NAIS & Ors v MIMIA

[2005] HCATrans 36

[2005] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S78 of 2004

B e t w e e n -

NAIS

First Applicant

NAIT

Second Applicant

NAIU

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Applications for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2005, AT 12.24 PM

Copyright in the High Court of Australia

__________________

MR B.M. ZIPSER:   Your Honours, I appear for the applicant.  (instructed by Campbelltown City Lawyers)

MR G.R. KENNETT:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

McHUGH J:   Yes, Mr Zipser. 

MR ZIPSER:   The question in this case is whether excessive delay by the Refugee Review Tribunal between the time ‑ ‑ ‑

McHUGH J:   Yes, I think we will hear from your opponent.  Mr Kennett, why is not this a case – I know it has been put on various grounds – but why is not the true principle that governs this case the principle in the Sussex Justices Case [1924] 1 KB 256 at 259, namely, that justice must not only be done, but “manifestly . . . be seen to be done”?

MR KENNETT:   Your Honours, that is a principle which, in my submission, lies behind what is commonly called the rule against bias and, in particular, apprehended bias ‑ ‑ ‑

McHUGH J:   Yes, I know it does, that is its most frequent application, but is it not the true basis – for example, I have expressed the view, I think in Soulemezis, that that is the basis of the requirement that judges give reasons.  If it is the basis of the principle that a judge should give reasons, why is it not on the basis that judges should give reasons promptly?

MR KENNETT:   Well, your Honour, this is not a ‑ ‑ ‑

McHUGH J:   I know it is not a judicial provision, but it is an important jurisdiction, quasi‑judicial.

MR KENNETT:   Well, your Honour, inquisitorial in character.  The issue that this case poses is not so much one of giving reasons as one of the speed with which a decision is arrived at.  The limb of natural justice that this case raises questions about, in my submission, is whether the applicant has received a proper hearing, and that is, I would submit, not a matter of appearance but of a procedure having been adopted which, upon analysis, is found by the court to have been fair or not.  And that turns, I would submit, on whether what was clearly an extraordinary delay in reaching a decision has or has not affected, in a prejudicial way, the applicant’s ability to put his case and have his case understood by the decision‑maker.

McHUGH J:   Confidence not only in the judicial system, but in the administration of this particular system, depends upon public confidence.  Why is it not at least arguable and sufficient for this Court to look at the matter to determine whether or not justice has been seen to be done in this case after such delay?

MR KENNETT:   Your Honours, public confidence as opposed to the losing party’s confidence, if I can make that distinction, is a matter of obviously great moment, but not, in my submission, an area in which one can discern a failure by a decision‑maker to perform his or her statutory functions.  The functions are either performed or not.  They will have not been performed if an obligation to give somebody a proper hearing has not been observed, but one cannot say the functions have not been performed by reason only that they have taken a long time, perhaps even an extraordinarily long time, to perform.

McHUGH J:   Yes.  Well, the point you make may succeed in an appeal, but, first of all, as to whether this principle is applicable in administrative proceedings, it would appear to be, but it does raise an important point or question.  The English Court of Appeal has taken a dim view on a number of occasions – certainly on one famous occasion, in respect of Justice Harman – in terms of delay and delivering judgment.  The circumstances of this case are, one hopes, unique, but ‑ ‑ ‑

MR KENNETT:   I am sure I do not need to ‑ ‑ ‑

McHUGH J:   No, and you have a powerful dissenting judgment by Justice Finkelstein.

MR KENNETT:   Well, your Honour, first of all, the cases to do with courts are, as I am sure your Honour is aware, different in that the scope for intervention by an appellate body is quite different to the very limited task of a court seeking to identify jurisdictional error.  As to the dissent of Justice Finkelstein, it is noteworthy that the way in which his Honour stated

the principles applicable to deciding the case, for example, on page 70 in paragraph 55, and later on page 72, in paragraphs 61 and 62 – those statements of principle are only subtly different, if at all, to the principles accepted by the members of the majority.  Justice Finkelstein was not proposing a freestanding principle that delay amounts to error or that delay per se involves a breach of procedural fairness ‑ ‑ ‑

McHUGH J:   Yes, well, his Honour put it on the basis of the denial of natural justice, but, although the ground is not specifically raised by the applicant’s draft notice of appeal, it seems to me arguably that that is the true way one should look at the case.

MR KENNETT:   The members of the Full Court, as I have said, expressed themselves in very similar terms in terms of principle, and the difference between them was how they saw the present case fitting into that framework of principle.  The difference was essentially as to whether their Honours saw the delay as having affected or potentially affected the Tribunal member’s ability to deal properly with the oral evidence that had been given.  It is perhaps worth noting the point to which Justice Hill went on pages 57 and 58 in paragraphs 18 and 19, that the case, so far as his Honour was concerned, really had to be resolved by reason of the paucity of evidence about matters such as whether the Tribunal member had notes of the hearing, whether he listened to the tape, whether there was a transcript for him to rely on – things of that sort. 

My submission is that Justice Hill was completely correct in taking that view, but the other point that follows from that is that the case turned, at least in the Full Court, not only on an assessment of the facts, but on an assessment of facts that was based, as a result of what had happened earlier, on evidence which was decidedly incomplete.  That makes the case, in my submission, a difficult vehicle to use for the resolution of any substantial issue of principle.  Your Honours, unless I can assist further, I think I have said what I wanted to say.

McHUGH J:   Yes, thank you.  There will be a grant of special leave to appeal in this matter, but it will be necessary for you within seven days, Mr Zipser, to have your draft notice of appeal amended to raise the Sussex Justices point about justice being seen to be done. 

AT 12.35 PM THE MATTER WAS CONCLUDED