Applicant S434 of 2003 v MIMIA & Ors
[2004] HCATrans 398
[2004] HCATrans 398
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S83 of 2004
B e t w e e n -
APPLICANT S434 OF 2003
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
LUKE HARDY, MEMBER REFUGEE REVIEW TRIBUNAL
Second Respondent
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Third Respondent
Application for leave to appeal
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 8 OCTOBER 2004, AT 2.03 PM
Copyright in the High Court of Australia
__________________
MR A.N. SILVA: If the Court pleases, I appear for the applicant. (instructed by Silva Solicitors)
MR A. MARKUS: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)
KIRBY J: I have a certificate from the Deputy Registrar certifying that she has been informed that the solicitor for the second and third respondents, the member of the Refugee Review Tribunal and the principal member of the Tribunal, submit to the orders of the Court save as to costs and they are excused. Yes, Mr Silva.
MR SILVA: Your Honour, I would like to address four issues: number one is the public importance of this case; number two, the merits of the application; number three, special circumstances that will exempt it from Anshun estoppel and, very briefly then, what conditions that had not been satisfied for Anshun estoppel to apply.
KIRBY J: What was the first point?
MR SILVA: First point, your Honour, is the public importance.
KIRBY J: Yes.
MR SILVA: Your Honours, this case raises issue of general importance as it deals with the decision of a Refugee Review Tribunal member whose conduct of the hearing has been extreme by any standards and we do not lightly make these allegations. We believe that the credibility of the whole refugee determination process will be tarnished by such behaviour from any Tribunal member. The public needs to be assured that the refugee determination process is conducted in a fair manner. In that respect, your Honours, I would take your Honours to the transcript of the hearing and I have printed the 11 pages I will be taking your Honours to, to make it easier.
KIRBY J: Do you have a copy of that for Mr Markus?
MR SILVA: Yes. Your Honours, firstly, it is our position that the Tribunal early on locked in into a position that there is nothing called Bangladesh Islamic Party, one, and that there is no party with an English name, it should have its Bengali version. Firstly, there is no Bangladesh Islamic Party. Secondly, it must have its local name. So the Tribunal locked in very early, right at the beginning and then used it continuously several times to discredit the applicant. In connection with that, I will refer your Honours to the first one, page 34, point 17. Point 15, your Honours, that is where the question starts, right at the beginning. The Tribunal starts “What was the name of your party” and if your Honours will kindly look at a few lines after that until 35, point 27.
KIRBY J: Yes.
MR SILVA: Then the same issue comes up again, your Honours, on 38, fifth line. I will take your Honours to only the next two – not wanting to take much of your time, but at least the next two will be quite important - 45 and 46.
KIRBY J: What line on 45?
MR SILVA: Line 25.
KIRBY J: Yes.
MR SILVA: And 46 as well, your Honours.
KIRBY J: Why are not these attempts by the member of the Tribunal to check the veracity of the statements made by your client? I mean, not everybody tells the truth in applications of all kinds in every court. So, why is this not something done within the jurisdiction of the Tribunal to try and get to the bottom of whether there was such a party and whether it existed and whether it was genuine?
MR SILVA: Your Honours, if you look at the number of times – about eight times – this matter has been raised right from the beginning and as we would see at the beginning, the way it was put in, it was put in a very challenging and a threatening manner and the applicant kept on insisting that there was such a party and the applicant tried to explain that it was part of the coalition so there may be some other name that the Tribunal member has found. So if you ask an applicant who is there eight times in a very strong manner and that sort of puts the applicant on the defence even, it makes it very difficult for the applicant to present the case. The affidavit provided by the applicant on pages 17 to 28 ‑ ‑ ‑
KIRBY J: Yes.
MR SILVA: Very clearly shows that such a party has been there - 1996, 2001, 2003 – it has been there all the time.
KIRBY J: Yes.
MR SILVA: If you look at the grounds of review, your Honours, that was before the primary judge – that is on page 63.
KIRBY J: Yes.
MR SILVA: There were ten grounds of review and they are very serious grounds of review.
KIRBY J: I must admit, in my time I have seen a lot of rude members of tribunals and courts even, but this does not seem to me to fall into the class that took the member of the Tribunal outside of his jurisdiction or evidence as bias. It was a robust exchange and he was putting to the applicant the fact that he found some of his evidence to be unbelievable. It would be much worse if he just remained silent and did not reveal the doubts and suspicions he had.
