Plaintiff S367-2004 v Commonwealth of Australia & Ors

[2004] HCATrans 372

[2004] HCATrans 372

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S367 of 2004

B e t w e e n -

PLAINTIFF S367/2004

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

REFUGEE REVIEW TRIBUNAL

Third Defendant

Summons

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 OCTOBER 2004, AT 8.32 AM

Copyright in the High Court of Australia

__________________

MR B. LEVET:   If it please your Honour, I appear for the plaintiff.   (instructed by Bharati Solicitors)

MR A. MARKUS:   If your Honour pleases, I appear for the first and second defendants.   (instructed by Australian Government Solicitor)

HIS HONOUR:   I have a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the third defendant that the third defendant submits to any order of the Court save as to costs.  Mr Levet, you want the orders which appear in the summons which was filed on 27 September 2004, namely, two interlocutory orders, orders (2) and (3), is that correct?

MR LEVET:   Yes, your Honour.

HIS HONOUR: Let us assume that there is a serious question to be tried and let us also assume or conclude that section 78B of the Judiciary Act is not an obstacle to the hearing of the application because of the urgency assigned.  If the Tribunal finds in your favour for reasons other than the arguments you are propounding, then that would be the end of the saga, will it not?  Your client will obtain a visa?

MR LEVET:   Yes, your Honour.  At that point, however, we would say that it is not premature at this stage to seek the substantive relief, the reason being that the primary substantive relief sought, that is, the bill of discovery, is something which is available to this honourable Court and which by its very nature presupposes an extant proceedings in the court below.

HIS HONOUR:   Yes, but either your client will succeed or fail in the Tribunal.  That success or failure may be for reasons quite distinct from the bill of discovery country information issues.  If your client fails, the points you wish to argue can be

propounded by him, can they not, to either the Full Federal Court by way of review or the Federal Magistrates Court and, in the event of either of those courts holding against him, by appeal to the Full Federal Court and, in the event of it holding against him, by an application for special leave to this Court?  Is that not so?

MR LEVET:   Given that course of events, yes, your Honour.  However, we would say, firstly, that ultimately the issue or 424A(3) is a matter that is going to be determined by this Court were the Tribunal to hold against my client.  It is because of the seriousness of the matter, impacting, as it does, upon effectively every matter that comes before the Tribunal, it is a matter which is likely to ultimately find its way here.  It comes before the Court now as a fairly discrete point that can have application both to this case and to others. 

Your Honour, the difficulty that my client faces in the event that the Tribunal finds against him is that there will be findings of fact made against him where the delegate has already relied upon country information, where instances of country information have already been put to my client before the Tribunal.  Your Honour will observe from the attachment to the affidavit that is before you that there is ‑ ‑ ‑

HIS HONOUR:   Yes, just on that, I note that Mr Levet reads the affidavit of Mr Haque which was filed on 27 September 2004.  Do you object to any part of that, Mr Markus?

MR MARKUS:   No, your Honour.

HIS HONOUR:   Yes, sorry to interrupt, Mr Levet.

MR LEVET:   Thank you, your Honour.

HIS HONOUR:   You were drawing my attention to the annexure.

MR LEVET:   Yes, your Honour.  On the fifth paragraph, the paragraph commencing “It is our experience”, the writer of the letter sets out that:

It is our experience that the Delegate and the Tribunal in refugee matters almost invariably prefer so‑called “Independent Country Information” . . . to the sworn evidence of the Applicant or any witnesses he may choose to call.

He goes on to set out what the country information may consist of and the fact that it does not disclose the identity of the author or the circumstances in which the information was sought or provided. 

Your Honour, in effect, what currently occurs is fairly well documented in Muin and Lie, that is to say there is a large pool of country information which is held by the delegate which is accessed or accessible by the Tribunal in its entirety. Section 424A(3) requires that material specific to the applicant is disclosed to him or adverse material which is going to be relied upon is disclosed to him.

