SAAP & Anor v MIMIA

[2004] HCATrans 284

[2004] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A28 of 2004

B e t w e e n -

SAAP and SBAI

Appellants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 9 AUGUST 2004, AT 2.18 PM

Copyright in the High Court of Australia

MR B.R.M. HAYES, QC:   If the Court pleases, I appear with my learned friend, MR M.S. BLUMBERG, for the appellant.  (instructed by Bourne Lawyers)

MR J. BASTEN, QC:   If the Court pleases, I appear with MS S.J. MAHARAJ for the respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Hayes.

MR HAYES:   If the Court pleases, this appeal revolves around proper construction of section 424A of the Migration Act.  It was not my intention to go through the background material because that is in the written submissions, and I thought I would just ‑ ‑ ‑

GUMMOW J:   Justice Mansfield considered himself as dealing with a section 39B application, did he not, at page 245?

MR HAYES:   Yes, your Honour.

GUMMOW J:   The relief you seek from us at 281 is not consistent with that.  You would need prohibition, would you not, and you would need to join the Tribunal and the prohibition would not necessarily go as of right.

MR HAYES:   No, it would not go as of right.  I accept that part of this involves a discretion at the end of the day in the Court.  I propose to deal with that as part of my submissions.

GUMMOW J:   Well, what do we do?  What do we do about page 281?

MR HAYES:   I would need to amend that in terms of – in the orders sought.  Is your Honour referring to the orders sought?

GUMMOW J:   Yes, at 281 of the appeal book.

MR HAYES:   That the appeal be allowed?

GUMMOW J:   No.

MR HAYES:   I am sorry, I am not following what your Honour is saying.

GUMMOW J:   The relief sought at 281 is not apt for relief on an application under 39B.  It is limited to prohibition, mandamus or injunction.

McHUGH J:   You want the matter remitted to the Refugee Review Tribunal.

MR HAYES:   I see, yes.

GUMMOW J:   And you would need to join the Tribunal, would you not?

KIRBY J:   There would be no point in remitting it to the Refugee Review Tribunal unless the order of the Tribunal were quashed.

MR HAYES:   Yes.  I am appreciating what the Court says now.  We did give consideration to whether the matter should be remitted to the Tribunal for determination or whether it was a matter of looking at what his Honour Justice Mansfield said, but we thought on reflection it should go back to the Tribunal.  I appreciate the point that your Honour is making now.  It can, with respect, be dealt with, in my submission, by way of leave to amend the orders that we are seeking to quash the decision of the Tribunal.

KIRBY J:   Was the Tribunal a party before Justice Mansfield?

MR HAYES:   The Tribunal was not a party as such, no.

KIRBY J:   Let me go back to first base.  We have had many cases where the matter has been determined in the Tribunal and then judicial review has been sought before a single judge and then there is an appeal to a Full Court of the Federal Court.  Do I understand that at the time this came along, the appeal had been abolished, or was this an appeal from Justice Mansfield?

MR HAYES:   This was an appeal from Justice Mansfield.

KIRBY J:   But the relief sought before Justice Mansfield was not relief under the Migration Act but relief under section 39B of the Judiciary Act, is that correct?

MR HAYES:   Yes, I think that is right.

KIRBY J:   There was no relief sought under the Migration Act.  Is that because of intervening amendments to the Migration Act which removed the power of judicial review in a case of this kind?

MR HAYES:   That is as I understand it.

KIRBY J: I think we had better have reference to that so we understand the framework in which that has been done. Then you are seeking, in effect, the review under 39B which is similar to the review under the Constitution, is it not?

MR HAYES:   Yes, that is right.

KIRBY J:   You have gone to the Federal Court for that, they have refused you relief.  Would not the Tribunal have been a proper party to proceedings where you are seeking relief under section 39B and would you not need them in order to quash their order?

MR HAYES:   With respect, not generally speaking.  The court or the decision‑maker is not necessarily a party to ‑ ‑ ‑

McHUGH J:   That is the first time I have ever heard that proposition.  I have never ever heard a proposition to that effect at all.  You want to quash a decision of a decision‑maker and you do not make that decision‑maker a party to the proceedings?  That is one of the most novel propositions I have heard.

MR HAYES:   Perhaps I have put it too broadly.

McHUGH J:   I think you have.

MR HAYES:   What I meant to say was that generally speaking the decision‑maker does not take an active part in ‑ ‑ ‑

KIRBY J:   But that is a different matter.  They are brought under the power of the Court.  They come into the Court and they submit properly to our orders but that brings them under the power of our orders or the orders of the Federal Court.  That does not seem to have been noticed below.

GLEESON CJ:   Why do you not just apply for leave to amend the proceedings by adding the Tribunal as a party?  We will ask Mr Basten whether that would be opposed.

McHUGH J:   Well, you need more than that, do you not?  You need an order in the nature of certiorari to quash the decision and an order in the nature of mandamus, do you not?

MR HAYES:   Requiring them to deal with it, yes.

KIRBY J:   Mr Basten appears for the Minister.  This Tribunal is presented by the Act as an independent statutory tribunal established by the Parliament.

GLEESON CJ:   But we need to know whether Mr Basten would have anything to say about the amendment and then we can deal with the question of whether or not the amendment ought to be made, bearing in mind the Tribunal is not here.  In all the cases where it is here, it has a submitting appearance.

MR HAYES:   Insofar as that ‑ ‑ ‑

GLEESON CJ:   Is this a point that has been taken in either of the courts below?

MR HAYES:   No, it has not, your Honour.

KIRBY J:   It is not noticed by Mr Basten in his submissions either.

GLEESON CJ:   Except that Mr Basten in his written submissions did point out, I think, that prohibition is a discretionary remedy and he is preparing to advance an argument on that basis.

MR HAYES:   That was also an argument raised before Justice Mansfield and the Full Court in relation to the overall discretion of the court.

KIRBY J:   But no point has been made on parties up till this point.

MR HAYES:   No, this is the first time that – the Court has, of course, recognised it – that in the absence of the parties recognised it.

KIRBY J:   We like to be helpful.

MR HAYES:   Thank you, your Honour.

McHUGH J:   But it raises serious questions as to whether or not special leave should have been granted.  Mandamus is a discretionary remedy and there are real arguments about discretion in this case, I would have thought.

MR HAYES:   The point was not raised ‑ ‑ ‑

KIRBY J:   Justice Mansfield mentioned them and you are here to argue that point if ever you can get over this procedural point.

MR HAYES:   That is right.  The matter was not raised at the special leave application either.  It just has not been raised by any of the parties, nor indeed was it raised by the Court at the special leave application – not that it should.

GLEESON CJ:   Do you make an application for leave to amend?

MR HAYES:   I do make an application, your Honour, to amend insofar as that is ‑ ‑ ‑

GLEESON CJ:   You had better be precise about the amendment you want to make.

MR HAYES:   I make an application to join the Tribunal as a party and seek an order that the decision of the Tribunal be quashed and – I think Justice McHugh is right – an order for mandamus requiring the Tribunal to deal with the matter according to law.

GLEESON CJ:   What is your attitude to that, Mr Basten?

MR BASTEN:   Your Honours, in relation to the amended relief, we do not take any objection to that.  We had understood the order numbered 4 on page 281 implicitly to ask for a quashing of the decision, otherwise there is nothing to remit.  Whether mandamus in terms is required is not a matter we are troubled by.

GUMMOW J:   Prohibition is required, is it not?

MR BASTEN:   If it is required, your Honour, that assumes that there is something to prohibit.  Nobody is at the moment threatening to remove anyone at this stage.  We would accept that if the Tribunal has not effectively concluded its practices, then we are not going to seek to have the appellant removed.  In relation to the joinder, I do not have instructions in relation to the Tribunal.  I am sure that ‑ ‑ ‑

GLEESON CJ:   I am not suggesting you have instructions to represent the Tribunal.  I am just asking whether, representing your client, you have any objection to the amendment.

MR BASTEN:   No, but can I just say this in defence of the course which has been taken below.  I think it has been the practice for some time now to treat section 479 of the Migration Act as an implied removal of the obligation which would otherwise arise to join the Tribunal.  Section 479 defines the parties to a review application as involving:

(a)       . . . the applicant in the review by the relevant Tribunal; or

(b)      in any other case – the person who is the subject of the decision –

who might be a sponsor perhaps of a visa applicant, and then:

(c)      in any case – a person prescribed by the regulations.

Those do not include the Tribunal.

KIRBY J:   But that assumes that it is the review of a privative clause decision, which is one of the issues in the case.

MR BASTEN:   Of course it does.  I was going to say that there is some discussion in the Federal Court about this issue.  It is some time past and I cannot tell your Honours the references and they all precede Plaintiff S157 and the learning that that introduced.  As far as I am aware, nobody has revisited this question since Plaintiff S157.

KIRBY J:   What was the relief sought before Justice Mansfield?  Where do we find that?

MR BASTEN:   Your Honour, it is a handwritten document which does not really seek any relief at all.  It appears at page 236.  Page 241 I think is the amended application which is typed.  That seeks relief in similar terms to that of the present appeal, except that it seeks a setting aside.

GUMMOW J:   The decision of the Tribunal seems to have been made on 18 October 2001.

MR BASTEN:   That is so.  That is after the commencement of the new Part 8, so the new Part 8 operates.  The first order sought before Justice Mansfield was setting aside the Tribunal decision, which was consistent with seeking to have it remitted.  We understood that was intended by the appeal.

KIRBY J:   Was the applicant legally represented at that stage, or not?

MR BASTEN:   I am told he was, your Honour, yes.  In terms of the relief sought, the relief sought at 241 would seem to be appropriate for an application under 39B.

KIRBY J:   It looks odd to a trained eye because the Tribunal is not a party and there is no actual application for an order in the nature of certiorari to quash the decision of the Tribunal.

MR BASTEN:   There is not here but there was before Justice Mansfield at 242, I think, your Honour.  The first order sought was that the decision of the Tribunal be set aside.  Your Honours will see from 241 the respondent, I think it is fair to say in accordance with practice which lawyers were following at that stage, was the only respondent to the application.

GLEESON CJ:   Without entering into the question of the extent to which the amendment is necessary, we will grant your application, Mr Hayes, but you will need to file a document containing the amendment.

