Applicant VCAT & Ors v MIMIA

[2004] HCATrans 559

[2004] HCATrans 559

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M224 of 2003

B e t w e e n -

APPLICANT VCAT OF 2002, APPLICANT VCAU OF 2002, APPLICANT VCAV OF 2002 AND APPLICANT VCAW OF 2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 11.02 AM

Copyright in the High Court of Australia

APPLICANT VCAT appeared in person.

MR S.P. DONAGHUE:  If it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

SARABJEET SINGH PAL, affirmed as interpreter:

GUMMOW J:   Yes, Mr Interpreter, ask the applicant to say what he wishes to say to us.

APPLICANT VCAT (through interpreter):   Please think about the story that I have given in my case.

GUMMOW J:   Yes.  Can you just sit down for a minute, Mr Interpreter and the applicant.  Mr Donaghue, Justice Heydon and I are aware that there is an issue here that does appear to duplicate the issue as to the construction of 424A in the case of SAAP in which the Court is presently reserved.  The reservation was on 10 August.

MR DONAGHUE:   Yes, your Honour.

GUMMOW J:   What then should we do?  Should we not stand this over, depend the outcome of SAAP?

MR DONAGHUE:   In my submission, the issue does not require the matter to be stood down because in the end, the Full Court below did not need to decide any question in relation to 424A.  It assumed in the applicant’s favour that 424A had been breached, and it found that in the exercise of its discretion it would refuse relief in any event.

GUMMOW J:   Where do we see that?

MR DONAGHUE:   Your Honour, if you go to page 66D of the application book, or starting perhaps with paragraph 46 of the Full Court’s reasons.

GUMMOW J:   Sorry, which page?

MR DONAGHUE:   Page 66 of the application book.

GUMMOW J:   Yes.

MR DONAGHUE:   In paragraph 44:

We are able to resolve this aspect of the appeal on the assumption, without deciding, that the Tribunal –

breached 424A.  Then in paragraph 45, the Full Court points out that relief is discretionary and in paragraph 46, say that -

The purpose of s 424A –

was satisfied.  That is –

a relevant matter in the exercise of discretion.

GUMMOW J:   Well, yes, but there is a view that it goes beyond discretion, that it strikes a nullity.  Whether that is so or not is a matter that is under consideration in SAAP.

MR DONAGHUE:   Well ‑ ‑ ‑

GUMMOW J:   There is a view that 424A requires observance of a certain procedure which if not observed, produces a nullity in the decision.

MR DONAGHUE:   Produces a jurisdictional error?

GUMMOW J:   Yes.

MR DONAGHUE:   Yes, but even if there is a jurisdictional error, in my submission, cases such as Aala demonstrate that the Court retains a residual discretion not to grant relief if it is satisfied that it could not make a difference, that there was no unfairness to the ‑ ‑ ‑

GUMMOW J:   Yes, we hear what you are saying, Mr Donaghue.

MR DONAGHUE:   That, in my submission, is what the Court concluded at page 66D ‑ ‑ ‑

GUMMOW J:   Yes.

MR DONAGHUE:   Having set out the fact that, in substance, the applicant had been given the opportunity 424A required multiple times.

GUMMOW J:   Mr Translator, would you tell your client that there is another case which the Court is presently considering which may produce a result that favours his application here and that Justice Heydon and I are of the view that we should stand over this application until the result in the earlier case is known.  So we will stand over this application to be restored to an appropriate special leave list after the delivery of reasons in the matter of SAAP.  We reserve any question of costs.

AT 11.08 AM THE MATTER WAS ADJOURNED