Your Honour, the real analogy would be were a party to litigation able to subpoena a truckload of documents to have unfettered and sole access to those documents to pick out the two or three documents which assisted their case and to not give access to the other side, so that the other side is unable to contextualise those documents or, indeed, to point the Tribunal to any material which might materially assist.

So, your Honour, the problem my client faces is that he cannot point to things which might be of assistance to him.  He may well be faced with findings of fact against him based on independent country information, as, indeed, the delegate below relied upon such independent country information, and he is unable to put it even into context.  In my respectful submission, the auxiliary jurisdiction, as it used to be called, and which includes bills of discovery, is intended specifically to enable the litigant to bring matters to a supervisory court’s attention to enable some form of relief to be obtained that would enable the matter to proceed in the case below in such a manner as to avoid multiplicity of suit, et cetera. 

The example postulated by your Honour, that is that the case could get here ultimately after all other appeals have been exhausted, firstly, is, in my respectful submission, an inefficient use of judicial time and an inefficient use of the funds of each of the parties.  It is a serious matter which is likely to come here.  It is a matter which affects virtually every case before the Tribunal.

HIS HONOUR:   Can I just interrupt.  Let us say these injunctions are granted, then presumably one would proceed to a trial in this Court on the statement of claim before a single Justice. 

MR LEVET:   Yes, your Honour.

HIS HONOUR:   And if the single Justice was against your client, he would no doubt seek leave to appeal, or would he have an appeal as of right?  But whether he needs to seek leave to appeal from three Justices, which would, in turn, lead to a hearing before the Full Court of seven Justices, if your contentions about the importance of the issue are sound, or an appeal as of right to seven Justices – it will not be seven, it will be six, I suppose – forgive me for being selfish, but the time, in two or three stages, of all members of the Court will be taken up.  I am not sure that it is more efficient that that should happen than that your client should exhaust his remedies in the courts below as of right at two stages and by way of special leave at a third stage.

MR LEVET:   Your Honour, the problem, so far as exhausting his remedies is concerned, is that section 424A(3) of the Act seeks to exclude, in effect, the remedy of discovery of the type that is sought. It is only this Court, by virtue of section 77(i) of the Constitution, that might not find itself circumscribed by that particular section, so the likelihood of obtaining a realistic remedy before coming to this Court is, with respect, very slim.

HIS HONOUR:   But are we not avoiding the point?  That may well be so.  I am assuming in your favour that from the outset that there is a serious question to be tried.  The findings of fact that might be flawed because your client could not qualify them or answer them by reference to the documents that are being kept from him would simply be flawed and be open to review again before a properly directed or instructed Tribunal.  We have to face up to the question of whether it is better that seven Justices of the High Court of Australia should determine this question in the next 18 months or so, or whether several opportunities which you might have to succeed on these issues and on grounds other than these issues should not be taken up first.  That is what lower courts are for.

MR LEVET:   Yes, your Honour, save and except this.  It is ultimately a matter that is likely to get here, whether in this case or another case.  It is a serious matter.  It is a fairly neat and discrete point which is not likely to involve a single Justice of this Court in any great fact-finding operation.  It is simply the legal argument of whether or not a bill of discovery lies against the Tribunal.  One cannot imagine that there are going to be any arguments as to fact and, indeed, no contrary facts have been pleaded or alleged in affidavit before you today.

HIS HONOUR:   It is too early to plead and there has not been a great deal of time to put on an affidavit.

MR LEVET:   No.

HIS HONOUR:   Is there any further submission?

MR LEVET:   Not unless I can assist your Honour further.

HIS HONOUR:   Yes, thank you.  Mr Markus, can I just ask you this question.  The points which the plaintiff wishes to have decided by this Court, is there any bar to them being considered by either the Federal Magistrates Court of a single Federal Court judge and thence on appeal by the Full Federal Court?

MR MARKUS:   No, your Honour.

HIS HONOUR:   There is no statutory bar to that occurring?

MR MARKUS:   There is no bar to any of those issues.

HIS HONOUR:   Yes, thank you.