MR HAYES:   Yes.

GLEESON CJ:   Just before you go any further, can I ask you what is the reprint of the Act from which we can safely work?

MR HAYES:   Reprint 8.

GLEESON CJ:   When you join the Tribunal as a party, you will need to serve the Tribunal.

MR HAYES:   Yes.

KIRBY J:   I suppose it is inevitable that the Tribunal will appear to submit – it always does, but I imagine in the proper course it should not just be assumed.  So that I would not think the service on the Tribunal should be greatly delayed.

MR HAYES:   No.  We will effect that as soon as is practicable.

McHUGH J:   Do the Federal Court Rules, do you know, deal with the question of the naming of parties?  Our rules do.  Our rule, Order 55, which deals with mandamus, prohibition, certiorari in a case like this, under rule 8, where an officer of the Commonwealth is involved, which description fits the Tribunal, requires that he “be described in the title by his name and the name of his office” and so on.  I do not know whether there are any similar rules in the Federal Court.

MR HAYES:   I am sorry, I cannot assist your Honour on that.  I am not familiar with the precise rules.  If the Court pleases, I commenced by saying that the matter revolves around a proper construction of section 424A of the Migration Act.  I think that raises three issues which I can identify in this way.  Firstly, was there compliance with section 424A by the Tribunal?  That will involve a consideration of the scope of that section.  Secondly, if there was a failure to comply with the section, what are the consequences of that failure?  Does it invalidate the decision that the Tribunal made?  Thirdly, if the answer to that is that it does invalidate the decision, are there any reasons why relief should be withheld?  That is the discretionary argument that I will come to in relation to that aspect.

GLEESON CJ:   There may be another anterior question possibly, and that is the point of time in the proceedings at which section 424A cuts in.

MR HAYES:   Yes.  Certainly the Full Federal Court in a number of decisions which I will take the Court to has said that it requires the Court to reach a point where it is going to make a decision which would affect – rather, it would require the information referred to in section 424A which would affect the decision of the Tribunal to affirm the decision under the review.  That occurs at any time up to the end of the case virtually.

KIRBY J:   Do you say that is what the Full Court has held?

MR HAYES:   That is the effect of the decisions.  I do not know if that is a point which is in issue here because that seems to have been the way the Full Court has dealt with all of these cases to date.

KIRBY J:   Justice Mansfield obviously considered that to be the case because he held that there had been no compliance.  That would not have arisen if there had been no duty to comply.

MR HAYES:   No.  I think the finding by Justice Mansfield and the finding at the end of the day by the Full Court was similar, that there was not compliance with section 424A insofar as the written particulars and the written information was not provided to the applicant.

GLEESON CJ:   A possible point of view is that the very problem that arose in this case might demonstrate that 424A was directed to a somewhat different point of time.

HAYNE J:   That may require consideration of whether the review processes are in relevant respects to be equated with curial processes that lead to the single definitive hearing or whether a review process may wear a different character, namely review on the papers.  Yes, you have to give the person concerned a chance to come along and talk; yes, you have to give them a chance to have witnesses come along and talk, but it is a whole process of review.

MR HAYES:   Yes.  That is one of the points which I will deal with in the context of effectively what is a proper construction of this section in the context of the Act itself, accepting that it is a conduct of a review.  I appreciate the point that your Honour Justice Hayne makes in that regard.

HAYNE J:   Section 425 I do not think uses the expression “hearing”, does it?  It talks of inviting an applicant to appear “to give evidence and present arguments”, but whether that is early, middle or late ‑ ‑ ‑

MR HAYES:   The authorities again have viewed this review process not so much as an adversarial court hearing but rather an inquisitorial process.  Indeed, that will be one of our points that we make.  That is why it is important that these conditions be strictly adhered to.  Can I take the Court to section 424A and deal with it as to whether or not first of all there has been a failure to comply with 424A.  On the respondent’s argument ‑ ‑ ‑

KIRBY J:   Just before you move to that, as the Chief Justice pointed out, there is arguably the preliminary question as to whether it attaches.  What do you understand to be the argument that it does not attach in terms of the text?

MR HAYES:   I think it was in the NAAV Case that the requirement to provide the particulars in that case did not go to the jurisdiction of the Tribunal because once the Tribunal had embarked upon its hearing or its review, whatever occurred after that was done within jurisdiction.  That was one of the points raised in the NAAV Case.

McHUGH J:   But that is not the point, is it?

KIRBY J:   That is the breach of the section.

McHUGH J:   The point is that if you look at Division 4, sequentially the obligation under 424A seems to arise at quite an early stage and is not concerned with what might go on during what I will call the hearing if you have a hearing.  You start off under 422.  The applicant has certain obligations to provide documents, then 424 says the “Tribunal may seek additional information”.  If it does, then where the Tribunal considers it appropriate, it has to give particulars and in a particular manner.  Then the sequence looks at other matters and 425 says that “The Tribunal must invite the applicant to appear” and so on.

MR HAYES:   But the hearing which takes place is part of the review which the Tribunal conducts.  Section 424, for example ‑ ‑ ‑

HAYNE J:   You speak of a single undifferentiated hearing.  How does that sit with section 428?  Section 428 contemplates that evidence may be taken by someone other than the person who is conducting the review, which suggests perhaps that the review is a process that is larger than, different from, a process culminating in a single common law big bang hearing.

MR HAYES:   I accept that but the point, with respect, that we make is this, that as part of the review it involves a hearing.  There is an obligation on the part of the Tribunal to hear from the applicant as part of its overall obligations.  Section 428 may well have – that is a provision which enables “another person to take evidence”, et cetera, but at the end of the day what the Tribunal is doing is conducting a review into the application and that review involves hearing from the applicant.  Section 424 provides, for example, that:

In conducting the review, the Tribunal may get any information that it considers relevant . . . must have regard to that –

But then 424A goes on that the Tribunal must give the applicant an opportunity to consider – or provide the applicant with:

particulars of any information that the Tribunal considers would be the reason . . . for affirming the decision ‑ ‑ ‑

KIRBY J:   So your argument is really a functional one.  You say it is postulated by 424A that the decision has not yet been made and that there is still focused the question of affirming the decision below that is under review, so that it is everything until that moment of affirmation of the decision under review that enlivens this section functionally?

MR HAYES:   That is right, because it is all part of the review which the Tribunal is undertaking.  At that point it is incumbent on the Tribunal to provide the applicant and it does not matter at what point in the review that occurs.

GLEESON CJ:   If you look at section 425 which follows 424A, 424B and 424B and 424C, it seems to imply that after the things referred to in 424A, 424B and 424C have happened, the Tribunal must invite the applicant to appear.  Let us call what is going on an appearing, an interview, if you like.  Does 424A produce the consequence that if while the applicant is there physically before the Tribunal appearing in compliance with section 425 and the Tribunal becomes aware of something that might be the reason for affirming the decision under review, the Tribunal has to post a letter to the applicant?

MR HAYES:   It means that the Tribunal must comply with that section.  Posting a letter is one means of complying with the section.

GLEESON CJ:   What are the other means that would be appropriate to a situation where you have the applicant there in the flesh in front of you?

MR HAYES:   It means that that applicant must be provided with the information that the Tribunal requires and that must be in writing to give the applicant an opportunity to properly respond to that.

GLEESON CJ:   How is the writing to be communicated to the applicant in the circumstances that I mentioned?

MR HAYES:   That is dealt with under section 424A(2)(b).

GLEESON CJ:   I understand that, but what do you say - you are the Tribunal.  You have the applicant there in front of you and you become aware of some information that may be a reason for affirming the decision.  I asked you what are you supposed to do – post the applicant a letter?  What are the competing possibilities on your construction of the Act?

MR HAYES:   There has to be compliance with subsection (2)(b).  If that involves giving them that notice in writing, that is what it must do.

GLEESON CJ:   Can you hand it to them right there and then?

MR HAYES:   Yes, you can hand it to them.  That is covered by the regulation.  You can hand it to them in writing to give them an opportunity to deal with it.

GLEESON CJ:   If the applicant is represented by a lawyer or by an advocate of some kind, as was the case here, the Tribunal has to communicate the information to the applicant in writing.

MR HAYES:   That is the effect, we say, of section 424A(1) and (2).  It is a very important provision because it does distinguish between simply telling – given that these applicants very often find themselves in difficult situations and are from all different countries and so on - suffer disabilities anyway - in our respectful submission, it is very deliberately worded.  Section 424A is very deliberately worded.  To refer to “any information” referred to in 424A must be given to the applicant in this way.  There is, in our respectful submission, no other plain meaning that you can give to that section when viewed as a whole.

HAYNE J:   What light, if any, does subsection (3) cast on it?

MR HAYES:   Subsection (3) is information which does not specifically apply to the applicant and ones that the applicant has already given.  The applicant is not at a disadvantage ‑ ‑ ‑

HAYNE J:   That is to say, do I understand subsection (3) relevantly to confine the information which attracts 424A to information that does not come from the applicant and is not general country information?

MR HAYES:   Correct.  That is right.

HAYNE J:   So that you do not have the prospect of the Tribunal conducting a hearing being told something by the applicant and being required to give the applicant a notice in writing, the information concerned is of a different kind.

MR HAYES:   That is so.  Your Honour, if one looks at the section 424A and reads it as a section as a whole, it is very clear in the words that the section uses about the information and ensuring that the applicant understands.  If one looks at it in the context of what is the section trying to achieve, the section is trying to ensure that not only does the applicant alert it to information which may affect the decision that is going to be made about the applicant, but that the applicant reasonably understands why it is relevant to the review and then has an opportunity to comment on it, not in, as it were, necessarily in the scenario of an oral examination, because the kind of information the section is concerned with might well be of significance to the applicant because it is going to turn the decision against the applicant.

GLEESON CJ:   Is it one of your arguments that section 424A could apply after the appearance referred to in section 425. 

MR HAYES:   Yes, it is.  It has to be because it is part of the review and it is part of the information that is necessary to bring that section into effect.

GLEESON CJ:   I think we have actually had some cases in which there has been complaint about the failure to draw to the attention of an applicant information that came to the notice of the Tribunal after the procedures involved in 425 had taken place.

