Applicant S154-2002, Ex parte - Re RRT & Anor

[2002] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S154 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

PHILIP RUDDOCK, in his capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S154/2002

Prosecutor/Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 8 JULY 2002, AT 11.33 AM

(Continued from 11/6/02)

Copyright in the High Court of Australia

MR J.M. PATEL:   May it please your Honour, I appear for the prosecutor/applicant in this matter.  (instructed by the applicant)

MR S.B. LLOYD:   I appear for the Minister.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Yes, Mr Patel.

MR PATEL:   Your Honour, last time when this matter was before you, we were granted leave to amend the order nisi.  An amended application was filed and served.  The amendments were made to bring the matter within the jurisdiction of this Court.  There were the problems about res judicata and estoppel, the issues that were raised by the respondent.  The problem we are now facing in this matter is that the transcript of the hearing which forms the foundation for the application that certain material that was taken into consideration by the Tribunal was not put to the applicant and was not given any opportunity to respond.  Unfortunately, your Honour, what has happened is that – I do not have a copy of the transcript.  There were two hearings and when I spoke to my client I made it clear that I needed the transcript and she said she had the transcript and she faxed me ‑ ‑ ‑

HER HONOUR:   This is in relation to what is said to be particular 2) on page 2 of the ‑ ‑ ‑

MR PATEL:   That is correct, yes.  I received the transcript which I believed was the transcript relevant to these proceedings.  I did not have enough time to check it.  The solicitor for the respondent also needed the transcript and we were in communication with each other.  I said as soon as I got a copy of the transcript I would fax it to her, which I did on Friday afternoon.  It was only this morning I realised that the transcript we were relying on was in fact the transcript of the previous proceedings and not the second hearing.

HER HONOUR:   What do you mean “the previous proceedings”?

MR PATEL:   The first hearing.  There had been two hearings before the Tribunal.  The first application was ‑ ‑ ‑

HER HONOUR:   Was there not one before the Delegate?

MR PATEL:   No.  What happened was that she applied for a review.  The RRT made a decision against her.  She went to the Federal Court.  In that application she was successful.  It was sent back to the Tribunal for a rehearing.  There was a second hearing and this application relates to the second hearing where again she was refused the visa.  So what happened

was that there was slight confusion between the first hearing and the second hearing.

HER HONOUR:   So you have the transcript for the first hearing but not the second hearing?

MR PATEL:   Not the second one.  So, with a great deal of reluctance, I beg the Court’s indulgence and I need an adjournment to arrange the transcript, because without the transcript – that forms the foundation of her case.

HER HONOUR:   What do you say, Mr Lloyd?

MR LLOYD:   In relation to the amended draft order nisi, we would say the five particulars under the first ground are the same as last time and we would say that they are answered by the res judicata and Anshun estoppel points.  The first particular under the second, which is the new ground, really is in substance the same as the others and it would be ‑ ‑ ‑

HER HONOUR:   I do not really understand this res judicata and Anshun estoppel.  First of all, just tell me do you oppose the adjournment?

MR LLOYD:   I do oppose the adjournment, your Honour.

HER HONOUR:   All right.  I do not understand this res judicata and Anshun estoppel point.

MR LLOYD:   In a nutshell, your Honour, on a couple of occasions it has happened in the past that an application has sought to re‑agitate, usually in this Court, proceedings which have been unsuccessful in the Federal Court.  There are two cases which I could take the Court to where it has been remitted to the Federal Court and in both of those cases the Federal Court on the second occasion ‑ ‑ ‑

HER HONOUR:   What matters do you say were agitated in the Federal Court?  The papers I have are by no means ‑ ‑ ‑

MR LLOYD:   There is an affidavit of Elizabeth Norah Jacqueline Warner.  The first annexure to that is the original application for an order of review which shows that what was agitated there were ‑ ‑ ‑

HER HONOUR:   Does that relate to the first decision or the second decision?

MR LLOYD:   The second decision.  The first decision can be put aside except for the fact that my friend is stuck with the wrong transcript.

HER HONOUR:   Then what happened to that?

MR LLOYD:   Then there was an amended application by the applicant which narrowed the ground, which is annexure B to that affidavit, which I note is the substantive ground which forms the basis of each of the points in the first ground in the current proceedings.

HER HONOUR:   What happened to that application?

MR LLOYD:   That went before his Honour Justice Wilcox.  His Honour’s decision is annexure C to the affidavit.  His Honour rejected the argument and in paragraphs 6 to 8 rejected the thrust of this claim that the applicant ever truly made a claim of the kind which in judicial review has now been said to have been a separate and independent claim which was ignored.  His Honour did not read it in that way as being a separate and independent claim and did not consider in any event it could ever form a basis for a claim for persecution on grounds of religion.

