Badu v MIMIA

[2006] HCATrans 12

[2006] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S429 of 2005

B e t w e e n -

PATRICIA BADU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 11.32 AM

Copyright in the High Court of Australia

MR K.A. KORAMOAH:   May it please the Court, I appear for the applicant.  (instructed by Legalmax)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MS R.A. PEPPER, for the respondent.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Yes, go ahead, please, Mr Koramoah.

MR KORAMOAH:   Your Honour, if it pleases the Court, the underlying question for this special leave application is what the Court in reviewing decisions under the Migration Act, specifically decisions of the Tribunal, should do if it finds that a Tribunal has not complied with an imperative requirement as set out under the Act.  Our submission as to why both the Tribunal and of course his Honour Madgwick erred is that the destruction of the applicant’s file has arisen or part of it arisen for refusing the applicant’s application and therefore that is in breach of section 359.

We say that his Honour also erred in that his Honour found that that is correct, however his Honour went into the facts and second‑guessed what the Tribunal would have done by saying any breach which he found could only go to the criteria…..application.  In effect, his Honour went into the merits of the case and second‑guessed the Tribunal.

Our submission is about due process.  Has the applicant been unfairly dealt with?  Could it have made a difference?  Is it possible it might have made a difference had the applicant been told that her file had been destroyed?  Would it have prompted her to bring those files if they existed?  This is actually a specific requirement which is set out under the Act in relation to section 359A.  We say that due process required that the applicant should have been told that her file had been destroyed.  That is what is set out within section 359A of the Act.

Now, at this point in time there is no court in the land which has the ability to rectify this injustice which has been done to the applicant except this Court.  There has been a clear breach of the Act.  There is a jurisdictional error and this Court has authority on point which says where there is a jurisdictional error the decision is invalid.  His Honour found that there was a jurisdictional error.  However, instead of his Honour questioning the decision his Honour went and second‑guessed what the Tribunal would have done, in any event.

The applicant has been denied an opportunity.  It is possible that had she been prompted or alerted she would have given those evidence to the Tribunal.  The applicant in this case did not have to demonstrate that.  The assessment of her case would have been more favourable.

GLEESON CJ:   Go ahead.

MR KORAMOAH:   What they have to demonstrate – and if I may refer to your Honours’ decision in a recent High Court judgment, NAIS v The Minister and I will just read what the Court’s view was on point, and I think it is in the supplementary ‑ ‑ ‑

GLEESON CJ:   Which paragraph?

MR KORAMOAH:   Paragraph 10 of that decision.  The Chief Justice there was saying:

The loss of an opportunity is what makes the case of unfairness.  The appellants in this case do not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly.  What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability.

If I may take your Honours to paragraph 163 of that same decision.  The Court there said:

The only sort of error which the Federal Court and this Court may correct in a matter of this kind is jurisdictional error.

His Honour, Justice Kirby at paragraph 123 had this to say:

It is not for this Court to assess the merits and likely outcome of a proper hearing of the appellants’ application before the Tribunal.  To assume that function is, with respect, to fall into the very error that the differentiation between judicial review and merits review forbids.  Where jurisdictional error is shown, this Court does not second‑guess the decision of the body authorised by law to make the relevant determination.

I also mention that essentially it fall down to this, under section 359A of the Act, and it is set out in the other book - if I may refer your Honours to the one with the respondent’s list of authorities, it says:

The Tribunal must –

This one can be found in page 2 of the respondent’s list.  It says:

The Tribunal must:

(a)      give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review –

Now, all along, the applicant had no idea that her files had been destroyed.  In fact, your Honour, she is entitled under section 360 to not even give the Tribunal anything while she has got the application because under section 360 the Tribunal could just make a decision on the facts, so, if those files did not exist then surely, as a matter of fairness, she ought to have been notified, she ought to have been alerted for her to be away and those files, if you are relying on them then I am afraid they do not exist and therefore provide those evidence that you rely on.  Nothing of this sort was done.  His Honour correctly identified that that is error.

We say, given that his Honour has identified our point and our friends do not contend that that is wrong, then our submission is that it must follow that the application should succeed.

GLEESON CJ:   I just want to get something clear about the reasoning of Justice Madgwick.  Could you go to page 32 of the application book?

MR KORAMOAH:   Page 32?