MR HAYES:   And it is still, in our respectful submission, incumbent on the Tribunal in those circumstances to bring it to the applicant’s attention – go through that process of 424A as it is set out.

KIRBY J:   Well, we will come to that in a moment.  I think at this stage you are dealing with whether the section attaches and I understand now the argument to the contrary.  Section 424A presumably was inserted after 425.  It was not in the original run of the sections otherwise it would not have been numbered in that way and I think your written submissions set out how it came about into the Act as a sort of mini code of ‑ ‑ ‑

MR HAYES:   I think the respondent’s written submissions dealt with the original Act and 424A(2) was amended subsequently and changed.  Section 424A(1) was not changed or has not been changed.  The respondent says in its submissions that the words “in the way that the Tribunal considers appropriate in the circumstances” effectively means that that – it is only if the Tribunal considers it appropriate that it be given in writing that 424A(2) has to be complied with.  We say that, with respect, cannot be right when you read section 424A and the words it expressly uses because you see that it is only the information which the Tribunal considers – or particulars of the information which the Tribunal considers would be the reason for the decision that it has to turn its mind to the way in which that information is to be provided.

KIRBY J:   “Appropriate” governs “way”.

MR HAYES:   Yes.  The section goes on to say that it has to ensure it is reasonably practical that the applicant understands why it is relevant to the review and then invite the applicant to comment on it but subsection (2) includes both - the information and the invitation must be in writing “by one of the methods” identified.  So, with respect, it cannot be that the invitation somehow is included in the words “in the way in which the Tribunal considers appropriate”, nor would it make a great deal of sense if that was the case because what the Tribunal can do – the work that those words would have, for example, apply equally to where the applicant is not in detention in section 441A(2).  That section provides various ways in which the information can be given provided it is given by the method identified.

Now, the words “in the way that the Tribunal considers appropriate” could just as easily apply to section 441A – by hand, by post, et cetera but it has to be one of those ways.  So we say that if you look at the subsection (2) which says “the information” it can only apply to the information referred to in subsection (1) and invitation must be given.  Those are all imperative words which, in our respectful submission, lead to the conclusion that the whole of the section creates that obligation, that imperative obligation on the part of the Tribunal to provide that information.  A failure to do that will result in a lack of jurisdiction in the Tribunal making its ultimate decision because that is an essential element of the decision‑ making process as part of the overall review.

KIRBY J:   Is the use of the imperative “must” simply the draftsman’s style in that part of the Act or is it distinguished from other verbs which are less imperative?

MR HAYES:   It is always difficult to – it is our submission that the use of the word “must” there is imperative.  It is very strong.  It fits with the structure of the legislation.  It fits with the need to alert the applicant to what is very important information which is going to affect the applicant’s future and it is linked.  Both subsections refer to “must”.

KIRBY J:   “Must” is used is in 425, 425A.

MR HAYES:   Yes, and for example the ‑ ‑ ‑

KIRBY J:   Section 426.

MR HAYES:   In 425:

The Tribunal must invite the applicant to appear -

Not unreasonable to say those provisions are all mandatory provisions in that sense or the word is used in that sense.

KIRBY J:   Section 426A uses the verb “may”, “the Tribunal may” do certain things.

MR HAYES:   Yes, and, indeed, in terms of what is the effect of a failure to comply with that, there are parts of the Act, in section 420A(3), for example, it says if:

non‑compliance by the Tribunal with any direction –

in that section:

does not mean that the Tribunal’s decision on a review is an invalid decision.

So we find the legislation identifying those occasions when a failure to comply does not invalidate the decision.

KIRBY J:   What is that section?

MR HAYES:   That is section 420A(3).  It is just pointed out as an example of the legislation using, or identifying those occasions when ‑ ‑ ‑

KIRBY J:   There are some sections in the part which use “the Tribunal may” do certain things.  Would you remind me, I think it is in Mr Basten’s submissions, what was the history of this small code of natural justice which has been incorporated?

MR HAYES:   Yes.

KIRBY J:   Because that actually may be more helpful to understand what Parliament is getting at than just the use of verbs.

MR HAYES:   Subsequently ‑ ‑ ‑

KIRBY J:   Was this introduced at a time when there was removed from judicial review alleged defaults on natural justice grounds?

MR HAYES:   No, I do not think so, your Honour.  Section 422B of the Act was introduced, but that is in Reprint 9 and that is set out in our written submissions at page 7 where that part was introduced to make this statement an exhaustive statement of the natural justice hearing rule and that is:

422B(1)  This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with ‑ ‑ ‑

KIRBY J:   So presumably, the purpose of that was to diminish any potential extensions of the natural justice rule on the common law grounds in Federal Court reviews?

MR HAYES:   Yes, and we say it virtually entrenched the importance of 424A as reflecting the rules of natural justice and the need to adhere to that section for that reason.  If the Court pleases, I do not think I can say any more in relation to the meaning of that section as to whether or not there has been compliance.  It was found by Justice Mansfield that there had been a failure to comply with the section insofar as the applicant was not given written information pursuant to subsection (2).

KIRBY J:   Could you help me with a factual question.  I am just a little confused as to whether the promise by the Tribunal - I will get back to you if I have any questions - did that come at the beginning in an explanation of the general structure of the Act or did it come at the end when he was saying goodbye to the applicant and after he had heard the applicant and the daughter’s evidence where it would be more relevant.

MR HAYES:   Yes, your Honour, it came at the end of the hearing in total and that was after hearing the daughter’s evidence and after hearing the applicant’s evidence.  At the very beginning, at page 154 of the appeal book, your Honour will see it in the middle of that page at about line 23, the Tribunal said to the applicant:

during the hearing I will tell you about any information I have that is adverse to your claim, and you’ll have an opportunity to comment on that information, and so will your adviser.

That was said at the commencement.

KIRBY J:That is a sort of Muin and Lie type point.

MR HAYES:   Right at the beginning and that must be looked at in the context of this applicant was at Woomera on her own in a hearing room, unaccompanied by anyone there.  Her migration adviser was in Sydney with the Tribunal and the interpreter. 

KIRBY J:   Is the age of the older daughter revealed?

MR HAYES:   She is an adult, but I am not sure that I can pick up on what her ‑ ‑ ‑

KIRBY J:   And the age of the younger daughter?  Is that revealed and there is a reference somewhere to “siblings”.  I do not know whether there are more.

MR HAYES:   Yes.  I will check that your Honour.  I cannot think ‑ ‑ ‑

KIRBY J:   And does it reveal whether the older daughter is in immigration detention in Sydney or is she ‑ ‑ ‑

MR HAYES:   No, she is not.

KIRBY J:   She is at large in Australia.

MR HAYES:   Yes, she is at large, yes.  The older daughter is 22.  That appears at page 9 of the appeal book and at the time that the older daughter was at this hearing, she had her own child present and there was some disruption because the child was distressed in some way.  Going back to your Honour’s question, that was put at the beginning, “I will tell you of any information that I consider necessary” and then at page 189 of the appeal book, at the close of the hearing, at line 20:

I won’t ask you any further questions about that but I may ask your adviser to inform me further.  We do have to close the hearing now.  Doctor, in view of the time, we have to adjourn now because the room is being used by another client.  I have no further questions.  Could I suggest that we adjourn the matter.  I’m prepared to close the hearing now and receive written submissions, unless you want especially to make oral submissions.  I’m happy to arrange another hearing time to receive oral submissions but in the circumstances I would prefer written submissions and I’d write to you indicating what matters I’d like to hear first.

KIRBY J:   Now, it is in that conditional verb “I’d” – that is to say, “I would”, now is that to be interpreted as meaning if you send written submissions, I would write to you indicating matters I would like to hear.  The word “first” does not fit with that.

MR HAYES:   No.  I would, with respect, construe that as saying “You are welcome to make written submissions or oral submissions.  I am happy to arrange another hearing to receive oral submissions.  In the circumstances I would prefer written submissions and I would write to you indicating what matters I would like to hear first”.  Now, it clearly is, in relation to any matters I want to hear from you I will write to you about.  You are welcome to make written or oral submissions but in relation to matters – because he had already said, earlier on, he said “If there are matters I will let you know what matters”.  At page 189 at the bottom of that page:

Look, I will be giving close consideration to everything you’ve raised and I’ll be talking with your adviser about other aspects of your case I need to hear about.

And, of course, that did not occur.  None of that occurred.

KIRBY J:   The question is whether, having regard to the matters which the Tribunal did identify were concerning it, in the light of the elder daughter’s evidence, that was a sufficient discharge either of section 424A or, if it was not, relevant to the discretionary relief, whether it was a sufficient discharge of what natural justice would have required.

MR HAYES:   We say it was not and can I take you to page 257 of the appeal book which is Justice Mansfield’s decision where he made his findings in this regard.  He said at paragraph 33:

In this matter, the respondent acknowledges that no such notification was given . . . 

It is apparent that the Tribunal had some difficulty in obtaining a coherent version of events from the applicant in the course of her evidence.  The Tribunal had the benefit of earlier interviews with the applicant, including her written statements . . . At the hearing, as the transcript reveals, the applicant did not express herself in a fully coherent and logical way.  That was not through any fault of the Tribunal, or through any pressure on its part.  The way the hearing evolved was clearly in part influenced by the difficulties the applicant had in expressing herself.

And then he refers to what your Honours have seen, but:

“I won’t need to take evidence from you at length but I did want to clear up a few matters with you.  The first thing is I’ve just taken evidence from your daughter and there are three incidents –

Now, the next part is important:

The interpreter then indicated that, whilst able to translate exactly what had been said, the interpreter considered that the applicant would not be able to cope with what is being said.  The Tribunal member then put the matter another way: 

“Your daughter has just given evidence to me.  There are three matters I wanted to raise with you.  The first matter is the loss of your husband’s eye -

et cetera.  Now, just pause there.  In the context of the submissions I have been making about the importance of 424A and the information being provided in the written form which was required, this is important but, in any event, here is a matter which the Tribunal considered important.  His Honour goes on:

The subsequent exchange indicates that the applicant did not provide a clearly responsive answer.  It suggests that the elder daughter attempted to contribute to the discussion at that point, but was asked not to do so.

