Applicant Veal of 2002 v MIMIA

[2005] HCATrans 47

[2005] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M147 of 2004

B e t w e e n -

APPLICANT VEAL OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 9.31 AM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   May it please the Court, I appear with my learned friend, MR R.M. NIALL, on behalf of the applicant.  (instructed by Victoria Legal Aid)

MR A.L. CAVANOUGH, QC:   If the Court pleases, I appear with my learned friend, MR J.D. PIZER, on behalf of the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Cavanough.  Yes, Ms Mortimer.

MS MORTIMER:   If the Court pleases, the underlying question raised by this application for leave to appeal, in our submission, is how should ‑ ‑ ‑

GUMMOW J:   Well, I think there is an unopposed motion to join the Refugee Review Tribunal, is there not, as second respondent?

MS MORTIMER:   There is, your Honour.

MR CAVANOUGH:   That is consented to, your Honours, and I have instructions to convey that consent to the Court, if it has not been done separately. 

GUMMOW J:   Yes, thank you Mr Cavanough.  Those orders will be made. 

MS MORTIMER:   If your Honour pleases.  Your Honour, we say the underlying question in this application is how a decision‑maker should decide whether to disclose adverse information about an applicant.  In this case, the significance and effect of a disavowal that was made by the decision‑maker in the reasons was an issue before all the courts that have considered this, but, in our submission, the disavowal is not the determinative factor. 

Our submission as to why both the Tribunal and the majority of the Full Court erred in their approach stems from two basic propositions.  Firstly, a decision‑maker cannot change the character of the information received.  The information has a character and the Tribunal is obliged to decide what that character is, just as we say the court on judicial review is.  Secondly, a decision‑maker cannot change the proper parameters of the inquiry the statute requires to be made.  In that context, that is why we say that a disavowal cannot alter the question whether the information ought to have been disclosed before the decision was made.

GUMMOW J:   You say it is an objective perception, do you not?

MS MORTIMER:    Yes, your Honour, we do, and we say that that is the ordinary approach that the courts have taken.  We say that is what the decision in Kioa and, in particular, the extract from the judgment of his Honour Justice Brennan that the majority relies on ‑ ‑ ‑

GUMMOW J:   How did the Full Court deal with Kioa and Justice Brennan’s well known statement?

MS MORTIMER:   Your Honour, that quotation appears at ‑ ‑ ‑

KIRBY J:   Well, for Justice Gray, it was determinative, was it not? 

MS MORTIMER:   I beg your pardon, your Honour?

KIRBY J:   Justice Gray correctly applied ‑ ‑ ‑

MS MORTIMER:   In our submission, that is so, your Honour.

KIRBY J:   And how did the majority ‑ ‑ ‑ 

MS MORTIMER:   The majority dealt with it in paragraph 77 at page 105 of the application book.  That is where the extract appears and the way that we say the majority dealt with it, in error, was to disregard the last few words of that quote, which is:

the decision which is to be made.

That error is best revealed by looking at the first sentence of paragraph 78:

Where a decision‑maker says –

And then the majority put in bold –

at the time of the decision that adverse information has not been taken into account –

In our submission, that is not the proper approach.

KIRBY J:   I took that to be an attempt to say, well, if subsequently it comes up, then they issue a statement, a supplementary decision or reason saying, “Well, we did know this but it did not affect us”, then that would be suspect, but if they say, “at the time of the decision”, then they have, as it were, signalled that they had it but it did not influence their decision. 

MS MORTIMER:   That is so, your Honour, but, again, we say there is an error in that, and the error is to put the proposition from Kioa too narrowly.  The question is not, “In fact did the material affect the decision?”, the question is, “Could it have?”, and that is to be answered by a consideration of the character of the material at a much earlier time.  It is not for the decision‑maker, having reached the decision, to look backwards and say, “Well, I did not in fact take it into account”.  And that is the approach we say the majority in the Full Court took.

KIRBY J:   In Kioa Justice Brennan said, “Well, I accept fully that the decision‑maker did not take it into account.  That is not the question”.

MS MORTIMER:   That is so, your Honour.

GUMMOW J:   Yes, that is set out at paragraph 17 on page 81, that passage from Kioa that Justice Kirby has just referred to.  That is set out in Justice Gray’s dissenting judgment.  Was it directly adverted to by the majority?  It is a different passage to the one at 628 of Kioa, which is set out at page 105.

MS MORTIMER:   I do not believe it was adverted to by the majority, although the majority did discuss the other judgments in Kioa at application book 100.

GUMMOW J:   Thank you.

