NAHQ v MIMIA

[2004] HCATrans 503

[2004] HCATrans 503

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 2004

B e t w e e n -

NAHQ

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 TUESDAY, 30 NOVEMBER 2004, AT 11.52 AM

Copyright in the High Court of Australia

MR J.M. PATEL:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MS S. KAUR‑BAINS:   May it please your Honours, I appear for the respondent.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Yes, Mr Patel.

MR PATEL:   May it please the Court, I am not quite sure whether you have received the respondent’s supplementary submissions in this matter?

GLEESON CJ:   Yes.  Document headed, “Respondent’s Supplementary Summary of Argument”.  Is that right?

MR PATEL:   Yes, that is the one, and I also take it that perhaps my friend has also provided you with the authority S61 of 2002 which has been referred in the supplementary submissions?

GLEESON CJ:   Yes, go ahead.

MR PATEL:   Your Honours, in view of the supplementary submissions, I am pleased to say that it makes my work somewhat short because it does specifically answer the matters I had intended to argue before you, but, nonetheless, it still remains a substantial issue in respect of which leave of this Court is sought.  Your Honours, leave is sought to appeal from the judgment of the Full Court, which was served in respect of his Honour Justice Wilcox’s judgment in that matter given on 20 May ‑ ‑ ‑

GLEESON CJ:   Justice Wilcox held that there had been no denial of procedural fairness.  That was his decision on the merits of the case, was not it?

MR PATEL:   That is true.  On the whole, his decision was that the application was dismissed, and then we appealed against that judgment to the Full Court.  At the last hour, objection was raised that the appeal was incompetent.

GLEESON CJ:   Yes.  Now, regardless of the rights and wrongs of the argument about whether or not the appeal to the Full Court was interlocutory, there is still a question of whether or not there was any doubt about the correctness of the decision of Justice Wilcox.  On page 29, Justices Whitlam and Kiefel said at line 28:

Nothing that he said cast the slightest doubt on the correctness on any part of Wilcox’s J reasons for judgment.  A grant of leave would be futile because an appeal would have no prospects of success.

What do you say about that?

MR PATEL:   Your Honours, we say this, that if it is determined that the matter was decided on the basis whether or not it was an interlocutory application, that cut the matter short.  Once it was dismissed as incompetent, in our submission, that put an end to the matter, and theoretically, my client was designed the natural right he had to have his appeal heard.  Once it is dismissed as incompetent appeal, thereby he was deprived of his right to argue his case on the full basis as if it was a full appeal.

GLEESON CJ:   The Federal Court considered the merits of the matter in deciding what attitude it would take towards the application before it.

MR PATEL:   Your Honour, the process that would be followed and applied in hearing an application which is an interlocutory application and the process that would be applied in hearing the full appeal on merits, in our submission, there would be some variation.  The Court is not inclined to ‑ ‑ ‑

GLEESON CJ:   You tell us now what is the argument that you would want to make on the merits, tell us now?

MR PATEL:   On the merits we make two arguments.  One is that the documents were supplied, but in our submission, the Muin Case could not be argued properly because when this matter came before Justice Wilcox, we were still looking for certain documents.  We had made the request that this document be supplied and two documents were still missing from the records, but that argument was dismissed by his Honour on the basis that it did not matter because, on the reading of the judgment, nothing turned on those documents.

The argument we intended to put forward was that without knowing what was in the document, it did prejudice us to a certain extent as to how the Tribunal might have been influenced by what was in those documents, so that those documents should have been disclosed.  There were two documents which could not be found.

The other argument we ran was the critical finding about this advertisement which was placed by my client in the paper.  That appears, I think, in the supplementary application book at page 2, and in relation to this, my client had in fact given all this evidence to the agent and also the solicitor, but unfortunately, because this matter was not raised, somehow it slipped through, and these advertisements were not brought to the notice of the Tribunal and this evidence was never presented.

In our submission, this was a very critical aspect of the case which did have some influence on the critical other finding as to credibility.  It could have made a lot of difference if this evidence was presented, and he was denied this opportunity simply because the Tribunal did not even raise any concern or issue in relation to that particular aspect.

GLEESON CJ:   This was all a matter that was argued before Justice Wilcox, was not it?

MR PATEL:   That was argued before Justice Wilcox and that was the argument we wanted to ‑ ‑ ‑

GLEESON CJ:   Where is the error in the reasoning of Justice Wilcox?