MR SILVA: Your Honours, if you would refer to page 41, point 5, line 3, the applicant starts telling about his role and the Tribunal cuts in and asks him “Where is your beard by the way?”
KIRBY J: Yes.
MR SILVA: And we think it is inappropriate for the Tribunal to cut in when the applicant is talking about his role, the party.
KIRBY J: Well, would it not have been reasonable, the Tribunal being aware that very devout and conservative Islamic people do have a beard and that your client was asserting that he was a member of a political party which was specifically Islamic, to ask why he did not have a beard.
MR SILVA: Your Honour, it is how the Tribunal member asked the applicant. That is what is important.
KIRBY J: Where do those words “in a rude voice” come from?
MR SILVA: That is actually - the person who transcribed it put it in a way because – it was put in so that the court is aware that it was said in a rude voice and it was open to the respondent to provide their transcript and dispute if there was an issue.
KIRBY J: Yes.
MR SILVA: This affidavit was before the respondent for quite a long time, so if there was any dispute with that the respondent should have responded to that. Not only once, your Honour, there were three places. The other place is 38, point 3, that is right at the beginning and then again on page 41.
KIRBY J: Yes, we have seen that one.
MR SILVA: Yes, and then the first one, 37, point 28.
KIRBY J: Yes.
MR SILVA: Your Honours, the way it is said “So what’s the issue? Go and help them”. I mean, the applicant is before the Tribunal, waiting at the mercy of the Tribunal because the applicant was not even represented. It is very difficult for an applicant to present their case when the applicant is confronted with issues. For example, about the party issue - if someone says he is from a particular party and keep on confronting him, “No, it is not, they are telling lies” it is very hard for an applicant to present a case. For example, if you look at page 46, lines 29 to 41, the Tribunal is telling the applicant he is a liar. It says “you haven’t told a true word in the entire hearing”.
KIRBY J: Yes.
MR SILVA: And also at the bottom of 46, lines 30 to 35 as well.
KIRBY J: Yes, I have read that.
MR SILVA: And page 41, line 14.
KIRBY J: Yes.
MR SILVA: And 42, line 32, going on to the next page as well, your Honour.
KIRBY J: Were these matters pressed before Justice Tamberlin?
MR SILVA: No, your Honour, they were not pressed.
KIRBY J: His Honour says at page 58 that:
there has been no case made out in relation to bias or breach of natural justice ‑ ‑ ‑
MR SILVA: Yes, your Honour, the applicant was unrepresented and it does not appear the applicant did anything but advance just merits.
KIRBY J: Well, certainly the interventions of the member of the Tribunal are very robust and some of them constitute language that I would not have used, but the question is whether they reached that point, that it is an indication of bias or an unwillingness to listen to the case or intimidation of the person before the Tribunal.
MR SILVA: Your Honour, it is our position that the Tribunal member had a closed mind – that there was no Bangladesh Islamic Party and that ‑ ‑ ‑
KIRBY J: Well, that is not quite true because that did not get said until about page 37 or so. So he let your client have his say and then he was doubtful about it. You see you have to bear in mind that these members of the Tribunal of their nature do quite a lot of these applications. Even in this Court, we have seen quite a number of people, applicants from Bangladesh. So they will be not unfamiliar with the political structure and the political organisations and that is the nature of a specialist tribunal. The point was reached where he felt he had to put to him very firmly that he did not even know the name of his party, it was not really a political party and that he was not telling the truth. All of that is a matter of the exercise of the jurisdiction not a refusal to exercise it.
MR SILVA: I would say two things to that, your Honour. One is the Tribunal member was 100 per cent wrong, there was a Bangladesh Islamic Party. So he had this wrong information and he confronted the applicant with it many, many times. Had he the right information, then it is okay, but he…..wrong information and right from the beginning he questioned the very fundamental of the applicant’s case.
KIRBY J: Well, the member of the Tribunal said that the real name was Jamaat-e-Islami.
MR SILVA: Well, that was ‑ ‑ ‑
KIRBY J: Presumably, that was some knowledge derived from some other case.
MR SILVA: I would think so, your Honour. If you look, right from the beginning, 34, the Tribunal asked:
What was the name of your party?
APPL: Bangladesh Islamic Party.
TM: What’s its name in Bengali?