GLEESON CJ:   Yes.  On pages 32 and 33 his Honour deals with this matter of section 359A.  Unless I am overlooking something, I cannot see him saying that there was a breach of section 359A.  Rather, he seems to say there may not have been a breach of 359A but in fairness something should have been said about this.  I am looking at page 32, paragraph 35.

MR KORAMOAH:   Yes.  If I may refer your Honours to page 33, paragraph 38, his Honour there said:

In my opinion, the information that the material was no longer available was so central to the Tribunal member’s decision that it must be regarded for the purposes of the Act as being part of the reason for affirming the delegate’s decision ‑ ‑ ‑

GLEESON CJ:   Could I just draw your attention to the fact that section 359A(1)(a) requires the furnishing:

of any information that the Tribunal considers would be the reason . . . for affirming the decision –

So the finding would have to be that the Tribunal considered it.  Did he make that finding?

MR KORAMOAH:   No.  I am sorry, I did not get your ‑ ‑ ‑

GLEESON CJ:   In terms of the requirements of section 359A(1)(a) it is the Tribunal’s consideration of whether something would be the reason or part of the reason for affirming the decision that attracts the operation of that provision, is it not?

MR KORAMOAH:   That is correct, your Honour.

GLEESON CJ:   Was there a finding that the Tribunal considered that this would be the reason or part of the reason?

MR KORAMOAH:   That is correct, your Honour.  If I may refer your Honours to the Tribunal’s reasons at page 3, paragraph 11 of the application book.  The Tribunal there said:

As the Department’s file has been destroyed, there is no information relating to how the visa applicant and the review applicant met or how the claimed relationship developed, aside from the comments contained in the delegate’s decision.

These were specific findings in relation to the absence of that material which ought to have been brought, in fairness, to the applicant’s attention. 

GLEESON CJ:   Now, could you just explain to us what was the error in what the delegate stated.

MR KORAMOAH:   Your Honour, the error there is that because those files had been destroyed the Tribunal was not in a position to make findings.

GLEESON CJ:   No.  What do you say was wrong in the delegate’s statement:

The delegate has stated that the couple met on 30 June 2001 and that their relationship started on 05 July 2001.  The delegate also states that the couple married on 18 July 2001.

Is that wrong, and if so, in what respect?

MR KORAMOAH:   Your Honour, we say they are wrong in that.  The applicant before the Tribunal said she did not agree with – if I may refer to the application form which is contained in this one, the respondent’s list of authorities and at about page 125 the applicant said:

The DIMIA decision was incorrect because my relationship with my spouse is genuine and continuing.  I do not accept the reasons it gave that my spouse did not know any information about me when he responded to the interview.  Accordingly I am applying for request for access to documents under FOI to see evidence of what transpired at the said interview.  Upon receipt of the documents, I will provide comprehensive submissions in support of my application.

This one shows that the applicant was contending that the findings which had been made by the delegate were incorrect.

GLEESON CJ:   What were the facts?  What do you say are the facts?  Did they meet on 30 June 2001?  Did their relationship start on 5 July 2001?  Did they marry on 18 July 2001?  Or, did something else happen and in what respect?

MR KORAMOAH:   I am not sure how – what his Honour wants me to answer about this except to say that I will have to seek further advice on that.

GLEESON CJ:   I am just asking you about the evidence.  I am not asking you to consult your client.  But are you suggesting to us that there is some basis in the evidence for thinking that what the delegate stated was wrong?

MR KORAMOAH:   Your Honour, the only way I could say that is what the applicant said at the time that she lodged the application for review.

GLEESON CJ:   I follow.

MR KORAMOAH:   Saying that she did not agree with those facts and that is why she would have had to do that.

GLEESON CJ:   Thank you.

MR KORAMOAH:   Now, if I may take your Honour to page 5, paragraph 23:

The Tribunal, based on the limited evidence before it, is unable to find that the relationship between the review applicant and

the visa applicant was at time of application and continues to be at a time of decision a genuine and continuing one.

We say, your Honour, because there was in fact no evidence at all before the Tribunal, in terms of fairness, should have put it to the applicant that, “Your file has been destroyed and therefore unless we have your file or evidence that you are seeking to rely on we are inclined to affirm the decision of the delegate”.  Now, this was never done by the Tribunal.  The applicant all along thought and believed that the file was there.  In fairness, it might have made a difference.  It is possible that had the Tribunal advised the applicant that the file had been destroyed the applicant would have furnished the Tribunal with copies of those evidence and the due process issue would not have arisen.