The plaintiff claims that he is a citizen of Bangladesh who, on 12 April 1996, entered Australia; that on 18 May 2004 the second defendant, the Minister for Immigration and Multicultural and Indigenous Affairs, by her authorised delegate, refused to grant a protection visa; that on 2 June 2004 he sought review of that decision before the Refugee Review Tribunal; that on three occasions, namely, by letter of 7 September 2004 and oral applications at hearings of the Tribunal on 8 and 23 September 2004, he has sought discovery from the Tribunal of all country information held by it about Bangladesh; and that on 23 September 2004 the Tribunal heard evidence and granted him 14 days to make further written submissions following which it proposes to determine the matter.  That period is about to expire.

By writ of summons filed on 27 September 2004, accompanied by a statement of claim filed on the same day and an affidavit of the plaintiff’s solicitor also filed on that day, the plaintiff applied in the original jurisdiction of the Court for declarations that section 424A(3) of the Migration Act 1958 (Cth) is either beyond constitutional power or does not apply to a bill of discovery in a Chapter III court for:

“[a] Bill of Discovery of all documents . . . in the possession or control of the Second and/or Third Defendant containing or relating to country information in respect of Bangladesh;”

and:

“[a] Mandatory Injunction . . . that proceedings involving the Plaintiff before the Third Defendant be restrained until there is a return in accordance with the Bill of Discovery.”

Section 424A(3) provides that the duty of the Tribunal created by section 424A(1) and (2) to give certain information to persons in the position of the plaintiff does not exist in relation to information:

“(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)      that the applicant gave for the purpose of the application; or

(c)      that is non-disclosable information.”

By the summons filed on 27 September 2004 the plaintiff seeks the following interlocutory relief until further order:  that the Tribunal be restrained from continuing to hear the review application and that the Minister be restrained from taking the applicant into immigration detention or removing him from the Commonwealth of Australia.  It is these orders for which the plaintiff presses today.  The last order must be refused, since there is no present threat that the apprehended events will take place.

On 1 October 2004 the plaintiff filed a notice of three constitutional matters under section 78B of the Judiciary Act 1903 (Cth). The first two of these matters are those identified in the declarations. The third is whether a requirement of procedural fairness is to be implied into section 61 of the Constitution. That is a subject on which the writ of summons and the statement of claim are silent, but it is raised in the plaintiff’s written submissions filed on 30 September 2004. There is no evidence that the section 78B notice has been served, hence it is prima facie obligatory on the Court not to proceed to hear the present application pursuant to section 78B(1), unless section 78B(5) applies: although the plaintiff has delayed in coming to the Court, it is correct to proceed on the basis that it does.

Most of the arguments of the plaintiff, and, for that matter, of the first and second defendants, were directed respectively to a demonstration and a denial that there was a serious question to be tried.  It is not necessary to say anything about whether the arguments in support of the relief sought and the writ of summons are sound or not.  It is convenient to assume that they do raise a serious question to be tried. 

At the heart of the balance of convenience is the following submission of the plaintiff, namely that if the Tribunal makes findings adverse to the plaintiff on country information which he has had no opportunity to challenge or place in context, the plaintiff will be unjustly prejudiced, whereas grant of the interlocutory relief sought will cure that defect and the time of the parties will be saved by averting the need for more than one application to be heard by the Tribunal. 

The plaintiff also drew attention to the following material in a letter of 7 September 2004, sent by his solicitors to the Tribunal: 

“It is our experience that the Delegate and the Tribunal in refugee matters almost invariably prefer so‑called “Independent Country Information” extracted from your CISNET data base to the sworn evidence of the Applicant or any witnesses he may choose to call.  Often, such material consists of DFAT Cables and Reports, in circumstances where the information disclosed to the Applicant does not reveal the identity of the author of the information (together with such details as his or her level of expertise and experience, and the circumstances in which such information was sought or provided). 

It is not possible to test the veracity of country information by cross‑examination of its authors; indeed, neither is it usually possible to ascertain whether or not the country information came into existence for the express purpose of bolstering the Commonwealth’s position in matters before the Tribunal and the courts.”

