Radojicic, Ex parte - Re Min for Immigrtion

[2000] HCATrans 5

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S154 of 1999

In the matter of –

An application for Writs of Prohibition, Certiorari and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

JOHN GODFREY sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

JOHN GODFREY in his capacity as acting Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

PETAR RADOJICIC

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 17 JANUARY 2000, AT 10.01 AM

(Continued from 20/12/99)

Copyright in the High Court of Australia

___________________

MR N.C. POYNDER:   May it please your Honour, I appear for the prosecutor.  (instructed by Anne O'Donoghue & Associates)

MR P. ROBERTS, SC:   I appear for the first respondent, if your Honour pleases.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Roberts, why should I not grant an order nisi in this case?

MR ROBERTS:   For the various reasons set out in the short and the written submissions, your Honour.

HIS HONOUR:   Well, they seem to be reasons that you can put to the Full Court.  The prosecutor has only to show an arguable case and given the earlier decision of Justice Einfeld, a decision which I think may be open to some criticism, but nevertheless a Federal Court judge has held to that effect and that being so, it seems to me it is difficult to say it is not an arguable case in those circumstances.  If he is right, you are in trouble, I think.

MR ROBERTS:   Well, I put two points in relation to that. 

HIS HONOUR:   Yes.

MR ROBERTS:   Firstly, I think there are six judges of the Federal Court who dealt with similar matters, a list of which I have provided.

HIS HONOUR:   I know.  He sought to distinguish those cases.  I must say I do not think myself they can be distinguished.

MR ROBERTS:   Your Honour, his Honour also made, whether it is relevant or not, at least one factual error in the course of his Honour's judgment.  His Honour, in his

judgment, refers to the fact that there was no first card ever sent to Mr Singh, which was contrary to the evidence.  The reason I know that is because I did the appeal.  So, in so far as that had any significance, it was contrary to the evidence.  The only evidence in that case was that a first card was sent on 19 September and then, subsequently, a second card was not sent because it was mislaid.  Now, if that has any bearing on the matter - presumably it has some bearing or - - -

HIS HONOUR:   It is really a question of construction that he takes of the regulations, is it not?

MR ROBERTS:   Your Honour, in relation to that, the legislation refers to "sending" a letter to the last address, and our submission is that the method adopted by the postal authorities in this case as to delivery of the letter could hardly affect the sending.  The letter was addressed to the prosecutor in this case and the respondent in - - -

HIS HONOUR:   Exactly, and that is part of the problem that I have with his Honour's reasoning, that it is addressed - and I do not know what the practice of post offices is these days, but certainly there was a time when postmen would bring along the registered letter with the book and you would sign for the registered letter there rather than just simply leave a card there and ask you to collect, which seems to be the practice at the present time.  So, there is much force in what you put, but what you have to bear in mind, the government having, in effect, directed this work to this Court, and they are coming up here by ways of order nisi, people are generally entitled to an order nisi unless the case is not even arguable.  I mean, that is the big difficulty with it.

MR ROBERTS:   Your Honour, I am submitting it is not arguable and the decision of Justice Einfeld is plainly wrong. 

HIS HONOUR:   I understand that.

MR ROBERTS:   If necessary, I will say it is not even arguable.  If it is addressed to the person's address and sent, it really does not matter if it went Federal Express or the postal authorities, how they delivered or did not deliver it.  There was also, I may add, no evidence before his Honour as to methodology in relation to delivery other than a note from the postmaster, I think it was, as to how this particular card was delivered or not delivered, as the case may be, or the notification was, on the second occasion.  So, we do not even know what happened originally.  So, your Honour, it was a case devoid of any evidence.  His Honour got the evidence wrong, such as it was, and came up with a decision that appears to be contrary to at least six justices of the Federal Court.  In those circumstances, we say it was not even arguable.

The second matter, of course, your Honour, is the question of jurisdiction.  In the list of authorities I did refer to the Parisienne - - -

HIS HONOUR:   - - -Basket Case.