MR PATEL:   That Justice Wilcox, to a certain extent, accepted that the argument was – that it could have made a difference, and he would have preferred the practice where, if there is any qualms about any particular piece of evidence, it assists if the attention of the applicant is drawn to that aspect.  Where we seem to have difference is he took the view that there is no obligation on the part of the Tribunal to put those questions and the argument we run is that it is a question of whether or not the matter goes to the critical findings, whether it is the critical piece of information which would have likelihood to have a much greater impact on the thinking of the Tribunal.

The Tribunal was indeed seriously concerned about that particular aspect and the thinking might have been totally different, but if I maybe went to the argument with your leave, your Honours, that regardless of whether or not we could have succeeded in establishing the merits, in our submission, the ends do not justify the means.  The thing is my client was entitled to certain benefit of the procedure and rules, and he should have been treated the same way ‑ ‑ ‑

GLEESON CJ:   What went on in front of the Full Court?  Was the objection to competency argued separately or was it all argued together?

MR PATEL:   No, it was argued – the way it proceeded was that this point was raised for the first time at short notice, and then their Honours decided to deal with that because that would put an end to the matter, so we argued the thing and they took the view that the appeal was incompetent, it was an interlocutory proceeding, and at that stage, I was put in this invidious position to decide what I wanted to do, and I said if it is incompetent, then

perhaps we can take the matter further.  Then I was given the opportunity that if you want to make submissions and apply for leave we can hear you on that question and then determine whether or not ‑ ‑ ‑

GLEESON CJ:   That is what I am trying to understand.  There is a reference in the joint judgment and also a reference in the decision of Justice Moore to there having been argument on the merits in the context of an application for leave to appeal on the assumption that leave was necessary.  Is that what happened?

MR PATEL:   That happened, but in a shortened version, because the thing is that the whole argument concentrated on ‑ then we had the short opportunity to deal with that aspect.  If your Honour reads the Full Court judgment again, it seems to have been formulated on the basis as if it was a question of leave.  So the arguments that were put in the written submissions were not expressly dealt with and they were dealt in the way…..it is not necessary to give full reasoning as to why this particular argument is rejected.

A number of arguments were advanced in the written submissions, but these arguments were not dealt.  If it was dealt on the basis as if it was an appeal as of right on merits then, in our submissions, the Full Court would have dealt with those arguments in a different way, saying that, “We reject this argument”.  At this stage it is unclear, we are still in the dark, perhaps.  They had good reason to dismiss it and say that nothing was disclosed in what was said, but nothing was advanced – it was not fully argued because the tactics would be slightly different because the whole concentration was on whether or not leave was required at that stage.  So the thing is it was not argued on the basis as if it was an appeal on merits.

GLEESON CJ:   We have understood that point, thank you.

MR PATEL:   The other point which perhaps is peripheral, but, nonetheless important, is just that now as this latest decision of the Full Court indicates that we were correct in our submissions – at least that is the view of the Full Court, unanimously agreed that it was an interlocutory judgment on interlocutory matter and it was not for the final relief.  Now, if that is the case, it still leaves the court decided.  There seems to be uncertainty regarding the procedures.  We have two Full Courts of five judges taking a different view ‑ ‑ ‑

GLEESON CJ:   Yes, thank you, Mr Patel.  Yes, Ms Kaur‑Bains.

MS KAUR‑BAINS:   Your Honours, firstly, in relation to the first special point in relation to the nature of the orders made by Justice Wilcox, there is no division, in my submission, amongst the Full Federal Court.  In Applicants S61 what their Honours did is looked at the order that was made.  The order did not expressly state that the order was in respect of the orders nisi or for the final relief.  Therefore, their Honours looked at the reasons of his Honour Justice Lindgren to consider the nature of the application ‑ ‑ ‑

GLEESON CJ:   Why did the author of the headnote to the judgment in Applicants S61 of 2002 say:

NAHQ . . . not followed.

MS KAUR‑BAINS:    Your Honour, I do not know why that was said.

GLEESON CJ:   Is that wrong?

MS KAUR‑BAINS:    Sorry, I withdraw.  It was not followed in the sense that in NAHQ their Honours looked at what application was before his Honour Justice Wilcox, and their Honours ‑ ‑ ‑

GLEESON CJ:   Can we look at what they said in Applicants S61 about this present case?  Where do we find that?

MS KAUR‑BAINS:   That appears in the judgment of her Honour Justice Branson, and it appears at paragraph [37].

GLEESON CJ:   Is that all that was said, what appears in paragraphs [37], [38] and [39]?

