NAJK v MIMIA

[2005] HCATrans 60

[2005] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 2004

B e t w e e n -

NAJK

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 22 FEBRUARY 2005, AT 9.59 AM

Copyright in the High Court of Australia

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

MS K.C. MORGAN:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

HIS HONOUR:   I understand the respondent’s position is that it does not oppose the application for the extension of time.

MS MORGAN:   That is correct, your Honour.

HIS HONOUR:   But there is a question concerning the costs, is that so?  Is the application made on a basis that the applicant proffers the costs that have been occasioned by the need for the application?  That would be the usual thing, Mr Zipser, would it not, that you have to pay the costs if you put the respondent to the trouble of having to come along here to get the extension of time?  If I am persuaded to give the extension, you would have to pay the costs that have been occasioned by it, because it is not the fault of the respondent.

MR ZIPSER:   Yes, your Honour.  Prior to this morning I have given an undertaking to pay a fixed amount of costs to the ‑ ‑ ‑

HIS HONOUR:   That amount is agreed, is it, with the respondent?  Does the respondent agree that that amount covers the respondent’s costs or am I going to get into a horrible dispute as the taxing master?

MR ZIPSER:   The position at present is that the respondent gave an estimate of their costs.  I agreed to pay half of that amount directly to the respondent within seven days of today.  That is the position we are in at present.

HIS HONOUR:   I just do not understand this.  Who will pay the other half?  This is not the costs of the whole proceeding, it is the costs of this application which is the costs as of a motion to have an extension of time.  There will be costs incurred by the fact that the applicant got out of time for the reasons that are explained and normally, where that happens, there is first the question of whether the Court cures the time default, and second, if it does, who pays the costs.  In my experience, over a long time, it is virtually without exception that the party who is in default has to pay the costs of the default – not half the costs, all of the costs. 

MR ZIPSER:   Yes, your Honour, then I am the person who caused the respondent to incur ‑ ‑ ‑

HIS HONOUR:   Yes, you have been very candid about that, which is one of the things that has almost melted my heart, but there still remains the question of making sure that the respondent is not out of pocket by reason of the fact that they have been hauled along here today to have a curative order that gets you back on the track.

MR ZIPSER:   Then I accept it would be appropriate for me to pay all of the respondent’s costs.

HIS HONOUR:   And are you content with the quantification that they have put forward or is there still room for negotiation and discussion about that?  What would normally happen is that the Court would simply make an order that the applicant pay the respondent’s costs and then normally that would be the subject of discussion, and, if it were sorted out, there is no need to trouble the Court.  If it is not sorted out, then the Court has its own procedures for the matter to go to a taxing master and be sorted out in that way.

MR ZIPSER:   The respondent has suggested a quantification of an amount of ‑ ‑ ‑

HIS HONOUR:   You still want to discuss that, do you?

MR ZIPSER:   Your Honour, I am going to accept that quantification.  It is an amount of $1,500.

HIS HONOUR:   Well, that puts that issue to one side. Let us get this back on the track. Before me I have the summons which seeks the order pursuant to rule 4.02 and there is an affidavit which is sworn by you yourself, Mr Zipser, dated 10 January 2005. You formally read that affidavit, do you?

MR ZIPSER:   Yes.

HIS HONOUR:   Is there any objection to any of the content of the affidavit?

MS MORGAN:   No, your Honour.

HIS HONOUR:   Do you wish to cross-examine Mr Zipser, which would create something of a difficulty for us.

MS MORGAN:   No, your Honour, we are satisfied with that.

HIS HONOUR:   Is there any other evidence that you are relying on, Mr Zipser?  I do have the Court file with the reasons of the Tribunal, the reasons of the Federal Magistrate and the reasons of Justice Jacobson in the Federal Court.  I have all of that.  Is there any other evidence or any evidence that you wish to put before me in addition to your affidavit?

MR ZIPSER:   There is not, your Honour.

HIS HONOUR:   Thank you very much.  Is there any evidence that the respondent places before the Court?

MS MORGAN:   No, your Honour. 

HIS HONOUR:   Thank you very much.  Well, Mr Zipser, what do you have to say about it?  The matter that concerns me, I have to tell you, is not the time default, which I would happily cure.  It is the question that is raised in the written submissions as to whether it is futile to cure the time default because of the question of whether any of the matters that are relied upon are likely to attract the grant of special leave.  I have to be careful here that I am not, as a single Justice, taking the place of a Full Court, which decides these matters, and that means two or more Justices.  But, except possibly for the natural justice point, which your client won before the Federal Magistrate, all of the other points appear, if anything, to be errors within jurisdiction and not errors of jurisdiction, and therefore unlikely to attract the grant of special leave, as it seems to me.