MR ROBERTS:   Basket Case which appears to be on point.  It was, indeed, a criminal case and their Honours, just reading from the headnote in the Basket Shoes Case:

Held, by the whole court -

and it was Justices Latham, Dixon and Starke -

that the justices before whom an information came for hearing had jurisdiction to determine whether it was laid within the statutory period or not, that, if they made an erroneous decision in so doing, they were still acting within the limits of their jurisdiction, and, accordingly, that prohibition would not lie.

HIS HONOUR:   Yes.

MR ROBERTS:   And that is precisely on point here.  The RRT determined questions of fact; determined them, we say, correctly but whether they were right or wrong, they were still questions of fact and, in those circumstances, we would say that section 75(v) remedies do not lie, even if they were wrong.

Other than that, your Honour, I do not think I could say a great deal more as to the matter on point.  I refer to the discretionary matters about the time period and the failure of the prosecutor in this case to advance this argument in the Federal Court, and clearly that was available to him to so do, witnessed approximately nine decisions of the Federal Court in relation to this type of matter, he apparently having failed to do so because his migration agent advised him to the contrary.  So, there is a strong discretionary point why a remedy should be refused in any event.

So, for all those reasons, your Honour, we would submit that this matter should not go a Full Court and it really would be, we submit, a waste of the Court's time in dealing with this case.  Those are our submissions, your Honour.

HIS HONOUR:   Thank you.  What do you say to those submissions, Mr Poynder?

MR POYNDER:   Your Honour, on the question of the arguable case, the effect of Justice Einfeld's decision was, in my submission, that just because an article of mail is addressed to a recipient does not necessarily mean that it was sent to the recipient and no matter how weak that finding may be, in anyone's mind, it must be, in my submission, seen to be at least an arguable case.  As your Honour has pointed out, it is a single judge.

HIS HONOUR:   But the section talks about "sending".  It is sent. 

If the Minister sends or leaves a notification to the applicant.....the notification is taken to have been received by the applicant even if it was not received.

So, we have got to ask did the Minister send the notification?  That seems to look at it from the point of view of the Minister rather than what the post office or anybody else does with it.  Supposing the post office had torn up the registered letter.  It would still be sent.

MR POYNDER:   Yes.  His Honour sought to distinguish those cases in Singh and your Honour's points have been fully argued in the Full Federal Court and, of course, no decision has been made on that case yet.  So, in my submission, at this stage Einfeld's decision stands as valid law.  On that basis, it gets over that threshold of "arguable case".

HIS HONOUR:   Just take me to the precise passage in Justice Einfeld's judgment that you rely on.

MR POYNDER:   There are a couple of passages I take your Honour to:  paragraph 24, the last sentence, his Honour says:

I agree that for a document to be sent within the meaning of regulation 5.3, it does not have to arrive at its destination.  But it has to be sent to the address given.

And in his Honour's view, a document sent by registered mail is sent to the post office not to the address given.

HIS HONOUR:   Is there any evidence to support that proposition?  It is addressed to the particular person, it is just a matter of the internal machinery of the post office, is it no, as to how they deal with it?  They can deliver it by courier if they wanted to.

MR POYNDER:   His Honour took the view that by sending a letter by registered mail - and if I can take your Honour now to paragraph 26, the last sentence in paragraph 26, his Honour took the view that by sending it by registered mail - it was actually sent to the Dubbo Post Office.  His Honour said:

In the present case a deliberate decision was made to send the letter to Dubbo Post Office and not to the supplied address according to section 53(3) and regulation 5.03, thereby ensuring that it would not be sent to the therein prescribed addressed.

HIS HONOUR:   Supposing the Minister had given the letter to a firm of couriers to be delivered to the applicant, would it be "sent" in those circumstances?

MR POYNDER:   No doubt that was raised in the Full Federal Court as well, your Honour, but perhaps there would be an argument that that was more direct sending than sending it to a third party, that is a post office, which then sends out a notification telling someone that something is sitting waiting for them "for you to collect". 

