Semunigus v MIMA

[2001] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Registry  No C6 of 2000

B e t w e e n -

GETACHEW SEMUNIGUS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 JUNE 2001, AT 8.30 AM

Copyright in the High Court of Australia

MR F.J. PURNELL, SC:   May it please the Court, I appear for the applicant, together with MR P.A. WALKER.  (instructed by Tennants Lawyers)

MR T.M. HOWE:   May it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

GUMMOW J:   We would be assisted by hearing first from you, Mr Howe.

MR HOWE:   Thank you, your Honour.  Your Honour, very briefly, the application for special leave is opposed, firstly because even if the Tribunal was not functus, we say that the applicant was bound to fail in the sole ground of challenge raised before the primary judge.  That sole ground related to section 476(1)(a) combined with section 420 of the Migration Act and we say that the reasoning of this Court in Eshetu is an insuperable obstacle to that sole ground of challenge prevailing.

Secondly, your Honours, we say that the functus point arose in a very distinctive statutory and factual setting.  The statutory setting consisted of section 430 of the Act, as it then was, and that section has been repealed and replaced by a new section 430, the terms of which preclude, as it were, this issue arising again because now the situation is that the Tribunal, unlike what prevailed at the time of this Tribunal’s decision, must give notice of the handing down of its decision and convene and do that.  Secondly, the distinctive factual setting ‑ ‑ ‑

GUMMOW J:   Where do we see that new section?

MR HOWE:   Your Honour, we filed with the Court a bundle of relevant extracts of the legislation, firstly, as it consisted at the time of the Tribunal’s decision.

GUMMOW J:   It is Act No 113 of 1998, is it?

MR HOWE:   Yes, that is the amending legislation, your Honour.

GUMMOW J:   Yes, whereabouts in that provision?

MR HOWE:   Yes, sections 430A at page 40 of the bundle, and your Honours will see that in subsection (2):

The Tribunal must invite the applicant and the Secretary to be present when the decision is handed down.

Subsection (3) refers to:

the day on which, and the time and place at which, the decision is to be handed down –

and then, your Honours, in section 430B(4), over the page:

The date of the decision is the date on which the decision is handed down –

so that those provisions would preclude the particular issue which arose in this case arising again and we say, for that reason, your Honour, the matter is not one of general importance which should attract the consideration of this Court.

In terms of the factual setting, the primary judge did refer to the distinctive factual setting in which the point arose and that concerned the Tribunal’s internal case‑management procedures that were designed to facilitate compliance with section 430 as it existed before the reforms in 1998.

Those internal case‑management procedures involved the completion of various documents designed to indicate that a draft of the decision had been settled, the decision had been finalised, confirming what the terms of the Tribunal’s order was and then referring the matter to the registry for publication of the decision to the parties, and the primary judge ‑ ‑ ‑

GUMMOW J:   Just remind me of the date of the decision by the Tribunal.

MR HOWE:   12 June 1998, your Honour.

GUMMOW J:   Yes.

MR HOWE:   The primary judge dealt with the internal case‑management practices of the Tribunal at page 9 of the application book, lines 240 and following, and at that paragraph his Honour expressed his conclusion but he also dealt with the nature of the documents, your Honours, at lines 225 and following.

Now, our point, your Honours, is simply this, that those internal case‑management procedures and practices were referable to section 430 as it was and they would not be apt in relation to the new provisions of the legislation and the discrete point before the primary judge was whether those internal case‑management processes and practices constituted sufficient overt acts to give finality to the decision which had been signed by the Tribunal member and passed to the registry for publication to the parties.  We say, for that reason, the statutory and factual setting were both distinctive.  They are unlikely to ever arise again and the matter is not of sufficient general importance.

Your Honours, we frankly concede that there was a divergence of approach in the Full Court below on disposition of the appeal and, indeed, there was divergence as to whether it should be disposed of by reference to the Eshetu point, or by reference to the functus officio point.

However, our response to that divergence of opinion is this.  All three judges of the Full Court below adhered to the primary judge’s statement of general principle regarding when a Tribunal is functus and they all specifically quoted from and adopted his Honour’s statement of general principle, so that there was no divergence between them as to the general principle to be applied.  The divergence in approach simply took place at the point of considering whether the Tribunal’s internal practice and procedures constituted sufficient overt acts to attract finality to the decision signed by the Tribunal.

Your Honours, the final point upon which we rely is this, and that is the general interests of justice point.  Your Honours will recall that in this case the Tribunal had an oral hearing at which the applicant was represented by a migration agent, experienced in the area.

The Tribunal gave leave to the applicant to file additional submissions following the oral hearing on a discrete point relating to country information.  Those submissions were duly filed.  There was no further leave to file additional submissions but, unannounced or not foreshadowed, the applicant did, in fact, file additional submissions on 11 June.  Those submissions, in turn, were taken into account by the Tribunal in its decision of 12 June and dealt with.

