Ozmanian v Min for Immig & Multicultural Affairs

[1997] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M89 of 1996

B e t w e e n -

TOSN OZMANIAN

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

BRONWYN McNAUGHTON

Second Respondent

Application for special leave to appeal

DAWSON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 1997, AT 10.01 AM

Copyright in the High Court of Australia

MR J.L. DWYER, QC:   May it please the Court, I appear with my learned friend, MR T.V. HURLEY, for the applicant.  (instructed by Erskine Rodan & Associates)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR T. BEECH-JONES, for the respondents.  (instructed by the Australian Government Solicitor)

DAWSON J:   Mr Dwyer.

MR DWYER:   If the Court pleases, we do desire to put the argument in different terms although, I think, to the same effect as is contained in the summary of argument that has been filed with the Court in that it is now desired to respond to a number of matters that have been put in the submission in reply.  What we desire to say has been reduced to writing and it may assist the Court if we were to hand that up.

KIRBY J:   Is the point of the conduct the failure to bring to the attention of the Minister the fact that the interview was conducted with officials present from the Armenian Government which made communication less than completely candid?  Is that the essential point of conduct that you say ought to have been brought?

MR DWYER:   The essential point of conduct is the failure to bring to Mr Ozmanian’s attention the suggestion that the inquiries made were general in nature and could not have revealed his identity.  That is the essential point which was not brought to his attention and on which he was not given the opportunity to reply.  That is what his Honour found correctly, in our submission, to be the denial of natural justice to Mr Ozmanian.                   The starting point for our argument is the Administrative Decisions (Judicial Review) Act.

GUMMOW J:   I know, but you have this problem, Mr Dwyer, which is highlighted at the top of page 127 in the judgment, lines 3 and following.  If your argument is correct, it would mean that conduct could be reviewed even though the decision itself could not be, so what would be the sense of that?

MR DWYER:   We say it may, in particular circumstances, make very good sense because if there has been - - -

GUMMOW J:   It is a bit hard on people who only got a decision.

MR DWYER:   It can never be undesirable that proper processes be observed in conduct engaged in for the purposes of making decisions.  Now, it can never be undesirable that the court should have jurisdiction to grant relief.

KIRBY J:   You say if Parliament wants to immunise something, it has to go it very, very clearly and, in this case, only immunise the Minister’s decision?

MR DWYER:   Yes, your Honour.  That is the dichotomy between decision and conduct that is contained in the AD(JR) Act.  It is clear in the Act.  If it was not clear in the Act, it was clearly spelled out in Bond’s Case.  When Parliament came to remove jurisdiction in respect of decisions, it must be taken to have known that there existed jurisdiction in respect of conduct, and if it wanted to attack that as well - if it wanted to remove that as well - it should have done so and it did not.  Now, that is really the point.  Anything that is said in opposition to the point really comes down to attacking the dichotomy.

KIRBY J:   The point is an important one but this does not seem to me at the moment to be a case that really calls out for further elucidation.  Perhaps you will develop why it is a case that does so.  The matters that were not drawn to your client’s attention do not seem to be screaming out for the intervention of this Court.  I do not suggest that is the criterion.  People do not have to scream but it does not seem to be a case that attracts attention.

MR DWYER:   Your Honour, could I put perhaps the matter in this way:  the consequences to our client, if he is deported back to Armenia, and if he has in truth been revealed to the authorities by the embassy inquiries and if his contention that there is systematic persecution of Kurds being engaged in in that country, the consequences for him of that course of events is likely to be dire in the extreme as the material, we think, illustrates.

DAWSON J:   You are putting that as to natural justice or denial of natural justice?

MR DWYER:   That goes to the significance of him being given an opportunity to deal with the suggestion by officials that the inquiries could not have revealed him.

DAWSON J:   It is an explanation why it is a denial of natural justice.  That is the way you put it, is it?

MR DWYER:   Yes, your Honour.  We can appreciate how in one sense it might be said the matter of the embassy inquiries was known to him.  He had had an opportunity to say something about the embassy inquiries but what had not been revealed to him was this crucial allegation that he could not have been identified by those inquiries.  That, to him, is a matter of the utmost importance.

KIRBY J:   But is not the logic of your argument that Australia could never make an inquiry, that it just has to accept at face value because there will always be a little risk that in an inquiry there will be a revelation that the person is making an application, that we have just got to accept their claim?