HIS HONOUR:   There is no evidence in this case that that is the standard practice, is it?  I do not know but I can imagine - certainly, long ago, registered letters could be taken by postmen.

MR POYNDER:   It is something which his Honour Justice Einfeld seemed to accept.

HIS HONOUR:   On judicial notice.  I think that is - - -

MR POYNDER:    As judicial notice, yes.

HIS HONOUR:   - - - my experience over a long period time that has been the usual practice, that you are notified that there is something there.

MR POYNDER:   Yes.

HIS HONOUR:   I am loath to send these matters to the Full Court if it can be avoided.  This legislation is imposing a great burden on this Court if we are going to have to have three Judges hearing these matters.  What about the second point?

MR POYNDER:   My submission on the second point would be that - the point as to jurisdiction - this is not a situation where the Tribunal's decision that it did not have jurisdiction was based on actual findings of fact which were within its power.  It is, in my submission, a situation where it has refused jurisdiction based on its view of the legal requirements of the relevant provisions which are section 66 and regulation 2.16.  It did not, in my submission, make findings of fact.  It simply - - -

HIS HONOUR:   Will you just take me to the findings.

MR POYNDER:   The findings are at PR7, your Honour, to the prosecutor's affidavit.

HIS HONOUR:   The argument that is put against you is that they had jurisdiction to decide whether the matter was lodged within time and that, although it is a question of law, they have decided that question, they have got jurisdiction to go wrong as well as right.  What do you say about that?

MR POYNDER:   Your Honour, my submission would be that the Tribunal has not, in this case, gone through the usual process of weighing up evidence and coming to a conclusion on facts.  It has simply stated that this was the case and because of this the legal requirements of the relevant provisions have not been met, therefore "I do not have jurisdiction to deal with the case."  In other words, it has, in the words of Craig v South Australia, mistakenly denied the existence of jurisdiction, in my submission.

HIS HONOUR:   Yes.  Have you anything further to put?

MR POYNDER:   Unless your Honour wishes me to address on the issue of discretion, I do not.

HIS HONOUR:   Well, you might say something about discretion as well, Mr Poynder.

MR POYNDER:   Just briefly, your Honour, that the prosecutor has not, in the words of previous courts, "slept on his rights" in that he did immediately pursue other remedies which were open to him, albeit administrative remedies.  He was given the decision of the Refugee Review Tribunal in the first week in April and almost immediately he had gone to his migration agent who had then approached the Minister seeking the Minister to exercise his discretion under section 48B of the Migration Act to allow him to reapply for a protection visa.  I have cited a couple of cases where applicants have pursued administrative remedies to the detriment of their possible legal remedies and the courts have held that this is not sleeping on rights or acquiescing to the decision of the decision-maker previously.

HIS HONOUR:   Yes.  Well, Mr Poynder, my view at the moment is that you will not succeed in front of the Full Court.  My only concern is whether or not I am so clearly convinced you have not got a case that I should refuse you an order nisi at this stage. 

Mr Roberts, Judges time and again, when they think a case is unlikely to succeed, have taken the step of referring the case into the Full Court without issuing an order nisi, but I suppose you would oppose that as well?

MR ROBERTS:   Yes, your Honour.  Can I just point that the reasons for the decision of the RRT, they actually go through the facts that they found.  It is not just they say the letter is dated such and such.

HIS HONOUR:   I know, but I do not think it makes any difference even if it is a question of law.  If they have jurisdiction to decide the question of law, they have jurisdiction to decide the question of law.

MR ROBERTS:   We submit your Honour should refuse the - - -

HIS HONOUR:   I think I will reserve on this issue.  The matter is extremely important from the applicant's point of view.  I will give a judgment this week in the matter.  But I just want to think about that issue as to whether or not it is so clearly unarguable that it is not a case for the granting of an order nisi.

Very well, I will adjourn the proceeding until later.

AT 10.19 AM THE MATTER WAS CONCLUDED