Now, we say that members of the public looking at this case would see that clearly the applicant was denied fairness.  If you lodge an application thinking that the Department has your file and within the administration of the Department they lose your file and they do not tell you that your file has been destroyed and use the absence of that fact against you that, we will submit, is not fair.  If it pleases the Court, this is the end of my submission.

GLEESON CJ:   Yes, thank you.  Yes, Mr Williams.

MR WILLIAMS:   Your Honours, the case raises no question of general importance and contrary to the submission put orally, does not involve any question of injustice.

GLEESON CJ:   Did Justice Madgwick, or the magistrate, find a failure to comply with section 359A?

MR WILLIAMS:   Not in terms, your Honour, no.  There are a series of references that collectively might be taken to give rise to an inference of such a finding.  Your Honours have been taken to, I think, most of those.  There is a further reference further down on page 33 of the application book that may assist the applicant slightly in that respect.  Below line 30 there is a further reference to “denial of natural justice”.

GLEESON CJ:   I am terribly sorry, I am not talking about a denial of natural justice, I am asking about a failure to comply with section 359A.  Did the Federal Court or the federal magistrate find a failure to comply with section 359A?

MR WILLIAMS:   Your Honour, the findings as to denial of natural justice may in the context of the Act in the judgment give rise to an inference of such a finding because the Act excluded natural justice, excluded the rules of procedural fairness except to the extent to which they are embodied in, relevantly, 359A.

GLEESON CJ:   Right.  Now, what, is the consequence of a failure to comply with 359A?

MR WILLIAMS:   The consequence in the particular case where there was a failure on the part of the applicant to put forward material before the Tribunal in respect of an independent matter, irrespective of the question of the file, or the loss of the file, the failure of the applicant to put forward material in response to the Tribunal’s request for such material showing a genuine and continuing relationship at the time of the Tribunal’s decision, is such that there is no breach of section 359A that is in any sense operative.  That consequence can be put in one of two ways.  First, it can be put as a question going to discretion since there was no material injustice of any kind.

GLEESON CJ:   There is, is there, a discretion to relief for a breach of 359A or is that just because of the nature of the prerogative relief?

MR WILLIAMS:   The latter.

GLEESON CJ:   Right.

MR WILLIAMS:   That is one way in which it could be put.  The other way in which it can be put is that the error of procedure not being a material error since there was, in any event, a failure to satisfy the Tribunal on an essential matter, independent of the suggested breach, was not a matter going to jurisdiction.

GLEESON CJ:   I thought that Justice Madgwick said that if the Tribunal had told her that the file had been lost or destroyed that may have affected her decision about whether she would give any further information.

MR WILLIAMS:   His Honour speculated that that was a possibility, that that may have occurred but his Honour held and the finding of fact, your Honour the Chief Justice is referring to page 34 of the book, paragraph 42, is a matter of speculation.  It is possible that had the Tribunal sent a letter to the applicant it might have prompted her to bring forward other evidence but his Honour found that that was not in any sense an operative breach, for reasons that appear in part earlier in his Honour’s judgment at page 26 at about line ‑ ‑ ‑

GLEESON CJ:   Is that a finding that on the balance of probabilities she would not have done anything different from what she did, even if there had been compliance with 359A?  Is that what that is intended to mean?

MR WILLIAMS:   Your Honour, we read it merely as speculation that if a course had been taken in respect of the file it may conceivably have had other consequences.

GLEESON CJ:   Mr Williams, Justice Madgwick said, did he not, ultimately she was bound to fail because she was not providing any information as to the relationship at the relevant time which was the proceeding before the Tribunal.  Is that right?

MR WILLIAMS:   Yes.

GLEESON CJ:   But he speculates about the possibility that if she had known that the file was destroyed she might have provided some information about the state of the relationship at the time of the proceedings before the Tribunal, is that so?

MR WILLIAMS:   Yes.

GLEESON CJ:   Does he make any finding one way or the other, having made that speculation?