KIRBY J:   There is nothing in the first point about the eye, is there, because the only dispute there was about the timing and it was accepted that he had suffered an injury to his eye, but it was some five or six years back and that was said not to trigger the well‑grounded fear because it was too far in the past.  Well, that all seems to have been dealt with fairly.

MR HAYES:   But it was also related to whether or not the applicant was being considered a credible witness as far as what she had said to the Tribunal before and what she was subsequently agreeing with.

KIRBY J:   But that does not really fit with the fact that the applicant agreed that her daughter would have got that right and, therefore, there is no credibility issue on the point.

MR HAYES:   No, your Honour is absolutely right on that, that is right.  The next point on page 258, his Honour goes on:

subsequent exchange indicates that the applicant did not provide a clearly responsive answer . . . There is further discussion, when the Tribunal member seeks to confirm with the applicant that it did not happen only one year or so ago, but no clear and unequivocal response is received. 

The Tribunal next raised the question of how the applicant could be a hairdresser –

Again, if I can go to the last sentence on that paragraph:

Again the responses indicate that the applicant had difficulty in comprehending and responding to that questioning.

Thirdly, the Tribunal said that the daughter had given evidence that she had gone to school and that her siblings also had gone to school.  The response through the interpreter was that they

did go to school.  The answer is recorded in the transcript as follows: 

“Basically . . . when they went to school.  Even my youngest daughter I took –

et cetera, and:

Finally the Tribunal member directed the applicant’s attention to the allegation that the authorities tried to abduct her elder daughter.  Again, from the response provided through the interpreter, it appears that the applicant had difficulty understanding and responding to that question.

Then, if I can go over the page to the reference that I have already taken the Court to ‑ ‑ ‑

GUMMOW J:   Where is all this going, Mr Hayes?

MR HAYES:   What it shows, your Honour, is that his Honour found that each of these was part of the reason for the Tribunal’s decision.  His Honour found subsequently that this was sufficient compliance with section 424A(1) and what I am seeking to do ‑ ‑ ‑

HAYNE J:   But why do we get into that?  Either you are right that it had to be given in writing or you are wrong.  Is there some middle ground?

MR HAYES:   Yes there is, your Honour.  There is the issue of whether subsection (1) has been complied with and subsection (2).  What we say is that these – because my friends, and the argument is she has been provided with natural justice in the sense that these matters were put to her and she was invited to comment, even though it was not in writing.  This is the context in which these matters were put having regard to section 424A ‑ ‑ ‑

KIRBY J:   Yes, but Justice Hayne’s question is directed to the question asked on the special leave, that is to say, if in the old terms this was a mandatory requirement, end of story.  It has not been complied with, Justice Mansfield said it has not been complied with, therefore a precondition to the exercise of the jurisdiction has not been complied with.

MR HAYES:   Yes, but there is a distinction between what has not been complied with.  Section 424A as a whole, that is subsections (1) and (2), or simply 424A(2), which is providing the information and the invitation in writing, what I am saying to the Court is that the suggestion that 424A(1) was complied with by providing the common law rules of natural justice, ie, “Here is the information.  What do you have to say about it?”, that was not what 424A was requiring and none of these answers and none of the questions or the matters which are being put by the Tribunal address the issue in 424A(1), quite apart from whether it should also have been given in writing but it is linked in this way.  If it had been given in writing, then all of these matters would have been clearly and, what the legislation contemplates, they would have been clearly set out to enable the applicant to understand them and that is the failure on the part of the Tribunal here and that is, may I say with respect, his Honour’s decision on this cannot be supported because his Honour relied on the fact that substantially the object of 424A has been achieved by simply ‑ ‑ ‑

KIRBY J:   But his Honour does say that some of these things, at least, were not the fault of the Tribunal.  It appears to have been a fault of understanding or a fault of interpretation or communication and there is a limit to the extent to which the Tribunal can communicate to those who, perhaps through lack of familiarity with proceedings and so on, just do not really understand what we are getting at and they would not be the first person who has not understood what courts and tribunals are getting at.

MR HAYES:   I accept what your Honour says, but the importance here is 424A as a code places an obligation on the Tribunal to not only put these matters and say can we have your comment.  It is to put them in the context that here are matters which might affect or which would affect my decision and I want you to understand, as far as reasonably – I want you to understand why they are relevant and I want you to comment about them.  I invite you to comment about them.  That is the context of 424A.

KIRBY J:   Can I ask you, therefore, at the bottom line, is what you are saying that it was not enough for the Tribunal to say, “Well, I am concerned about the eye incident, I am concerned about the schooling and I am concerned about the abduction”.  Was it, in your submission, the duty under 424A for the Tribunal to say, “I find it very difficult to believe you because of these three matters”?  Is that the essence of your complaint?

MR HAYES:   The complaint is this.  The Tribunal should say that what the 424A effectively says, namely, these are matters – these are particulars which would be or – part of the reason or the reason for affirming the decision of the Minister and I want you to understand why they are relevant and comment on them.  The way they were put and his Honour – perhaps I can take you to 260.  It is just been looked at as if the common law rules of procedural fairness are sufficient to comply with 424A(1).  He says that, at the bottom of page 260:

The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter.  She also had an opportunity of responding to those matters, partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing -

Now, with respect, that is not what 424A(1) is all about and that is the point that we are seeking to make.  That might be sufficient - whether it is or not is not to the point - in terms of what common law rules of natural justice might require in those circumstances, but it is not what 424A(1) requires quite apart from whether or not you then follow that up in writing, but what it does highlight, in our respectful submission, is the need for the writing because if you put that in writing or you require the invitation and the information to be put in writing, 424B then sets out a code, quite a clear code, a detailed code, as to how that information can be provided.

So we say, with respect, Justice Mansfield just confused, in a sense – was using the common law rules of natural justice as being sufficient to comply with the tenor or the spirit or the object of 424A(1) and in that way he was able to then say the:

failure to comply with 424A, in the circumstances, has not in fact deprived the applicant –

this is at page 261 –

of the opportunity to learn of material adverse to her claim or to comment upon it.  In practical terms, she has had the opportunity which s424A is intended to provide.

KIRBY J:   Does this, therefore, come down to whether or not 424A imposes a heavier duty and a more precise and specific duty than the common law does because of its reference to the fact that the duty is to make sure, as far as is reasonably practicable, that the applicant understands ‑ ‑ ‑

MR HAYES:   Precisely.

KIRBY J:   And if it emerges during the hearing that this is a person who is having difficulty in understanding, then it is not enough that they have had opportunities because by dint of their failure to understand, they may not know how to avail themselves of those opportunities as many people would in court and tribunal hearings.  They have to be – so far as reasonably practicable – ensure that the applicant understands why it is relevant to the review.  Is that the essence of your argument?

MR HAYES:   That is the essence of the argument.  That is why the section is there in the context of the Migration Act and in the context of a Refugee Review Tribunal.  That is why it is there.

KIRBY J:   It does say “as far as is reasonably practicable”.  I mean, these are high turnover tribunals with thousands of cases.

MR HAYES:   Yes, but the question is this:  whether or not, as Justice Mansfield says, it is sufficient to comply as a matter of law – is it sufficient to comply with 424A(1) by resorting to what might be commonly regarded as the common law rules of natural justice in those sort of circumstances?  We say, with respect, it is not.

GLEESON CJ:   Now, rightly or wrongly Justice Mansfield seems to have attached a lot of importance to the fact that the applicant’s migration adviser was present while the daughter was giving this information, and Justice Mansfield seems to have assumed that there would be further communication between the applicant and the migration adviser, as necessary, before the matter was ultimately finalised.

MR HAYES:   He may have assumed that; I am not sure that that is immediately apparent from his reasons.  He mentions that as one of the matters, that the applicant’s migration adviser was present, but what he says at the bottom of page 262 is:

I have found that the applicant has been provided with the degree of procedural fairness which the legislature intended.  The only missing feature is that she was notified of the information adverse to her claim and given the opportunity to comment upon it in a manner different from that which s 424A prescribed.  But the objective of the manner of notification in s 424A is to ensure that that notice and that opportunity were given.

So he then concludes:

Where that objective has been fulfilled, I regard the complaint of the applicant as a technical one only so that the particular breach has not deprived her of any benefit which she was intended to receive.

Now, he does not – he refers, leading up to his finding in that regard, to one of the features being that the migration adviser was there.  But, your Honour, it cannot be, with respect, the case that the Migration Act intended her to receive that level of benefit only when the section is so specific.

HAYNE J:   Which section?

MR HAYES:   This is section 424A of the Act.

HAYNE J:   I would have thought 424B was the more relevant aspect of this limb of the argument, perhaps not.

MR HAYES:   Well, it is, your Honour, but that only comes into play when 424A(2) has been implemented.

HAYNE J:   Just so, and that the Act appears on its face to prescribe a regime in which the person concerned is told the way in which additional information or comments may be given, and the matter is not left upon the basis of “Well, I may call you if you call me”.

MR HAYES:   No.  What we say is that the Act contemplates that that information and the invitation to comment on it will be conveyed to the applicant in accordance with 424A(2).  One cannot disengage subsection (2) from subsection (1).  You might be able to provide the information ‑ ‑ ‑

HAYNE J:   You seem at pains to disengage 424A from the balance of the division, and what I am suggesting for your consideration is that you should not take that step.  Section 424A has to be read in the light of B and C.

MR HAYES:   It has, your Honour, and indeed it has to be read in the context of, as your Honour points out, the whole division, 424 itself, which is a step before that.  But it is all part and parcel of the review which we say is – I cannot put it any differently from the way in which I have put it so far; I would just be repeating myself.

GLEESON CJ:   Do you rely on the words “otherwise than at an interview” in section 424B(2), bearing in mind that there is no similar qualification in 424A?

MR HAYES:   Section 424B, we would put it in this way.  Section 424A(2) requires the information to be provided in that way.  Once the invitation is extended, 424B takes effect and the person who has been invited under 424A to comment – the Tribunal will then determine the manner in which that person can comment on it.  If the invitation is to be at an interview, then that takes effect; if not, the time specified in the notice, in the invitation, et cetera, will be spelled out.  So there is a very clear structure as to how that information will reach the Tribunal. 