MR DWYER:   That is why the handbook says - - -

KIRBY J:   I realise the handbook says that “you must not reveal” and I realise that every country should try to disguise it but every country is entitled to make inquiries.  It just does not have to accept the statement made by an applicant on face value without making an inquiry and every inquiry contains some risk that a person’s identity would be disclosed.

MR DWYER:   We would acknowledge that every country must have the right to make inquiry but the measures that must be taken to avoid disclosure will vary with the individual about whom the inquiries are being made.  When you have a man in Mr Ozmanian’s position who is - and I think this is common ground - accepted to be a leader in the Kurdish intellectual circles in Armenia and a writer and broadcaster of prominence in that country, combined with the circumstance that there are very few arrivals of Kurds from Amenia in Australia - - -

KIRBY J:   You say in his case Australia could not make inquiry; we just had to accept his claim?

MR DWYER:   No, but Australia had to make inquiries of the most careful kind and the material raises a very strong inference in this case that the inquiries made were not; that officials have gone about not sufficiently considering those two factors.

GUMMOW J:   This is all terribly interesting, Mr Dwyer, but it does not go into the construction of this legislation.

MR DWYER:   Of course it is a piece of legislation that seeks to remove the jurisdiction of the Federal Court, but it is not appropriate to describe that as a mere question of construction.  In our submission, the beneficial legislation under the AD(JR) Act gives the court important jurisdictions which form a significant part of the rights of persons in this country - - -

GUMMOW J:   Of course they do, but that is a matter for construction, remedial construction.

MR DWYER:   The removal of rights, the interference with rights, must always be a question of construction.

GUMMOW J:   That is a matter of construction too.  You do not advance that by referring to the facts of this case, not to my mind anyway.

MR DWYER:   I was referring to the facts in dealing with the question of whether or not, on the merits, there is at the back of all of this, in truth, a denial of natural justice and it is our submission that his Honour - - -

GUMMOW J:   That has not been litigated, has it?

MR DWYER:   No, it has not.

GUMMOW J:   Exactly.  Well, how can we get involved in it?

MR DWYER:   Except that his Honour Mr Justice Merkel has found that there was a denial of natural justice, and we say found correctly that there was a denial of natural justice.

Now, the fact that it is legislation which seeks to remove the relevant jurisdiction of the Federal Court is not a reason, in our submission, for this Court denying special leave.  There are cases where the fact that a mere question of construction is involved has been used by this Court as a ground for refusing special leave but where the construction goes to a matter of jurisdiction of a court and an element of the fabric of the rule of law in this country, it should not be regarded.

GUMMOW J:   I understand all that, Mr Dwyer, you do not need to lecture me about that.  The question is one that has to be answered by construing this particular piece of legislation with those precepts in mind, of course, and that is why I directed you in the first instance to that particular passage.

MR DWYER:   If one goes to the piece of legislation and one asks, “Does this piece of legislation satisfy the test of a clear and unambiguous manifestation of intention required for it to remove jurisdiction in respect of conduct?”, it is our submission that the answer must be that it does not.

KIRBY J:   They are very wide words, are they not:  “jurisdiction in respect of decisions”.

MR DWYER:   But they cannot reach the dichotomy because one has, under the dichotomy, both:  jurisdiction in respect of decisions and jurisdiction in respect of conduct.

KIRBY J:   It must mean more than jurisdiction in the making of a decision.  It is “jurisdiction in respect of decisions”.  Why is the conduct not picked up by that?

MR DWYER:   Because the AD(JR) Act establishes a dichotomy between decisions and conduct as this Court developed and explained in Bond’s Case and however wide the words “in respect of” are, they cannot logically bridge that dichotomy because, as I have said, you can have jurisdiction under section 5 in respect of decisions and jurisdiction under section 6 in respect of conduct.  They are two categories; each of them wide by reason of those words “in respect of” but they remain within the category.  The width of the words “in respect of” in section 485(1) cannot take you out of the category of decision into the category of conduct.  So, the legislature has simply failed, in our submission, in section 485(1) to deal with the removal of jurisdiction in respect of conduct.

Really, it is our submission in the end that the Full Court did not squarely confront the nature of the dichotomy but unless that dichotomy is kept before one at all times when looking at the legislation, one falls into error which is, in our submission, what the Full Court did.

KIRBY J:   There is no reference in sections 5 and 6 to “jurisdiction in respect of conduct” and “decisions”.  It simply says that if you are aggrieved about a decision you can do this, under 5, and if you are aggrieved about engaging in or about to engage in the conduct, it is under 6.  I mean, if one looks at what Parliament was trying to do here, it was to insulate this type of decision from judicial review.  I think that is pretty clear.