MR WILLIAMS:   The only finding is in the sentence that follows in paragraph 42, that the fact that she did not do so is not reasonably attributable to the breach of procedure that his Honour had ‑ ‑ ‑

GLEESON CJ:   That looks like some conclusion about causation and I am just not sure what the finding of fact on which that conclusion of causation is based was.

MR WILLIAMS:   Your Honour, that appears to derive from two pieces of evidence, one of which is quoted in his Honour’s judgment.  On page 26 of the book at about line 33, quoting from the letter of 24 November 2003 that, in the third and fourth line:

whether the relationship between you and your partner is genuine and continuing.  The Tribunal invites you to provide further information that is relevant to these issues.

There is a further letter which is contained in the respondent’s list of authorities book.  It is referred to but not quoted by Justice Madgwick.  It is at page 131 of the authorities book.  Towards the foot of the page – this is a letter of 18 March 2004 in which the Tribunal notifies of a scheduled hearing - there is a reference to the relevant regulation and a request that the sponsor provide any further evidence that she considers:

is relevant to the consideration of whether you and your partner have a relationship that is genuine and continuing.

His Honour’s conclusion in the paragraph to which I have referred your Honours, in paragraphs 42 and 43 derives from the failure of the applicant to respond in any way to those two specific requests and in particular to provide any material subsequent to the date of filing of the application to the Tribunal in early February 2003 and before the decision of the Tribunal in June 2004 to show that the relationship was, at the date of the Tribunal’s decision, genuine and continuing.

GLEESON CJ:   Was the applicant represented before the magistrate or before Justice Madgwick?

MR WILLIAMS:   I believe the answer to that is no, your Honour.  I am sorry, your Honour, before Justice Madgwick, the answer is yes, but not before the Federal Magistrate.

GLEESON CJ:   Who represented her before Justice Madgwick?

MR WILLIAMS:   I believe that my learned friend did, your Honour.

GLEESON CJ:   Thank you.

MR WILLIAMS:   Your Honours, in the absence of evidence postdating the filing of the application to the Tribunal in February 2003 the Tribunal was, in a practical sense when it came to consider the matter in June 2004, bound to dismiss the application on the evidence before it, almost 18 months later, in the absence of evidence of a continuing genuine relationship.  The applicant’s case is, in substance, that although she did not supply the information that the Tribunal specifically did seek and sought by two letters in plain terms, and that that failure would be fatal to her case in the Tribunal.

The failure of the Tribunal to ask her to supply other information, copies of the material that had been lost, invalidates the decision.  In our respectful submission, that reduces procedural fairness to a high level of technicality and is far removed from the kinds of issues of practical injustice that your Honour the Chief Justice referred to as the core area of procedural fairness in Lam.

As far as a question of wider injustice is concerned, a submission is put orally that an injustice has resulted.  No miscarriage results in the present case because unlike most of the matters that come before the Court the visa applicant in the present case has at all relevant times been outside Australia.  The visa applicant can file another application for a visa this afternoon and there is no impediment to the consideration of that.  So the kinds of issues of practical injustice that arise in a typical refugee case do not arise in the present case.

GLEESON CJ:   Could you just explain that?

MR WILLIAMS:   Your Honour, in perhaps the vast majority of cases that come before the courts for review the applicant is within Australia at the time of the application and by reason of section 48 of the Migration Act is, after the rejection of a visa application, severely restricted in the kinds of further applications that can be made.  That constraint does not apply to a person who is outside the migration zone – outside Australia.

GLEESON CJ:   Where is she?

MR WILLIAMS:   The visa applicant is in Ghana.  The sponsor, the applicant in the present proceeding ‑ ‑ ‑

GLEESON CJ:   Is the sponsor.

MR WILLIAMS:   Is an Australian permanent resident who is in Australia.  The visa applicant has, as I understand it, never been in Australia and certainly was not at the time at which the application was lodged.

GLEESON CJ:   But she is in Australia?

MR WILLIAMS:   She is in Australia, yes.  Your Honours, it matters not whether the application fails because the error of procedure not being material to the outcome does not go to jurisdiction or because relief will be denied in the exercise of jurisdiction.

GLEESON CJ:   You mean if Yaw Frimpong arrived in Australia then there could be a fresh application?

MR WILLIAMS:   There could be a fresh application ‑ ‑ ‑

HEYDON J:   There could be a fresh application even if he stays in Ghana or Kenya?

