put the matter in order and it has not been put in order.

MR OWENS:   That may be right, your Honour, but can I just say this.  The basis upon which they have been found to be engaging in proceedings that are an abuse of process is that the current proceedings raise matters which could have been raised earlier.  That is false.

CALLINAN J:   But you want prerogative relief.

MR OWENS:   Ultimately, yes.

CALLINAN J:   That is always a discretionary matter.  You have characterised what has happened in the past on others as an abuse of process or what is happening now as an abuse of process is not critical to the exercise of a discretion.  Discretion might be exercised against you by reason of delay, other opportunities, other avenues and, in particular, non‑compliance, indeed on one view, persistent non-compliance with orders or invitations offered by the courts.

MR OWENS:   Your Honour, all I can is that evidence of the sort to which your Honour has referred that they may have put on would have been evidence which could and should have been put on in response to a motion that the proceeding should be struck out because they have failed to properly particularise or ‑ ‑ ‑

CALLINAN J:   Here, the onus lies on you.  You are the one who wants leave here and you want leave to pursue and, indeed, you wanted before, you want prerogative relief.

MR OWENS:   Yes, your Honour.  The basis upon which I seek leave is that my clients were unrepresented at the time they commenced these proceedings, they were unrepresented before Justice French, they have recently had the benefit of representation.  There is now a finding that these proceedings are an abuse of process because they raise matters which could have been raised earlier; that is wrong.  It is now put against the position that there is an alternative and independent basis upon which it can be an abuse of process because they have not complied with directions and put on evidence and so on.

HEYDON J:   No, special leave is very often not granted if it is thought that it would be futile to do so.  That could be rebutted by the examination of the transcript of the argument before the Tribunal in order to see whether

the member raised with your clients the matter to which you have drawn attention in the Tribunal’s reasons for decision.  There being a vacuum, and you being the applicant for special leave, the adjournment prospect is disappearing very fast.  There is simply no proven utility in granting the application.

CALLINAN J:   And particularly, not merely upon the basis that you have not put this information in or before us, but prerogative relief is what you ultimately want and that is always discretionary.  It does not have to be something that you can characterise as a conventional abuse of process.  It may be the Court just thinks you have delayed too long or you persistently ignored Court orders or you have overlooked opportunities, the effluxion of time alone, in some cases.  All of those matters can and would usually be the subject of evidence.  We do not have any evidence to explain any of that.

MR OWENS:   No, there is no evidence here for your Honours to explain any of that.  I accept that.  The complaint I make is simply one that, at least as we stand here today, they, being my clients, have been told that they cannot now put on any evidence in support of their application for prerogative relief.  That is an avenue that has been foreclosed to them.  It has been foreclosed to them on a basis which, in my submission, is patently wrong and that is really as far as I can take the matter. 

CALLINAN J:   Thank you.  We need not hear you, Mr Markus.

We are of the opinion that there are insufficient prospects of success in these cases to warrant grants of special leave.  Accordingly, the applications are dismissed.

MR MARKUS:   Your Honour, the respondent seeks costs of the application.

CALLINAN J:   Is there anything you can say about that?

MR OWENS:   There is nothing I can say, no.

CALLINAN J:   Thank you for assistance, Mr Owens and Mr Markus. 

Adjourn the Court to 10.15 on Tuesday, 12 June in Canberra.

AT 4.30 PM THE MATTER WAS CONCLUDED