APPL: In Bengali, Bangladesh Islamic Party. Bangladesh Islamic Party.
TM: Now say it in Bengali now, the Bengali words for that party’s name?
APPL: Bangladesh Islamic Party.
KIRBY J: Maybe the Tribunal member did not know that the British were in Bengal for 250 years.
MR SILVA: Yes, but the nature of it, your Honour, is that – I mean, you look at an applicant, the fundamental claim is that he belonged to a political party and he says “I am from Bangladesh Islamic Party”. That very fundamental thing is being questioned and challenged. Then he says - in English he says Bangladesh Islamic Party – that said, that is in English or whatever party that sits – but, no we do not. The Tribunal member says, “No, we do not. We have a list of political parties where the Bengali name is given and English name is also given.” The applicant is absolutely sure of what he is doing. The Tribunal member was wrong and still insisting he is right, that is right at the beginning of the hearing.
KIRBY J: But there is a list of political parties at pages 25 to 27 and presumably that is what the member of the Tribunal was looking at, and testing the proposition against those parties which are certified by the Election Commission Secretariat.
MR SILVA: Your Honour, that one belongs to the – it is part of the applicant’s affidavit that was provided.
HAYNE J: He points to line 18, does he not?
MR SILVA: Page 18, your Honours?
HAYNE J: At page 25, line 18.
MR SILVA: Yes, if you look from the beginning, page 18 onwards, it is the evidence applicant provided.
HAYNE J: And he says there was something called the “Bangladesh Islami Party” at those various times.
MR SILVA: Yes, at 1996 and 2001 and even later, 2003. It is all coming from the Electoral Commission of Bangladesh.
HAYNE J: At page 53, we have the last of the three‑page application that was made to the Federal Court, do we not?
MR SILVA: Yes, your Honour.
HAYNE J: At paragraph 9, line 7:
ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness ‑ ‑ ‑
MR SILVA: Yes.
HAYNE J: Now, am I right in understanding that the applicant’s complaint to the Federal Court like his complaint in this Court has been and always been actual bias constituting jurisdictional error and a breach of procedural fairness?
MR SILVA: Well, the document says so, but his Honour Justice Tamberlin says that they were not canvassed before him.
HAYNE J: He says there is no case made out in relation to bias or breach of natural justice.
MR SILVA: Yes, your Honour.
HAYNE J: That might, I would have thought, been more readily understood as meaning that although the allegation is made of bias and breach of natural justice, it is not made good.
MR SILVA: I must say yes, your Honour.
HAYNE J: Now, the same core complaint is made in the proceedings in this Court, is it not?
MR SILVA: Not all of them, your Honour. There are four of them – four grounds, grounds (4), (7), (8) and (10).
HAYNE J: Page 64 and following, is it?
MR SILVA: Indeed. The grounds of no evidence of Wednesbury unreasonableness was not before his Honour.
HAYNE J: There are at least two steps, Mr Silva, that might have to be considered. One, was there any case arguably made out at any stage. If we were to conclude no arguable case even today is revealed, that seems to me to be an end of the matter.
MR SILVA: I would agree to that.
HAYNE J: The second question arises if but only if we decided that there was some arguable case revealed by what is said, then questions arise about – well, was it made at the first in the Federal Court, can it be made afresh here – those questions. But the step one is, is an arguable case made out, is that right?
MR SILVA: Quite right, your Honour, yes. I would be taking your Honours later to why, if he had a strong case, that should prevent the application of Anshun estoppel.
KIRBY J: Well, you say later but the red light is on so it cannot be later.
MR SILVA: Yes, your Honour, we understand.
KIRBY J: Is there anything final you want to say?
MR SILVA: Your Honour, I will just refer your Honours to paragraph [153] of the case of Wong.
KIRBY J: What is this? What point is made here?
MR SILVA: The point made here, your Honour, is that his Honour there held that Anshun estoppel should not apply when the behaviour of the Minister was so extreme, in the sense not following the statutory – not doing things according to statutory requirements. But here saying he is just going…..and saying, here if bias can be substantiated, it is a very serious allegation and also ‑ ‑ ‑
KIRBY J: Well, it is a serious allegation and it is easily made. Whilst, as I said to you earlier, I myself would not have acted in the way that the Tribunal member did, he was trying to get at the truth of the matter and that
is his proper province and duty. He was going about it in his way and the question is, did he step outside his jurisdiction or was it just a way, his way, of exercising his jurisdiction? You say he stepped outside it.
