NAUV v MIMIA

[2005] HCATrans 96

[2005] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S181 of 2004

B e t w e e n -

NAUV

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 FRIDAY, 4 MARCH 2005, AT 11.01 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   If the Court pleases, I appear with MR S.E.J. PRINCE for the applicant in this matter.  (instructed by Stephen Blanks & Associates)

MR R.J. BROMWICH:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   Your Honours, the matter raises an important question in relation to the principles to be applied with respect to the discretionary refusal of relief in circumstances where the Federal Court has held that a decision of a Commonwealth officer was invalid, in this case, due to a contravention of procedural fairness.  Your Honours, the authorities to which we refer support the following propositions and I will come to them in a moment, but they are, briefly, that while the Federal Court, and, indeed, this Court, has a discretion to refuse relief in relation to an application for prohibition after an invalid decision has been made, there has been very little discussion about the principles which should apply in deciding to refuse relief.

In the present case, the primary judge said that you needed to establish a clear case for relief.  That test, as we will seek to demonstrate, flows from the pre-emptive applications where a decision is sought to be prevented.  That is not this case.  Thirdly, although delay is undoubtedly a relevant factor, there are virtually no cases where relief has been refused because of delay, so that the reasons for such refusal have not been examined.

May I take your Honours first to the judgment of the primary judge at page 39 of the application book.  The key passages are at paragraphs 49 to 54 of his Honour’s judgment.  He gave weighty consideration to two factors, firstly, that there had been available an opportunity for merit review, although that had been lost, and, secondly, the proposition that although relief should go almost as of right in a clear case – this is at the bottom of page 39 – he ultimately held that this was not a clear case because, although not contested, the facts could be described as contestable.

Your Honour, the first proposition is to be found in the middle of page 39, just before the reference to Boral Gas, where he refers to the desirability of other avenues of review being exhausted.  Boral Gas was itself a pre-emptive application and that principle is to be derived from it.  He then says at line 35:

The discretion to grant prerogative relief may nevertheless be exercised where there is an error going to jurisdiction that is patent, and not based on any contested or contestable facts.

Three lines up from the bottom of the page, his Honour refers to the “clear case” principle.  He then, over the page, refers to discussion in Aala in this Court and I will come back to those passages.  He notes at about line 30 the reference to the Ozone Theatres Case and then, at the bottom of the page, he comes back to the question relevant to this applicant, namely, that there was a far more convenient remedy for him.  He says, “It is beside the point” that it was no longer available, because it had been lost due to his own fault.  He refers to that as “absconding” or “escape”.  Those terms should not be understood to infer that there was any criminality involved; there was no offence at that time of escaping.  He then says in paragraph 54, his conclusory paragraph three lines in, about point 4 on page 41:

By escaping from detention, and remaining at large for as long as he did, the applicant has effectively waived any complaint he might otherwise have had in relation to the procedures adopted by the delegate.  By his conduct the applicant decided to put himself outside the law. 

With respect, we say that conclusion goes beyond the principles which are properly applicable on the cases, and that they illustrate error in considering a reason for refusing relief.

May I very briefly take your Honours to the principles.  In our bundle of cases, the fist case is The Queen v Ross-Jones; Ex parte Green, a Family Court case.  At the bottom of page 3 of the bundle, after reference to R v Watson; Ex parte Armstrong and R v Cook; Ex parte Twigg, Chief Justice Gibbs noted that this was a case in which there was:

a right of appeal to the Full Court –

of the Family Court.  Then over the page, after reference to other authorities, he says:

That is not to say that this Court will always, or even generally, refuse prohibition to an aggrieved party who has failed to take advantage of an available right of appeal.  On the contrary, if a want or excess of jurisdiction is clearly shown, the fact that the party affected . . . had another remedy . . . will in general be immaterial –

Your Honours will see there is then a reference to authority, and, in the middle of the page, just above the reference to R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd, the quotation from de Smith refers to the Tribunal being:

“about to act to his detriment in excess of its authority”.

His Honour then cites a passage from R v Australian Stevedoring Industry Board, which commences:

If, therefore, a clear case of want or excess of jurisdiction has been made out –

et cetera –

On the other hand, if the want or excess of jurisdiction is not clearly established, prohibition will be refused.

The talk about a “clear case” in each of these authorities is a reference to a pre-emptive application for prohibition.  That is not this case. 

That passage from R v Australian Stevedoring was referred to with approval in Aala’s Case at paragraph 51.  Could I take your Honours to that.  Starting at page 8 of the bundle, there is an extract from the joint judgment of Justices Gaudron and Gummow.  The passage which commences in the middle of paragraph 49, being an extract from Australian Telephone and Phonogram Officers’ Association, demonstrates that there has been very little consideration of the Court’s discretion to refuse relief.  At the end of the quotation in the joint judgment, this sentence appears:

“The tendency of the Court has been to assume the existence of a discretion to refuse the remedy when sought by a stranger though a case in which it would have been right to refuse the remedy has not arisen hitherto.”