KIRBY J:   Everything that needed to be said in this case was said in Kioa.  The principles are laid out in Kioa, so that we do not really have, as a Court, to say anything more about the principles.  Is your only point really that this is a misapplication of the principles?  Why would we take this case on simply to reiterate the principles?

MS MORTIMER:   It is a misapplication of the principles, your Honour, we do say that, but we say the distinguishing feature here is the debate about the importance of a disavowal.  The error in principle that we identify in the majority’s judgment, by focusing on that and, in effect, requiring an applicant to prove on judicial review that the disavowal should not be accepted, we say that is fundamentally the wrong approach.  It starts from the wrong position because it is looking backwards, and it requires an applicant on judicial review to do something – particularly in relation to a tribunal where the member is not compellable – to do something that sets the threshold far too high.

HAYNE J:   Does the majority proceed from a premise that in fact the member was unaffected?

MS MORTIMER:   Yes, your Honour.

HAYNE J:   If that is so, does that present any problem?  I understand what you say about the wrong test being applied, but does that in fact present any problem to you if you do not challenge that conclusion?  That is, if the case goes forward on the unchallenged premise, “This decision‑maker was unaffected”, and if there is no dispute about applicable principle in Kioa, what are we then taking it on to say or to do, because the premise is that there has been no infection?

MS MORTIMER:   Your Honour, that statement by the decision‑maker, if it is as we accept it, reveals the problem with the approach because, without disclosure, the significance of this document may well have not been appreciated by the decision‑maker.  This document – and I do want to take your Honours to it very briefly – has two aspects.  It contains highly prejudicial information that goes directly to the claims that were made, but, because of its character, it is also capable of supporting the claims the applicant made.  So that for a Tribunal in this circumstance to use a disavowal in this way and for the Full Court to say that in fact, if it did not affect the decision, that is enough, that reveals the error, because the significance may well not have been appreciated.  And, your Honours, the only person that knows the significance still has not seen this information.

KIRBY J:   I think also, right or wrong, the answer that Justice Gray gave to Justice Hayne’s question is that the rationale for the rule is concerned with “due process”, which is an ancient expression, long before the American Constitution, and that therefore the concern of courts reviewing tribunals is not only with the outcome, but with the way the outcome has been arrived at.  That is at 81.

MS MORTIMER:   Your Honour, we understand that to be common ground.  It is part of the Minister’s submission in this application and goes back to Lord Denning’s decision in Kanda, that it is the risk of prejudice that is significant.  Your Honours, might I very quickly hand up the letter and indicate to your Honours the procedure that ‑ ‑ ‑

KIRBY J:   Was this part of the record in the Federal Court?

MS MORTIMER:   Yes, your Honour, it was, and because of the ‑ ‑ ‑

KIRBY J:   Do we really need to know it?  I mean, if we take this on, we are not going to be getting to the merits of it.  It is just the due process.

MS MORTIMER:   No, your Honour, but our argument starts from the proposition that the character of this information needed to be assessed and was not.  This information was received before the hearing given by the Refugee Review Tribunal to the applicant, so it was withheld from the

applicant at a very early stage and that withholding and non-disclosure continued until the reasons.

KIRBY J:   It is a tricky thing, though, is it not, because some information could be sent in which is truthful and accurate, but it has been sent in on an expectation of confidentiality misplaced, then it is a difficult thing for the Tribunal to bring it to the notice of the person affected without breaking the confidentiality.  There are competing considerations here. 

MS MORTIMER:   There are, your Honour, but there are also, in my submission, many authorities to support the proposition that some kind of confidentiality does not remove the obligation to afford procedural fairness.

KIRBY J:   It is the level of expedient.  You reveal the substance of the information without revealing the source, although sometimes revealing the substance may reveal the source.

MS MORTIMER:   That is so, your Honour.  We do not dispute ‑ ‑ ‑

KIRBY J:   You cannot just keep it all locked in your bosom and then say, “I received this nasty little letter, but it did not affect me”.

MS MORTIMER:   Not if it meets the principle set out in Kioa.  Not if it objectively is credible, relevant and significant to the issues, to the inquiry.  It is not to the point, in our submission, that at the end of the day the decision‑maker can turn around and say, “Well, in fact, I did not take it into account”.  All that might reveal is a failure to take into account a relevant consideration and, in effect, we say that is what is happening here.

KIRBY J:   I do not want to stop you handing it up if that is what you want to do, but I just do not think it is relevant at this stage to our inquiry.  That is just my opinion.

GUMMOW J:   I think we would be assisted if we heard from Mr Cavanough at this stage.

MS MORTIMER:   If your Honour pleases. 