MS KAUR‑BAINS:   Yes, your Honour.  In addition to that, when one looks at the judgment of Justice Wilcox, the opening sentence states that his Honour is considering an application for an order nisi.  So what the Full Federal Court did in NAHQ when deciding what order had been made by Justice Wilcox, they determined what application was actually before Justice Wilcox and then determined that that application was an application for an order nisi only, whereas as in Applicants S61, when her Honour Justice Branson considered what application was before his Honour Justice Lindgren, she determined that the application before Justice Lindgren was for final relief and not an application for an order nisi, and it was for that reason that in Applicants S61 the conclusion was reached that the order made was final.  In my submission, the two judgments are not inconsistent.

GLEESON CJ:   Can I draw your attention to what appears on page 18?

MS KAUR‑BAINS:   Page 18 of what document?

GLEESON CJ:   The application book, the first sentence in the judgment of Justice Wilcox.

MS KAUR‑BAINS:   Yes, your Honour.

GLEESON CJ:   You see he says:

This is an application for orders nisi . . . and for an injunction.

Did he deal with the application for an injunction?

MS KAUR‑BAINS:   Your Honour, it appears as though he did not, and the Full Federal Court certainly found that the only application that his order formally dealt with was an application for orders nisi.

GLEESON CJ:   What has happened to the application for an injunction?

MS KAUR‑BAINS:   Your Honour, there were no further proceedings after the judgment of Justice Wilcox, apart from the Full Federal Court matter, and in terms of the injunction application I cannot answer that, but in any event, the Full Federal Court’s reasons turned on the formal application that his Honour Justice Wilcox determined and he found that the only application his Honour determined was an application for orders nisi.

GLEESON CJ:   Did they overlook the application for an injunction?

MS KAUR‑BAINS:   That may well have happened, your Honour, but in any case, there have been several Full Federal Courts that have now looked at this issue, differently constituted, in relation to whether orders are interlocutory or final in this context, and the matter has really turned on a consideration of the application that was before the primary judge.  So to that extent, in my submission, there is not a point of special leave interest in that the subsequent Full Federal Court decisions have really turned on their facts, and that is what application was before the primary judge.

GLEESON CJ:   On page 16 of the application book, what is remitted by Justice Gaudron is an application for orders nisi and an application for an injunction.  I just cannot see the application for injunction being dealt with unless it is dealt on page 23 at line 19, which I must say, I would have thought, is the case.

MS KAUR‑BAINS:   Your Honour, if it has been dealt with at the line that your Honour has just referred me to then that would certainly turn the order into a final order as opposed to an interlocutory order, so I accept that, but in my submission, the special leave question that my friend has raised in this application, in my submission, does not arise because although there may have been an error in this case, in terms of the way the Full Federal Court have dealt with these matters, they have construed the application that is before the primary judge in order to determine the nature of the order.  In any event, your Honours, if there is a special leave question that is raised, in my respectful submission, this case is not an appropriate ‑ ‑ ‑

GLEESON CJ:   What happened before the Full Court of the Federal Court?  Were the merits of Justice Wilcox’s judgment fully argued?

MS KAUR‑BAINS:   I did not appear on that occasion, but I am instructed by my solicitor who did instruct ‑ Mr Neil Williams on that occasion - that they were argued, and the parties in fact had filed written submissions, and in addition to that oral submissions were made.

GLEESON CJ:   The argument that is put against you is that if the Full Court of the Federal Court was in error in treating the proceedings before Justice Wilcox as interlocutory, then it was in error in treating the application before it as an application for leave, and although it concluded that nothing that the applicant had said had passed the slightest doubt on the correctness of any part of Justice Wilcox’s reasons for judgment, the court did not give proper consideration to the merits of the argument against Justice Wilcox’s judgment.  Now, it is a little difficult for us to deal with that submission without knowing what went on before the Full Court of the Federal Court.

MS KAUR‑BAINS:   I appreciate that, your Honour.  The only submissions that I can make is that at the end of the day, the two grounds of complaint that the applicant made before Justice Wilcox have no prospects of success, and the two grounds that were raised are, firstly, that the Tribunal failed to ask the applicant to provide corroborative material in relation to the disappearance of the brother, and in relation to that ground, Justice Wilcox dealt with that adequately at the application book 21, point 35, where his Honour says:

the rule is that it is for the applicant to present to the Tribunal all the evidence that he or she thinks to be supportive of his or her case.

In my submission, the High Court ‑ or at least Justice Hayne in Muin and Lie - observed that it is a matter for the applicant to put all the evidence that they consider relevant before the Tribunal.