MR WILLIAMS:   That is so.  The position may be different if he arrives in Australia but, certainly, a fresh application can be lodged in the present circumstances.

GLEESON CJ:   Do you mean if he arrived in Australia without a visa?

MR WILLIAMS:   That is so.

GLEESON CJ:   But he could make an application for a visa to the Australian authorities where he is?

MR WILLIAMS:   Yes.  Although I am not sure of the mechanics of this, his sponsor may be able to make the application on his behalf in Australia.  I am not sure of the mechanics of that, your Honour, but certainly ‑ ‑ ‑

GLEESON CJ:   What, then, was the point of the concluding remarks of Justice Madgwick?

MR WILLIAMS:   Your Honour, I apprehend that his Honour may not have been alive to the significance of this issue.  The application must be made offshore, I am instructed.  The case was not put before Justice Madgwick as one involving a question of wider injustice.  The question arises here because of the submission that is put today, that there is an injustice and the answer to that is there is no practical injustice.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Williams.  Yes, Mr Koramoah.

MR KORAMOAH:   If it pleases, your Honours, I think I would like to just make a very brief submission in relation to the submissions which have been put by my learned senior here.  He said that this applicant could lodge an application any time.  Your Honour, if this application fails the applicant will be in a huge amount of debt.  That will stop ‑ ‑ ‑

GLEESON CJ:   Hang on.  Which applicant are we talking about?  You are representing the applicant for special leave to appeal but there is a visa applicant.

MR KORAMOAH:   There is a visa applicant.  I was just hoping to address the point that my leaned friend said that he could easily – no injustice has happened, he could easily just go and lodge another application.  We will put a contrary view that if this application does not succeed there will be a huge cost to the Commonwealth which will stop the applicant, consequently, the visa applicant from lodging.

GLEESON CJ:   Mr Koramoah, in the proceedings before Justice Madgwick in the Federal Court was there any attempt to lead evidence on behalf of your client saying, “If I had had the opportunity to give evidence about my relationship with the visa applicant at the time of the proceedings before the Tribunal this is what I would have been able to say”?

MR KORAMOAH:   That is correct and I can take your Honours to Justice Madgwick’s decision where he talks about it.

GLEESON CJ:   Yes.

MR KORAMOAH:   This is captured in page 29, paragraph 20.  His Honour recorded there that:

The appellant’s solicitor sought, in the hearing before me, to read an affidavit of the appellant dealing with that matter and also furnishing some of the material which had been before the delegate together with other material which might have been put before the Tribunal and which might possibly have caused a reassessment of the genuineness of the relationship.

GLEESON CJ:   Yes.  How did his Honour deal with that?

MR KORAMOAH:   The application was opposed by my friends who were representing the Minister.  His Honour went straight to see whether there was an error on the part of the ‑ ‑ ‑

GLEESON CJ:   Yes, but how did he deal with the attempt to adduce evidence?  We have at the bottom of page 29 you try to read an affidavit.

MR KORAMOAH:   Yes.

GLEESON CJ:   How did you get on?

MR KORAMOAH:   It was opposed and then it became an argument between the two sides and his Honour jumped over it and went further to the issues.  So it was in effect overruled, I would say.

HEYDON J:   What you are saying is that you tried to read the affidavit?

MR KORAMOAH:   Right.

HEYDON J:   The judge never actually said, “I reject that affidavit” or “I admit that affidavit”?

MR KORAMOAH:   That is correct.

HEYDON J:   And in the rest of the reasons for judgment we do not find him recording his ruling or endeavouring to deal with ‑ ‑ ‑

MR KORAMOAH:   That is correct.

HEYDON J:   Yes.

GLEESON CJ:   Thank you.  Mr Williams, could you just tell us what happened about that?  Where do we find the ruling on the application recorded on the bottom of page 29?

MR WILLIAMS:   I do not believe there is a ruling in Justice Madgwick’s decision, your Honour.  There was a similar question before the federal magistrate where at page 16 an affidavit was proffered.  The federal magistrate explained – and this is in paragraph 22 – that she would be subject to cross‑examination.  She then “elected not to give evidence.”  Justice Madgwick, in the passage that my friend has taken your Honours to refers to the attempt to read the affidavit.  That affidavit was, on my instructions, rejected by Justice Madgwick but there is no separate ruling recorded in the reasons for judgment.