MR CAVANOUGH:   If the Court pleases, I do agree with my learned friend that this is a case in which there is no question of principle.  There is no argument from the respondents but ‑ ‑ ‑

KIRBY J:   There is a question of principle, it is just not a new principle.

MR CAVANOUGH:   Well, exactly, your Honour.

KIRBY J:   But the principle of due process is a principle.

MR CAVANOUGH:   Yes, your Honour.  I misstated what I meant to say, your Honour.  There is no suggestion that some different principle than what was established in Kioa ought to be recognised and the Full Court did not ‑ ‑ ‑

GUMMOW J:   Well, in working out the principle, which is very broadly expressed, one comes to a series of sub‑rules, if you like.

MR CAVANOUGH:   Yes.

GUMMOW J:   What is your client’s answer to what is said by Justice Gray at page 81, paragraph 16 of his judgment?

MR CAVANOUGH:   The answer is the answer given by the Full Court, your Honour, particularly at paragraphs 76 to 78.  If I could take the Court to application book 104 and invite the Court to read paragraph 76, particularly the opening part.  As their Honours said, the Tribunal dealt with the letter in an “entirely frank and open” way:

It observed scrupulously its statutory obligations in relation to a statement of reasons.

GUMMOW J:   I know that is what they say.  I am not sure that is really engaging with what is being said by Justice Gray.  It is not really a question of demonstrating mala fides on the part of the decision‑maker, as they seem to be suggesting at page 105.

MR CAVANOUGH:   No, they allow that other matters might be successfully urged on behalf of an applicant, such as some betrayal in the reasons that subconsciously the information has influenced the decision.  That might appear from ‑ ‑ ‑

GUMMOW J:   Do not forget, Mr Cavanough, that in many cases these principles have to be applied where there is no duty to give reasons.

MR CAVANOUGH:   Yes, but that would be a different kind of case.  This is a situation in which there is an obligation to give reasons and that is somewhat important in marking out this particular case from others. 

KIRBY J:   I will always be looking for reasons.

MR CAVANOUGH:   No doubt, your Honour.  Here, this Tribunal is required by section 430, as your Honours know, to give detailed reasons in each case, reasons for their decision, the reasons that they had – not the reasons, of course, that someone else might suggest they should have had.

KIRBY J:   Yes, but the test is not the reasons that they had.  The test is what the ordinary member of the public, hearing of this, judging our tribunals, judging our process, justice, would think of this.  They have this document that goes in and the test that is being used by the majority is whether they dealt with it in an open and frank way.  Well, that just is not the test.

MR CAVANOUGH:   Well, that is not all their Honours said.  What they said was, there was a disavowal by a professional tribunal, a timely disavowal, that is to say, in the very reasons for decision of ‑ ‑ ‑

KIRBY J:   Do you know what the ordinary member of the public will say about that?  They will say, “That is what he says”.  That is Justice Brennan’s point, that I accept that he did not take it into account, but the test is not that; the test is whether it looks good, it looks right.

MR CAVANOUGH:   Yes, your Honour, indeed and the Full Court accepts that, but it cannot be the case, and I do not think my learned friend would suggest it to be the case, that a disavowal is necessarily irrelevant.  Indeed, it cannot be necessarily irrelevant.  It is centrally relevant.  The problem with Justice Merkel’s judgment and Justice Gray’s judgment in dissent is that they treat it as necessarily irrelevant, whereas the appropriate approach is taken by the majority.  They take it into account and say, well, there is the statement which is not likely to be set aside by this professional tribunal.  What indication is there that it ought to be disregarded?  None.  There is ample other material ‑ ‑ ‑

KIRBY J:   Well, there is only what Justice Brennan said in Kioa.  One can accept that they say they did not take it into account.  One can accept that they did not take it into account.  But it is still whether they observed due process by drawing it to notice, so that anything could be said and so that there is not that unsettling feeling that they were receiving information which even perhaps subconsciously tipped the balance at the critical moment of decision.

GUMMOW J:   You may in the end be right, Mr Cavanough, but there does seem to be a question that what the majority was doing does not really square and does not really grapple with what Justice Brennan was saying in Kioa at 629, set out at the bottom of page 81.

MR CAVANOUGH:   Well, your Honour, the Full Court did ‑ ‑ ‑

GUMMOW J:   Maybe that needs to be tweaked, what his Honour said, but there it is and it has been treated as very authoritative.

MR CAVANOUGH:   Yes, your Honour, but at paragraph 64 their Honours do deal with Justice Brennan’s judgment in Kioa as well as in ‑ ‑ ‑

GUMMOW J:   But they refer to a different passage, do they not?  They refer to 628.