MR ZIPSER:   Your Honour, first, I accept the point that the circumstances in which the High Court grants special leave to appeal are very limited and if this Court decides that the application is futile, then that is a reason for not extending time.  In my submission, as I have tried to explain in the applicant’s summary of argument ‑ ‑ ‑

HIS HONOUR:   You are referring to the submissions on the summons, are you?

MR ZIPSER:   No.

HIS HONOUR:   I see, in the application for special leave.

MR ZIPSER:   Yes.

HIS HONOUR:   I have read all that. 

MR ZIPSER:   There were multiple errors of fact by the Tribunal.

HIS HONOUR:   If there are errors of fact, fact finding is the very thing that tribunals are established to perform and they make mistakes in fact finding.  If every error of fact finding were a jurisdictional error, then you would have no rule in judicial review or constitutional review that the Court does not get into the merits of the case.  We would be down there in the merits and that is what the Court continually says we do not do.

MR ZIPSER:   Your Honour, at paragraph 23 of the applicant’s summary of argument filed in September last year there is reference to the House of Lords decision in R v Criminal Injuries Compensation Board.

HIS HONOUR:   Yes, I have read that.  Is that the one where Lord Slynn made reference to Australian law having by statute adopted the error of fact finding as a basis for judicial review?

MR ZIPSER:   At this stage I cannot answer that question as to whether Lord Slynn ‑ ‑ ‑

HIS HONOUR:   It is on page 7 in paragraph 23 of the applicant’s summary of argument.

MR ZIPSER:   Yes, your Honour.

HIS HONOUR:   Is that correct?  Does the Judicial Review Act permit judicial review for material errors of fact?  I do not remember.  It may be right.  I am not saying it is wrong, but it does not ring a bell.

MR ZIPSER:   I cannot answer that question this morning, your Honour.  However, it is the case that Lord Slynn stated the proposition his Lordship stated at paragraph 23 and it appears, from a reading of subsequent decisions of the High Court, the High Court has at least noted the statement by Lord Slynn, without rejecting it.  In my submission, this case would be an appropriate case for the High Court to consider, first, whether there were material errors of fact in the present case, and if so whether material error of fact can give rise to jurisdictional error.

HIS HONOUR:   Yes, but if your client is moving in and out of countries on false passports, he can hardly complain that a tribunal of this country gets a particular fact wrong.  If he is trying to deceive people on facts, then the fact that he has succeeded does not mean that the Tribunal has made an error that takes it out of jurisdiction.  It just means he has succeeded a little bit too well.

MR ZIPSER:   In my submission, where he puts evidence before the Tribunal and the Tribunal makes mistakes of fact in relation to deciding material issues, and those mistakes of fact are set out in my ‑ ‑ ‑

HIS HONOUR:   Yes, I have ploughed through them all and I have tried to understand them and it is the very thing, arguably, that courts should not have to do.  It means that I am getting down there trying to sort out the facts of the case instead of acting as a review court and deciding whether or not there is an indication of error of jurisdiction, which is the limited basis on which judicial review and constitutional review are conducted. 

However, I would not for the moment be inclined to say that the argument concerning the natural justice point is unarguable.  That is to say, whether or not the Federal Magistrate was correct and Justice Jacobson, exercising the appellate powers of the Full Court, was wrong in concluding that the Tribunal, if it disbelieved the birth certificate, ought to have indicated that so that it could be answered by the applicant or by somebody giving information for the applicant. 

If that is so, the question then arises as to whether that is ultimately irrelevant, given that the ultimate conclusion of the Tribunal was that your client’s purported basis of his well‑founded fear was his fear of retaliation by the Awami League and its allies, who were then in government but are now not in government, and whether that, therefore, is an irrelevancy, that it strikes at the very heart of his suggested fear that those who he says would be his oppressors are now in opposition in Bangladesh and were at the time of the decision.  That is the hurdle that you would have to jump even if you got up on the natural justice point.

MR ZIPSER:   My submission is that the Tribunal made a finding as to who it believed the applicant was and, having made that finding, it rejected most of the applicant’s evidence in relation to documents because they were not in the name of the person they believed the applicant was.  In my submission, if the Tribunal had found that the applicant was who he said he was, then there would be evidence before the Tribunal that the applicant had been put in gaol for a period of time and that false charges had been laid against him and that may have affected the Tribunal’s assessment of what would occur to the applicant if he returned to Bangladesh.  In my submission, it could not be said that the Tribunal’s decision would have been the same.

HIS HONOUR:   I notice that in this case the Tribunal reserved its decision in May and did not give its decision and publish its reasons until the following January.  Is that a correct sequence of events?

MR ZIPSER:   In paragraph 7 of the applicant’s summary of arguments it stated that there was a hearing on 22 May and that in December 2002 the Tribunal made a decision.