HER HONOUR:   There has been no special leave application with respect to that?

MR LLOYD:   It was not even appealed to the Full Court.  In that sense I would submit there is a res judicata because ‑ ‑ ‑

HER HONOUR:   But that does not seem to deal with this question of particular 2) on page 2 of the amended application.

MR LLOYD:   No, I accept that.  That is what I was coming to.  The only thing which is left from the res judicata or Anshun estoppel ‑ ‑ ‑

HER HONOUR:   There seems to me to be a more important problem with relation to 1).  Particulars 1) to 5) do not really seem to expose a jurisdictional error.  Those grounds seem to be taken from the AD(JR) Act.

MR PATEL:   That is true, your Honour.  The reason ‑ ‑ ‑

HER HONOUR:   Perhaps I will hear from you later.  So we will come to particular 2).

MR LLOYD:   Ground 2 or particular 2)?

HER HONOUR:   Particular 2) of ground 2.  Particular 1) seems to be a matter that was dealt with before.

MR LLOYD:   That is so.

HER HONOUR:   Particular 2) is this country information point.

MR LLOYD:   I suppose the first point of course is that my friend, I suspect, if pressed would concede that without the evidence he could never make it out anyway.  But the reason why we in substance oppose the adjournment is, first of all, they were given a specific time to put on evidence and they did not do it, and the mere fact that it was sent on Friday last week is still – the specific date was 25 June, so they were late.  My instructing solicitor says they had till 18 June to put on evidence, so really to say that they got the wrong one last week is no real answer.

HER HONOUR:   To be filed in the Registry within 14 days of 11 June, which was 25 June.

MR LLOYD:   Certainly my note says 25 June.  Then we were to put on anything in reply by 2 July.  Be that as it may, it did not make either of those dates.  That is the first thing, but there is a more substantive reason, your Honour.  There is a decision of his Honour Justice Kirby in a decision, Re The Minister; Ex parte A, which is quite similar.  Perhaps if it is convenient, I can hand up a copy.

HER HONOUR:   This is concerned with particular 2) of ground 2?

MR LLOYD:   With particular 2) of ground 2.  It is a case like this case where the allegation was made that the Tribunal relied upon country information which was not put to the applicant.  That can be seen perhaps ‑ ‑ ‑

HER HONOUR:   Did his Honour say that was not a denial of procedural fairness?

MR LLOYD:   His Honour did say that.  Perhaps to cut to the chase, paragraph 51 ‑ ‑ ‑

HER HONOUR:   I can tell you that is inconsistent with other decisions of this Court, is it not?

MR LLOYD:   His Honour did not think so.  His Honour deals with Miah and that line of cases and explains why this case, A, is distinguishable at paragraphs 51 through to 54.  The comments his Honour there makes are consistent ‑ ‑ ‑

HER HONOUR:   Yes, but what his Honour is talking about is as a matter of fact, not as a proposition of law.

MR LLOYD:   I accept that, but the factual criteria which apply in this case apply in our case.

HER HONOUR:   I do not know that.  Until I see the transcript I cannot determine that, can I?  You may know that but I do not.

MR LLOYD:   I suppose I cannot prove to your Honour that there was no misleading ‑ ‑ ‑

HER HONOUR:   Exactly.

MR LLOYD:   But there is no allegation that they were misled.  The sole ground is that there was information that was not put to the applicant.

HER HONOUR:   You are right in that respect but what one needs is further material to indicate whether other material would have been put in answer.

MR LLOYD:   I cannot deny that if they get a transcript they might find an error that they are not already currently thinking exists.

HER HONOUR:   Yes, but that is not sufficient, is what I am suggesting.  Assume they find that country information of the type upon which the decision relied was not put to them.

MR LLOYD:   Which is the case in this case.  There was country information which was not put.  What his Honour says is where that country information is unlike Miah in that Miah was a case in which the country information involved an unstable situation where a decision was made on a picture that the applicant did not get a chance to respond to ‑ ‑ ‑

HER HONOUR:   Yes.  Well, all of that is true but of that I cannot be sure until I see what – I mean, it may not be an unstable situation.  I cannot be sure that the country information of the type upon which reliance was made was put to the applicant but my point is that even if that be so, it would be at least necessary for the applicant to put on an affidavit saying that she would have challenged the information, that she had other information by which to challenge it.