MR CAVANOUGH:   Yes, but they also deal with the proposition – it was put on the other side that it is sufficient that the material be “credible, relevant and significant” to the decision to be made.  They explain that that has to be applied in the concrete facts of the particular case, and the concrete facts include what all the evidence was, what the decision was and what the reasons were. 

HAYNE J:   But once the step was taken, as it was so long ago, for the law to concern itself not simply with whether the decision‑maker was in fact biased, prejudiced, et cetera, are we not confusing two separate aspects of the matter?  Sliding between appearance and actuality and back?

MR CAVANOUGH:   Well, my learned friends have never argued that this Tribunal was disqualified for bias as a result of the receipt of this letter.  It has purely been the procedural fairness claim.

HAYNE J:   I understand that.

MR CAVANOUGH:   In paragraph 78 the majority ‑ ‑ ‑

GUMMOW J:   The majority seems to be saying, “There was no bias, therefore it is all okay”.

MR CAVANOUGH:   Well, “There was a disavowal and therefore there was no need to show this particular piece of information to this applicant in this particular case”.  As Justice McHugh said in Aala, the natural justice principle requires that material that the decision‑maker proposes to take into account be revealed for comment, not other material.  Justice Brennan himself said words to that effect, set out on page 105 of the application book.  The Full Court picked that up, but went on, nonetheless, in paragraph 78 to say:

The underlying rationale for any necessity of disclosure remains that explained by Lord Denning in Kanda.  Of course, a disavowal of reliance need not be accepted by a court, but in most cases that will require the person aggrieved by the decision to adduce evidence to show why the disavowal should not be accepted.

Now, that is perfectly conventional and acceptable reasoning, and that determines this case.

GUMMOW J:   What do you say is the relevance in this field, if it has any, of the line of cases including Stead, which seems to say it would not have affected the result?

MR CAVANOUGH:   Yes.  Again, that is, in a sense, another way of looking at the case coming to the same result we would urge.  That is to say, really, the test in natural justice is, has the person been unfairly dealt with?  Could it have made a difference?  Is it possible it might have made a difference?  That is the due process test, had the step not taken been taken.  Now, here the Tribunal has said – and it gets material from all over the place – it said with this particular letter, “I do not know who wrote it; I am giving it no credence; it would only make things worse if I were to make an inquiry into it; I am going to have no regard to it and I am going to state that up front.  I do not require you to address anything in this particular document”.  Now, how can it be said that the handing over of that letter for comment would have increased the ‑ ‑ ‑

KIRBY J:   It can be said.  It has been said.  It was said by Justice Brennan in Kioa at page 81 of this application book.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind, to reach a decision without reference to it.  It is not sufficient.

MR CAVANOUGH:   Well, his Honour said that with the introductory words: 

in the ordinary case where no problem of confidentiality arises –

Here, a problem of confidentiality did arise, and that is a further factor that explains why the Tribunal did what it did.

KIRBY J:   The information which is supplied in confidence is going to always be the most sensitive.

MR CAVANOUGH:   Not necessarily.  It might be, as your Honour said earlier, someone who just does not want to be followed up.

KIRBY J:   I am sure this problem must arise quite often in tax matters, people giving confidential information to the Tax Commissioner, and so it is not a unique problem.  As Justice Gummow said, you might in the end win this case, but the nuance which is raised by the case is not insignificant for the running of tribunals, and the difference between the Bar table and the Bench is that we have to always look at what happens if this becomes a standard, a general rule, in tribunals throughout Australia.  On that basis, it is very difficult for you, I think, to suggest that this is not a matter that is of interest and potential importance for administrative law.

MR CAVANOUGH:   Your Honours ‑ ‑ ‑

HAYNE J:   With that encouragement, do go on.

MR CAVANOUGH:   I am grateful for those observations, your Honour. 

KIRBY J:   I was only saying at slightly greater length what Justice Gummow said.

MR CAVANOUGH:   If your Honour pleases.  Your Honours, can we just reply by saying that the Full Court fully appreciated the due process principle; fully appreciated that the appearance of unfairness is enough; held on the facts of this case that there was no risk of unfairness; no appearance of unfairness in all the circumstances.  It cannot be right to artificially cut off one’s perspective at some point prior to the decision as my learned friend would have it, or then to say, “Well, you never know, it might have had something favourable in it that might have helped”.  That is just speculation and completely irrelevant.

GUMMOW J:   Can I ask you this, Mr Cavanough.  Does any question arise here of Part 7 Division 4 and section 423 and following – you know those sections – which include a provision about non‑disclosable information, which includes a breach of confidence?