Most important, in our respectful submission, is that it ensures that the applicant can give it in a considered way; that he gets the invitation, has it set out and gets an opportunity within the time prescribed in that invitation, either at the interview or within a time specified, to provide it.  The section then goes on.  If the person to respond fails to do that, then it can be rearranged and a new time can be organised, et cetera.

If the Court pleases, that deals, in our respectful submission, with what I said was the first part, the first of the issues, namely, that the scope of the section is such which requires the information to be provided.  There has been non‑compliance.  The non‑compliance has been in two respects:  it has failed to comply with subsection (1) and it has clearly failed, as has been found to be the case, to comply with subsection (2).  We say that the section creates – it is a prerequisite to the Tribunal being able to make a valid decision on its review where there has been a failure to comply with what we would say are those imperative provisions of the legislation.

Your Honour, the Federal Court has considered whether or not a failure to comply with section 424A(1) leads to invalidity or is jurisdictional, and I set out the cases in our outline of argument.  I have to say that whilst Awan’s Case was really concentrated on section 424A(1) rather than subsection (2), in the case of VEAJ Justice Gray there did deal with section 424A(2) as well, although it is not entirely clear from that decision if at the end of the day he was saying that the whole of the failure to comply with the second part gave rise to a lack of jurisdiction.  Justice Gray said – it appears at page 8 of our summary of argument:

“It is clear from subs (2) that the Tribunal cannot discharge its obligations by giving to an applicant oral particulars of the information in the course of a hearing.  The obligation of the Tribunal to give both the particulars and an indication of the relevance of the information by one of the means specified in s 441A, or by the prescribed means of giving documents to persons in detention, makes it clear that the particulars and the explanation of relevance must be reduced to writing.  Even in the case of relatively simple, and perhaps uncontroversial, items of information, the Tribunal is not given the option of raising them with an applicant in the course of a hearing and giving an oral explanation of its view as to their relevance.  The Tribunal must give written particulars and a written explanation”.

His Honour there reasoned in the exercise of discretion that relief would not be granted in that particular case.

KIRBY J:   Now, there is a division of opinion in the Federal Court about this.

MR HAYES:   Yes.

KIRBY J:   And you are now in the High Court.  So whilst it is helpful to look at how they have reasoned, essentially in this Court you have to argue it as a matter of principle.

MR HAYES:   Yes.

KIRBY J:   So what is the principle that applies?

MR HAYES:   From the appellant’s point of view, we say that the reasoning of the Full Federal Court in the case of Awan and VEAJ – and NAMB, I think, is another one of those decisions – this is a matter which is an inviolable requirement.  The failure to comply with it deprives the Tribunal of jurisdiction to go on and make the decision which it makes.  To that extent, we say it goes to jurisdiction, and if one then applies the reasoning of S157 of this Court, in reconciling section 474 with that, we say that the privative clause does not have any effect to prevent this Court from saying that it does go to jurisdiction.

KIRBY J:   There are, as you point out in your written submissions, a number of indications that favour that, especially the use of the word “must” and the trouble Parliament has gone to, the specificity, the particularity.

MR HAYES:   Yes.

KIRBY J:   But I suppose the main argument that runs in the other direction is that this is something that, as it were, hypothesises that a review is under way and brings its force to play on something which is already going on, and therefore rather assumes that the jurisdiction has been engaged, and therefore that this is not a matter that goes to jurisdiction, but to the way in which the jurisdiction is exercised.

MR HAYES:   Yes.

KIRBY J:   Now, what is your answer to that?

MR HAYES:   That was the decision, I think, in the NAAV Case, effectively.

KIRBY J:   Well, what is the answer?

MR HAYES:   Your Honour, the answer to that, with respect, is one can only really state the proposition, as Justice Gray pointed out.  If you look at the structure of the Act, one sees a very clear process which ensures that the fundamental rights of the applicant are being preserved, and this directs its attention to those fundamental rights.  It is effectively saying the Tribunal has the jurisdiction to conduct a review, but it only has the jurisdiction to conduct a review in the way in which the Act sets out, and the processes are fundamental to the exercise of that discretion.  This is one of those processes – not all the processes, where the legislation may not be as firm about it as it is here, but it is one of those processes which makes it fundamental to the exercise of that jurisdiction.  So, for those reasons, we say that it does go to the jurisdiction and is not affected by the privative clause.

In the Awan Case, Justice Merkel, your Honour, deals with the point raised by your Honour Justice Kirby at paragraph [85] at line 25:

While it is unlikely that a failure to comply with the sections could be ascertained until reasons for the decision are actually handed down, the obligation to give particulars of the relevant information is intended by the legislature to be discharged, and therefore it must have been enlivened, prior to the handing down of the tribunal’s reasons.  If the position were otherwise the section could lose its utility.

At page 10 of our outline of argument we deal, with respect, with why we say the NAAV Case should not be followed.

Can I just finally then deal with the issue which goes to whether or not the court should have exercised its discretion.  It is accepted, I think, that the proper test for the exercise of a discretion, if it is to be exercised against the applicant for the relief sought, is to determine whether or not it would have made a difference.  Justice Mansfield, when he looked at it – if I can take the Court to page 261, paragraph 45:

I have found that the Tribunal did not, however, comply with s 424A of the Act because it failed to give to the applicant in writing particulars of the information obtained from the applicant’s elder daughter . . . The significance of that failure to comply with s 424A must, however, be measured in the light of the applicant learning of the evidence of her elder daughter by being present through her migration agent when that evidence was given, and by being asked about the significant features of it.  It must further be measured in the light of the applicant having an opportunity to comment upon that material again in part by being asked to comment on it when she herself was giving evidence, and in part by being given the opportunity to make submissions about it.

He approached it from the point of view of saying, “Well, she received natural justice in that sense by having regard to those features.  Therefore, if she goes ‑ ‑ ‑

KIRBY J:   Could I ask you this.  You handed in a schedule in three columns which analyses what the applicant said, what her elder daughter said and what the Tribunal found.

MR HAYES:   Yes.

KIRBY J:   I read them, but I could not quite understand whether you were making a point that some of the points that the Tribunal found which were critical and against the applicant were not properly raised in the four matters which were raised against the applicant by the Tribunal.  Now, are there such matters which were significant for the decision‑making process which were not raised at all with the applicant, or not?

MR HAYES:   Well, what we have put in the schedule is to identify those matters that the Tribunal raised with the applicant’s daughter, some of which were put to the applicant and others ‑ ‑ ‑

KIRBY J:   I want to understand whether your submission is that when the Tribunal raised the four points that it did with the applicant after the daughter had given evidence, it omitted to raise a matter which subsequently in its finding proved important, or arguably important, for the way the Tribunal found against the applicant.  In other words, was there a fifth and a sixth matter, or not?

MR HAYES:   Yes, that is so.

KIRBY J:   If so, you had better identify it.

MR HAYES:   That is so.  If I can ask you to turn to that schedule, what we have sought to do is to identify on the left‑hand column the questioning of the daughter and then identify the issue by reference to what the Tribunal put to the daughter, and then how that found, if it did, its way into the reasons of the Tribunal.  So on the first page your Honours will see that the issue of education was raised.  It was put to the appellant, and then it found its way into the reasons of the Tribunal.  However, if you then go over the page to issues of the husband and the drugs and the state of the marriage, there there was no questioning of the appellant, of the applicant, yet the evidence found its way into the reasons of the Tribunal.  If you go over the page to the issue ‑ ‑ ‑

KIRBY J:   Now, just let me ask you to pause there.  Is your submission that 424A required the Tribunal, before giving any weight to the consideration that the real reason for the applicants leaving Iran was to come to this country to escape her husband with a drug addiction – that that ought specifically to have been put to her and was not?

MR HAYES:   That should have been put.  That is right.  It should have been put, was not put, but yet found its way into the reasons.

HAYNE J:   Sorry, who had the drug addiction?  I thought it was the husband of the elder daughter.

MR HAYES:   The husband of the daughter.

HAYNE J:   Of the older daughter?

MR HAYES:   Of the older daughter.

HAYNE J:   As I understood what you answered Justice Kirby – perhaps I have missed a beat – I thought you were suggesting that there was some issue about whether the applicant left to escape ‑ ‑ ‑

MR HAYES:   No.

KIRBY J:   No.  I did not understand that to be the case.

HAYNE J:   No, forgive me.  Go on.

MR HAYES:   There was discussion from the applicant about their reasons why the family left.

HAYNE J:   Yes.

KIRBY J:   I think it fitted together in this way.  The Tribunal said that the incident to the eye had happened a longer time back than the applicant had suggested, and if you were looking to why she had left Iran it was not because of a well‑grounded fear of persecution, it was because she had reached the end of her tether with her husband because of his drug addiction.  And then they asked the questions of her as to why the husband allowed her to put the younger daughter on her passport and how that squared with his being in a conflict situation with her, which she wanted to resolve by divorce – which divorce she could not get in Iran because of the religious control of divorce.

MR HAYES:   That is right.  All of these questions were put to the daughter.  There was no questioning about them of the appellant, but some of that evidence found its way again into the reasons, and that is what we have set out in this schedule.  So if you then go to the next issue, what we have said is the issue of conversion, again, the daughter was questioned about this, the applicant was not, but it found its way again into the Tribunal’s reasons.

HAYNE J:   Now, in the courts below has there been any consideration of whether 424A(1)(b) was met, or was that not a point in issue?

MR HAYES:   I am sorry, your Honour.  I am just trying to think whether that was an issue which was raised before Justice Mansfield.  Certainly he does not deal with ‑ ‑ ‑

HAYNE J:   I am not conscious of reading anything in the reasons, and it left me with an impression that this was not an issue in the courts below.

MR HAYES:   No.  I will just get those instructions, if your Honour pleases.

HAYNE J:   Yes.

MR HAYES:   No, that was not raised before Justice Mansfield.  And, of course, we say that insofar as his – the way in which he approached it, it would not be necessary for him to have gone to that, but that was not raised.  Your Honour, finally, the last part of that schedule appears, the issue of the eye incident, which you will see is dealt with by both parties and it found its way into the reasons.

KIRBY J:   Well, the eye incident does not seem to be in the category of a fifth or sixth issue.

MR HAYES:   No.