MR SILVA: Indeed.
KIRBY J: We understand that and I think your time is up and we will have to call on Mr Markus to see what he says about this.
MR SILVA: Just one final line, your Honour, is that the Tribunal cannot behave in an adversarial manner. It is not an adversarial – that is the final point, your Honour.
KIRBY J: Yes, Mr Silva. Mr Markus, I must say my reaction to this is that some of the remarks of the Tribunal, which I had not read, seem rather extreme.
MR MARKUS: Your Honour, they may have been unfortunate. I should say, your Honours, that I did not check the accuracy of the transcript contrary to what my friend has suggested. The affidavit was handed up to the Court and handed to me on the day of the hearing and that can be seen from page 68, point ‑ ‑ ‑
KIRBY J: Well, I have sometimes seen in transcripts descriptions of applicants accused, defendants and others as acting in a rude manner, but I have never seen it applied to the court or the Tribunal. Somebody must have written that in.
MR MARKUS: Your Honour, I do not know who has prepared that transcript. It is not an official transcript. It is annexed to an affidavit sworn by the applicant. If your Honours will look at page 68, at line 7, I indicate to his Honour Justice Heydon, that I had not seen those affidavits.
KIRBY J: Well, have you had time to have a look at it between being before Justice Heydon and now, or not?
MR MARKUS: Your Honour, I did not check the accuracy and can I just very quickly say this in relation to ‑ ‑ ‑
KIRBY J: Is that not what this Court has said, and Chief Justice Barwick said it in Fredrichberg v The Government Insurance Office, if a party disputes the record then it is up to them to put material before the Court.
MR MARKUS: Your Honour, I did not dispute the record ‑ ‑ ‑
KIRBY J: You are not an under‑resourced litigant. You are the Commonwealth of Australia.
MR MARKUS: There is no issue about being under resourced, your Honour, and I am not putting it that way. I do wish to make the following point, however. This application is an application for leave to appeal from a judgment of his Honour Justice Heydon and. in our submission, what needs to be demonstrated is that there is an arguable case that his Honour Justice Heydon erred somehow; not that there is an arguable case that the RRT has made some sort of jurisdictional error. That was not a matter ‑ ‑ ‑
KIRBY J: But what do you say to the point Justice Hayne put his finger on, and that is that he denies to the applicant that there is a party named the “Bangladesh Islami Party” but there in the schedule on page 25 at line 18 is “Bangladesh Islami Party”. It is just factually wrong.
MR MARKUS: Your Honour, I cannot argue with what appears from the record. It is clear that it is being put to the applicant that there is no such party and there is evidence to the effect that there is such a party.
KIRBY J: Can I tell you what worries me, Mr Markus. I mean, this Court’s duty of supervision is partly for the particular case, but partly for the standards of tribunals and courts below it and that is the importance of section 75(v) and I am just concerned that the transcript reveals an attitude and behaviour on the part of the tribunal member which is really rather extreme and it is even harder than a special leave hearing in this Court.
MR MARKUS: Well, I have to accept that it is harder than a special leave hearing in this Court.
KIRBY J: You are getting a dream run in comparison to the applicant who is unrepresented before this Tribunal.
MR MARKUS: Well, as your Honour has already observed, the serious questioning of this applicant starts at pages 34 or 35 of the transcript. The applicant has been given a fair opportunity to put his case, even if ‑ ‑ ‑
KIRBY J: Well, he has been given from page 30, which is four pages.
MR MARKUS: Your Honour, the point that I make is that the applicant is being questioned about aspects of his evidence. Now, with the greatest respect, it is rather harsh on a tribunal if it does not put certain matters to an applicant then it is accused of failing to record procedural fairness and when it does put other matters to an applicant then it is accused of bias. It is a very fine line which tribunals need to tread. On occasions, tribunal members get frustrated somewhat and no doubt in this particular case, this particular tribunal member appears to have become somewhat frustrated.
KIRBY J: He certainly did at page 46:
I’m cutting you off okay. I have heard enough you haven’t told a true word in the entire hearing.
There was one true word and that was that there was a Bangladesh Islamic Party.