MR CAVANOUGH:   Yes, can I just say this, your Honour.  Those provisions were canvassed at some length below.  In the end, the Full Court held that they did not deal with the matter complete; the natural justice case was still available to be made.  This was a matter that preceded the section 422B, the provision that now says that – your Honour may recall from earlier cases: 

This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 

There is some controversy about just what those words mean in some recent Federal Court cases, I must acknowledge.

GUMMOW J:   Yes, this case predates the amendments.

MR CAVANOUGH:   It does, yes.

GUMMOW J:   Did it fall within 424A and B in their first manifestation, before these later amendments?

MR CAVANOUGH:   It was held not to.  What had happened was, because the Tribunal said, “I am not taking this into account”, 424A did not apply.

GUMMOW J:   I see.

MR CAVANOUGH:   But there was a further complication.  This was plainly a letter sent in confidence.  Therefore, on the face of it, section 438(1)(b) applied and normally what would happen, if everything had gone according to the provisions, is that there would have been a statement by the secretary to the Tribunal giving advice as to what the secretary thought about the significance of the document or the information, but unfortunately that just did not happen.  Whilst we argued below that that which ought to have happened should be deemed to have happened, or at least the matter should go back for that to happen, it did not, but in future cases, if the matter is dealt with properly, that should happen. 

HAYNE J:   Sorry, can I just understand that.  If we took it, if relief went, are you saying that on the review again, 438 would be engaged?

MR CAVANOUGH:   That is a difficult question whether it would be on remittal here.  If Justice Merkel’s orders were reinstated – his Honour ordered that the matter be dealt with just as his Honour directed, really, as though the past was the past and nothing more was going to happen under these provisions.  If that is what his Honour’s orders mean, then no, that cannot happen, but in any other case what ought to happen in the ordinary event is that there will be a certificate and then the matter will fall to the discretion of the Tribunal, as the statute intends, to decide in relation to confidential matters whether they should, and to what extent they should, be revealed to the applicant.  That is what ought to have happened here, but it did not, so this case has limited application for the future.

GUMMOW J:   So when you say, “ought to have happened but did not happen”, there is an issue then as to whether that was a mandatory requirement that it happen.  What are the consequences of that?

MR CAVANOUGH:   Yes, we argued that below, but we were told in no uncertain terms that that argument was without foundation.  Your Honours will perhaps have noticed that in the earlier part of the reasoning, but I did not think it necessary to complicate the summary.

GUMMOW J:   If there was to be a grant of leave, the submissions had better lay the ground for explaining to us how the statute fits into it all.

MR CAVANOUGH:   All I can confidently submit on that point is that there are two features diminishing for the future the importance of this particular case for migration matters alone, that is to say, the 422B has entered the Act ‑ ‑ ‑

GUMMOW J:   Yes, they are reasons for not granting special leave.  But if special leave were granted and the case had to be decided on the law as at the relevant time, we would need to know, I think, how the structure of the statute impacted on confidentiality notions and procedural fairness notions and so on.

MR CAVANOUGH:   The Full Court decision does set that out in the earlier parts that perhaps, understandably, the Court would not have needed to focus on for the purpose of this morning, but the Full Court’s view was, absent the certificate from the secretary going with the letter, 438 ceased to apply, therefore one was left with no coverage by the statutory provisions, so the rules of natural justice took over.  That is effectively how we got here.

GUMMOW J:   Thank you.

MR CAVANOUGH:   Your Honours, I would simply urge that this was a case where, as Justice Hayne pointed out, there was a firm conclusion – if I could use that word rather than “premise” – that here there was no taking into account of this material.  If it was not taken into account, there has been no injustice.  It is not a suitable case, therefore, for the grant of leave.  The result had to be the same in any event.  There was no departure from due process.  The Tribunal was the proper judge of the material on which it was going to decide the case.  It selects the material; it is an inquisitorial tribunal; this was confidential information; it was an awkward situation; the Tribunal dealt with it in, as the Full Court said, an entirely frank and open way, a way that excited no cause for concern that there had been something untoward or some unfairness done to the applicant. 

In those circumstances it is not a case where there really is any meat on which the Court would bite in order to rectify an injustice, to establish a principle, and hence we would submit that this is just not a suitable case for the grant of special leave.  If the Court pleases.

GUMMOW J:   Yes, we do not need to hear from you again in reply, Ms Mortimer.  There will be a grant of special leave in this matter and it will be a one day case, I imagine.

MS MORTIMER:   If your Honour pleases. 

AT 10.02 AM THE MATTER WAS CONCLUDED