The plaintiff’s contentions were supported in oral argument along the following lines. If the Tribunal comes to a conclusion adverse to the plaintiff, it is inevitable that the validity or the construction of section 424A(3) will fall for determination by this Court. It was submitted that it affects every matter before the Tribunal. It would, pursuant to the statement of claim filed in this Court, come before a single Justice as a fairly discrete point. Whichever way it was decided, it would be a point having application both to this case and all others.

It was pointed out that the Tribunal has a large pool of country information to which it has access in its entirety but to which persons in the position of the plaintiff do not have access, save to the extent that the Tribunal forms the view that section 424A compels it to give access.  In argument, an analogy was drawn between the present circumstances and a subpoena by one party to litigation to a third party to obtain what was described as “a truckload of documents”, whereas in truth only two or three favourable documents were sought, and to which truckload of documents the other party to the litigation would have no access. 

It was submitted that to grant the application would be an appropriate form of relief in relation to the bill of discovery, viewed as a remedy in equity’s auxiliary jurisdiction, because it would avoid a multiplicity of suits.  It was submitted that it would be an inefficient use of judicial time if the plaintiff were forced to exhaust his remedies in courts other than this, and more efficient that the matter be decided by a single Justice of this Court and by the Justices of the Court sitting as a Full Court. 

It is necessary to remember that if the plaintiff fails in the Tribunal, whether he fails on grounds unrelated to the country information as, contrary to the plaintiff’s submission here, persons in the plaintiff’s position often do, or whether he fails on country information grounds, he will be able to have the Tribunal’s decision reviewed in either the Federal Magistrates Court or the Federal Court and, if that application for review fails, he will be able to appeal against the decision of the court before which he failed.  He will further be able to seek special leave to appeal to this Court from any adverse decision in an appeal to the Full Federal Court brought by either him or by the Minister in the event that the Minister fails.

The arguments which the plaintiff seeks to raise in the original jurisdiction of this Court can be raised at the first two levels of that review and appellate hierarchy just described. 

The application for interlocutory relief must be refused for one reason.  It is possible that the plaintiff’s application to the Tribunal will succeed.  If it does not, the remedies just summarised can be applied for.  If it does succeed, orders by this Court preventing that outcome will have done nothing except to expose the parties to the unnecessary expenditure of costs and to a waste of time in the other courts. 

If the matter proceeds in this Court in the manner which the plaintiff desires, the time of the Judge will be taken up in circumstances where that Judge will have many other pressing demands to satisfy.  An adverse decision by that Judge against either side will no doubt lead to an application for leave to appeal, if that be necessary, and to an appeal, if leave is granted or if no leave is necessary.  In general it is undesirable that the time of the Justices of this Court should be taken up on forensic inquiries of the present kind until those who are complaining about the Tribunal’s conduct have exhausted all their other remedies.  The plaintiff advanced no submission that those other remedies did not exist or were inadequate.

The short answer to the plaintiff’s submissions then are as follows:  even if the Tribunal makes findings adverse to the plaintiff on country information evidence which, contrary to the law as the plaintiff sees it, he has had no opportunity to challenge or place in context, that defect will be curable by those remedies.  It is not the case that it is more convenient that there be only one hearing before the Tribunal, as the plaintiff desires, than that there should be a series of hearings in this Court in order to avoid a second hearing before the Tribunal.

The application for interlocutory relief in the summons dated 27 September 2004 is dismissed. 

Do you have any applications, Mr Markus?

MR MARKUS:   Yes, your Honour.  I would seek an order for costs in relation to the summons and I would also ask your Honour to certify for counsel.

HIS HONOUR:   Yes, I will certainly certify for counsel.  Why should there not be a costs order?

MR LEVET:   I do not seek to be heard, your Honour.

HIS HONOUR:   Yes, very well. 

The first and second defendants seek an order for costs which counsel for the plaintiff does not oppose.  The application is dismissed with costs.  I certify that this was a matter appropriate for the attendance of counsel in Chambers. 

Adjourn the Court.

AT 9.02 AM THE MATTER WAS CONCLUDED