MR MARKUS: Well, your Honour, that has to be looked at in context. As the Tribunal pointed out, the applicant named Jamaat-e-Islami as the party that he belonged to later on in relation to the Department; that is what the Tribunal says at line 27 of page 36. There is, in effect, an inconsistency between what – that is what the Tribunal is putting to the applicant, there is no evidence of what exactly has been put to the Department but what the Tribunal is saying, “Look, you originally named the party you were a member of as Bangladesh Islamic Party, then you called it Jamaat-e-Islami. That is what you said to the Department”.
It is in that context that questions are being asked of the applicant about what is the Bengali name of this party because the Tribunal is trying to check whether these are the same parties and the Tribunal clearly does not have information about Bangladesh Islamic Party or, as appears to be the correct naming of the party from the evidence that appears from page 18 of the application book, “Bangladesh Islami Party.”
HAYNE J: But neither Federal Court proceedings nor the proceedings in this Court were inquiries into the accuracy of the fact finding of the Tribunal. They were proceedings of the kind described by Justice Brennan in Quin’s Case 170 CLR, particularly at 35 to 36, namely, declaring and enforcing the law determining the limits and governing the exercise of the repository’s power. Whether the repository of the power got the facts right is, it seems to me at first blush, not immediately relevant.
MR MARKUS: If that is the allegation – I mean, in spite of the allegation ‑ ‑ ‑
HAYNE J: The allegation is want of procedural fairness.
MR MARKUS: Indeed, and the want of procedural fairness is put in the context of the Tribunal having a fact wrong and, in effect, insisting that it had the facts right; that is what my friend is putting before this Court. I, with respect, accept what Justice Hayne is suggesting and it is something that I would like to adopt. The fact that the Tribunal proceeds on the incorrect factual basis – be that factual basis incorrect in truth – does not make the procedure any more or less fair.
KIRBY J: I think you are beating against an open door here. The question is whether some of the things that the Tribunal said and the way in which it approached the matter and the rather aggressive way in which it questioned the applicant indicated that it was adopting an adversarial role and not acting in a neutral dispassionate inquisitorial role.
MR MARKUS: Well, as I indicated to the Court before, I think it is a very fine line tribunals are forced to tread and, in my respectful submission, reading the totality of the transcript, it is not a case where the Tribunal has stepped outside a law that is permitted under the legislation and ‑ ‑ ‑
HAYNE J: Mr Markus, there are two questions. One, is it arguable that the Tribunal has either prejudged or otherwise been guilty of bias. Let it be assumed that it is arguable that that is so on the material now available. The second question that then arises is whether the proceedings in this Court, in light of the earlier proceedings in the Federal Court, either encountered mandatory preclusions, a question I would have thought that was debatable and important, or whether they encountered at least the difficulties of abuse of process - discretionary?
MR MARKUS: Yes, your Honour, if your Honour has looked at the transcript of the hearing below, your Honour would have seen that it was my client’s position that in fact either res judicata or issue estoppel or both applied.
HAYNE J: The application of doctrines of mandatory preclusion in connection with public law remedies may, subject to what you say, be thought to be a question of some importance. But the second aspect of this is that we would get to such questions, which as I say on their face seem to me arguably questions of importance, only if the proceedings are not inevitably doomed to fail either because there is no merit in them, no arguable case shown, or it is inevitable that they should be stopped as an abuse of process. Now, it seems to me the only way that you avoid the conclusion that this raises a point of general application of some significance is either by saying no arguable case, no merit, or inevitably, abuse of process.
MR MARKUS: Well, your Honour, I say both. But, with respect, it is my submission that the question that the applicant needs to positively establish is whether the primary judge, his Honour Justice Heydon, erred in finding that Anshun estoppel applied to this particular case.
KIRBY J: Now, that is where you run into the problem that Justice Hayne has revealed to you, that that itself could be an important question and that might warrant the grant of leave. We are not dealing here with special leave, we are dealing with only leave ‑ ‑ ‑
MR MARKUS: I understand that, your Honour.
KIRBY J: The importance of it is that the access to the constitutional writs in addition to other remedies that people have may raise constitutional questions that cast light on the Anshun principle which was developed in a private law, private entitlements, context. Now, it is true that in this case, in the Federal Court the applicant sought relief under section 39B of the Judiciary Act which is analogous to and incorporates some of the remedies under the constitutional writs. But, if you are, as it were, putting your eggs into the basket of Anshun estoppel, that is an important question.