It was only after the Tribunal had reached its decision, signed the decision, completed all of the Tribunal’s internal processes and case‑management practices to facilitate compliance with section 430, that the applicant submitted yet a further set of unannounced submissions and the applicant’s case is that the Tribunal was bound, in effect, obligated to take those further set of submissions into account and we say that that is an adventurous proposition and, indeed, in terms of the general interests of justice, we say that the applicant, having agitated a case on a sole ground of appeal, it was rejected properly; in light of this Court’s decision in Eshetu cannot pray in aid any great burden in terms of the interests of justice.

Those are the matters upon which the respondent relies.  May it please.

GUMMOW J:   Yes, thank you, Mr Howe.  Yes, Mr Purnell.  We would like to hear you, in particular, upon the significance or otherwise, as you see it, of the amendments by the Act 113 of 1998.

MR PURNELL:   Can I put it in this context, your Honour, that the Tribunal initially had held that the applicant was traumatised by fear, but his fear was genuine but not well grounded and then at 4.39, after it signed its decision, the submissions, which we say were relevant and not taken into account, arrived by fax at the registry.

The decision then went into the registry and was stamped on the 16th but sent out to the applicant on the 18th.  The amendment does not affect the point at all and we say that this Court made it clear yesterday in Yusuf that once you have a relevant consideration, that ground is a reviewable matter under 476(1)(b) and (c) and, indeed, (e).

HAYNE J:   What is the relevant consideration that was not taken into account?

MR PURNELL:   What the Tribunal did, your Honours, was to give an open‑ended invitation for further submissions.  There was not a time limit put on that.

HAYNE J:   That is not answering the question, Mr Purnell.  What is the relevant consideration that was not taken into account?

MR PURNELL:   The submissions that the applicant put in which went to ‑ ‑ ‑

HAYNE J:   Submissions are not relevant considerations.  They may contain reference to relevant considerations.  What is the relevant consideration that was not taken into account?

MR PURNELL:   That there was a submission that was in the registry at a time before the decision was handed down that was not taken into account by the decision‑maker.

GUMMOW J:   Why do you say 430A would have no operation?

MR PURNELL:   Your Honour, it goes to trying to add finality in terms of what, we would say, would be the functus point and that is that it defines the decision in terms of the date being the date on which it is handed down and we say, in this case, that is the 18th and not the 12th, so the point is still live that has been raised and the matters that were agitated in Bhardwaj are still the same as the ones here.

GUMMOW J:   But if all of this happened again, your client would have been invited to be present when the decision was to be handed down on a particular specified future date.  Would that not be so?

MR PURNELL:   Yes, your Honour, but the point is whether, at that particular time or before it, the Tribunal would have had a duty or obligation to take into account ‑ ‑ ‑

GUMMOW J:   I know, but in practical terms, if the worst comes to the worst, the applicant can get to his or her feet the instant before it is handed down.  It is not unknown for these ‑ ‑ ‑

MR PURNELL:   Yes, your Honour, but there is a sense of unreality about that in terms of handing down a decision.  It is pretty unusual for somebody to come up and start putting submissions about matters that they were invited to address, or relevant matters that went to the issues that the Tribunal was deciding at the time a decision is handed down.

We say, your Honours, that the principles that Bhardwaj interested this Court in are the same here, and that is whether the Tribunal had power after 4.39 on the 12th to uplift its decision from the registry and reconsider it in the light of the submissions that had arrived at 4.39.

GUMMOW J:   Yes.

MR PURNELL:   So they are the matters that we put on that point, your Honour.

GUMMOW J:   Thank you.

MR PURNELL:   Your Honour, I am reminded of one general point, that the issues that we say that are of public importance are not confined to the amendment in 430A but would affect other tribunals.

GUMMOW J:   Yes, I understand that.  Yes, Mr Howe.

MR HOWE:   Just one final point in response, your Honours, which concerns my friend’s submission that the Tribunal originally granted an open‑ended opportunity to put further submissions.  Could I just take the Court very quickly to page 13 of the application book which consists of the judgment of his Honour Justice Spender in the court below, and his Honour noted at line 44 and following that the:

Tribunal gave the appellant leave to file further submissions on “country information”.

That was a particular topic.

GUMMOW J:   Yes.

MR HOWE:   And those submissions were put and at that point, there was an invitation given in those submissions to the Tribunal to proceed and as Justice Spender noted, that statement indicated finality in the stream of submissions and then, at the bottom of the page, his Honour noted that the applicant “put yet further submissions”, which were taken into account but even at that point those submissions, the most recently received ones before the Tribunal signed its decision of 12 June, did not foreshadow any request for further opportunity to put submissions and, indeed, the submissions which were ultimately put did not relate to country information and so did not even go to the point on which the Tribunal had given leave.

GUMMOW J:   Yes, understand.

MR HOWE:   That is the only matter in response, thank you, your Honours.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 8.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 8.48 AM:

GUMMOW J:   Since the events which give rise to the present application, the relevant provisions of the Migration Act (Cth) have been amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth). Thus, the principal point which it is sought to agitate about the circumstances in which the Refugee Review Tribunal is functus officio cannot arise again in the same way.

In these circumstances we are not persuaded that the matter raises a point of general application.  In any event, we are not persuaded that an appeal would enjoy sufficient prospects of success to warrant a grant of special leave.  Accordingly, special leave is refused with costs.

AT 8.49 AM THE MATTER WAS CONCLUDED