The second ground of complaint that was raised before Justice Wilcox was in relation to the country information.  The applicant filed an affidavit – it is a supporting affidavit – and in the affidavit the applicant stated that he had not received the country information and the Part B documents referred to in the delegate’s decision.

GLEESON CJ:   Ms Kaur‑Bains, where can we find the application referred to on page 16, line 6?

MS KAUR‑BAINS:   That is the application for the orders nisi or for the injunction, your Honour?

GLEESON CJ:   Yes, it is the original application in this Court.

MS KAUR‑BAINS:   Unfortunately, it does not appear in the application book, but I can hand up a copy.  Unfortunately, your Honours, I am not in a position to hand up a copy of the draft order nisi that was filed in the High Court.

GLEESON CJ:   I am really trying to find out whether it was an application for an interlocutory injunction.

MS KAUR‑BAINS:   My recollection is that it is simply headed, “Draft Orders Nisi”, and there does not appear to be a separate application for an injunction, and the supporting affidavit to the draft orders nisi raise simply the grounds that I have referred your Honours to, but at the end of the day, your Honours, this is not a suitable vehicle because there are no prospects of the applicant succeeding on appeal.

In relation to the second ground – the second ground was that the applicant had not received the Part B document.  If he had received the Part B document then he would have made submissions in relation to them, and his Honour Justice Wilcox found at the application book 23 that “there was no lack of procedural fairness” because:

The documents were identified to -

the applicant’s solicitor, and the applicant’s solicitor –

had the opportunity of making submissions about them.

The applicant was represented by solicitors before the Tribunal, and extensive correspondence took place between the Tribunal and the applicant’s solicitors as to the country information.  Those are my submissions, your Honours.

GLEESON CJ:   Thank you.  Mr Patel, what is the error in the reasoning of Justice Wilcox that you seek to demonstrate?

MR PATEL:   The finding in relation to the Tribunal’s failing to raise this issue – I am perhaps regurgitating what I said before.  I do not think I can advance it very far, but simply put, there were three arguments that were proposed to be advanced.  One was whether or not, as Justice Wilcox described, that it is up to the Tribunal to ask questions.  It is for the applicant to put his evidence and not Tribunal to put these questions to the applicant and seek this information, but he did concede that it was perhaps important in a way that it could have made some difference if this matter was raised whether or not he has any evidence of this newspaper advertisement, but the fact that it failed does not amount to an error.

What we are submitting is that if it relates to some critical aspect of the case where a lot of things could suddenly change the course, and if this was the matter on which the Tribunal had counted on it, then if this was the case then it, halting from that point, swayed against my client, and while it is true that most of the authorities do not support the view that the Tribunal is under any obligation to put these matters to the applicant, in this case it could have made a lot of difference, and it was of critical importance.  In our submission, that was an error.

The other error relates to this Muin Case which unfortunately the affidavit was prepared by the applicant with the help of some agent or somebody, so the way it was put, it was argued – showed that he had himself not looked at it…..everything turned on the wording it was put in.  He was not…..cross‑examination in relation to those documents, and that issue was not really argued fully before Justice Wilcox for that reason, and again, it could not be pursued before the Full Court for that same reason.

GLEESON CJ:   Why could not it be pursued before the Full Court?

MR PATEL:   Your Honour, because we concentrated on this issue of whether or not the appeal was incompetent ‑ ‑ ‑

GLEESON CJ:   Just a minute.  On page 31, in the judgment of Justice Moore, who was doubtful about whether the decision was interlocutory or final, he expresses his doubts.  He says if it was interlocutory he would refuse leave, and he says if leave was not necessary, he would “dismiss the appeal for the same reasons”.  Now, Justice Moore obviously thought that there had been argument on the merits of the appeal.

MR PATEL:   I am not for a moment suggesting that there was no argument.  Just as we are advancing this argument now, as your Honours did make inquiry, because it is obvious that the Full Court was also interested in having some insight as to the merits.  The argument we wish to advance, your Honours, is this, that regardless of whether or not there was merit or not, the applicant was entitled to have his day in court and the matter heard on merits.  Now, looking at the judgment ‑ ‑ ‑

GLEESON CJ:   That is why we have been asking you here about the merits.  We are still interested to know what was wrong with the judgment of Justice Wilcox.

