MZXLD v MIAC & Anor

[2008] HCATrans 214

[2008] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2008

B e t w e e n -

MZXLD

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 2.53 PM

Copyright in the High Court of Australia

MR J.A. GIBSON:   May it please the Court, I appear on behalf of the applicant.  (instructed by Haag Walker)

MR R.C. KNOWLES:   Your Honours, if it pleases the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Gibson.

MR GIBSON:   Your Honour, the nub of the applicant’s argument is this, that the RRT, the Refugee Review Tribunal, in not waiting for a response pursuant to the section 424A invitation, which is a statutory right conferred to reply within a limited time, and not waiting completion of the process of statutory procedural fairness under the Act and writing what, in our submission, was a fully reasoned, detailed adverse decision, might create in the mind of the reasonable bystander, the reasonable lay observer, properly informed about the conduct and the process, a reasonable apprehension of the possibility of pre‑judgment.  Your Honours, the invitation to comment on information appears at application book 27.

GLEESON CJ:   But you can only get into a position of issuing an invitation to comment after you have been thinking about the case and deciding what might be material to its outcome.

MR GIBSON:   I agree with that, your Honour.  The question though, of course, is whether – and this was the premise on which the court at first instance and the appeal court proceeded – in fact, the respondent can see that the detailed draft reasons had been – it was highly likely they had been prepared prior to receipt of the response.  If, effectively, the appeal court was correct in saying this was simply a preliminary view, then obviously the argument does fall away but, in our submission, what was in contemplation here was in fact a detailed adverse decision that on probabilities was prepared and ready for finalisation once the 424A response had been given, and ‑ ‑ ‑

KIEFEL J:   You say that was conceded by the respondent.  What was the evidence about the extent to which the Tribunal had finalised any decision?  How could this be known?

MR GIBSON:   Your Honour, the concession is noted in the judgment, first sentence at application book 69, paragraph 58, and what was said was that:

The First Respondent conceded that it would be highly likely the Tribunal had drafted its detailed reasons for decision before receiving the Applicant’s s 424A submissions and there did not seem to be any dispute that those submissions were received at approximately 11.32 am on 24 May 2006.

KIEFEL J:   Yes, but is there not a distinction between drafting to a point and actually coming to a determined view, or a reasonably strongly held view?

MR GIBSON:   Your Honour, if effectively there was a distinction – and there is a distinction, I accept – between draft reasons and a concluded view, but if essentially the draft was in the form of a negative decision and ‑ ‑ ‑

KIEFEL J:   But it may not have been.  I mean, that is the point.  There is really quite a deal of conjecture involved, is there not, when you say draft reasons, and draft could be an outline of steps with queries and the queries here might have been that query which led to the section 424A notice.  It cannot really be known, can it?

MR GIBSON:   Your Honour, if that is the sticking point, then I would have to concede that much of the argument falls away, but the basis on which the court approached it, and which the appeal court approached it, was that there had been a fully reasoned ‑ ‑ ‑

KIEFEL J:   Upon that assumption.

MR GIBSON:   ‑ ‑ ‑ adverse decision, that in the mind of the reasonable lay observer the argument was put that it would be essentially a perception at least of the possibility of some pre‑judgment.  In other words, before that very important process the fulcrum, along with section 425A, of the natural justice provisions of the Act, before that was completed, the apprehension would be that the Tribunal, not in just simply forming the preliminary view but in actually something more than that, had reached a point where what was done could be characterised as a pre‑judgment or a pre‑disposition.

KIEFEL J:   And that they would not take account of the response to the section 424A notice, because that is really what the apprehension has to be, does it not, as strong as that?

MR GIBSON:   What we would say about the fact that there were clear references and incorporation of reference to the response, that that would not be enough to dispel the apprehension of the possibility of pre‑judgment, and that is the only way in which I can respond to that, your Honour.  But we would submit on that basis, your Honour, and given the importance of section 424A, the fulcrum of the statutory code of procedure and the natural justice provisions along with section 425 as expounded in SZBEL, we would say this is a significant matter of some importance and that if there is

some prospect of success in relation to the issue of apprehension then we would submit that leave should be granted.  They are the submissions, your Honours.

GLEESON CJ:   We do not need to hear you, Mr Knowles.

Because we think that the decision of the Federal Court in this matter was correct, we would refuse special leave to appeal and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 2.59 PM THE MATTER WAS CONCLUDED