MIMA v Wang S90/2001

[2001] HCATrans 658

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S90 of 2001

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

JI DONG WANG

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2001, AT 12.21 PM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   I appear for the applicant.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Williams.  We had better call the respondent.  Call Ji Dong Wang, please, officer.

COURT OFFICER:   No, appearance, your Honour.

GLEESON CJ:   Thank you.  Yes, Mr Williams.

MR WILLIAMS:   The application raises three questions:  first, whether the Federal Court, in remitting a matter to the Refugee Review Tribunal, has power to direct that the Tribunal be constituted by a particular person; secondly, whether any such power extends to overriding directions given by the Principal Member of the Tribunal subsequent to and in pursuance of the court’s orders setting aside the Tribunal decision and remitting the matter to it for determination.

GLEESON CJ:   Where do we find those directions in the present case, Mr Williams?

MR WILLIAMS:   The directions remitting the matter to the Tribunal ‑ ‑ ‑?

GLEESON CJ:   No, you talked about overriding something.  Where do we find that which was overridden?

MR WILLIAMS:   Page 68 of the application book, your Honour.

GLEESON CJ:   Thank you.No.  You just said that the second question was whether or not the Federal Court could override directions given by, did you say, “the Presiding Member of the Refugee Review Tribunal”?

MR WILLIAMS:   The “Principal Member”, your Honour.

GLEESON CJ:   Principal Member.  Now, where do we find the directions given by the Principal Member?

MR WILLIAMS:   They are not in evidence, your Honour.

GLEESON CJ:   Were any such directions given?

MR WILLIAMS:   The extent of the evidence before the Full Court was a letter from the registrar of the Tribunal indicating that the matter had been constituted to a member in the Sydney registry.

GLEESON CJ:   I see.

MR WILLIAMS:   The Full Court proceeded on the presumption, at page 78 of the application book, in the judgment of Justice Merkel in paragraph 20, that this was a direction of the Principal Member.

GLEESON CJ:   Now, Mr Williams, on page 71, at line 27, there is a reference to a concession.  Is that accurate?

MR WILLIAMS:   The scope of the concession in the transcript below was unclear.  Mr Basten, then appearing for the Minister, conceded that there was a power in the Court to give directions as to the constitution of the Tribunal in certain cases and went on to refer to cases in which the nature of the error found by the Court required such a direction.

GLEESON CJ:   You mean a direction that it should be a differently constituted tribunal?

MR WILLIAMS:   That is the purport of the submission that was put, your Honour, yes.

GLEESON CJ:   I could see a possible distinction between ordering that a matter go back for reconsideration by a differently constituted tribunal, for example, because there might have been a finding of bias, and an order that a matter go back to be heard before the same tribunal but what about section 481(1)(b) which appears on page 76?

MR WILLIAMS:   Your Honour, our submission is that that power is to be read subject to the powers of the Principal Member of the Tribunal to direct the constitution of the Tribunal.

HAYNE J:   Why should one do that when this is a conferral of power upon a court?  Why should one confine the power in a manner not explicitly made plain by the words of the section?

MR WILLIAMS:   We would make two answers.  The power conferred upon the court is expressed in wide terms but is not at large and is confined to doing justice between the parties, meaning justice according to law, that being such an order as is necessary to give effect to the errors that the court has found in remitting the matter.

HAYNE J:   No, the question is rather more precise, is it not?  The question is, “What does the expression ‘an order referring the matter to the person’ mean in the context of 481(1)(b)?”

MR WILLIAMS:    The answer to that question, your Honour, is to the Refugee Review Tribunal rather than to the individual who constituted it.

HAYNE J:   Why should one read it like that when, in 477(2) of the Act as then it stood, the legislature obviously distinguishes between “a person” and “a person other than a tribunal”?  Why is “a person” not to be understood with perfect generality and applicable to the individual member of the Tribunal who constituted it for the purpose of the decision concerned?

MR WILLIAMS:    First, because the powers of the Tribunal are to be exercised, or expressed to be exercised, by the Tribunal rather than by an individual constituting it.  Section 430 of the Act contains such an expression.  It is the Tribunal that prepares the written statement setting “out the decision of the Tribunal on the review”.  When such a statement has been prepared, the right of judicial review in the Federal Court is defined in section 475 by reference to decisions of the Tribunal rather than decisions of members of the Tribunal.

CALLINAN J:   Mr Williams, do you say the Principal Member acted under 422A?

MR WILLIAMS:    The Principal Member may have acted under 421, your Honour, if the matter after remittal by the court is taken to be a fresh review.  In the alternative, if the matter after remittal is taken to be a continuation of the previous review ‑ ‑ ‑

HAYNE J:   It must be the latter, surely.

CALLINAN J:   And if it is, have you not a problem about 422A(2)(a), because the Tribunal’s decision had, in fact, been recorded in writing, had it not?

MR WILLIAMS:    Yes, but that had been set aside, your Honour, with the effect that ‑ ‑ ‑

CALLINAN J:   You say that you just treat it as if it has never been given or never been recorded if it has been set aside.

MR WILLIAMS:    Yes, your Honour.

CALLINAN J:   But it was not really set aside in full, was it, because the effect of the Federal Court’s order was to preserve part of it?  Is that not right?

MR WILLIAMS:   If that was the intended effect of the order, that order would be beyond power for different reasons, but we read the court’s order at page 68 of the book, as being one to set aside the decision as a whole.

GLEESON CJ:   It occurs to me as a possibility that unless you are right, every time a matter is remitted to the Tribunal it has to go back to the same person who originally constituted the Tribunal.

MR WILLIAMS:    That would be so, and if that person were no longer a member, grave difficulties would arise as to whether the Tribunal had any continuing powers.

HAYNE J:   Now, the legislation that is at the root of this problem is legislation that has since been repealed?

MR WILLIAMS:    Sections 475 to 485 have since been repealed.

HAYNE J:   So that the particular point of construction upon which this case would turn is one which cannot arise as to the future?

MR WILLIAMS:    We have three answers to the point that your Honour raises.  First, there are 378 cases under the law as it existed prior to 2 October this year, awaiting determination at single judge and Full Court level in the Federal Court.

GLEESON CJ:   Three hundred and seventy eight cases of this kind, you mean, affected by this decision?  What does it matter if there are 378 cases that do not raise this problem?

MR WILLIAMS:   If the court’s view of the proper approach following the setting aside of a decision is the law then, potentially, the form of order to be made can arise in any of those cases.

CALLINAN J:   Does that appear in any of your supporting material?

MR WILLIAMS:    No, it does not, your Honour.

CALLINAN J:   Well, I see that as a problem.  It seems to me that that is a matter of evidence, and if it is a matter of evidence, it can then be explored as to the degree of similarity and the likelihood of the recurrence of this precise point.  It is not something, in my opinion, that should be given from the Bar table.  It might affect the respondent.  He might have a different answer to that.

MR WILLIAMS:    Your Honour, might I say two things?  First, we have two points that do not depend on that issue.  Secondly, in answer to the point that your Honour Justice Callinan raises, the repeal has arisen since the materials were filed.

CALLINAN J:   You could have filed further material.  For my own part, I intend to take absolutely no notice of a statement from the Bar table going to a question of fact.

MR WILLIAMS:    The second point on which we rely as to the continuing utility of the matter is that section 16(1) of the Administrative Decisions (Judicial Review) Act is in relevantly identical terms with section 481(1).  Thirdly ‑ ‑ ‑

HAYNE J:   But, at base, the point you make is, is it not, a point that the Court, reviewing a decision here of the RRT or some other administrative decision‑maker, cannot say that, in this case, the matter should go back to the particular person who made the decision with a direction, for example, to consider further issue, X/Y, which was not considered?  That is the basic point you seek to make?

MR WILLIAMS:    In the case, at least of a tribunal whose constitution is determined under the statute by its Principal Member, yes.

HAYNE J:   Why should one read a conferral of jurisdiction or power on a court in terms of 481(1)(b) so narrowly, in light of “Shin Kobe Maru” and similar cases, talking about, “Do not confine powers of a court”?

MR WILLIAMS:    Because the Parliament has conferred the process of fact finding upon an administrative body and in the formulation of the constitution of that body, has conferred powers and specific duties upon the Principal Member, duties which involve questions that are quintessentially matters of administrative judgment.  Your Honours are familiar with section 420 of the Act which impose upon the Tribunal a duty:

in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

The Principal Member, in section 460 of the Act, is given specific duties of a supervisory kind in respect of those matters, as well as responsibilities “for the overall operation and administration of the Tribunal”.  The legislative scheme, in our submission, is one which confers the fact‑finding process on the Tribunal and provides for those matters to be balanced by its Principal Member.  For all the court knows, in making an order remitting a matter, there may be powerful reasons why the particular decision should not go back to the particular member.

HAYNE J:   Those are matters, are they not, which could be drawn to the attention of the court asked to make such an order, for that court to rule on the cogency of the matters thus advanced?

MR WILLIAMS:    There are difficulties with that, your Honour, in that the members of the Tribunal, including the Principal Member, in the performance of their functions, have an immunity from review which is expressed indirectly as the same immunity as members of this Court.  There is a difficulty in requiring a Principal Member, in these kinds of circumstances, to go into explanations as to the reasons, for example, workload considerations, availability of the member at a particular time in light of the member’s other outstanding decisions.  There are difficulties in expecting a Tribunal which has the immunity of members of this Court, to go into those kinds of matters in evidence, not least because the Tribunal is not a party to the proceeding and cannot be a party to the proceeding.

HAYNE J:   But, ordinarily, a court should not engage in that inquiry as a proposition of which I would need little persuasion.  But we are concerned with the question of power to do so, not whether it is prudent or sensible to do so, save if we get to your second question about exercise of discretion in the particular circumstances of this case.

MR WILLIAMS:    Our application, of course, does go to ‑ ‑ ‑

HAYNE J:   I understand that.

MR WILLIAMS:   ‑ ‑ ‑ the appropriateness of the exercise in the present case, but in relation to the question of power, our submission is that it is a matter of construction of the statute, having regard to the co‑ordinate executive and judicial allocation of functions that the Parliament has selected.

CALLINAN J:   Mr Williams, do you have the same sorts of provisions in the other legislation?  You mentioned one section.

MR WILLIAMS:    I mentioned section 16(1) of the Judicial Review Act which deals with relief. Similar questions do arise ‑ ‑ ‑

CALLINAN J:   Is there a similar provision there with respect to the head of the Administrative Tribunal, the same sort of provisions as are in 420 to 422A?

MR WILLIAMS:    Your Honour, I cannot give a reliable answer.  My recollection is that there are similar provisions conferring power on the President of the Administrative Appeals Tribunal but ‑ ‑ ‑

GLEESON CJ:   The President of the Administrative Appeals Tribunal is a judge, anyway.

MR WILLIAMS:    That is so, but I do not believe they are in the precise terms of section 420 and following but certainly there is such a power, as I recall.  Similar issues have arisen in respect of other tribunals, for example, the Australian Broadcasting Tribunal has been the subject of cases under the Administrative Decisions (Judicial Review) Act as to the appropriateness of directions from the court.

CALLINAN J:   You do have rather special provisions here, do you not?

MR WILLIAMS:    We do.  We submit that there is, in addition, an underlying question of principle as to the proper division of function between the executive and the judiciary, of a kind referred to by Justice Brennan in Attorney‑General v Quin involved in the particular exercises of power here.

GLEESON CJ:   Yes.  Does that cover what you want to put to us?

MR WILLIAMS:    Yes, your Honour.  We do, of course, raise the question of the appropriateness of the exercise of the discretion in the particular case.

GLEESON CJ:   Yes, your argument there, as I would understand it, is that there is not proper exercise of the discretion to enable a person to get the benefit of some findings of fact that have already been made.

MR WILLIAMS:    That is so, the findings not giving rise to any estoppel or any other form of legal right.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in the matter.

AT 12.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.40 PM

GLEESON CJ:   In this matter, there will be a grant of special leave to appeal.

AT 12.41 PM THE MATTER WAS CONCLUDED