HIS HONOUR:   It made its decision in December 2002, that is seven months later, but it was not announced, or available, I think, until January 2003, so that is a space of nearly eight months.  Special leave was

granted in the last Sydney special leave list in a case where there was also a very long delay between the hearing and the decision on the part of the Tribunal.  You might like, if you are given an extension of time here, to have a look at that, because there may or may not be another basis on which to challenge the decision of the Tribunal.  Where issues of belief or disbelief are involved, it is usually highly desirable that decisions should be made promptly, because otherwise people forget what the whole case was about.  Anyway, special leave was granted by Justice McHugh and Justice Heydon in the last special leave list. 

I am not inclined to put you out.  I am inclined to allow your client to have his day in Court and to argue the matters, but I have to tell you that my impression, if I happen to be sitting, is that there is nothing in it, subject to full argument, except possibly the natural justice point, and even that has the difficulty which is highlighted by the decision of the Federal Magistrate.  However, I am inclined to cure the time.  Do you wish to say anything, Ms Morgan?

MS MORGAN:   No, your Honour.

HIS HONOUR: This is an application by summons for an order pursuant to rule 4.02 of the High Court Rules 2004 to the effect that the time for the filing of the application books by the applicant in this matter (as required by rule 41.09.11 of those Rules) be enlarged.

The applicant became out of time by reason of his omission to file application papers in compliance with Order 69A rule 10.9 of the High Court Rules, as they then stood, on or before 20 December 2004. By virtue of those Rules, the application for special leave to appeal was deemed to be abandoned pursuant to Order 69A rule 13 of the Rules, as then appearing. Notification to that effect was given by the Deputy Registrar to the applicant. In pursuance of that notification, his summons has been filed.

As appears from the affidavit of the applicant’s barrister, there was no fault on the part of the applicant himself in the default that led to the deemed abandonment.  The applicant’s barrister by his affidavit has explained the default, which was occasioned in part by oversight and in part by the intervention of the long vacation.  The applicant himself has supplied a letter, which is attached to the affidavit of the applicant’s barrister.  Unsurprisingly, this states that the applicant was relying on his legal representative to file the application books in due time.

I am satisfied by the explanation given in the affidavit that the default was not deliberate, although very properly it is disclosed that in this very matter there was an earlier time default which had been drawn to the barrister’s notice.  Nonetheless, the length of time in the default is comparatively short.  The applicant’s barrister has reached an agreement with the respondent concerning the costs that have been occasioned by the default.  Time defaults of this kind and length are normally now cured, so long as the costs occasioned thereby are provided for and so long as there is a real issue to be determined.

It is the latter point that has caused me some anxiety.  The applicant failed before a delegate of the Minister.  He failed again before the Refugee Review Tribunal.  He failed again before the Federal Magistrates’ Court.  And the appeal to the Federal Court, exercising its appellate jurisdiction, also failed.  It is arguable that the decision of the Federal Magistrate and of the Federal Court, to the effect that the ultimate foundation for the applicant’s expressed fear of persecution were he returned to his country of nationality, Bangladesh, presents an obstacle to success in the propounded special leave application.  That application will not succeed if this Court concludes that there was no error that took the Tribunal out of the proper exercise of its jurisdiction.

However, there is one point upon which the applicant was successful before the Federal Magistrate.  This concerned a complaint that the Tribunal had failed to accord natural justice or procedural fairness in disposing of the application to the Tribunal.  In the end the Federal Magistrate, whilst upholding that complaint, found that the error was not determinative of any injustice in its outcome.  In the Federal Court, Justice Jacobson, exercising the appellate powers of that court, concluded that there had been no breach of the requirements of procedural fairness and natural justice.

In my opinion, it is reasonably arguable that the Federal Magistrate was correct in his conclusion as to breach of the rules of natural justice.  That leaves the issue of whether that conclusion might afford a proper basis for the intervention of this Court, based on a breach of the rules of procedural fairness.  Such a breach is undoubtedly a ground for error of jurisdiction.  It would sustain an application for special leave, if it could be made out.

Without now deciding that the applicant will necessarily succeed in the application for special leave, a matter that will be determined by a Full Court of this Court, I am of the view that he should have his opportunity to advance his argument in the normal way, overcoming the deemed abandonment of his application.

Orders

For these reasons I make an order pursuant to rule 4.02 of the High Court Rules 2004 that:

1.        The period of time for the filing of the application books of the applicant be enlarged until a date after this day, namely, by 4.00 pm Tuesday, 8 March 2005;

2.        The applicant to pay the costs of the respondent of and incidental to this summons; and

3.        I certify for the appearance of counsel in chambers.

Is there anything else, Mr Zipser?

MR ZIPSER:   No, there is nothing else.

HIS HONOUR:   Yes, thank you very much.  The Court will now adjourn.

AT 10.28 AM THE MATTER WAS CONCLUDED