MR DWYER:   Yes.

KIRBY J:   The question is whether they slipped up in the language that they used and the Full Court, which would ordinarily interpret this Act, has said, no, they meant it.

MR DWYER:   With respect, when your Honour frames the question in that way, your Honour ignores the dichotomy.  We say the legislation remains effective to insulate decisions.

KIRBY J:   This Court has said a thousand times “in respect of” are very wide words of connection.  I realise your argument and I can understand it, it is just a question of, as Justice Gummow says, construing what Parliament was getting at here and I think it is pretty clear they were getting at saying this is not to be reviewed.

MR DWYER:   We acknowledge that they were getting at insulating decisions and we do not say they were unsuccessful in that endeavour but we say - - -

GUMMOW J:   The conduct in section 6 has to be for the purpose of making a decision, does it not?

MR DWYER:   Yes, that is so, your Honour.

GUMMOW J:   Well, that is conduct in relation to a decision, I would have thought.

MR DWYER:   To put the matter in that way is to seek to break down the dichotomy which was clearly spelled out in Bond’s Case.

KIRBY J:   You are really putting to us that Parliament may well have intended to do this but they slipped and the Court should apply, in defence of the rule of law, a strict approach and say, “If you want to immunise conduct, you have got to say it very clearly, and you didn’t”.  I think we all understand that argument but the problem is for you the words “jurisdiction in respect of”.

MR DWYER:   Yes.

KIRBY J:   I do not think you can make it better by repeating, as you have very powerfully put, the argument that you advance.

MR DWYER:   Could I say to the Court simply this, that the arguments based on undermining Part 8 or undermining the 28 day time limit miss the point.  We say they are not undermining, they are supplementing that scheme.  They are continuing the existence, on our argument, of a beneficial provision which supplements the scheme and permits justice to be done in cases where the jurisdiction is attracted.

KIRBY J:   It would really destroy the immunisation of decisions.  You would never get a case on decisions because you cannot and every case would go searching in the ashes of the conduct which would mean that the

parliamentary immunisation of decisions would be completely nugatory and completely fail.  There would always be something in the conduct that somebody could find; always.  You say, “So be it.  If Parliament wants to immunise conduct, let them say so”? 

MR DWYER:   That is so, your Honour.  I have not said anything about the question of declaration.  We do say that if there was jurisdiction, the discretion as to declaration was appropriately exercised by his Honour.

KIRBY J:   There is some support for you in that, is there not, in that Queensland case.

MR DWYER:   Yes, that is Coco, your Honour.

KIRBY J:   Yes.

MR DWYER:   Coco and Johns both provide support for that contention.  What the majority in the Full Court of the Federal Court really seek to do was to go back to the old ancient doctrine that you could not have a declaration unless there was consequential relief which courts have had written out of their jurisdiction for a long time now.  That is all explained by the analysis that Mr Justice Gibbs gives in Jododex.  We say his Honour had the discretion; it is an unfettered discretion; he exercised it appropriately, and the grounds for interfering with that, which are laid out in House v The King were not even addressed by the Full Court, let alone satisfied.

KIRBY J:   In the view they took they did not have to come at it and errors of law had occurred on the way.  Do you concede that if in fact you lost on the first point of the meaning of the Administration Decisions (Judicial Review) Act that the question of declaration does not arise.

MR DWYER:   Yes, your Honour.  That is clear.  Perhaps it is not necessary to say any more about that.  I think the only other thing that I would desire to say is that contrary to the assertion in the respondents’ submission, our client does not have legal aid.

DAWSON J:   The Court need not trouble you, Mr Tracey.

The Court is of the view that any appeal in this matter would not enjoy a sufficient prospect of success to warrant the granting of special leave.  Special leave is accordingly refused.

MR TRACEY:   I ask for costs, if the Court pleases.

DAWSON J:   Can you say anything about that, Mr Dwyer?

MR DWYER:   We did in our submission provide reasons why it was suggested that an order for costs ought not be made if we were unsuccessful.  This matter is a test case.  Mr Ozmanian has no assets.  He is still in Australia but he is still in the situation of a person seeking asylum and seeking to persuade the authorities and the courts that he has refugee status.  As those are his circumstances and as these proceedings have been brought as a test case where there are many others in similar positions to Mr Ozmanian who will be affected by the outcome of this litigation, it is submitted that the Court might consider this is a case where an order for costs should not be made.

DAWSON J:   Special leave will be refused with costs.

AT 10.21 AM THE MATTER WAS CONCLUDED