KIRBY J:   So that the added issues are the one about the husband’s drug addiction, which is mentioned in the Tribunal’s reasons, I think, as a postulated cause of leaving Iran ‑ ‑ ‑

MR HAYES:   And the reasons for coming to who arranged to leave Iran, who arranged the trip.  That appears as one of the issues which was not dealt with.  The daughter was questioned, but the applicant was not questioned.

KIRBY J:   But is there any point on the education of the daughter, the younger daughter, that was not sufficiently raised by the Tribunal?

MR HAYES:   No, that was put.

KIRBY J:   So that, really, it comes down only to the issue of the husband’s drug addiction.

MR HAYES:   The drug addiction, the issue of conversion and who organised to leave the country.

KIRBY J:   But is not the conversion – was that not tied up with the education?  The suggestion was that the younger daughter could not go to school because they were trying to convert her from her own religion to Islam.

MR HAYES:   That is linked to it.  All we have done is to separate that out in turn, because there were no questions put to the applicant in relation to that part of it, the conversion.

KIRBY J:   It does not seem to be a very big residual extra matter that the Tribunal did not raise.  I mean, we have to be practical here.  The Tribunal is a mass jurisdiction one and the Act does require particularity, but the Tribunal did raise the three or four points that were troubling it.  Really, it seems to me the only matter that it did not raise was one that might have occurred to it in reasoning later, “When I look back on all of the evidence, the real reason this woman left was she wanted to terminate the relationship with her husband”. 

MR HAYES:   If your Honour pleases, on the issue of conversion, your Honour will see in the schedule at page 149 the Tribunal said:

Her evidence and that of the Applicant was most unconvincing and conflicted seriously on where and how an attempt or attempts to abduct and convert [the elder daughter] were made and on the issues of whether [the elder daughter’s] departure from Iran was caused by [her] husband being drug addicted and in respect of [her] difficulties in obtaining a divorce.  On the evidence the Tribunal is not satisfied that any attempt was made to convert [her] –

The point is, that did not seem to have been put, yet there is a finding there.  Your Honour, his Honour Justice Mansfield said at page 262, paragraph 50:

In this matter, I do not consider that the Tribunal’s error is one in respect of which I would grant relief under s 39B of the Judiciary Act in any event.

Then he goes on to say why, and the reason why is because, as I have gone over, he felt that she had obtained a sufficient degree of natural justice so as not to warrant the granting of relief. 

We say, with respect, that the proper test, as you will see from our submissions at page 10 – he was wrong in refusing relief because he approached it wrongly, we say, by finding that the test was by finding whether or not the applicant was deprived of any benefit by reason of section 424A, when in fact what the test should have been was, could it have made any difference?  Is the court satisfied?  The court has to be satisfied that if these matters had been put, if the section had been complied with, could it have made a difference to the outcome?

Now, it is only in exceptional cases, we say, that the court would find that there is no way it would have made any difference at all to the outcome.  We say this is a case where it may well have made a difference to the outcome, if this applicant had been treated, as we say, in accordance with what the Act required, that is, complying strictly with the terms of section 424A.

KIRBY J:   Could you give me a hint as to – take, for example, the husband’s addiction.  Now, there was put to her, “Well, how do you square your disagreement with your husband with the fact that he allowed you to put the infant daughter on the passport?”  Now, that was, I think, specifically raised with the applicant by the Tribunal, and the applicant’s answer was, “Well, he is of our ethnicity.  That’s why he did it”.  That is at least what I remember reading.

MR HAYES:   I will just see if I can find that part in the transcript, if your Honour pleases.

KIRBY J:   Why does that not sufficiently put to her the concern about the husband?

MR HAYES:   Is your Honour referring to ‑ ‑ ‑

KIRBY J:     This Court has said over and over again that we must be careful about not being too pernickety about the way we go through these matters, because here we are in the Full High Court and we have transcripts and we are going over everything with a fine tooth comb, but it is unreasonable to impose unreal and unrealistic obligations on a Tribunal.

MR HAYES:   Is your Honour referring here to the husband of the daughter?  Because that is what the questioning was about.

KIRBY J:   Where is that?  In the schedule? 

MR HAYES:   This is at page 147.  The issue of her husband, drugs and the state of her marriage.

KIRBY J:   What page?

MR HAYES:   I am sorry.  The schedule, I am sorry.  My one has numbers on it.

KIRBY J:   Page 147 in the schedule?

MR HAYES:   In the schedule, yes.  The questioning of the daughter on the left‑hand column is in relation to the daughter’s husband and the drugs.

KIRBY J:   I see, so the daughter also left her husband in Iran?  Well, I may have misunderstood this when I read it.

MR HAYES:   Yes, it was the daughter’s husband who had the drug problem.

KIRBY J:   Let us get this clear.  Is there any suggestion that the application left her husband because of any drug addiction on the part of her husband?

MR HAYES:   No.

KIRBY J:   So that is not a relevant matter so far as the applicant is concerned.  This may have been the point Justice Hayne was making.  So what is it that the Tribunal omitted to put to the applicant, in fairness to the applicant, that was an omission of a fifth or additional kind?

MR HAYES:   Well, on that page your Honour will see what the Tribunal concluded was:

Her evidence –

that is, the daughter –

and that of the Applicant was most unconvincing and conflicted seriously on where and how an attempt or attempts to abduct and convert [the elder daughter] were made and on the issues of whether [the elder daughter’s] departure from Iran was caused by [her] husband being drug addicted and in respect of [her] difficulties in obtaining a divorce.

KIRBY J:   Was the evidence that the mother – that is to say, the applicant – and the older daughter had left Iran together?

MR HAYES:   No, the daughter left first.

KIRBY J:   Well, what does the daughter’s reason for leaving have to do with the mother’s reason for leaving?

MR HAYES:   What we are putting here is, the daughter was questioned at length on this. 

KIRBY J:   What did that have to do with the applicant’s case?

MR HAYES:   And then no questions were put, because there was a conflict between the two as to why the whole of the family had got together to leave the country.  What the Tribunal said here is that her evidence and that of the applicant was unconvincing and conflicted on different aspects, but the point we are making here is that none of these matters were put to the applicant where the Tribunal has said that the daughter’s evidence was conflicting or unconvincing.

KIRBY J:   Well, I understand you point, but I just wonder what the relevance of the daughter’s reasons for leaving had to do to be determinative of the applicant’s reasons for leaving, which are, at least arguably, an entirely separate question.

MR HAYES:   There were other daughters, and one reason for a claim was because the mother wanted to bring a younger daughter here to avoid the kind of issues here raised in the abduction with the older daughter.  There was a difference – the Tribunal could not resolve that, whether it was the mother telling the truth about whether or not the daughter had been tried to be abducted or not.  That influenced her decision as to whether she should bring her other daughters here, according to her.  At the end of the day, the Tribunal said, “Well, they are all unconvincing”, but the Tribunal did not put any of these matters to the mother in the context of that issue.

KIRBY J:   Well, your point is, if it was important to the Tribunal, before saying that the evidence of the applicant was most unconvincing on this point, it was the duty of the Tribunal, under the Act and under rules of natural justice, to put that impression to the applicant, and it was silent about that matter.

MR HAYES:   That is right, yes.  Your Honour, just so this is not overlooked, this application involved both the mother and one of her daughters.

KIRBY J:   The younger?

MR HAYES:   The younger daughter, yes.  So this is part of it.

KIRBY J:   But she is of an age that apparently is subsumed with the mother and treated as the applicant.

MR HAYES:   Yes, and your Honour asked earlier her date of birth – it was in 1993 that her daughter was born, that is, the daughter who is the subject of this application.

HAYNE J:   The answer that you gave to Justice Kirby about the obligation of the Tribunal seems to me to be a complaint that the Tribunal did not, in accordance with 424A(1)(b):

ensure, as far as is reasonably practicable, that the applicant understands why –

this other information was relevant to the review.  Now, I thought I had put that to you earlier and you had said, no, that was not an issue.  Where are we?  Is there an issue about that, or is there not?

MR HAYES:   There is an issue about that, that is the schedule that I provided.  I thought I had said at the outset that we were saying that section 424A(1) had not been complied with.  If I have ‑ ‑ ‑

HAYNE J:   Because it leads me onto this, that general comparisons – of a kind which seem to have been made by the primary judge – between the rules of natural justice unspecified and the requirements of the Act unspecified are comparisons that may obscure rather than illuminate.  You would need to amplify both sides of the comparison that is being made, but, in particular, you would need to pay very close attention to the Act and what the Act required.

MR HAYES:   Yes, and that is what we are seeking to do here, to look at what the Act requires, and the Act is quite specific.  Whereas if we talk about the common law rules of natural justice, they are less specific, there you can speak very generally.  What Justice Mansfield did here was to use those general rules, those general provisions, and say, “Well, generally there has been compliance”.  We say that is wrong because what he should have been doing was saying, has the Act been complied with?  What has been the consequence of failing to comply with section 424A of the Act?

KIRBY J:   I wonder if you are being fair to his Honour.  His Honour specifically found a breach of the Act, but then he had to go on to determine whether there should be relief.  And it was on the relief matter, was it not, that he was determining whether or not any substantial unfairness had been done to your client that called for relief of the discretionary kind.

MR HAYES:   I do not want to be unfair to his Honour, but the reason his Honour did not look at the Act, the section of the Act, was because he proceeded from the basis that common law rules were sufficient.  He says as much ‑ ‑ ‑

KIRBY J:   I suppose your point is, where Parliament has taken the trouble to spell out in specificity and in particularity its own little code, it would be undermining of the will of Parliament if judges, including on the discretionary provision of relief, were simply to substitute a general standard of the common law for what Parliament has expressly enacted.

MR HAYES:   And, with respect, that is what Justice Mansfield appears to have done.  That is why it was not necessary for him to then go and deal with the specific provisions of section 424(1).  He simply said, “Well, look, it has been complied with in general terms because she has had natural justice”.  If the Court pleases, those are my submissions.

GLEESON CJ:   Yes, thank you, Mr Hayes.  Yes, Mr Basten.

MR BASTEN:   Your Honours, can I commence with some comments about the operation of section 424A and subsection (1), and may I then turn to how, as we understand it, the argument is put in the present case.  With respect, the argument has been somewhat movable in terms of what facts are in issue and what are not.  I suspect I cannot complain about that, because the notice of contention tends to give rise to issues which were not fully argued before the primary judge or at all in Full Court.  May I start with the provisions of section 424A or the aspect ‑ ‑ ‑

KIRBY J:   Do you accept that it attaches to the facts and circumstances of this case?  Do you take any point that it is not engaged by the circumstances of the case?

MR BASTEN:   That the section is not?

KIRBY J:   Yes.  You remember there was the preliminary question.  Do you take that point?

MR BASTEN:   Yes, we do, your Honour.  What I wanted to do, rather than – your Honours have the written submissions and I do not seek to repeat what we have said there.  We do adopt the temporal approach, which arose from what I think was the fourth question identified by the Chief Justice, and we do rely upon the sequential manner in which this legislation is set out.  The point, though, that I wanted to make clear as one we continue to rely upon which has not been fully, I think, addressed by my learned friend, is that there is a construction issue arising from the terms of subsection (1) itself.  The words in the dependent clause require the Tribunal to consider the way in which particulars of information are to be given. 

My learned friend’s answer to that is that subsection (2) limits the scope given to the Tribunal in the exercise of its power by saying it can only do so in accordance with whatever requirements there may be for service of documents.  The implication which he therefore has to derive from subsection (2) is that the Tribunal may not consider it appropriate to comply with subsection (1) by having a discussion with the applicant during an interview.  He says that although never expressly stated, that discussion has to take place in writing. 

With respect, we say that that is not the better reading of the dependent clause in subsection (1); that subsection (2) should be understood to be engaged only when the Tribunal has decided that it is appropriate in the circumstances to give notice otherwise than during the interview.  We say that approach is entirely consistent with the temporal point, namely, that subsection (1), at least in the context of subsection (2), is not intended to operate during the hearing or appearance or interview, but at the prior stage, before the 425 interview takes place, when, of course, the applicant is not in any sense before the Tribunal. 

McHUGH J:   But why is not the better way of reading subsection (1) and subsection (2) that the words “in the way that the Tribunal considers appropriate” do no more than give the Tribunal a choice as to which of the methods specified in 441A or one of the prescribed methods?

MR BASTEN:   Your Honour, we say that really does not give any weight to the terminology in subsection (1), and, if that had been intended, one would expect it to have said so much.  One would have expected subsection (1) to be subject to the other provisions in this section.  What it is subject to is only subsection (3).  Your Honour, if one goes to the relevant provisions, the relevant provision in this case – and I know one does not construe an Act by reference to the regulations, but the relevant regulation is set out at page 48 in our bundle with the written submissions.  It really just says:

a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised –

Now, it is not that sort of discretion, one would think, that is being picked up in subsection (1) by the broad terminology adopted there.

McHUGH J:   Except it talks about “in the way”, and your difficulty is that you have to overcome the word “must” in subsection (2).  You have to read it down, which is a large proposition.

KIRBY J:   And I would add to his Honour’s point that the phrase “in the way” is within commas, and if you, as it were, put square brackets around it and forget it, the primary obligation that must be given is that the applicant “must” be given “particulars of any information” the Tribunal considers would be a reasonable part of a reason for affirming the decision.  And that would be so up till the very end of the point where the decision to affirm is made.  So that the words in brackets are an adverbial phrase of manner, as we would say in the old days.  It is an adverbial phrase of manner, and nothing more.

MR BASTEN:   Indeed, when we learnt grammar.  But, your Honour, what one has to do, as your Honour put it, is to forget those words and then say, implicit in subsection (2) is a requirement that the Tribunal must do this by way of a document.  Now, absent those words, that makes some sense, but if one simply says – and it is not the necessary result of subsection (2) – if one simply says there is an implication in subsection (2) that it must be done in writing, although subsection (1) does not say so, we could live with that, were it not for the words in the adverbial dependent clause. 

With respect, they have work to do, and they have work to do in two senses.  They have work to do if the section applies broadly, in the way that your Honour is suggesting, at any time.  But they also have work to do in another way.  There is no doubt that this provision creates a substantive statutory obligation which is not the same as the general law obligation of procedural fairness.  It does this in part by providing a manner in which the Tribunal must determine as to the means of giving the information.  We have given your Honours ‑ ‑ ‑

HAYNE J:   The means of giving the information must accommodate, must they not, 424B?

MR BASTEN:   Yes, your Honour.

HAYNE J:   They must accommodate 424B(3), thus if it can be done in running at an interview – which, as I understand it, is this limb of your argument ‑ ‑ ‑

MR BASTEN:   That is so. 

HAYNE J:    ‑ ‑ ‑ the invitation to give information or comments at the interview should go on to say, “And that interview is this interview taking place here and now”.

MR BASTEN:   Yes.

HAYNE J:   It gives a rather unusual operation to 424B(3) in such a case.

MR BASTEN:   One could read it in two ways, I suppose, your Honour.  The other is that where this – this is, in a sense, an argument in favour of the proposition that the 424A(2) obligation does not arise at all in relation to information obtained at an interview, because, if it did, presumably there would have to be a second interview, because you would have to stop, go away and write a letter – “Oh, you have told me something which you understand I have this new information from the daughter ‑ ‑ ‑

HAYNE J:   Well, it is not “You have told me something” because that is ‑ ‑ ‑

MR BASTEN:   Sorry, no, it is the daughter. 

HAYNE J:   It cannot be that, and does that not point up the problem?

MR BASTEN:   Well, it may be double‑edged, your Honour.  That element by itself could work either way.  It could favour either construction, I suppose.  I am not saying that any of these constructions are necessarily clear; I am simply seeking to make sense of the provisions seen in their context and read as a whole.

GLEESON CJ:   Mr Basten, are the opening words of section 424A(2) elliptical?  Does the reference to “The information” mean the particulars of information?

MR BASTEN:   We would understand that to be the necessary reading, your Honour.

GLEESON CJ:   I wondered whether the reference to “way” in subsection (1)(a) is a reference to the kind of particulars that are given.  Some of this information may be confidential.  There may be reasons why the Tribunal would not want to simply say, “Here is what I have been told by somebody”.  There may be a difference between the question of the kind of particulars of information the Tribunal gives and the method by which it communicates those particulars.

MR BASTEN:   Yes, I accept that, your Honour.  The question really is whether the dependent clause can be read down so as only to encompass that or to only encompass that plus the choice of available methods given under subsection (2), or whether it is intended to give the Tribunal member the opportunity to consider all aspects of how that may appropriately be addressed.  In a sense, it may be that underlying this is an issue as to what the correct approach to a breach of procedural fairness, in the general law sense, may involve.  On one view, the limitation that one infers from subsection (1)(a) is that it is conferring on the Tribunal the power to determine how to proceed and to consider what it is that engages its obligation under paragraph (a). 

It is a bit like the difference between a jurisdictional error and a state of satisfaction.  Undoubtedly, the state of satisfaction can be reviewed, but what is required to be reviewed is not an absolute or abstract principle.  That may be true of all procedural fairness cases, but it is not apparent from the discussion in most of them that that is what is going on.  It may be true that in every case what should be happening is a Hetton Bellbird type analysis of whether the decision‑maker, in adopting one procedure rather than another, has gone outside the parameters set by the law.  In this case, it is clear that that must be the approach. 

We would respectfully say that the Parliament has adopted an approach which requires the decision‑maker firstly to consider whether the trigger is engaged and secondly to consider the way in which the Tribunal thinks it appropriate to comply with the obligation to give this information or particulars thereof to the applicant.  If one is concerned as to the resolution of an ambiguity, again we would submit that one can invoke in such a context the terms of section 474 of the Act to ask whether it is correct to say that when the Parliament went beyond whatever might have been required by common law or general procedural fairness, it intended to impose some mandatory obligation in doing so. 

Might I come to the point that the only breach which is alleged in the present case is a breach not of subsection (1) – though I will come back to the evidence about that – but of subsection (2)(b).  The only matter which is said not to have been complied with by the Tribunal, on Justice Mansfield’s reasoning, is the written material being provided to the applicant.  Justice Mansfield was satisfied that relevant particulars had been given.  I will come back to why we say that his Honour was right in that regard, but if that is the case, that leads one to the second point my learned friend sought to address, namely, whether the Parliament intended that there be automatic invalidity resulting from the breach of (2)(b). 

The answer given by my learned friends is that it must have done because it uses the term “must”.  Now, that itself gives rise to some doubt about the strength of the mandatory form of the verb in this provision, because one can envisage – and this is exactly this case – a situation where the applicant is well aware of precisely the problem which certain other evidence has raised, and if that is the case then it would be ridiculous, one would think, for the Parliament to have imposed a mechanical method of conveying to the applicant what the applicant already knows with the intention that in every circumstance this must give rise to invalidity of the decision if compliance does not occur.

KIRBY J:   Unless you take the view that the Parliament, acknowledging and starting from the premise that these are very important decisions for the applicants and for our compliance with our international obligations, has recognised the fact that people in these circumstances are often ignorant of procedures – they may never have seen a tribunal in their own country, let alone this – and therefore there is merit in requiring matters of concern that may be the turning point to affirm a decision to be put in writing so that those migration agents and others can advise people to give them serious attention and put their best foot forward in reply.  I mean, it does seem in this case that this female applicant was not understanding what was being put to her.  The interpreter even at one point said, “I feel obliged to tell you, she is not grasping this”, so it had to be tried again.  That would not be an unusual position, I would think, with applicants for refugee visas.

MR BASTEN:   It may be an extreme case, your Honour, but I accept what your Honour is putting to me.  The question is whether Parliament envisaged that even the au fait applicant could reply upon such a technical error as non‑compliance with the writing obligation to ‑ ‑ ‑

HAYNE J:   Leave aside the qualifiers you inject.  The core of the debate concerns information other than information supplied by the applicant.

MR BASTEN:   Yes.

HAYNE J:   At the most abstract level of generality, why should the applicant not be put on notice, in writing, of an intention to rely upon material that did not come from the applicant?

MR BASTEN:   And assuming that the applicant did not know about it, perhaps one can understand that.  But that is not necessarily ‑ ‑ ‑

HAYNE J:   Where the obligation is to ensure that the applicant understands why it is relevant.

MR BASTEN:   Yes.

GUMMOW J:   What is the relation between “may” in 424(2) and “must” in 424A(2)?

MR BASTEN:   Section 424A(2), your Honour?

GUMMOW J:   No, 424(2), “the Tribunal may”, that is what the law was, and then 424A has put in that in some circumstances it “must”.  What is the relation between the two sections?

MR BASTEN:   Your Honour, I think ‑ ‑ ‑

GUMMOW J:   It seems to me all of this is bearing at the stage of information gathering by the Tribunal.

MR BASTEN:   That was the point that I accept.  We do put that point in writing and I was simply seeking ‑ ‑ ‑

GUMMOW J:   In other words, pre‑425.

MR BASTEN:   Yes.  Your Honour says that it was in – I would need to check.  Perhaps I can do that over the break.

GUMMOW J:   Yes, I am grateful for that.

MR BASTEN:   What happened was that – we have not, I am afraid, given you all the historical material, but your Honours will see that we did provide in the back of the bundle, at pages 34 and following, the Amendment Act of 1998 which introduced the current form of these provisions.  Sections 424 and 425 both existed but were repealed, as your Honours would see from page 36 of the bundle.  I was just going to check whether 424 was in the same form prior ‑ ‑ ‑

GUMMOW J:   It looks to be there.  I see, whether it was in the same form before? 

MR BASTEN:   Yes.  I think it was, but I would need to confirm that.

GUMMOW J:   Yes, I see.

MR BASTEN:   Might I just say, while I am on the historical stuff, I think your Honour Justice Kirby asked my learned friend whether these amendments came in at the same time as the old 476(1) which excluded natural justice.  The answer to that is no, they did not.  These amendments came in in 1998; the withdrawal of natural justice occurred in 1994, I think, by the Migration Law Reform ‑ ‑ ‑

GLEESON CJ:   How long do you expect to require for the remainder of your argument, Mr Basten?

MR BASTEN:   Perhaps half an hour, your Honour.

GLEESON CJ:   We will sit until 4.30.

MR BASTEN:   If the Court pleases.  I think in going to that I had jumped ahead of answering a question, but perhaps I can come back to that at a later stage.  I think I was seeking to argue that it did not follow that if the only breach was of the obligation to put something in writing pursuant to subsection (2), that one therefore invoked necessarily jurisdictional error and invalidity.  It may be convenient if I could, in that context, deal with the matters which my learned friend sought to raise about the factual circumstances of the case.  Could I take your Honours back to the appeal book, in order to understand how the factual issues arose.  There were, as I understood it, three issues that were relied upon, but I will deal with the matters that your Honour Justice Kirby asked as well.

Might I take your Honours first to the delegate’s decision which relevantly appears at page 60 in the application book, and the point I am seeking to derive from this is that the difficulties which led to an adverse credibility finding had been highlighted by the delegate’s decision before anyone got to the Refugee Review Tribunal.  There is a passage ‑ ‑ ‑

KIRBY J:   Are these written decisions given to the applicants?

MR BASTEN:   Yes.

KIRBY J:   I suppose they are to enliven the right to reply to the Tribunal.

MR BASTEN:   There is a covering letter which indicates that, your Honour.  Perhaps I can find it.  It is usually just before the decision.  I think it is the letter which starts at page 50.

KIRBY J:   What is the applicant’s religion?  I have never heard of this religion.  Is it a very numerous religion?

MR BASTEN:   No.  There are estimates of about 5,000 and 25,000 Mandeans in Iran.  The evidence in the book shows that it is probably at the lower rather than the higher end of the scale.  It is a pre‑Christian religion.

KIRBY J:   Is it a religion with links to the Judaeo tradition, or not?

MR BASTEN:   Yes.

KIRBY J:   So it has a mosaic foundation but somewhere before Christianity and, therefore, before Islam?

MR BASTEN:   Yes.  The main prophet is St John the Baptist, so it has close links to Christianity and they use rivers for adult baptisms and have those sorts of ‑ ‑ ‑

KIRBY J:   That is where the applicant’s husband or the daughter’s husband was shot?  Was that the applicant’s husband?

MR BASTEN:   No, it is the applicant’s husband who was hit by a stone ‑ ‑ ‑

KIRBY J:   Yes, that is right, hit by a stone in the eye.

MR BASTEN:    ‑ ‑ ‑ in the eye, whilst bathing in the river.  I do not think at his baptism but at a baptism ceremony.

McHUGH J:   It is more than a baptism, is not it?  It happens regularly, does it, a sort of purification?

MR BASTEN:   Yes, the evidence is a little bit unclear about how regularly but I think that is right, your Honour, yes, and there was evidence of Muslims polluting the waters at various times to make it difficult and so on.  At page 60 – this is in the reasons of the delegate – second paragraph down at about line 12, the delegate noted that:

There are significant differences in information provided by the applicant and her daughter –

whose name is given –

who arrived in Australia some months ago.  In her application and at interview, the applicant claims that she only believed that her daughter was in Australia, she claims she had had no news of her since she left Iran.  She –

the applicant – 

claims that members of a group known as the Komiteh had forced their way into her daughter’s home one night and tried to kidnap her.  She claims that her son in law –

that is the daughter’s husband, the supposed drug addict –

brought her daughter to her parent’s home and had organised a smuggler to arrange her departure from Iran.

In her application for a Protection Visa, the daughter claimed that her husband was a drug addict and that he was one of the major reasons she had departed Iran.  She also claimed that she had telephoned her parents and confirmed that she had arrived in Australia.  She made no mention of any forced entry of her house by the Komiteh or any other group, which if it happened would have been of paramount importance to her – 

the daughter’s –

application.  The daughter further claimed that it was her father, not her husband who arranged her departure, and that in fact in an interview conducted when she initially arrived in Australia, she claimed that her husband was unaware that she and her daughter had travelled to Australia.

So that those issues of conflict between the evidence of the parties were well put on the record by the time anyone got to the Tribunal.  The daughter’s story is set out relevantly in respect of these matters at pages 9 to 10.  I need take your Honours through that.  The applicant’s story, as first told at interview on arrival is found at page 18.  She says in the handwritten part, not written by her:

We are Sabean.  We are under pressure from Muslims to convert to Islam.  They do not allow our kids to go to school.  My daughter . . . was at school in 2000 for 6 months only –

Then at line 21 she refers to her husband losing an eye, and she says there, “5 years ago”.  Your Honour Justice Kirby said that was not an issue.  It was not, but her credibility was at issue because although she had originally stated that, which her daughter agreed with, she changed her views.  At page 19, there is a reference three lines down to:

Our daughters and sons are taken away by Muslims (no names) and are forced to become Muslims – this is a common practice.

So that is the nature of the case that she was seeking to make at that stage.  At page 48 there is a statement prepared by Macpherson & Kelley, Solicitors and Migration Agents.  Your Honours will see at line 12 she says she thinks that her:

daughter . . . has already reached Australia as a refugee but am not sure where she is.

Line 15 she says:

All of my children were refused admission to school in Iran, and none of them have been able to receive an education.

Then at the top of 49, the first line deals with the husband being hit in the eye.  That was now July 2000, not five years ago, and then at lines 9 to 10 the elder daughter:

was chosen to go first because she is very beautiful and her husband was concerned that the Muslims would try to kidnap and harm her.

So that was the evidence that she was giving prior to the delegate’s decision.  Not all of the delegate’s material is ascertainable from the written documents, but there was an interview with the delegate and the delegate says that he had access to that information.  Then there is the material which arose after the interview with the delegate which includes the further submissions made by or on behalf of the applicant, and if your Honours turn to page 72, there is a letter – no doubt written for the applicant – which makes it clear that she now knows that her credibility is in issue.  It starts:

Studying the refusal sent by the DIMA, I wish to explain some issues ‑ ‑ ‑

KIRBY J:   Where is this on the page?

MR BASTEN:   The letter on 72, your Honour.  It is the beginning of the letter under “Dear Sir”, about point 3, line 15.  Paragraph 1, she deals with her “son‑in‑law’s addiction to drugs” which she said she was not aware of.  Paragraph 2, she claims to have been told by the:

son‑in‑law that he organized my daughter’s departure –

It still remains inconsistent with the daughter’s story, if he was the cause of it.

KIRBY J:   Not necessarily, but the daughter‑in‑law might know something more than the mother did.  She might have been told something incorrectly.

MR BASTEN:   The daughter’s claim for a protection visa was significantly based on her husband’s drug addiction from which he was escaping.

McHUGH J:   I thought that the daughter herself said in evidence that the husband had arranged for her to go, to leave.

MR BASTEN:   What I am seeking to do, your Honour, is to say that there are several changes to the two stories.  There is internal inconsistency and there is mutual inconsistency on various issues at various times.  None of that was ever an issue in dispute.  The parties realised that at all stages.

When I come to the Tribunal hearing, your Honour, the point will be, of course, that if the applicant did not hear some of the daughter’s evidence,

their agent was there and did, and she and her agent continued to communicate after the hearing, as is clear from the fact that the agent sent two letters on her behalf to the Tribunal subsequent to the hearing.  There is no letter dealing with any of the inconsistencies.

KIRBY J:   Now, the Minister is not inviting us to decide this matter on the merits?

MR BASTEN:   No.

KIRBY J:   It is sounding as though you are getting very close to the merits of the case as distinct from whether the Act was complied with, which is our proper function.

MR BASTEN:   I am entirely conscious of that, your Honour, but what is being put against me is, firstly, that there is a dispute about whether subsection (1)(b) was complied with, although there was no dispute below, as we would understand it.  There is a dispute now as to whether Justice Mansfield was right in saying that there was no breach of general law, provisions of procedural fairness.  I am happy to abandon all this, your Honour, but whilst I have to respond to those matters, I have to take your Honours through this factual material.

GLEESON CJ:   What Justice Mansfield said, amongst other things, was that any failure to comply with the statute was purely technical.

MR BASTEN:   Yes.

GLEESON CJ:   Your arguments, as I would understand it, are amongst other things directed towards defending that conclusion?

MR BASTEN:   That is so.

GLEESON CJ:   Is that a convenient time?

MR BASTEN:   A convenient time, your Honour.

GLEESON CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.29 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 10 AUGUST 2004