MR PATEL:   Your Honour, I do not think I can advance it very far than what I said previously, that it is rather a weak case, and I would conceive this much that, yes, perhaps, looking at it, it would seem that the prospects are slim, but the argument I am putting forward is that regardless of whether the prospects are slim, and in 90 percent of the cases the prospects are slim, the applicant is not denied his opportunity saying that, okay, your prospects are slim, so we will not really deal with this one.

In our submission, the judgment itself should reflect what were the merits that were conceded and why it was rejected.  I am not saying that it has to consider each and every aspect – the smallest aspect – but your Honour should be able to gather from the judgment itself, the judgments of the Full Court, as to why this case was dismissed on merits, and that we consider these merits, the following arguments were put forward, it has got no merits, and we say, no merits in it, but your Honour has not had the benefit of this from the judgment as to see what merits were conceded or what merits – we are in the situation because that is not reflected in the judgment what was said in relation to the merits, what arguments were put forward.

I can only go by recollection which would be hazy because I do not remember exactly what was said but, in our submission, the judgment should reflect what were the merits that were argued and why they were dismissed.  What we have here is a blanket dismissal on the basis - which would be justified if it was an application for leave, and in any event, when, if the prospects are slim, in our submission, my client is denied this procedural fairness because he is entitled to the same day in court like any other applicant.

The other argument, if I may make it briefly, is in relation to the argument that the judgment could be distinguished from this S61.  The procedure is laid down as to how the matter is dealt with by the Federal Court.  …..two type tiers of hearing, first, for order nisi, and then for final hearing.  Secondly, if that was the case, then at the direction hearing the direction would have been given in relation to the application for order nisi, and so these are the things which are separate from the full trial.

So we are in a situation where unless this matter is resolved, you can have differences of opinion, the procedure will not be sorted out.  Here, the High Court has the opportunity to put the house in order saying that look…..should be treated as final.  So all the applications are dealt in the

same way.  You have application under section 39 which might be dealt in a different way.  Thank you.

GLEESON CJ:   Thank you.

The applicant seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia given on 17 December 2003.  The applicant had brought an appeal to the Full Court against the decision of Justice Wilcox given on 20 May 2003.  Justice Wilcox considered and, for reasons given by him, rejected an argument that the applicant had been denied procedural fairness in the course of decision making by the Refugee Review Tribunal.

Before the case came on for hearing before the Full Court of the Federal Court, both sides exchanged written submissions on the merits of the appeal against Justice Wilcox’s decision and the respondent contended that there was no substance in the complaint about Justice Wilcox’s reasons.

However, the respondent also contended that the appeal was incompetent because the decision of Justice Wilcox was interlocutory.  Against the possibility that the respondent was correct in that regard, the applicant sought leave to appeal against the decision of Justice Wilcox.  There was oral argument before the Full Court in relation to whether or not the decision of Justice Wilcox was interlocutory; in relation to whether or not leave was necessary; and in relation to whether or not, if leave was necessary, it should be granted.  In the course of those submissions, the arguments of the respective parties concerning the merits of the reasoning of Justice Hill in relation to the claim for denial of procedural fairness were canvassed.

Two of the members of the Full Court, Justices Whitlam and Kiefel, accepted the argument that the orders of Justice Wilcox were interlocutory.  They then said:

Counsel for the appellant accepted that, if the appeal were incompetent, his client required leave to appeal out of time.  Somewhat reluctantly, he made such an application orally.  Nothing that he said cast the slightest doubt on the correctness of any part of Wilcox J’s reasons for judgment.  A grant of leave would be futile because an appeal would have no prospects of success.

Justice Moore was not so sure that the decision of Justice Wilcox was interlocutory.  He said:

However, as Whitlam and Kiefel JJ have concluded it was an interlocutory judgment, it is probably sufficient for me to say that if leave was necessary, I would refuse leave for the reasons given by their Honours.  If it was not necessary, I would dismiss the appeal for the same reasons.

The applicant now seeks special leave to appeal to this Court submitting that the principal issue that ought to be determined by this Court is the correctness of the view of at least two members of the Full Court that the decision of Justice Wilcox was interlocutory. 

The present case is not a suitable vehicle for the determination of that question.  In order to persuade this Court to grant special leave it would be necessary for the applicant to make at least a showing of an argument against the decision of Justice Wilcox on the merits.  Counsel for the applicant has been invited to do that in the course of his submissions to this Court and has been unable to demonstrate any sufficient reason to doubt the correctness of the reasoning of Justice Wilcox.

In those circumstances, the application for special leave to appeal is refused with costs.

AT 12.32 PM THE MATTER WAS CONCLUDED