MR MARKUS: Your Honour, Anshun estoppel, like the other forms of estoppel, are doctrines which to some extent reflect the abuse of process ‑ ‑ ‑
HAYNE J: You can trace them back to the same root, the root of finality. Yes, I understand that.
MR MARKUS: Indeed.
HAYNE J: But there is a distinction between mandatory doctrines of preclusion, res judicata, issue estoppel ‑ ‑ ‑
MR MARKUS: I understand that.
HAYNE J: Anshun, and discretionary preclusions of the kind that you encounter with abuse of process. There, there is a backdoor for a court to say, for these particular reasons in this particular set of circumstances, though you have litigated it once you may litigate a different slant to it again, that is why I say. It seems to me the killing ground of this case is either no merits at all or it is inevitable that it would be held abuse of process.
MR MARKUS: Your Honour, I would say that it is inevitable that it would be held an abuse of process, although, I also say that there are no merits at all to the suggestion that the Tribunal in this case was actually biased, that is, that it had a closed mind so that it could not be persuaded that the applicant was telling the truth. One of the matters that needs to be considered in that context is that even though my friend points to particular issues which have been put to the applicant, one of which is alleged to be based on a false assumption, there are a number of reasons why the Tribunal decided that the applicant was not credible and the evidence given in relation to the party that he belonged to was only one of those matters.
HAYNE J: But again, you are into the merits, Mr Markus. The question is emphatically not whether the Tribunal got it right or wrong. The question emphatically is whether the powers and limitations imposed by law were exercised properly.
MR MARKUS: Your Honour, the question is whether the Tribunal exceeded its jurisdiction in dealing with the matter the way that it did and it is in that context – I mean, if the applicant is able to establish that the Tribunal was actually biased then the applicant would be able to establish that the Tribunal has exceeded its jurisdiction. What we say is that this is not a case, and I take what your Honour Justice Kirby has said about the Tribunal’s robust approach and accept that it is perhaps more robust than one would usually see ‑ ‑ ‑
KIRBY J: I hope so.
MR MARKUS: But, your Honour, that is not the same as exceeding jurisdiction and being intemperate in itself does not amount to the same thing and your Honours would have noted that some of the more unfortunate remarks of the Tribunal are actually made at the conclusion of the hearing when the Tribunal is advising the applicant of its decision. A decision has in fact been reached at that point and the language with which the decision is communicated is unfortunate and I cannot say otherwise, but it nevertheless is at the end of the process and not in the middle of it.
KIRBY J: Yes, but there are statements made earlier in the process that are not, in my experience in reading quite a number of these transcripts, typical of the way in which the tribunal member has dealt with an applicant. After all, these applicants are often very vulnerable and frightened and dislocated people and they can ‑ ‑ ‑
MR MARKUS: Some of these applicants are and some of these applicants are not, your Honour. I am simply saying ‑ ‑ ‑
KIRBY J: But this man is an officer of the Commonwealth and certain standards are required of him, whatever is the position of the applicant.
MR MARKUS: Your Honour, I am not holding up this particular transcript as a model of how a hearing before the Refugee Review Tribunal ought to be conducted, but in my respectful submission, this is not a transcript which demonstrates that the Tribunal prejudged the claims made by the applicant ‑ ‑ ‑
KIRBY J: Well, it is true there were three and a half pages before it jumped in to say there was no such political party.
MR MARKUS: Your Honour, there are number of matters which are being put to the applicant and it is clear that the Tribunal is considerably troubled by some of the evidence that is being given.
KIRBY J: If that was all it were, then that would be no jurisdictional error and we would certainly not get into it. It is just a question of one’s impression of the entire matter. Now, I see the red light has come on, just two little questions. First of all, Justice Hayne offered you two parachutes; the first was no arguable case. Now, Justice Heydon, I do not think dealt with the matter on that basis, did he, because he said he could not really work out what Justice Tamberlin had dealt with, so he did not accept that. On the question of abuse of process, his Honour did not really express it in those terms, did he? He expressed it in terms of the legal principle.
MR MARKUS: His Honour expressed it in terms of Anshun estoppel.
KIRBY J: Which, at least arguably, may be an important question as to whether – because you will know that we have had cases in this Court where parties have got out of time in the Federal Court and then they have come to this Court and they have got relief under the constitutional writs, so the availability of an Anshun-type principle, even if it were a modified Anshun principle, is itself quite an important question.
