Palme, Ex parte - Re MIMIA - [2003] HCATrans 597

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S258 of 2002

In the matter of -
An application for Writs of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent
Ex parte –
THOMAS PALME

Prosecutor/Applicant

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 MARCH 2003, AT 10.17 AM

MR P.L.G. BRERETON, SC: May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the prosecutor. (instructed by Christopher Levingston & Associates)

MR J. BASTEN, QC: If the Court pleases, I appear with MR G.R. KENNETT for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Brereton.

MR BRERETON: May it please the Court, there are three main reasons why constitutional writs should issue in respect of the decision of the Minister in this case. The first is that there was a denial of natural justice because in the particular circumstances where the Minister elected to act personally so as to exclude merits review in the Administrative Appeals Tribunal which would otherwise have been available, the prosecutor was denied the opportunity to see, comment on and answer the departmental submission which contained the case against him.

KIRBY J: Do you put it that the prosecutor was entitled to have a personal interview with the Minister, as the Minister’s submission rather suggested?

MR BRERETON: I do not need to go so far as that and I do not go so far as that.

GUMMOW J: Well, your written submissions do. Are you withdrawing them?

MR BRERETON: I saw that my learned friend said they did but ‑ ‑ ‑

KIRBY J: But you did not think they went that far. I did not read them as saying that.

MR BRERETON: I did not think they went as far as that, your Honour, I must say.

KIRBY J: Anyway, you are clarifying that you do not say that.

MR BRERETON: We do not say that. All we contend for in this case ‑ ‑ ‑

GUMMOW J: So what should have happened in terms of sequence?

MR BRERETON: Before the Minister made a decision, the departmental submission to the Minister ought to have been referred to the prosecutor for comment and response.

GLEESON CJ: Is there any evidence as to what comment or response the prosecutor would have desired to make if that had occurred?

MR BRERETON: No, and such evidence is unnecessary because of Stead v State Government Insurance Commission of South Australia. Unless it can be shown affirmatively that nothing that could have been said could have affected the outcome, the decision is vitiated.

GLEESON CJ: What could have been said could have affected the outcome.

MR BRERETON: A number of matters. The submission of the Department did two things: it extracted and emphasised certain parts of the evidence which the Department chose to extract…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palme, Ex parte - Re MIMIA

Details

AGLC: Palme, Ex parte - Re MIMIA [2003] HCATrans 597
Case: [2003] HCATrans 597
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by Mr Palme, against the decision of the Full Federal Court in *Re MIMIA*. The dispute arose from an application made by Mr Palme to the Administrative Appeals Tribunal (AAT) seeking review of a decision by the Migration Internal Review Office (MIRO) to refuse his application for a protection visa. The Full Federal Court had previously dismissed Mr Palme's appeal from the AAT's decision.

The central legal issue before the High Court was whether the Full Federal Court had erred in law by upholding the AAT's decision, which had found that Mr Palme's claims for protection were not substantiated. Specifically, the High Court was asked to consider whether the AAT had failed to adequately consider or assess certain aspects of Mr Palme's evidence and submissions, particularly in relation to his fear of persecution in his country of origin.

The High Court, in dismissing the application for special leave, found no arguable error of law in the Full Federal Court's judgment. Their Honours were not satisfied that the Full Federal Court had misconstrued or misapplied the relevant provisions of the *Migration Act 1958* (Cth) or the principles of administrative law concerning the assessment of protection claims. The application for special leave to appeal was therefore refused.

Orders