MR LLOYD:   I agree and that has not been done.  There is no explanation for why that has not been done.  So, in relation to these three matters ‑ ‑ ‑

HER HONOUR:   Three?  One.

MR LLOYD:   When I say the three matters, I mean the three factors which his Honour Justice Kirby relied upon in paragraphs 52, 53 and 54. 

Paragraph 52 is the stable situation.  I would say on the evidence before the Court, your Honour can see that because the country information relied upon is set out in the Tribunal’s reasons, which is in evidence before your Honour, and nothing of the new category falls within it.  Even on the assumption that it was not put to the applicant - and there is some evidence before the Court which shows that it was put to her, but I cannot say comprehensively - the Tribunal says I put all this stuff to the applicant but does it in general terms.  But even on the assumption that it was not put, by the date of the material one can see that it is different to the Miah instance.  So, there is an answer ‑ ‑ ‑

HER HONOUR:   Yes, but Miah is not an exhaustive statement of the law of procedural fairness, is it?

MR LLOYD:   No, no, I accept that, your Honour.

HER HONOUR:   That is the problem.  That is why I have to see – I either refuse the adjournment for failure to comply with the times, which seems a bit harsh, but I do not see that I can refuse it on the basis that it is clear from the materials before me that the three factors to which Justice Kirby referred are satisfied, or any of them.  That is the difficulty, is it not?

MR LLOYD:   I accept that they may allege something if they get other evidence but I would submit there is a basis in the evidence currently before your Honour from which you could address these things but I accept that if you had more evidence, that evidence might suggest something else.  But it is not currently alleged that these other speculative things exist.

HER HONOUR:   Yes.

MR LLOYD:   Anyway, that is all I have to say about the adjournment, your Honour.

HER HONOUR:   I would be minded to grant the adjournment but on terms.

MR PATEL:   I can appreciate that, your Honour.

HER HONOUR:   The first term will be that the applicant will have to pay the respondent’s costs of today in any event.  The second will be that any further material on which the applicant relies must be filed and served not later than 4 pm on Thursday, 11 July.  The matter will be heard at 9.30 am on 15 July and there will be no further adjournment.

MR PATEL:   Your Honour, if I may ask some indulgence in relation to the timetable because the transcript, I understand, would take some time to

get it from the – it is not that we can make an application today and we will get it in two days.  We anticipate that since it has not been transcribed, by the time we get it, the deadline you have put in would be a bit difficult to comply with and if you can give us sufficient time to make sure that we get the transcript, that is all we really need.

MR LLOYD:   Your Honour, I could not do 15 July.

HER HONOUR:   You could not?  Well, I am taking leave from 16 July.

MR LLOYD:   When does your Honour return?

HER HONOUR:   Well, 28 August.

MR LLOYD:   That should be fine.  My client is happy to go with another counsel if your Honour wants to maintain those dates.

HER HONOUR:   Well, no, the question is about this transcript.  Have you a copy?  Has this transcript not been taken out?

MR LLOYD:   No, we do not have a copy of it, your Honour.

HER HONOUR:   Does anybody know how long it takes to get a copy of the transcript?

MR LLOYD:   My instructing solicitor says she is prepared to have a date after 28 August.  That should resolve my friend’s problem.

HER HONOUR:   It will have to be Friday, 30 August.  But I am still ‑ ‑ ‑

MR PATEL:   Transcript by what date, your Honour?  Sorry, the evidence to be filed?

HER HONOUR:   At the very least ‑ ‑ ‑

MR PATEL:   23 August?

HER HONOUR:   No, 16 August, I think.  I want to make sure – and any further affidavit materials must be filed by 16 August.

MR LLOYD:   Perhaps your Honour might make an order that we be served as well because we were not served last time.

HER HONOUR:   Yes.  Must be filed and served by 4 pm on 16 August.  Otherwise, the matter will proceed at 9.30 am on 30 August.

MR LLOYD:   May it please the Court.

MR PATEL:   May it please the Court.

AT 11.53 SHORT ADJOURNMENT

UPON RESUMING AT 11.59 AM:

HER HONOUR:   Mr Patel has gone, has he?

MR LLOYD:   Unfortunately, yes.  I think he is counsel, so I would think he would be in a hard position to object to certifying ‑ ‑ ‑

HER HONOUR:   Yes, I know.  I have ordered to pay the costs in any event.  Yes, I see no reason why I should not certify for the attendance of counsel for both parties.

MR LLOYD:   May it please the Court.

AT 12.00 NOON THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 30 AUGUST 2002