MR MARKUS: Your Honour, that is a slightly different issue though, in my respectful submission, because in cases where applicants came directly to this Court there was no previous hearing and it is also a different ‑ ‑ ‑
KIRBY J: There was one case we sat in and it might have been ‑ ‑ ‑
MR MARKUS: Your Honour, there were cases prior to the amendments to the Migration Act where there was a genuine bifurcation of jurisdiction as the court considered in Abebe ‑ ‑ ‑
KIRBY J: Yes, I think so, I think it was Abebe, yes.
MR MARKUS: ‑ ‑ ‑ the position the old Part 8 provided for more limited review in the Federal Court and clearly there were certain issues which could not be raised in the Federal Court. That is not the case under the new regime.
KIRBY J: I notice the red light is on, thank you very much.
MR MARKUS: Thank you.
KIRBY J: Yes, Mr Silva.
MR SILVA: Your Honour, very quickly. It is an allegation of not only bias but apprehended bias as well because there is a procedure and secondly, the tribunal member decided immediately soon after the hearing to dismiss the application. The tribunal member did not take any time, did not contemplate, did not think it through, impulsively decided straight away that he is not an applicant.
KIRBY J: Well, we will decide this matter straightaway too, but it will not be impulsively. It will have been thought through, papers have been read, matters have been considered, we have listened to what you have to say; so that sometimes is an efficient and appropriate way to deal with matters. The question is not whether he decided it quickly but whether he decided it after a correct process.
MR SILVA: Yes, your Honour. The other issue is that the applicant could have been given a day or two to say “Look, there is no Bangladesh Islamic Party. If you want to come back and give me some information, I will look at it” so that is denial of procedural fairness.
KIRBY J: Yes.
MR SILVA: Also, your Honour, there were issues of having no evidence on the issue of whether there was a position called “waiter” and there are documents to say that the position of waiter ‑ ‑ ‑
KIRBY J: You are not going to get into this Court on evidentiary questions.
MR SILVA: Sorry, thank you, your Honour.
HAYNE J: Just to make sure I understand it, Mr Silva. The central complaint that was to be agitated in this Court, though cast in various ways, was that the Tribunal prejudged the applicant’s claims about membership of the political party, is that right?
MR SILVA: That is one of them, your Honour. That is the actual bias, but we also say apprehended bias.
HAYNE J: I understand that. You put it under a number of different legal rubrics but the central factual complaint is the Tribunal prejudged the claims about membership of a political party.
MR SILVA: Yes.
HAYNE J: And was that the central claim in the Federal Court proceeding?
MR SILVA: I do not think so, your Honour. That is not my understanding. Is there anything else, your Honours?
HAYNE J: No.
MR SILVA: Thank you.
KIRBY J: We will adjourn briefly to consider what we do in this matter.
AT 2.52 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.58 PM:
KIRBY J: Pursuant to section 39B of the Judiciary Act 1903 (Cth), the applicant applied to the Federal Court of Australia for constitutional writs and associated relief. That application was dismissed by Justice Tamberlin. The applicant then applied to this Court for relief on grounds similar to, but not identical with, those which he had propounded in the Federal Court. His central complaint in both courts was that the Tribunal prejudged his claims about membership of a political party. Justice Heydon in this Court dismissed an application by the applicant seeking orders nisi. The applicant now seeks leave to appeal from those orders.
We agree with the submissions of Mr Silva for the applicant that there were comments made by the Tribunal in this case which ought not to have been made. However, in our view an appeal would enjoy insufficient prospects of success to warrant a grant of leave.
Whether principles of res judicata or other principles of mandatory preclusion apply in claims to public law remedies of the kind that the applicant sought is a question that would not fall for consideration were leave to be given. We express no opinion on that question. Nor do we need to consider the reasons given by Justice Heydon about the application of what are commonly called the Anshun principles. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602‑603. It is enough to say that in the circumstances of this case the application to this Court for the same remedies sought in, but refused by, the Federal Court was an abuse of process where the central complaint of the applicant in this Court and in the Federal Court was identical, or, if the matter had been presented to the Federal Court, would have been identical.
The application for leave is therefore refused.
MR MARKUS: Your Honour, the first respondent seeks a costs order.
KIRBY J: Do you have anything to say on the order for costs, Mr Silva?
MR SILVA: No, your Honour.
KIRBY J: The application is refused with costs.
AT 3.00 PM THE MATTER WAS CONCLUDED
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