GLEESON CJ:   But was it rejected because of what had happened before the magistrate?

MR WILLIAMS:   Justice Madgwick was exercising appellate jurisdiction, of course, and as I understand what occurred before him, the reason for rejection was that the evidence had not been adduced at first instance.

GLEESON CJ:   That is before the magistrate?

MR WILLIAMS:   Yes, in the primary judicial review jurisdiction before the federal magistrate and that for reasons governing the admission of evidence upon appeal his Honour Justice Madgwick, exercising the appellate jurisdiction of the Federal Court, rejected the ‑ ‑ ‑

GLEESON CJ:   Was the present applicant represented before the magistrate?

MR WILLIAMS:   No.

GLEESON CJ:   Do we know what was in that affidavit?

MR WILLIAMS:   Your Honour, I can hand up a copy, if that assists?

GLEESON CJ:   Thank you.  I think the short answer is that there is nothing in that affidavit that deals with the question of ongoing, continuing relationship.  Is that right?

MR WILLIAMS:   Your Honour, I came into the matter yesterday.  I cannot give your Honours assurance of that.  I can read it now, but ‑ ‑ ‑

GLEESON CJ:   Do that, then.

MR KORAMOAH:   If I may be able to assist?

GLEESON CJ:   Yes.

MR KORAMOAH:   From memory, I think the affidavit contained evidence as to current matters that would have been put.

GLEESON CJ:   You have a look at it - there is no reason at all why you should be doing this from memory – and just point us to any information in that that goes to the question of the state of the relationship or the nature of the relationship as at the time of the proceedings before the Tribunal.

MR KORAMOAH:   If it pleases, your Honours, it talks at paragraph 10 of the affidavit – it talks about – if I may read it?

This was unbelievable news to me.  The Tribunal had told me on at least two occasions that it had the documents from the Department, and that I did not need to provide it to them.  When it clearly knew that it had the information from the Department that it had destroyed all my files and the evidence.  This is unfair.  I state that if the Tribunal had at least informed me of this information I would have provided it with copies of my documents.  I annex “A” copies of some of the evidence I gave to the Department. 

If I may refer to the Tribunal, there is still some evidence here which dates 2005 which is very current evidence.  So that would have been put.

GLEESON CJ:   Thank you.  Mr Williams, is there something you want to add on that?

MR WILLIAMS:   I should, for the Court’s assistance draw the Court’s attention to the particular documents referred to, if that assists?

GLEESON CJ:   Yes.

MR WILLIAMS:   Starting at the back of the affidavit ‑ ‑ ‑

GLEESON CJ:   Pages 1 and 2 of that seem to have got lost in the translation somewhere.

MR WILLIAMS:   Yes.  On the back of the affidavit there are a number of phone cards, the significance of which it is not clear.  There is a letter, moving forward through the affidavit of 2 November 2004.  After that there

are two documents, one of 21 February 2005, a bank statement, and a foreign transfer of some kind.  That appears to be February 2005.  The affidavit itself does not touch on the significance of those documents, except to the extent to which it says in paragraph 5 that the Department did not give her the requested files:

Given that I had given all the documents they had requested, which included statutory declarations from members of our community, financial transfers, statements, etc, at least I believed . . . the Tribunal was going to make a favourable decision on my behalf.

Then in paragraph 10, the purported description of the documents that are annexed is in the final sentence at paragraph 10.  It is, of course, manifestly not an accurate description of the documents that are annex “A” because some of those documents as your Honours have seen, postdate the application to the Department.  It is perhaps infelicitous expression in which the deponent endeavours to annex documents, including those that “I gave to the Department”.

GLEESON CJ:   What was the date of the hearing before the Tribunal?

MR WILLIAMS:   That was in May, I believe, your Honour.

HEYDON J:   It was 4 June 2004.

GLEESON CJ:   Thank you.  I will give you this back.

MR WILLIAMS:   Your Honour, of course those documents…..placed before the Tribunal by reason of the fact that they postdate the hearing.

GLEESON CJ:   Thank you. 

We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed with costs.

We will adjourn.

AT 12.20 PM THE MATTER WAS CONCLUDED