This is a 1986 decision.  The joint judgment in Aala goes on to say that there remains a question in relation to the situation where the applicant is not a stranger, and they say: 

Here, it should be observed that the proposition that in respect of activity in excess of jurisdiction prohibition goes as of right cannot be accepted at its face value.

May I then take your Honours over the page to the discussion on page 9 of the bundle at paragraph 51, where their Honours extract the passage from Chief Justice Gibbs in Ex parte Green:

“If, therefore, a clear case of want or excess of jurisdiction has been made out –

the passage I took your Honours to before, and at paragraph 52 they say:

That statement should be accepted as the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth –

and they say a breach of the rules of procedural fairness would invoke that jurisdiction.  If I then could take your Honours over the page, paragraph 53, starting at the bottom of page 9 going over to page 10, notes that the first question is whether there has been a want of or excess of jurisdiction.  The second:

is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor –

May I come back to what we say about that in the present case.  Then at the bottom of the page in the last paragraph, which is paragraph 55 – the number may not appear:

No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal –

Their Honours then refer to the “animating principle” outlined by Justice Gaudron in Enfield City Corporation v Development Assessment Commission, and then, over the page at paragraph 56, come back to the question identified in Ozone Theatres of reasons why relief might be refused, including the possibility of unwarrantable delay.  There is, of course, no doubt that that would be a relevant factor.

May I then go in relation to the question of delay to a short extract from Justice McHugh’s judgment in Re McBain; Ex parte Australian Catholic Bishops Conference & Anor, which appears at page 16 of the bundle.  At page 15 at paragraph 95, your Honours will see he commences discussing certiorari as a discretionary remedy.  At the top of page 16, about 10 lines down, there is a reference to Yirrell v Yirrell, where his Honour noted:

this Court held that, where lack of jurisdiction appeared on the face of the record, a person aggrieved was entitled to prohibition as of right.

Yirrell is one of the few cases where delay through lapse of time has been considered in this Court.  The delay in that case was from 1925, when the order was made, to 1939.  Prohibition went.  His Honour is of the view that there should have been a discretionary exercise in that case.  About halfway down the page at a line beginning “reflects the thinking of a more” – I am so sorry, I should go back to the beginning of that sentence. 

After footnote 136, he refers to the Waterside Workers’ Federation Case and notes that the Court had said that there was a discretion whether or not to grant certiorari, even when the applicant is a party aggrieved:

The distinction between lack of jurisdiction appearing on the face of the record and lack of jurisdiction dehors the record reflects the thinking of a more formalistic legal period.  To say that the Court has a discretion when the lack of jurisdiction is proved by evidence but none when the lack of jurisdiction appears on the face of the record represents the triumph of form over substance.

There should, he says, be a discretion in both cases.  We accept that.  What we say, however, is that it would be a triumph of form over substance if, where the Federal Court were satisfied that there had been a want of jurisdiction, they should therefore put the case into a different category from the situation where the satisfaction appeared without the need to be proved by way of evidence.  In this case, the proof had been established.

May I then turn to the question of default and delay.  Why we would accept, with respect, that delay, waiver and acquiescence may be circumstances which would permit an appropriate refusal of relief, the present case does not, as his Honour suggested, constitute a form of waiver.  Waiver by default is at least contentious, one would think. 

Secondly, no doubt the delay was a relevant factor, and the primary judge noted that a tape of an interview appeared to have been misplaced.  Nevertheless, the existence of the tape went most materially to the question of procedural fairness on which his Honour had made a finding.  There was little suggestion in the evidence that delay would cause difficulty in establishing whether or not the applicant was entitled to a protection visa.  In those circumstances, we say that relief should have been granted, given the importance of the decision for the applicant, and the fact that he could have put fresh material before the Tribunal to support his asserted fear of death if returned to Algeria.  And in the absence of any contrary assertion by the Minister that delay would cause irreparable prejudice, it should not have been determinative of the case. 

With respect, the principles governing the exercise of discretion in relation to public law remedies are ones of central importance to the

administration of justice under the law.  This is an appropriate vehicle to consider them, because it was a case in which relief was in fact refused purely on discretionary grounds.

GLEESON CJ:   I am not sure whether this would be completely analogous, but I have been involved in cases where questions have arisen about extensions of time for leave to appeal in criminal cases, in circumstances where the need for the extension of time arose from the circumstance that the appellant or applicant had escaped.

MR BASTEN:   Yes, and there was DJL in which an application to review a Federal Court decision, which ultimately came before this Court, required a two year extension to a special leave application.  There are some analogies, your Honour.  The position is not, of course, entirely different from the situation where the Court is considering an order nisi application.  The circumstances, however, in this case were ones where the Federal Court had gone to the issue in dispute, namely, whether there was a want of jurisdiction, and had determined that question.  That would seem to bypass the initial question as to whether there should be an extension of time to allow the case to be mounted.  So, in that sense, we would say that the analogy is perhaps remote.  If the Court pleases.

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

The decision of the Full Court of the Federal Court in this matter involved a review by that court of the exercise of a discretion by a primary judge in the Federal Court.  We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED