SZAYW v MIMIA
[2006] HCATrans 389
[2006] HCATrans 389
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S57 of 2006
B e t w e e n -
SZAYW
Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 10.07 AM
Copyright in the High Court of Australia
MR I.E. DAVIDSON: May it please the Court, I appear with my friend, MR I.G.E. ARCHIBALD, for the appellant. (instructed by Michael Jones)
MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR M.A. WIGNEY for the respondent. (instructed by Clayton Utz)
GLEESON CJ: Yes, Mr Davidson.
MR DAVIDSON: Your Honours, the primary issue in this appeal is the proper construction of the phrase “in private” in section 429 of the Migration Act. Section 429, which was introduced at the same time as the Refugee Review Tribunal ‑ ‑ ‑
GUMMOW J: What is the relevant print?
MR DAVIDSON: For 429, your Honour, any print, because it has never been amended. That will not unfortunately be the case with a number of the other sections that will be part of the context.
GUMMOW J: I know, so what print do we need?
CALLINAN J: What print will be an accurate and complete print with respect to everything you want to deal with?
MR DAVIDSON: There will not be a perfect print but the very best and the way I will be dealing with it will be annexure A to the appellant’s submissions which has the statutory material that the respondent has agreed with. That is the best starting place for the relevant provisions. There are, I regret, some errors in that and I will hopefully have corrected those in the course of the address and the material that your Honours will have so that you will have ‑ ‑ ‑
GUMMOW ACJ: The relevant dates?
MR DAVIDSON: There are a number of possible relevant dates, your Honour. The hearing was on 7 April 1999. The decision of the Tribunal was on 13 July 1999. Reprint 7 is the legislation as of 1 September 1999 and there were a number of amendments which came into force on 1 June 1999, between the date of the hearing and the publication of the Tribunal’s reasons, and the effect of that legislation is that it is deemed to apply to the Tribunal’s reasons even though the hearing was beforehand, but despite all that complexity which I will attempt to spend some ‑ ‑ ‑
GUMMOW J: It looks like Reprint No 7, that is all.
MR DAVIDSON: That will be the closest, your Honour, yes, but it will not have all of the relevant provisions because there will be some changes that will be in Reprint 7 that we will have to take you to an earlier version, but they will essentially be in annexure A to the appellant’s submissions. I will have to spend some time on that statutory material because as I have said it is going to take some time to work through.
I propose to structure these oral submissions in three main parts. First is really to deal with the topic that we have just started, which is to provide a conspectus both of Division 4 of Part 7 where section 429 is found, and some of the other provisions of the Migration Act at the relevant times, and in answer to your Honour Justice Gummow’s earlier question, there are some different relevant times. Having worked through that material, I secondly then propose to briefly highlight the material facts relevant to the appeal. What actually occurred at the hearing on 7 April 1999 of my client’s application for review before the Tribunal is essentially not in dispute and there was no disagreement below in either the judgments of Justices Moore and Weinberg who were in the majority, or in the dissenting judgment of Justice Kiefel as to the material facts.
Further, although the majority judges disagreed with the interpretation of section 429 that was adopted by Federal Magistrate Driver, who found that section 429 had been breached, the majority judges did not reject any of his Honour’s findings of fact. In particular, during the hearing before the Refugee Review Tribunal, or RRT, on 7 April 1999, my client was always questioned in the presence of at least two of the other three applicants whose separate applications for review had all been listed to be heard on the same day before the same Tribunal member. Your Honours may have noted in the written submissions that the appellant submits that the proper inference from the limited evidence before this Court is that the applications were not all listed to start at 1 pm, which is the time listed for the hearing of the appellant’s application, but they all were listed for the same day.
There is one finding of fact which the Minister in ground 1 of her notice of contention asserts this Court should now make and that is the Minister asserts the Court should now make a finding that my client consented to the presence of the other applicants during the hearing of his application by the RRT. I need also to note at this stage that the claims of all four applicants were based on alleged similar experiences together in Lebanon and they all had the same migration agents assisting them in their claim for protection visas and in the judgments they are referred to as RACS. Further, the appellant had requested that the other three applicants be witnesses in his case and the migration agents had requested that consideration be given to the same Tribunal member being allocated to the four applicants.
Thirdly, after dealing with the relevant statutory background and the material facts, I intend to move to the heart of the appeal which is the proper construction of “in private” in section 429. At the outset, I note the proper construction of “in private” will also require very close attention to be paid to the important first words in section 429: “The hearing of an application”, as well as to many other indications in Division 7 that the hearing required by section 429 must be of a single application, not a hearing of multiple applications at the same time.
The appellant also submits that the effect of what occurred here was that multiple applications were heard together and this cannot comply with the mandatory requirement that the hearing of an application must be in private. The main argument of the Minister, both successfully below and again pressed in this Court, seems to be that the obligation of the RRT under section 429 to hold a hearing in private is no more than an obligation to exclude members of the general public from the hearing and it is not in issue that members of the general public were not invited to attend the hearing.
If the appellant is correct that “in private” required the RRT to do more than merely exclude members of the general public, then the next issue is whether section 429 still permitted what occurred here, namely, the Tribunal questioning the appellant in the presence of the other separate applicants. The issue of whether section 429 still permitted the RRT to question the appellant in the presence of the other applicants also raises the first contention of the respondent that what occurred here was in fact consented to by the appellant.
GUMMOW J: Involved in all of this is the notion of jurisdictional error, is it not?
MR DAVIDSON: That is correct, your Honour.
GUMMOW J: You have to say that 429 is an element of jurisdiction.
MR DAVIDSON: Yes, your Honour.
GUMMOW J: Because this was an application under 39B of the Judiciary Act, certiorari and declaration.
MR DAVIDSON: That is correct, your Honour. It would need to be jurisdictional error and on that it will be submitted that while obviously this case has considerable differences to SAAP, that the breach was jurisdictional error and that does need to be established. The jurisdictional error point is ground 2 of the notice of contention and ground 1 of the notice of contention is that what occurred was consented to by the appellant.
In respect of ground 1, the appellant’s first response to ground 1 of the notice of contention is that, on the facts, the evidence would not permit a finding now that my client actually consented to the degree required by law for there to be a consent to the change by the Tribunal member from her originally stated intention at the beginning of the hearing that she would question each of the four applicants separately, to the change after having spent three hours questioning the first applicant in the absence of the other three applicants, to sending the first applicant out and questioning the remaining three applicants together for a couple of hours before bringing back the original first applicant and then questioning the four of them for the remainder of the hearing.
So this change of procedure from what had been stated at the outset would occur and what, in my submission, would be a fair inference from the separate notices of applications on our construction of the evidence at different times during the day, then this change of procedure occurred after the Tribunal member had first separately questioned the first applicant for about three hours and the federal magistrate considered that there may have been too much time spent. There was one day allocated and this was in part done to accelerate the proceedings and in part the Tribunal stated because of the similarity in the grounds relied on by the various applicants. So that is the first response to the first ground of contention, that there was no consent on the ‑ ‑ ‑
CALLINAN J: Can you take me to the facts, what actually happened at the hearing? I have looked at page 10 and I have looked at page 11.
MR DAVIDSON: Yes.
CALLINAN J: Page 10 is very early, about line 30. The Tribunal member says the others will have to be excluded.
MR DAVIDSON: Sorry, this is page 10 of the appeal book, your Honour?
CALLINAN J: Yes. I just want to know what happened, Mr Davidson, that is all.
MR DAVIDSON: Yes. Your Honour, if you go back to page 9, at the very beginning three of the applicants were present and then ‑ ‑ ‑
CALLINAN J: They were awaiting the adviser, were they? Is that what happened?
MR DAVIDSON: No, I do not think so. Three out of the four applicants were present and the advisers, I think, were there but – and one of my submissions is the reason the fourth applicant was not there might well have been that, like my client, his hearing might have been listed at a later time than this time. But three of them were there and then the Tribunal officer swore the interpreter to keep things confidential. Then the Tribunal officer swore in the three applicants - and that is at line 25 and following - swore the three of them together.
My instructing solicitor who has some considerable experience in the Tribunal has just informed me this morning that the reason why that is done is that the Tribunal officer swears people in, sets up the tapes and then leaves the hearing, consistent with our interpretation of section 429, but the fourth applicant was not able to be sworn, that is at the bottom of page 9, because he was still coming and would be there in about half an hour. So he was not – so three are sworn in.
Then on page 10, your Honour, the Tribunal member at the beginning says she is going to explain the Convention to all of them. Then at line 13, and this is what I submit is the – what my clients and the advisers were told at the beginning, and the advisers are there and these are migration advisers. The Tribunal member says:
I think, although this last part is flexible, that at the end of listening to the four of you I will ‑ ‑ ‑
CALLINAN J: The Tribunal member at line 30 says:
Well, she can be in the room . . . but not when the others are being questioned.
All right, and then the Tribunal member goes on ‑ ‑ ‑
MR DAVIDSON: Sorry, your Honour, which page?
CALLINAN J: Page 10, line 30.
MR DAVIDSON: Yes, your Honour. Yes, this is the girlfriend of the first applicant ‑ ‑ ‑
CALLINAN J: No, I understand that. Well, the Tribunal member says that. Then the Tribunal member goes on to explain a number of other matters. Then at line 40 on page 11 says “Are there any questions ‑ ‑ ‑
MR DAVIDSON: Yes, your Honour, can I just take you back to one line I did not take you to which is a key one and that is lines 3 and 2 of page 10. Your Honour has probably already fully absorbed that, but after she says:
I will explain the convention to all of you, and then I will talk to all of you individually.
CALLINAN J: All right. Well, I have read that.
MR DAVIDSON: Yes.
CALLINAN J: Then at line 37 on page 11:
Are there any questions –
and the applicant says, well, it is:
a bit too long actually.
And if you go to page 13, line 15:
Because I’m basically grouping you in, talking to you individually. But also grouping you in 2 lots ‑ ‑ ‑
MR DAVIDSON: Well, in fact, what I think she is saying there is that while she is talking to the first applicant, that is Mr R, then the other three will go in another room and stay there and then, in terms of line 16, once she has finished with Mr R she is then going to be “talking to you individually”. So she has not changed, on my submission, her intended strategy which is to talk to each of the applicants separately at this stage.
CALLINAN J: Well, where do we go after that?
MR DAVIDSON: We have considerable problems with the transcript, but where we go next is to line 29 where she says, “I am going to talk to [the first applicant] first”.
CALLINAN J: That is page 13?
MR DAVIDSON: Page 13. She is going to talk to the first applicant – that is Mr R – and then the other two applicants and the person there, Mr S, is the appellant, my client. They go into the other room. The third applicant has not arrived yet, so is not being ‑ ‑ ‑
CALLINAN J: That is all right. Let us just see what happened. What should we look at next?
MR DAVIDSON: Then we have several hours which are not transcribed by the solicitors for the respondent who have made a transcript from the tape, but we have this statement in square brackets which is a statement from the author of the affidavit, the paralegal whose affidavit is at pages 6 and 7. She says it appears that the first person there, although it is different to a Mr S, it is the same person as my client, so that Mr AC is the same as Mr S. They get his name wrong. That is the appellant. Then I think I have incorrectly said to your Honour that the fourth applicant has not arrived because, at least according to this person, it appears that Mr A, who is the fourth applicant, and Mr K leave the room.
So according to this, which is someone’s interpolation, the remaining three applicants have left the room and the first applicant remains in the room – we are on tape one at the moment – and gives evidence until the end of tape one, all of tape two and the beginning of tape three. That takes about three hours and that is set out in the Tribunal’s reasons and picked up by Justice Moore. So we have three hours of individual questioning of the applicant and then we go ‑ ‑ ‑
CALLINAN J: That was in private, was it?
MR DAVIDSON: That was in private, yes.
CALLINAN J: So there is three hours of private hearing?
MR DAVIDSON: Yes. I should say this: with what may be an issue in the case, that applicant’s girlfriend was there.
CALLINAN J: She wanted to be there, did she not? That appears earlier.
MR DAVIDSON: She wanted to be there. He wanted her to be there.
CALLINAN J: And he did not object?
MR DAVIDSON: And he did not object.
CALLINAN J: All right. So he had three hours of private questioning. Just tell me, if you do not mind, what happened after that and just give me the page reference.
MR DAVIDSON: The Tribunal member changed her mind and decided she would not proceed with individual questioning but she would group the remaining three together in the absence of the first applicant.
CALLINAN J: Where do we see that?
MR DAVIDSON: First of all, we see at line 40 that:
The hearing is resumed at 3.00 pm.
[CANNOT HEAR – MANY PEOPLE TALKING]
I do refer to that because one of the drawbacks of three people being questioned at the same time is that happens a lot and the affidavit writer has to make a special statement in her affidavit. It is not surprising you cannot hear. There were three or four people speaking Arabic, perhaps volubly, and through an interpreter, but there is a number of these “[CANNOT HEAR – MANY PEOPLE TALKING]”. Then on page 14 I think a new interpreter is sworn in. The first interpreter of course has had a very long time and, whether worn out or not, is replaced by a new interpreter. Then at line 17 the fourth applicant – that is Mr A – who had not been sworn, is now sworn. Then at the bottom of 14, the Tribunal member explains again to Mr A, the fourth applicant, the Convention. Then we pick up at page 15 ‑ ‑ ‑
CALLINAN J: We go to line 27, do we not?
MR DAVIDSON: That is correct, your Honour.
CALLINAN J:
What I’m going to do is ask questions and ask for separate responses from the three of you. It’s clear that your stories are very similar . . .
Applicant: I didn’t understand what you meant by that.
Then there was an explanation. Was there any objection taken to that?
MR DAVIDSON: Your Honour, there is no objection recorded, but there is a ‑ ‑ ‑
CALLINAN J: Is there any basis for saying then that any objection was taken to that?
MR DAVIDSON: Your Honour, in my submission, the construction of this is that this is not a case where she said, “Look, I’m thinking of changing the procedure, I’m thinking of doing this ‑ ‑ ‑
CALLINAN J: Mr Davidson, we will worry about what is a proper interpretation of the events later. Could you please answer me whether any objection was taken at any time to what the Tribunal member said at line 28 on page 15?
MR DAVIDSON: All I can say, your Honour, in response to that question is that the transcript does not record an objection ‑ ‑ ‑
CALLINAN J: Is there any other evidence or any evidence of any kind that any objection was taken to that?
MR DAVIDSON: There is certainly no evidence in the appeal book, and I was not involved in the federal magistrate.
CALLINAN J: No, I understand.
MR DAVIDSON: But there is no evidence before your Honours.
CALLINAN J: We have to assume that what was said there was not in any way objected to.
MR DAVIDSON: My comment in response to that, your Honour, would be that that was not an invitation to say, “I’m thinking of doing this, what do you say?” It was her saying, “I am doing this”, and of course the migration advisers are not permitted to jump up and down and say that is - they are permitted to be there but they do not have a right, as I understand the legislation, to say, “Tribunal member, you can’t do that”, but ‑ ‑ ‑
CALLINAN J: Why not?
MR DAVIDSON: I think it might be section 424 – I might have that pointed out to me. There is a section in here that makes it clear that the Tribunal has a lot of discretion about how it conducts the hearing, whom it permits to speak. I will take that question on board, your Honour, but this is a very different procedure to a court hearing.
CALLINAN J: They are all submissions. At the moment I am just trying to get what happened. Now, are there any other passages in the transcript of the proceedings in the Tribunal in which there is any discussion about what is going to happen or from which it appears that evidence is being taken in the presence of more than one person?
MR DAVIDSON: There is nothing else. There is the hearing resuming at 3.00 pm and the Tribunal member announces what she is going to do. She says:
I don’t want to lose the individual in the group.
One applicant ‑ ‑ ‑
CALLINAN J: Where is that?
MR DAVIDSON: That is at line 31.
GUMMOW J: Page 15.
MR DAVIDSON: Again, page 15, so she is alert to the problem that she might lose the individual in the group and, in my submission, that is exactly what occurred from this process.
CALLINAN J: Did she give the other applicants a private hearing for about three hours or some lesser period?
MR DAVIDSON: No, and there is no doubt about that. So the only person who ‑ ‑ ‑
CALLINAN J: But your client did have a private hearing for about three hours?
MR DAVIDSON: No, your Honour, my client is not the first applicant.
CALLINAN J: I am sorry.
MR DAVIDSON: My client is the third applicant, referred to as Mr S, Mr AC.
CALLINAN J: He was the first applicant who had the three hours of private hearing?
MR DAVIDSON: Correct, and so his matter is not for determination.
CALLINAN J: Thank you.
CRENNAN J: At the bottom of page 15 she invites the applicants to alert her if there are differences in their different stories.
MR DAVIDSON: That is correct. There is no doubt she said – although she had decided that she is going to hear the three of them together, she was making comments to say, “But look, I don’t want you to feel you – I want to consider you as individuals. I want you to feel free to make your own comments”, so it is not being suggested the Tribunal member was in a very hard‑hearted or mean way trying to stifle clients but what is submitted is that the procedure adopted, which is said to be in breach of section 429 ‑ ‑ ‑
GUMMOW J: This seems a very sensible way of proceeding, frankly. The question then is: is it constrained by legislation and is the constraint by the legislation of a nature that produces jurisdictional error?
MR DAVIDSON: Yes. When your Honour says that it seems a very sensible way of proceeding, that might be something, I suppose, on which views could differ. The appellant would be submitting that it actually was not a sensible way of proceeding because of the risks that section 49 is designed to avoid. But assuming ‑ ‑ ‑
GLEESON CJ: What are they? What is the purpose of section 429?
MR DAVIDSON: Essentially two purposes, your Honour, which are made clear in the explanatory memorandum. The first purpose is to ensure safety for the appellant, the appellant’s family, dependants in the country of origin by ensuring that everything here is as confidential as is humanly possible because it is an imperfect ‑ ‑ ‑
GLEESON CJ: Because typically such people will be alleging that they are the victims or intended victims of persecution in another place.
MR DAVIDSON: Yes, that is correct. It is made clear in the explanatory memorandum. If, for example, they were sent back, either correctly or by mistake, it would be important that the country of origin not be aware that they had made these allegations. It is for the same reason that at the same time section 429 was introduced section 431(2) had the prohibition on publishing names. They had the prohibition on publishing:
any statement which may identify an applicant or any relative or other dependant of an applicant.
So the first reason is safety for either the appellant or the appellant’s dependants, for example, an appellant may succeed because it is accepted that the appellant is being persecuted and it may be that the country of origin may not like that and therefore dependants and loved ones of the successful refugee applicant may be persecuted. That is the very first purpose. The second purpose - this is part of what - with respect, the appellant would not agree this is a sensible procedure. The second purpose is so that the applicant will feel very uninhibited in making full and open disclosure of what may be very distressing and sensitive and personal issues relating to the ‑ ‑ ‑
CALLINAN J: And compromising issues that might endanger himself if he has to go back.
MR DAVIDSON: Yes, with respect, that is correct, your Honour. The more people hear the disclosure of this type of information, the greater the risk that ‑ ‑ ‑
CALLINAN J: If he is found to be not telling the truth and he has traduced a regime to which he might be required to return, that itself might invite some sort of persecution for that reason alone. That seems to me is one reason why it has to be in private.
MR DAVIDSON: Again, with respect, that would be entirely correct, your Honour. Another example might be if too many witnesses are there, then the appellant might succeed because of this behaviour and this very secret information that is extracted but the witnesses might lose their case. The witnesses might then be refouled, I think is the expression, back to the country of origin and the witnesses may know information that it would be better they did not know if there was a repressive regime that had unsubtle ways of extracting information relating to the applicant and the applicant’s loved ones.
CALLINAN J: They are reasons for the provision but none of those reasons seem to apply to this case in fact, do they?
MR DAVIDSON: Well, the magistrate rejected evidence that the appellant sought to put forward of concerns, and the magistrate dealt with that and I think my friend has handed up or has provided a supplementary part of appeal book that contains some of that cross-examination so it is correct that my client was not believed on the evidence that he gave, although the magistrate pointed out that if the proper procedures had been followed there may have been a different outcome before the Tribunal.
CALLINAN J: What happened to the other applicants?
MR DAVIDSON: I do not know, your Honour, but there have certainly been no proceedings commenced by them.
GLEESON CJ: It was not your client whose girlfriend was permitted to remain?
MR DAVIDSON: Correct, your Honour.
GLEESON CJ: But just to test the matter by reference to that mundane example ‑ ‑ ‑
MR DAVIDSON: Yes.
GLEESON CJ: ‑ ‑ ‑ what does section 429 have to say about applicants and girlfriends remaining?
MR DAVIDSON: The proper construction of section 429 may well permit the girlfriend to be present with the express consent of the applicant because a support person may contribute to the purpose of the applicant being willing to be full and frank and uninhibited in the ‑ ‑ ‑
GLEESON CJ: Why would such consent have to be express? Why could it not be implied?
MR DAVIDSON: Is your Honour the Chief Justice suggesting implied by the fact that the girlfriend turned up at the hearing?
GLEESON CJ: No. The applicant just sat through the whole proceeding with his arm around his girlfriend. Suppose that happens. Is that a contravention of section 429?
MR DAVIDSON: The first answer is it would not happen because the forms that have to be filled out, as I understand it, you have to advise as to whether you wish to have that style of person come with you so it is not something practised if there had not been prior information given that that person would be there, but assuming that it did happen, the Tribunal member, one would think, would be astute, as was the case here, to check through the position of the girlfriend. So the construction of section 429 that is being proffered by the appellant would permit the girlfriend to be present.
However, it is ultimately not an issue that this Court has to finally resolve in respect of this case because we submit that wherever that dividing line is there is a big difference between a very close loved support person who is called in and someone who you have asked to be a witness hoping that they will support your case but only in the capacity as a witness.
Can I just come back to deal with the question that your Honour Justice Callinan raised about the powers, what the migration agent can do before the Refugee Review Tribunal and the answer to that is in section 427(6) of the Act which says that:
A person appearing before the Tribunal to give evidence is not entitled:
(a)to be represented before the Tribunal by any other person; or
(b)to examine or cross-examine any other person appearing before the Tribunal to give evidence.
Now, there may well be an argument that as a matter of law – and consistent with the construction of 429 - that a migration agent, a legal practitioner, would have an ability or right to be there and there is no question that the Tribunal permits those people to be there but it is ‑ ‑ ‑
CALLINAN J: We see many cases and sometimes they are represented by barristers or solicitors ‑ ‑ ‑
MR DAVIDSON: As I said, there is no doubt that that is the practice, but to the best of my knowledge there is no provision in the Act or the regulations dealing with the entitlement of migration agents, barristers or solicitors to present – with one exception which is different to the position here.
CALLINAN J: But that is a person appearing before the Tribunal to give evidence.
MR DAVIDSON: Yes, but it says:
not entitled:
(a) to be represented ‑ ‑ ‑
CALLINAN J: No, but does that necessarily apply to an applicant? An applicant may be giving evidence, but is there any – there may be a different view ‑ ‑ ‑
MR DAVIDSON: I do not think there is any question that the applicant is the person appearing before the Tribunal. For example, section 425(1) says:
The Tribunal must invite the applicant to appear before the Tribunal ‑ ‑ ‑
CALLINAN J: Right.
MR DAVIDSON: So I do not think there is any real question about that. I will no doubt stand to be corrected by my friends who will know more about the provisions of the Migration Regulations, but the regulation that I am aware of is regulation 5.11 of the Migration Regulations which says:
In an investigation before a Commissioner, the person summoned to appear and the Minister are each entitled to be represented by a barrister or solicitor or by an agent approved by the Commissioner.
But I am unaware, although I may stand to be corrected, of any provisions expressly dealing with the ability of solicitors, barristers and migration agents to appear before the Tribunal, although it may well be that there is an implied right to be there. The Dunkel authority that is referred to in the respondent’s submission, for example, from memory was a counsel having a right to be present to assist the Tax Commissioner during a private hearing. It is confirmed that my impression that 427(6) is clearly a reference to the applicant.
I am not entirely sure whether I am still going through the facts or where we were up to on page 15 or whether I will go back to my overview of responses, so I apologise if I – yes, I think where I am up to, if that has dealt with your Honour’s questions, is just an overview of the appellant’s response to the first ground of the notice of contention. I had already said that the first response is that there was not a consent in fact and your Honour Justice Callinan has me taken to that material which is probably all the material that directly deals with whether there is a consent.
The second response though, assuming that was incorrect and that the Court were to take the view that as a matter of law the appellant had consented to what occurred, is to say that even if there was some type of consent or some type of acquiescence which would normally bind the appellant from the failure of the migration agents to promptly respond to that first indication in the appeal book at page 15 that the Tribunal member was going to change to speaking to the individuals in a group, even if that was the case, on the proper construction of section 429, what occurred, even with that consent, still breached the section. Any actual consent arising by reason of failure of the migration agents to object simply does not excuse a breach by the Tribunal of its obligations under section 429.
Now, there may be an issue on the third ground of appeal on an acquiescence type point as to whether there would be some discretion not to issue orders of certiorari and mandamus, but the actual consent itself on the construction of 429 would not excuse the breach by the Tribunal. In other words, it is the Tribunal that has to comply with 429 as well; it is not the applicant that has ‑ ‑ ‑
GLEESON CJ: That is why I asked you the question about the girlfriend. What is the basis upon which it is permissible under section 429 on your construction for somebody whose presence is perfectly acceptable to an applicant, such as a girlfriend or perhaps a minister of religion or any other support person, being there? The only basis I can think of is consent.
MR DAVIDSON: Your Honour, the basis that the appellant has said that it may be that a family member would be acceptable would be on the basis that the construction of “in private” would cover someone so closely integrated or associated with the applicant that it in fact is still in private.
GLEESON CJ: Why would it not cover anybody who is there with the applicant’s consent, like the interpreter or an official of the court?
MR DAVIDSON: The interpreter is covered in private because that is a necessary part of what is needed for there to be a hearing.
GLEESON CJ: On your approach to section 429, does a hearing cease to be in private if it occurs in the presence of someone other than the applicant, notwithstanding that the applicant consents to that other person’s presence?
MR DAVIDSON: The answer is yes, with the possible exception if the support person is covered by the proper construction of “in private”. It may be that that has been a wrong concession by the appellant and it may be that the proper view is that that support person is not there. But just leaving aside the example of the support person, the answer to your Honour’s question is that consent by the applicant to that person being there does not mean that section 429 does not have to be complied with. However, if the appellant is wrong on that construction, as a matter of fact there was not a consent to the witnesses remaining for all of the applicant’s participation in the hearing.
GLEESON CJ: What if an applicant said, “I would like to be supported by this journalist. I would like my friend, the journalist, to sit throughout this hearing with me”?
MR DAVIDSON: The answer to that, your Honour, is that that could not be in private because of the risk of the underlying purposes of 429 being breached because of the journalist’s temptation and ability to disseminate information. I suppose there would be an inference that the support person would have the sufficiently identical outlook and approach to the applicant for there not to be that appreciable risk. I suppose a more difficult question, your Honour, is if the support person, the wife, were a journalist.
GLEESON CJ: Or a Member of Parliament.
MR DAVIDSON: Or a Member of Parliament.
GLEESON CJ: Is there some other provision in the Act apart from 429 that, as it were, reinforces the privacy of these proceedings?
MR DAVIDSON: Yes, your Honour. Section 431(2) is a very clear example and that, like 429, has been in force since the creation of the RRT and has never been amended.
GLEESON CJ: Section 431(2) only binds the Tribunal.
`
MR DAVIDSON: That is correct.
GLEESON CJ: What is it that would prevent the friend, the journalist, from publishing an article in the newspaper about what went on?
MR DAVIDSON: Essentially nothing, your Honour, with the exception of section 440 were the Tribunal to make a direction and the appellant’s submissions say that that is a bit futile when people are returned.
GLEESON CJ: What is it that prevents an applicant from walking out of the Tribunal to the office of a newspaper and saying, “This is what happened to me this morning”?
MR DAVIDSON: I think the answer to that is that certainly at the time of this legislation probably nothing. I think, your Honour, that there is nothing that prevents that. I may be corrected in a short while, but of course in terms of the purposes of section 429 as explained in the explanatory memorandum to protect the applicant and the applicant’s loved ones, the applicant may as a practical matter have less motive, but there is ‑ ‑ ‑
GLEESON CJ: If there is nothing in the Act to stop an applicant giving any degree of publicity the applicant chooses to what goes on at one of these hearings, that tends to reinforce the suggestion, does it not, that 429 is for the benefit of the applicant?
MR DAVIDSON: I am sorry, your Honour, for my delay in answering your question. You have the ‑ ‑ ‑
GUMMOW J: If it is for the benefit of the applicant, that suggests that it is not a jurisdictional matter.
MR DAVIDSON: Yes.
GUMMOW J: You do not normally treat jurisdictional limitations as something that can be waived, and the second ‑ ‑ ‑
MR DAVIDSON: Although in the SAAP Case – and I appreciate there were differing views on whether that was a jurisdictional matter – there would at least be an argument that the requirement of a written notice was not as clearly for the benefit of that applicant who was Iranian and illiterate and would not have been able to read the notice. So that this legislation is quite prescriptive and it would not be a necessary conclusion if the Court were to take the view that 429 were just for the benefit of the applicant or the applicant’s family or the applicant’s dependants in the other country that a breach of it would not be jurisdictional error.
GUMMOW J: Now, what is the relationship between your submissions and notions of procedural fairness which does attract jurisdictional error? You could not say that there was denial of procedural fairness in this case, could you?
MR DAVIDSON: Not a denial of procedural fairness as a matter of common law, that is correct, although the submission is that section 429 is a section whose purpose and underlying intention deals with imperative and important procedural rights so that it is caught up as, I suppose, a statutory procedural fairness, which is a separate point to whether there has been a breach of common law requirements of ‑ ‑ ‑
GUMMOW J: Yes, but that is suggested for the benefit of a party, the litigant, is it not?
MR DAVIDSON: Yes.
CALLINAN J: Mr Davidson, just to follow up the Chief Justice’s question to you, is there anything to stop a witness, other than an applicant, from going outside and saying precisely what happened?
HAYNE J: In answering that question, bear in mind that section 439 applies only to the Tribunal, its members, officers and interpreters and noticeably does not apply beyond that class of person.
MR DAVIDSON: There are certainly authorities which make it clear that the powers of tribunals and courts where there are private matters go beyond what the – the powers to ensure that the confidentiality is not destroyed go beyond express limitations on disclosure of confidential information of which one example is the NCSC v BT Case where there was no power under the statute to prevent a solicitor, having heard evidence in private, telling other people who were going to be questioned by the NCSC what the position was and the Full Federal Court had no trouble in inferring that it was a necessary part of a decision to have the hearing in private, that those disclosures would not occur ‑ ‑ ‑
GUMMOW J: We had a case on section 439 in this Court about confidential information.
MR DAVIDSON: You probably have, your Honour, but ‑ ‑ ‑
GLEESON CJ: This can be an awkward question when you are considering questions of privacy or confidentiality. There are officers of the Tax Department who would commit offences if they disclosed what I put in my income tax return, but there is nothing to stop me writing an article in the newspaper revealing what I put in my income tax return.
MR DAVIDSON: Yes.
CALLINAN J: Mr Davidson, there ‑ ‑ ‑
MR DAVIDSON: I am sorry, your Honour, I do not think I have answered your question which was while in the tax position there may be nothing to stop you waiving - if I can come to Justice Hayne’s question about the witness it would be my submission that we have section 440 which is an express power to “restrict publication or disclosure of certain matters”. So the answer about the witness is that the Tribunal would have the statutory power to say to that witness, “You cannot say anything and you cannot publish anything”.
CALLINAN J: But that order can only be made if it is to be made in the public interest. Is that right?
MR DAVIDSON: Certainly under the statute that is correct, your Honour.
CALLINAN J: The orders are not made, are they, without some sort of an application in practice?
MR DAVIDSON: I do not know the answer to that, your Honour, but the public interest requirement under this section, in my submission, there would be little difficulty seeing that it would be in the public interest to prevent a witness revealing all of what one heard and if section 429 were properly followed there would be less risk of a witness hearing things the witness should not hear because the witness would only be there to give the witness’ evidence and then the witness would be out of ‑ ‑ ‑
CALLINAN J: The witness’ evidence might be very critical or might be very dangerous for an applicant.
MR DAVIDSON: Yes, that is correct.
CALLINAN J: But there is nothing to stop the witness, absent an order under 440, from going out and talking about it.
MR DAVIDSON: There are two aspects on that. There is the availability of an order under 440, there is the fact that the less the witness hears by the witness essentially following what is the ordinary court procedure of a witness just being there while the witness is giving evidence, not being there to hear what the applicant has to say coming in and ‑ ‑ ‑
CALLINAN J: I understand that. There is just one other factual matter I want to ask you about ‑ ‑ ‑
MR DAVIDSON: Before that, your Honour, can I just complete the answer to that question about 440?
CALLINAN J: Yes.
MR DAVIDSON: In addition to what 440 said, it may well be the case - I do not say that this is absolutely clear but it may well be that the obligation to keep the hearing private would give the Tribunal powers that went beyond ‑ ‑ ‑
GUMMOW J: A Tribunal is not a court, Mr Davidson.
MR DAVIDSON: Yes, I accept that, your Honour.
GUMMOW J: No inherent powers.
MR DAVIDSON: The Tribunal, the NCSC which was not a court in NCSC v Bankers Trust had, the full Federal Court certainly accepted, as a necessary consequence ‑ ‑ ‑
GLEESON CJ: Implied powers.
MR DAVIDSON: ‑ ‑ ‑ an implied power.
GUMMOW J: A different question.
MR DAVIDSON: Yes. I should have said an implied power - that the Tribunal has an implied power to make orders that go beyond section 440. Support for that proposition, your Honour, is that you will see that when perhaps I get to the overview of the legislation that 440 and 439 have quite similar equivalent provisions in the provisions dealing with the Migration Review Tribunal. So, in a sense, the Migration Review Tribunal hearings are to be in public unless the Migration Review Tribunal makes a conscious decision to hear particular oral evidence in private but there are ‑ ‑ ‑
CALLINAN J: All of this seems to me to be just a little unreal in the case of a person who has failed and who appeals to the Federal Court because the Federal Court inevitably will review the evidence as it did here and what was said will become public then anyway.
MR DAVIDSON: Nothing is public about the identity of these people.
CALLINAN J: No, identity apart, but what happened, what the evidence was and often the evidence itself will give you a fairly clear indication of who the person actually was.
MR DAVIDSON: I am not sure, with respect, that - and perhaps this is a little ‑ ‑ ‑
CALLINAN J: Not always but sometimes it will.
MR DAVIDSON: Four people invited to and on their evidence declining an invitation to join Hezbollah from stateless ‑ ‑ ‑
CALLINAN J: No, but that at least suggests the only thing likely to remain confidential is the name. There is no prohibition upon the publication by the Federal Court of witnesses’ names, is there?
MR DAVIDSON: Yes, there is, although there was not – I am sorry, I withdraw that. In this case of course, they were applicants and witnesses and that is one of the complaints. They were melded together.
CALLINAN J: But assume non-applicant witnesses. There is no provision that says their names cannot be disclosed, is there, in the Federal Court?
MR DAVIDSON: Subject to section 50 Federal Court Act orders which might be provided ‑ ‑ ‑
CALLINAN J: All right, thank you, Mr Davidson. There is only one other matter I want to ask you about on the facts. Is the extract from the Tribunal’s reasons which is quoted at page 243 of the appeal book by Justice Moore an accurate summary of what happened? If it is not, I would like to know with particularity in what respect, if any, it is not.
MR DAVIDSON: It is certainly an accurate summary of what is found in the Tribunal’s reasonings at ‑ ‑ ‑
CALLINAN J: It was taken directly from the Tribunal.
MR DAVIDSON: Yes.
CALLINAN J: Is there any error on the part of the Tribunal in that, or any relevant, significant matter of incompleteness?
MR DAVIDSON: The only additional factor that I would take your Honour to would be in the reasoning of the federal magistrate at 232 of the appeal book and there in paragraph 32 at about line 35:
The presiding member heard the evidence of the first of the four applicants separately but the problem appears to have been that the process took so long that the presiding member considered, for reasons of time efficiency, and because the claims all appeared to be the same, that the other three applicants should be heard together.
CALLINAN J: What is the basis for the statement that because the process took so long, the presiding member decided to hear the claims together?
MR DAVIDSON: We would probably come back to the very limited information on page 15 of the appeal book where the original intention has been to hear four of them. The four hearings have been allocated for one day. It is 3 o’clock. It finishes at 6.40, even with the combined hearing, and there would be a fair inference perhaps that it might have gone over for another day.
CALLINAN J: Is that said at page 15?
MR DAVIDSON: No, your Honour, it is not, but it is an inference if by 3 o’clock you have only dealt with one and you change the approach – anyway, certainly that was the conclusion that the federal magistrate reached and I think, in answer to your Honour’s question, that was the only additional passage that I could draw attention to.
CALLINAN J: Thank you, Mr Davidson.
GUMMOW J: You succeeded in getting an order from the magistrate, did you not?
MR DAVIDSON: Yes, that is correct, your Honour. That raises another procedural issue.
GUMMOW J: But what was the basis of the magistrate’s jurisdiction – ultimately 75(v) of the Constitution?
MR DAVIDSON: Yes, your Honour.
GUMMOW J: Who was the officer of the Commonwealth?
MR DAVIDSON: Well, that is an interesting question because at the ‑ ‑ ‑
GUMMOW J: And were they joined?
MR DAVIDSON: They were joined by my client, and that is apparent at page 80, I think, of the appeal book.
GUMMOW J: Yes, they were the second respondent. She was the second respondent.
MR DAVIDSON: Yes, she was the second respondent.
GUMMOW J: She has disappeared by the time of the ‑ ‑ ‑
MR DAVIDSON: She disappeared though. Page 80 is the wrong ‑ ‑ ‑
GUMMOW J: It is her decision that is being impugned, but she is not a part of it.
MR DAVIDSON: Yes. Perhaps unusually, my clients joined the second respondent and the Minister ‑ ‑ ‑
GUMMOW J: It might have been unusual, but it is correct.
MR DAVIDSON: Yes, it was correct.
GUMMOW J: Constitutionally mandated – that is what creates the federal jurisdiction. It is the party.
MR DAVIDSON: Yes, I accept all of that, and my learned instructing solicitor who succeeded before the magistrate had joined the second respondent. However, the second respondent has disappeared since, was not joined in the Full Federal Court appeal and has not been joined in this appeal which seeks to restore the orders made by the federal magistrate.
GUMMOW J: That is quite unsatisfactory, really.
MR DAVIDSON: Yes, and I understand from Mr Williams that the RRT was removed as a respondent by the federal magistrate and I accept that ‑ ‑ ‑
GUMMOW J: On what basis?
MR DAVIDSON: I do not know, your Honour, and it is not apparent from the material before here. In terms of this ‑ ‑ ‑
GUMMOW J: There seemed to be some rule in the Federal Court which may have percolated to the Magistrates Court, which is just quite wrong in its application to 75(v) constitutional jurisdiction.
MR DAVIDSON: Yes, although, your Honour, it ‑ ‑ ‑
GUMMOW J: You do not cut off your foot if you are going to walk on it.
MR DAVIDSON: No. All I can say on that, your Honours, we did try to do the right thing but it may have been the lack of understanding before the position was made abundantly clear in SAAP, but might I say in response to that, well, I do not really ‑ ‑ ‑
GUMMOW J: Anyhow, it is not your doing. You can at least say that, I suppose?
MR DAVIDSON: Yes. I think I could also at least ask if it is a necessary – as it well may be – item to seek leave to join the RRT as a second respondent to this appeal. Now, this topic was not addressed ‑ ‑ ‑
GUMMOW J: We have been down this path before. I sometimes wonder if anyone out there relevantly reads our judgments.
MR DAVIDSON: Yes, your Honour, but at least I am pleased that my instructing solicitor attempted to or did join the second respondent, so it may be that the correct position is that the RRT must be joined. I must confess ‑ ‑ ‑
GUMMOW J: I mean look at the order that was made by the magistrate – it is about page 80 or thereabouts?
MR DAVIDSON: The order might be at – sorry, at 134 ‑ ‑ ‑
GUMMOW J: No, that is not right.
MR DAVIDSON: Page 234.
GUMMOW J: Yes, that is right:
A writ of certiorari issue quashing the decision of the Refugee Review Tribunal –
not a party:
A writ of mandamus issue requiring the Minister to cause the Refugee Review Tribunal to reconsider ‑ ‑ ‑
MR DAVIDSON: Yes. So they were difficulties that really – well, while maybe perhaps partially trying to blame others, it is also fair to say the appellant has not before now sought leave to amend, but I would seek that it, if, as I apprehend it, is probably a necessary item.
GLEESON CJ: This is on the assumption that if the Refugee Review Tribunal is joined as a party it would submit?
MR DAVIDSON: Yes.
GLEESON CJ: All right, we will note that you made that application and we will hear what the other side has to say about it and we can deal with that in our reasons.
CALLINAN J: Mr Davidson, I am sorry, there is one other factual matter that I think I need to draw your attention to. At page 215, about line 25:
When lodging the applicant’s application to the RRT, RACS –
Now, that was the migration agent?
MR DAVIDSON: Yes, the migration agent.
CALLINAN J: The same migration agent for all of them:
stated that the applicant and applicants 226, 228 and 229 were “together for the events which form their claim” ‑ ‑ ‑
MR DAVIDSON: Yes, that is correct, your Honour, and I thought I had indicated at the very beginning that that was one of the matters I had to draw your attention to, and I was going to draw your attention to that ‑ ‑ ‑
CALLINAN J: No, it just may be a relevant factual matter which I think needs to be noted.
MR DAVIDSON: Yes, but that is certainly correct. I think that line of inquiry has probably moved ahead the second topic that I was going to be dealing with, relevant facts, and maybe when I come to that there will be something that I have overlooked but that has moved well ahead. Now, I would deal with – the first part is really a conspectus of the relevant provisions of the Migration Act which again your Honour’s questions have probably moved well ahead.
HAYNE J: In undertaking that, as you call it, conspectus, section 429 may usefully be contrasted with section 35 of the Administrative Appeals Tribunal Act 1975 and in particular section 35(1):
Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
MR DAVIDSON: Yes.
HAYNE J: It may be thought that 429 owes not a little to that precedent. It might also usefully be contrasted with provisions of the kind found in section 17(1) of the Federal Court of Australia Act 1976:
Except where, as authorized . . . jurisdiction of the Court shall be exercised in open court.
But more particularly, 17(4):
The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court –
et cetera. The contrast that may be drawn between those provisions might suggest, at least at first blush, that 429 is simply drawing a contrast for basic rule provided by the AAT Act, which proceedings are in public. By contrast these proceedings are in private, and questions of particular exclusions might be thought relevantly to be the subject of specific provision rather than an assumed generality of exclusion derived from 429. Now, with that in mind, to what provisions of the Act could you take us other than 429?
MR DAVIDSON: Well, your Honour, section 365 is a provision perhaps in similar compass to the style of provisions that your Honour has directed attention to and section 365 in the correct version is in material that has hopefully been handed to your Honours. When I say the correct version, the correct version at the time of the hearing, although it is not enormously different to section 365 in the versions your Honours have, but hopefully you have a couple of pages, or you shortly will have, which is the correct version and is very similar to the almost correct version that is in the statutory material, being annexure A to the appellant’s submissions.
In terms of section 365, what I would submit in response to your Honour Justice Hayne’s comments is that in fact section 429 is a very, very different style of provision because those provisions have ordinarily matters being in open court and then there are exceptions, as is the case with the Migration Review Tribunal. Ordinarily the Tribunal is open to the public but their ability for particular exclusions that are set out, but 429 – it will also be seen that the newly created now Part 7 which deals with the Refugee Review Tribunal has a number of common provisions that seem to be drawn from what is now the Migration Review Tribunal provisions.
But there is a really stark difference that 429 just says the hearing shall be in private, no express exceptions if it is thought that something should be different, so that it is an entirely different structure and that is because it is an entirely different environment to have a Refugee Review Tribunal application where the privacy needs are so important that they wholly override the ordinary interest in proceedings being open.
GLEESON CJ: Is the difference between the two sections, whatever precisely it amounts to, explained by the fact that section 365 is in a part of the Act that is dealing with what might be called the ordinary exercise of powers by the Tribunal and section 429 is in a part of the Act dealing with protection visas?
MR DAVIDSON: That is entirely correct, your Honour, section 365 ‑ ‑ ‑
GUMMOW J: There are two tribunals. There are different tribunals.
MR DAVIDSON: That is the next point I was going to say, your Honour. Although the language “the Tribunal” is used in each, one is the Migration Review Tribunal, and that is the ordinary open - similar to ordinary court procedures, and then we have this special, it is so important to be private. But there is no equivalent provision that says if the Tribunal thinks it is in the public interest, then it ought to be in public.
GLEESON CJ: Does the Migration Review Tribunal deal with deportation?
MR DAVIDSON: I do not think so, your Honour.
HAYNE J: Now, 429 hinges about something called “The hearing of an application for review”. Is there another reference in Part 7 as it then stood to “the hearing”? I could not quickly pick up one. There may be a reference but I could not ‑ ‑ ‑
MR DAVIDSON: I think the answer may be no but there are many references in the singular which the appellant relies on as saying it will be the hearing of an application and that the ordinary construction rules do not apply in the Acts Interpretation Act to mean singular is the plural. It is a little bit convoluted but I do not think that there is another reference to the hearing, although in section 425 the Tribunal invites the applicant to appear before the Tribunal to give evidence and present arguments.
HAYNE J: That is to say, is 429 intended to engage with, for example, the process contemplated by 424, the Tribunal getting any information it considers relevant?
MR DAVIDSON: Well, it has this interplay, your Honour. Section 424, of course, goes way beyond the hearing and because of the Tribunal’s inquisitorial nature, it can get information in any way that it considers relevant. For example, it can get information from the Department of Foreign Affairs. It could, in my submission, have declined to accept someone’s request for evidence to be given, but it could have in a separate hearing have heard that evidence and then taken that evidence into account. Of course, it would then have the obligation to have regard to that information in making a decision and there would be the obligations now under 424A of giving information.
But section 424 is far broader than the hearing. The hearing appears to be that occasion, that one occasion, that the applicant can appear under 425 if the Tribunal is otherwise minded to reject the application for review and it is that process where the applicant is physically present and giving evidence, at least since the amendments, presenting arguments, although in the form of 425 before 1 June 1999 it was ‑ ‑ ‑
HAYNE J: Let me understand the way in which Part 7 operated at this time. Section 425 and the events it contemplates are events of a kind you say are embraced by the expression “The hearing of an application”, is that right?
MR DAVIDSON: Yes, that is correct.
HAYNE J: Does “The hearing of an application” embrace what would follow under 426 where the applicant requests the Tribunal to call others?
MR DAVIDSON: It might well if the Tribunal acceded to the application and the witnesses gave evidence. That would appear to be occurring at the hearing.
HAYNE J: Is the applicant entitled under the Act to be present when what I might call a 426 witness is examined by the Tribunal?
MR DAVIDSON: I think the answer to that, your Honour, is no. In the ordinary course the applicant may be present and the applicant certainly has to have put to the applicant anything that is contrary or damaging that would come from that witness’s evidence. But my understanding of the breadth of power of the Tribunal is that the applicant does not have an express statutory entitlement to be present while a witness is giving evidence, yes. So I think we are in agreement on that on this side of the Bar table.
HAYNE J: Does that not suggest that 429, by referring to the hearing of an application for review, is intended to embrace all of the steps, whatever form those steps may take, that the Tribunal undertakes in conducting its review?
MR DAVIDSON: Your Honour, I am not sure of the answer to that question. My initial reaction would have been no, it is only while the applicant is physically present at the once only opportunity the applicant gets to appear and present oral evidence. So the answer would be no. But the reason why I am hesitating - and perhaps your Honour is, with respect, correct on that question - is that everything else that the Tribunal does in its wide inquisitorial powers outside of the one occasion when the applicant is physically present is, of course, going to be conducted confidentially and there is not going to be a risk of that becoming public knowledge. I am not sure if that is what your Honour was really driving at, but that is my attempt to answer your Honour’s question.
To some extent, the questions that your Honour is raising if the position is that it encompasses the entire hearing is consistent with the importance of confidentiality and everything being done as far as possible to ensure that nothing gets out. That may deal with the some of the questions I was earlier asked about, powers to stop witnesses dealing with blabbing of the information. One way that could occur would be that the witness – they could be entirely segregated. For example, in what occurred here, if the Tribunal member had followed her originally stated course and had heard this person individually, the next person individually, the next person individually and the last person individually and, say, had declined to permit those other people to be witnesses in the other cases on the basis that she had the information she needed from her investigative powers, then there might be an issue provided that she complied with requirements such as under 424A that the individual applicants knew of adverse matters. That might be one way that the confidentiality could be kept.
CALLINAN J: But, Mr Davidson, your client complained in written submissions to the Tribunal that the evidence of one of the applicants had been taken separately.
MR DAVIDSON: My client did not complain.
CALLINAN J: Well, the adviser did.
MR DAVIDSON: The migration agent did and, your Honour, that is ‑ ‑ ‑
CALLINAN J: That is at 216, line 40.
MR DAVIDSON: Yes, that is correct, your Honour. That is one of the factual matters I was ‑ ‑ ‑
CALLINAN J: You were complaining after the hearing that there was not enough of a public hearing.
MR DAVIDSON: Your Honour, I will just come to that provision because I - if your Honour will just bear with me and I will just get the page where that ‑ ‑ ‑
CALLINAN J: It is 216, line 40.
MR DAVIDSON: Your Honour, I want to actually take you to the actual letter itself which I – if you will just bear with me.
CALLINAN J: I could not find it, but it must be there somewhere.
MR DAVIDSON: Page 141, lines 7 to 17. These migration agents were acting for the four applicants and, perhaps, with the benefit of hindsight, that may not have turned out to be in all of the interests. This is a complaint they wrote on the 21 April, a couple of weeks after the hearing. They say, about line 7. We:
have reservations about the inconsistencies between the evidence of ‑
Mr R, who is the first applicant –
and the other three applicants who shared the same experience but who were heard separately in a group of three. We have reservations about the fact that this style of hearing procedure was used. Apart from an obvious intent to cause division between testimony of applicants we were concerned to note that despite evidence put forward that [Mr R] was receiving counselling and was suffering memory loss over traumatic events, the Member proceeded to use that same memory loss to highlight inconsistencies in the evidence. We also noted that the three together were able to consult and agree as to events and dates, something that was not available to [Mr R].
I think it is that last sentence that your Honour might seize on to say we were complaining that the exact opposite of what we are complaining about now occurred. In my submission, we do not have the evidence of Mr R because it is in those two and a half tapes that have not been recorded, but it is apparent from the questioning of Mr R when he came back for the last two hours of the hearing that it appears to be the case – and obviously I do not have evidence about what happened when Mr R was being heard – that the migration agents had said he has been the worst affected by this trauma. He is the one who has not got any decent memory, we have not been able to get decent instructions about dates, he really does not know anything about dates and he is receiving counselling and memory loss over traumatic events. It would not be hard to imagine whatever the outcome of this appeal these traumatic events, whether or not they entitle the people to protection visas.
My submission is that the heart of this complaint is, it having been identified upfront that Mr R was the person who had the problem with the dates, then he was grilled for this period and he appears to have said, “Look, I do know the dates”, and then to have referred to his passport and he got the dates a few months out - I think he said that events occurred in March that the others said occurred in July. So that although we have that last sentence that is seized on by the respondent and I think seized on by Justice Weinberg, that the real complaint is the fact that this style of hearing procedure was used and the way that Mr R was treated. That may have no direct relevance to this appeal but the appellant would resist the suggestion that the migration agent letter thereby converts to a consent from my client.
Your Honour, in support of that proposition I would take the Court to a couple of authorities which are on our list of authorities because it really deals with this precise issue. The first is Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483. This is a decision of Justice Weinberg that his Honour did not cite when he found that the actions of the migration agent were a consent, but this was a case of procedural fairness but it was a case where the applicant had been served by a service on the applicant’s solicitor and the busy solicitor had failed to read what was there. At pages 503 to 504, Justice Weinberg, in finding that the applicant was not bound by the actions of the applicant’s solicitor but rather the migration agents, says at 503G:
There is a relative paucity of authority dealing with the question of waiver in relation to the operation of the rules of natural justice . . . These cases suggest that minor aspects of the rule may be impliedly waived.
Then it refers to principles stated in Aronson and Dyer.
None of the authorities referred to by the learned authors suggests that the applicant should be treated as having waived his right to be accorded procedural fairness because his solicitor, through an oversight, failed to read correspondence which had been addressed to him.
In cases involving maters which may be compensable in monetary terms, such an oversight by a legal representative may be treated as some form of waiver, or perhaps as disentitling the applicant as a matter of discretion to relief for denial of procedural fairness. The possibility that the applicant may have an effective remedy against his legal representative will provide some justification for that approach. It will be of little comfort to the applicant in the present proceedings, however, to be told that the deportation order made against him must stand because, through no fault of his own, but rather through the fault of his solicitor, important correspondence was not read –
Your Honour, in my submission, it would be equally the case that my client would not be found to have consented or acquiesced or waived things on the basis of this letter.
The second authority that I would cite in support of this proposition is an authority that is cited by Justice Weinberg in finding that there was a waiver, although, in my submission, clearly supporting the view that there was not a waiver, and that is Escobar v Spindaleri (1986) 7 NSWLR 51. Justice Weinberg cited page 62 in support of his conclusion there was a waiver, but this is a case perhaps showing the robust practice in the past of some members of the New South Wales Bar, particularly in the former Workers Compensation Court, where conduct of counsel for an applicant, going on any view way beyond whatever mistakes the migration agent may or may not have made, was held not to be a waiver.
In this case, at the end of the claims case in the Workers Compensation Court the court suggested to counsel that, “You might need some further evidence”, and indeed said, “I think you need further evidence”, and counsel, being apparently a confident counsel, essentially said, “Look, I’m running this case. I don’t need you telling me what to do”, and the Compensation Court judge said – the exchange between counsel is set out at page 53 starting about line F. Counsel closes:
COUNSEL: That’s the Applicant’s case.
HIS HONOUR: Isn’t there some more evidence you need to
call?
COUNSEL: That’s all the evidence I’m going to call.
CALLINAN J: Sounds like a good piece of advocacy actually.
MR DAVIDSON: Yes, this is standing up to the court. Then his Honour says:
I think you should . . . Well, if you don’t call
any further evidence, I’ll dismiss that
application.
COUNSEL: Your Honour can do what you like.
HIS HONOUR: I dismiss the application.
GLEESON CJ: Where is this fearless advocacy?
MR DAVIDSON: Page 53, your Honour. I am trying not to apply it in this case but this is the way it is conducted at the Workers Compensation Court where counsel are not ‑ ‑ ‑
CALLINAN J: No place for the faint‑hearted.
MR DAVIDSON: No. There are robust exchanges. Now, that robust exchange, your Honours, although Justice Weinberg cites this case to say that my clients have waived as a result of this letter, in fact, the decision of the court was that that robust exchange did not constitute a waiver and the President, as he then was ‑ ‑ ‑
CALLINAN J: Was Vakauta decided before then in this Court?
MR DAVIDSON: Sorry?
CALLINAN J: When was Vakauta – I do not know whether I pronounced it correctly. It is Justice Hunt’s decision was reversed.
MR DAVIDSON: This is not the three ‑ ‑ ‑
HAYNE J: It is the usual suspects’ case.
CALLINAN J: Yes.
MR DAVIDSON: The usual suspects, yes.
CALLINAN J: It was decided about this time, was it not?
MR DAVIDSON: I think your Honour may be right, although it was before my time. I think it was before my time at the Bar but the good old days of robust advocacy.
CALLINAN J: It does not seem to be cited here and I do not see how a case like this could be decided without a citation of it.
MR DAVIDSON: I am advised it may have been the 1990s but I had thought it was earlier.
CALLINAN J: No, I think it may have been about this time but ‑ ‑ ‑
MR DAVIDSON: But, in any event, this judgment is worthy, apart from the gripping exchange. The discussion starting at I think about page 56 is the President, as Justice Kirby then was, with whom Justice Glass agreed. Note that its “counsel insisted upon the right to address the jury . . . can the absence of insistence” – I am sorry, this is referring to some authorities. I think it was common ground among the judges that it was unwise advocacy but it was found by majority not to constitute a waiver by the hapless client represented by his counsel and, in my submission, this case is so far beyond what has occurred here that the Court would not find that my clients were bound by migration agents who, it must be said, are dealing with a very difficult circumstance.
CALLINAN J: It is a very professional written submission that they made though ‑ ‑ ‑
MR DAVIDSON: Yes, certainly.
CALLINAN J: ‑ ‑ ‑ and very complete.
MR DAVIDSON: And no doubt they are performing a very, very good service and I think there is some Commonwealth funding to assist the RACS, but the relevant time, your Honour, in my submission, is what happened at the hearing in that split second on page 15 and that this would not be a way – Justice Glass also deals with this and says:
I am unable to construe his remarks as a positive waiver of the right to address on the evidence which had been given.
Although Justice Samuels dissented in the result, his Honour’s statement of principle that is referred to by Justice Weinberg ‑ ‑ ‑
CALLINAN J: I just do not think that case would have been decided that way if Vakauta had been decided. The decision in it is 1989 I think. I do not know whether waiver is relevant to your case or not, but I do not think there is any point in relying upon this case when you have High Court authority and indeed subsequent High Court authority which on the facts, I would suggest, was a much weaker case than this one but yet it was held there had been a waiver. So I really do not think there is any point in reading to us from a 1986 case in the Court of Appeal of New South Wales. It has been overtaken.
MR DAVIDSON: Yes, I note your Honour’s comments but it would certainly be our submission that the ‑ ‑ ‑
CALLINAN J: Was Vakauta referred to by any of the judges in the Federal Court in this case?
MR DAVIDSON: No. The authority which was referred to by Justice Weinberg was this case and he did not refer to his own authority which, in my submission, would have suggested the result would have gone the other way.
GLEESON CJ: How does this scheme of legislation work in relation to hearings where there are two applicants, one a mother and the other a child?
MR DAVIDSON: I think, your Honour, that the position in that case is that there is effectively the one application and the position of the mother will effectively determine the position of the child.
GLEESON CJ: You may be right about that, but why do you say there is only one application?
MR DAVIDSON: Your Honour, that is my understanding, which is that there is a separate ‑ ‑ ‑
GLEESON CJ: I am not suggesting your understanding is wrong. I would like to be directed to the provision of the statute that produces the consequence that where there is a mother and an infant child there is only one application.
MR DAVIDSON: I think it will be in the regulations. Yes, I am quite confident it is not in the statute, but if I can take that on board in terms of where it is in the regulations.
GLEESON CJ: It just occurred to me as a possible example of a situation in which there might be hearings together.
MR DAVIDSON: Yes, and on my understanding of the position that would be an acceptable example because there would be the one hearing and the one application rather than, as we submit here, the four hearings are meshed in together, when on the appellant’s construction of both section 429 and the statutory regime the requirement is that there be separate hearings.
GLEESON CJ: What about, as we commonly see, applications by a husband and a wife? Are they necessarily dealt with separately?
MR DAVIDSON: Not necessarily dealt with separately but, again, my understanding is there is the potential for them to be dealt with together, particularly if the application is based on circumstances applying to one of them.
GLEESON CJ: How is that consistent with your view of section 429? We commonly deal with what I might call family situations or family applications in these cases. How do you relate the procedure that is adopted in those cases to your view of what is required by 429?
MR DAVIDSON: I might have to be directed to that question again, but I will just try to come back to the earlier question about provisions in the statute. I think the position is that it is regulation 4.12 and regulation 4.31A. Regulation 4.12 contemplates the position where:
If:
(a)2 or more applicants have combined their primary applications in Australia in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and
(b) the Minister’s decisions . . . are that a visa not be granted; and
(c) the Minister’s decisions are MRT‑reviewable decisions –
so that is the provision relating to the Migration Review Tribunal – then there is an ability to combine, but probably the more relevant to your Honour the Chief Justice’s inquiry is regulation 4.31A where there is a specific and limited category of combined applications:
If:
(a)2 or more applicants have combined their primary applications for a Protection (Class AZ) visa in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and
(b)the Minister’s decisions in respect of 2 or more of those applicants are that Protection (Class AZ) visas not be granted; and
(c) the Minister’s decision are RRT‑reviewable decisions;
the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister’s decision.
That applies after 1 August 1996. I think that that is the answer to your Honour’s question, that it is in those circumstances, and those circumstances only, that the applications are combined, and I think, though I may be corrected, that it is the position of the mother and the child and the husband and the wife will be caught up in that, but that none of those situations will apply to four young men who have had the similar same experience in Lebanon. Your Honours, if I might just return to the ‑ ‑ ‑
GLEESON CJ: Your submission is that it is beyond the power of the Tribunal, even with the consent of two applicants to hear two applications together?
MR DAVIDSON: That is correct, your Honour.
GLEESON CJ: On the basis, for example, that evidence in one is evidence in both?
MR DAVIDSON: Yes, and the possible exception of the ones that are covered by the express statutory ability to combine applications for review. Save for that, that is correct, your Honour, that is my submission.
GLEESON CJ: Does section 420 have any bearing on that?
MR DAVIDSON: My submission, limited bearing. There is the object of pursuing a mechanism that is fair, just, economical, informal and quick. It might be said that this were quicker, it is quicker to combine all the hearings, just as in SAAP it might be quicker not to have the bother of having to send out written notices. But, in my submission, section 420 really does not have any significant bearing. The requirement of being just and the requirement of being fair in the context of the purpose behind section 429 would, in my submission, have a greater weight than efficiency or quickness when we are talking about people’s lives if wrong decisions are made, and we are not just talking about money.
GLEESON CJ: In the example I gave you there was the fully informed consent of both applicants to the adoption of this procedure.
MR DAVIDSON: Both applicants here not being family members?
GLEESON CJ: Yes. I asked you to consider a case in which the Tribunal with the consent of two applicants directed the two applications be heard together on the basis that evidence in one be evidence in both.
MR DAVIDSON: Yes.
GLEESON CJ: Is that impossible?
MR DAVIDSON: Yes, that is impossible, in my submission, and I suppose, as I said, my fallback submission is that if I am wrong and it is possible, there is no such fully informed consent, fully informed on the facts of this case to what occurred.
Now, your Honours, I will have another go at just trying to deal with the sections of the legislation and, again, a great deal of this may have been already encompassed by your Honours’ questions, but I do want to at least note in including so they can be located in annexure A to the applicant’s submissions the provisions that I would submit are part of overall context.
I think it is probably fair to say that your Honours’ questions have identified some of the far more important provisions and some of these provisions are relied on for this submission that there can only be one hearing, there cannot be a number of hearings and that the normal Acts Interpretation Act singular means the plural does not apply here.
Your Honours, we start at section – we have dealt with section 365 I think already and that was the first section I was going to take your Honours to and that has been handed up, so I will not repeat that. The first section that I would go to is in Division 2 of Part 7 and that is section 411(1)(c) and that is on page 2 at point 25 of annexure A, the agreed statutory material. So this has attempted to set out the form of the legislation at the conceivably relevant dates. So that on page 2 at about point 25 section 411(1)(c):
a decision not to approve an application for a protection visa –
is a RRT reviewable decision.
The next section that I would direct your Honours to is section 412(1) which is the application for review by the RRT. That deals with how to make “An application for review of an RRT‑reviewable decision”. Then under 414(1) we have the position that:
if a valid application is made under section 413 for review . . . the Tribunal must review the decision.
So that there is an obligation on the Tribunal to review the decision, and again, in my submission, not to review in the one time in combined hearings four decisions. The powers of the RRT under section 415(1) – and I think this is a section I should have taken your Honour Justice Hayne to when I was asked a question about how things are conducted. This is on page 4, point 1 of the agreed statutory material:
The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
So that the Tribunal’s powers – I am not going to take your Honours to the powers of the person who made the decision.
GUMMOW J: This is the merits review provision.
MR DAVIDSON: Yes, your Honour, that is correct. Again, it relates to the singular, “the decision”. Then in Division 3 of Part 7 we have section 420(1) which your Honour the Chief Justice has asked about. I should have, in answer to your Honour’s question, also pointed out that in section 420(1) in the second line there is “the objective of providing a mechanism of review”, not several mechanisms of review combining all the matters. So that is an additional comment that I should have made about section 420.
Then section 421, which is on page 4 at about point 30, we have the constitution of the RRT. Here this is the power to appoint a single member and it is of some importance in the statutory context that paragraph (1) is “For the purpose of a particular review” a member is appointed. In other words, you do not appoint a member – you have to have an appointment for each particular review. You can appoint the same member for a number of reviews and that is something that the migration agents clearly requested. They requested the same member be appointed. The principal member was not obliged to comply with that, but they are separate appointments.
Then we come to Division 4, which of course is the section that section 429 is contained in, which commences just before section 423. Section 423 is relevantly set out on page 5 and that is the documents that may be provided to the RRT and again referring to “the decision under review”. Then section 424, which I think was one of the provisions I took your Honours to which is supplemented by section 415(1), this is “Tribunal may seek additional information” and this is a very wide power of the RRT to get any information that it considers relevant and its obligations to have regard to that information.
In the appellant’s submission, the breadth of the inquisitorial powers of the RRT assists in rebutting any sort of absurdity argument that is being suggested by the respondent were the Court to accept the construction argued for by the appellant. So there is the submission that if your Honours upheld the appeal, then you would have to have 16 pieces of evidence and, in my submission, that is clearly not the case because of the width of powers the Tribunal has about how it will obtain additional information.
Then we have section 424A, and this is one of the provisions that came in force on 1 June 1999, did apply to this hearing even though it came into force after the hearing because of the transitional provisions which deem it to apply when the Tribunal’s decision has not been handed down. Your Honours are spared the argument that there has been a breach of the SAAP requirements because special leave was not granted on that ground but section 424A is still relevant because of the language that the Tribunal must give that style of information. There is, of course, the discussion in the SAAP decision which was dealing with a later version of Division 4, Part 4, but there is obviously some useful discussion of Division 4 in the SAAP Case. In my submission, the SAAP Case is useful and supportive of the fact that section 429 when properly understood with its very, very important, indeed, hard to say any more critical position of the protection of the life and safety of the applicant and the applicant’s loved ones and families, that the guidance in SAAP on the careful use of “must” and “may” in the Act in this division is strongly supportive of the fact that a breach of section 429 is jurisdictional error.
Then we go to section 425 of which I have been asked a number of questions. I think I need to point out, although it is quite complicated but I think has no effect on any of the issues in this appeal, but the version of section 425 that I was being questioned about in version 7 may not be the version that was applicable at the date of the hearing because the date of the hearing was 7 July 1999 and the date of giving the applicant an opportunity to appear was 8 February 1999 when the letter was sent out from the Tribunal. There are changes to the legislation which are set out in this part of the statutory material; I regret to say set out with one error. If your Honours go to page 7, point 25, the first line of section 425(1) says that the applicable version before 1 June was “Where section 166DA does not apply”. The reference to 166DA is an error and should state 424, 166DA being the provision that was renumbered 424 but somehow it has fallen out in this version. It is a somewhat complicated and interesting question: which version was applicable when the hearing had occurred before? The answer to that question, I think, does not matter because relevantly at all times section 425(1), a bit like section 429 and 424A, uses the imperative “must”, “must invite” the applicant. There just are some slight differences about what “must invite” the applicant to do - at the time the letter was sent; must invite the applicant to appear before it to give evidence. Of course, that is what the letter that was sent out said, reflecting the statute from 1 June, must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review. As I said, I find this quite complex to go through but I think, on one view, the 1 June 1999 provisions apply because of the transitional provisions even though the hearing has - if the hearing is only when the applicant turns up, is already over, but if the position is that as his Honour Justice Hayne has indicated, it may be the case that the hearing really continues up until the time that the Tribunal gives its decision, then 425(1) in its new form would apply. However, there has been no application for leave on the basis of 425(1) not being complied with and relevantly here it is the imperative “must invite”.
There is something similar with section 426. This is dealing with the applicant’s request of the RRT to call witnesses, and there are again two versions, but it is not quite as complicated here. Again, regrettably, at page 8, line 31 the reference to section 166DA should read 424, but at least, unlike the position with 425, section 426(3) has never been changed, so its language is accurately set out on page 9:
If the Tribunal is notified by an applicant under subsection (2) –
that it wishes to call a witness then –
the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
I have nearly finished this. Then we have section 429 which of course I do not think I need to take your Honours to again, but ‑ ‑ ‑
GUMMOW J: I am just looking at 429.
MR DAVIDSON: Yes, your Honour.
GUMMOW J: This phrase “in private”, there seemed to be some suggestion that the logical universe is divided into two parts - one part says “in private” and one part says “in public” – and that that logical universe is assumed in 429. Is that right?
MR DAVIDSON: That is a suggestion by the majority of the Full Federal Court and a suggestion by the respondents, not a suggestion of the appellant. Indeed, it is erroneous and indeed section 365 makes that clear. You have things to be heard in public, but then particular oral evidence can be heard in private. Now, let us say in the MRT you had 15 witnesses and one of them was in private; it would still be a public hearing.
GUMMOW J: That is not the point I am trying to encourage you to grapple with.
MR DAVIDSON: I am sorry, your Honour.
GUMMOW J: The concept of privacy and publicity, why is it not still in private, on the facts of this case?
MR DAVIDSON: Because, your Honour, the requirement to be in privacy, element of secrecy, the element of as confidential as humanly possible, would mean that a witness would only be present for ‑ ‑ ‑
GUMMOW J: As humanly possible, not as reasonably possible.
MR DAVIDSON: As reasonably possible, I accept that, your Honour. But this is obviously a murky situation in that it is an impossibility to have something which absolutely guarantees that there is a zero per cent chance of the statutory objectives of 429 not being breached.
GUMMOW J: So you say this draws a jurisdictional line, this phrase?
MR DAVIDSON: Yes, your Honour.
GUMMOW J: You have got to be clear then about what its meaning is.
MR DAVIDSON: Yes.
GLEESON CJ: Why is not a meeting or a gathering or a hearing or an occasion private if there is nobody there without the consent of the two principal parties to the occasion? If I have dinner at home with my wife, that is not a secret gathering, but it is a private gathering; the press are not welcome. But if present there are two other people who are there with the consent of me and of my wife, why is that not still private?
MR DAVIDSON: Well, it may be private at your Honour’s home with a dinner party and the words “in private” may well have – there is no universal meaning of “in private” that one can say will now apply to every statute, every conceivable situation ‑ ‑ ‑
GLEESON CJ: “Private” does not mean in isolation or in secret.
MR DAVIDSON: Well, with respect, your Honour, in this situation “in private” means as far in secret and as far in isolation as is reasonably possible.
GLEESON CJ: Well, how does the girlfriend get in?
HAYNE J: You have to go so far as to say, have you not, hearing in private means in the presence of only the Tribunal, its officers and any necessary interpreter?
MR DAVIDSON: And any necessary party for the conduct of the hearing which would include – you may have said this, the officer when administering the oath, would include ‑ ‑ ‑
HAYNE J: In the presence of the Tribunal, its officers and any necessary interpreter. It does not permit the presence of any other, even if the applicant consents, because if you inject notions of consent into it, it seems not to be a matter for jurisdiction. Now, is that not the bottom line that you have to grapple with?
MR DAVIDSON: Your Honour, it may indeed be correct that there is not the ability there to consent to avoid the section, but it may also be, your Honour, that the phrase “in private” on its construction in the light of the statutory purposes may – I do not say it does but may – encompass a very limited class of persons whose presence will contribute to the underlying statutory purposes of the applicant being – the two purposes in the explanatory memorandum which I am just going to come to, and perhaps if I might just refer to paragraph 34 of the written submissions where the explanatory memorandum is set out.
HAYNE J: Let me be quite plain, do you say that “in private” means in the presence of the Tribunal, its officers and any necessary interpreter and none other?
MR DAVIDSON: Any necessary party, your Honour, for the effective conduct of the hearing. So in terms of your Honour’s question and no other, a witness for the period that the witness is giving evidence ‑ and the Tribunal having decided to permit that witness – may then be a necessary party. The Tribunal has the discretion for that witness’ evidence to be given totally in secret and with the applicant not hearing, but I would not submit that the presence of a witness for the period that the witness is giving evidence in the presence of the applicant breaches the meaning “in private”, and I would say that is encompassed under what is necessary for the conduct of a hearing.
So the witness example, excluding the period after the witness has given the evidence and excluding the period before the witness gives the evidence and the applicant is giving his or her story, for that period of just giving the evidence, the witness would be included in the necessary parties. So I would say the position is slightly broader than as your Honour has said, but I would accept that consent of itself to anybody would not be “in private” and ‑ ‑ ‑
GLEESON CJ: So the girlfriend is out and jurisdiction goes if she is present?
MR DAVIDSON: Your Honour, the girlfriend would be out – if I can now take you to the explanatory memorandum which is set out in paragraph 34 of the applicant’s submissions and also set out in paragraph 8 of Justice Moore’s judgment - unless the girlfriend was encompassed within the two essential purposes of the Act, and this is one of these perhaps rare cases where the explanatory memorandum is very specific and helpful and consistent with the nature of a refugee application, and it has the two purposes:
This protects applicants and their families as there is a risk –
and the second item where it says that that purpose:
is essential to ensure that applicants are willing to canvass their reasons for seeking protection in an open and frank manner.
So that the migration agent would be encompassed. The hearing would not cease to be “in private” because the migration agent was there because that is part of what is essential to – that is part of the process for applicants to be willing to canvass their reasons. “In private” impliedly includes the migration agent, the solicitor, the barrister, even though there is no expressed statutory position. The girlfriend is a less clear position and may not be permissible.
GUMMOW J: That is the problem.
MR DAVIDSON: But, of course, what happened in this case is the girlfriend is only there while the particular applicant is giving the evidence. So the girlfriend is not permitted to sit in and enjoy the entire proceeding. So the true position may in fact be that the girlfriend is not permitted because the girlfriend does not – on the proper construction of the section, is not a necessary part of being in private.
GLEESON CJ: Your argument may be right or wrong, but as I understand your argument, privacy demands that only the member and necessary officers of the Tribunal and the applicant and agents of the applicant be present.
MR DAVIDSON: Yes, that is correct, your Honour. That is precisely it.
CRENNAN J: It is for that reason that consolidated hearings, even if just and convenient, you would say are not permitted?
MR DAVIDSON: That is precisely correct, your Honour.
CRENNAN J: That follows from ‑ ‑ ‑
MR DAVIDSON: It follows. It is just not possible to have a private hearing when you have all four of them together – sorry, in our case, three of them together hearing all of their positions. It is not possible.
CRENNAN J: So it is not possible to have a consolidated private hearing, on your argument?
MR DAVIDSON: Unless the statute permits it in those circumstances in, I think, regulation 4.31A, that is correct. Another way of looking at it, coming from a position of a common law where, of course, you would normally have – things are in public except where it is really important that they be in private, in cases like Scott v Scott where an agreement, the reverse of this, to keep something private was held by the House of Lords to be impermissible, the exact converse of this. But in discussion of those circumstances where privacy would be an essential item, you have got that it is inherent that if something is private – again we are looking at the reverse situation – it goes so far as to cover everything that would destroy the essential privacy of the hearing. So that although this is a very different factual situation, at page 447 of Scott v Scott (1913) AC 417, 447 at about point 7 in the speech of Earl Loreburn it was stated, looking at the secrecy, the position where a court could have something in secret:
Yet nothing can be more clear than that an order for a hearing in camera of a trial involving a secret process might be utterly illusory if the evidence could be published afterwards with impunity. There must be some power to prevent that, or the undoubted assertion by the very highest authorities of a right to close the Court in such cases would be reduced to an idle mockery.
Now, while that is some distance away from the position here, it is submitted to support the construction that what is necessarily inherent in section 429 is everything to ensure as far as possible that the purpose of 429 is not destroyed and that requires as a bare minimum that a witness not be present except in that circumstances where the presence of the witness is essential, that is, when the witness is giving the witness’ evidence.
I drew your Honours’ attention to the differences between sections 365 with the Migration Review Tribunal and section 429. I will just draw your Honours’ attention – I do not think I have to take you to it but it has been provided to the Court – the explanatory memorandum, for example, to the amendment which ultimately became section 365(3) of the Migration Review Act and this was a new clause that talks about when the Migration Review Tribunal:
is satisfied that it is impractical to take particular oral evidence in public, the Tribunal may direct that the Tribunal may direct that the evidence is to be taken in private.
I think that is relied on by the Full Federal Court to say “Well, dictionary definition: if it is not in public it is in private” but this explanatory memorandum, clause 78, in the material that we handed up, makes it very clear that this provision is to cater in a situation where it is impractical to take oral evidence, namely situations where people are in detention and it is impractical, and the liberty of the non-citizen in detention is at stake, and the public interest in expeditious review outweighs the public interest in having all the oral evidence taken in public.
So that this amendment really highlights the fact that sections 365 and 429 are just in completely different ball parks and you cannot use - in my respectful submission, it would be inappropriate to use section 365 by saying “Well, the words ‘public’ and ‘private’ must mean the same in section 429 as they mean in section 365” just as I would submit it is what means “in private” in a social situation is not necessarily means “in private” in section 429.
That having completed Division 4, there are very few provisions. In fact, I think there are no provisions in Division 5 though I have not taken the Court to, so I will just refer to them. Section 431(2), which is on page 36 and we have gone through that. That is the provision that is perhaps the most useful for the context of section 429. That is the provision that:
The Tribunal must not publish any statement which may identify an applicant or any relative or other dependant of an applicant.
Then there is section 439 that I have been asked questions on which is at page 14.1 of annexure A and that provision, in my submission, is to some extent a boilerplate type provision by which I mean there is almost identical provision in the Migration Review Tribunal at 377 so that, in my submission, you cannot use 439 properly to read down 429. It has just been picked up in the ordinary type of provision that you would have in any ordinarily open hearing.
Section 440 is the powers to restrict disclosure. Again it is rather similar to section 378 and, in my submission, would not be used to read down 429 and, as NCSC v BT makes clear and Scott v Scott would make clear - it is a further reason not to read down section 429 to give the full ambit of what is necessary to keep privacy which includes permitting the minimum that will disrupt privacy, namely all the witnesses and all the applicants being in together and hearing all of their evidence.
The last provision, your Honours, is a provision not in force at any of the relevant times but it gives some guidance to the different position and the inability to consolidate matters. That is 486B of the Act. This was inserted in 2001 and it is referred to in paragraph 52 of the written submissions. On this one Reprint 9 reflects the current position and this is an example of the power of the courts, not the Tribunal, to consolidate proceedings in certain circumstances. So, while this was introduced well after the hearing – this is headed “Multiple parties in migration litigation” and it applies to:
(migration proceedings) in the High Court, the Federal Court or the Federal Magistrates Court –
It does not apply to the Tribunal and it permits consolidation where the court is satisfied of various things. I just really draw the contrast. There is no equivalent provision permitting the Tribunal to consolidate these four hearings as I submit has really occurred.
Your Honours, I was going to deal with material facts and it may well be that I have dealt with the material facts. If your Honours can just bear with me and I will just check if there is – I think there are a couple of other provisions in the transcript that I want to take the Court to just to see what actually happened when this, in our submission, wrong procedure occurred. I will take the Court to page 128 of the appeal book. This is the response by the migration agent to the invitation to a hearing. It is 128 and 129. There is an earlier version which appears to have been prepared without the benefit of the migration agent at 125 and 126 but I think 128 and 129 is adequate. This is a response dated 24 February 1999.
This is relevant, your Honours, to the appellant’s submission that your Honours would not make a new finding in accordance with the notice of contention that there ‑ ‑ ‑
GLEESON CJ: Mr Davidson, my copy of page 128 is cut off on the left‑hand side.
MR DAVIDSON: Yes, so is mine, your Honour, but I think I can at least fill you in on part of the – and I apologise for that. I think what is cut off is particularly under line 25 where it has “your application”, the missing word there is “if”.
GLEESON CJ: “If your application includes other family members, do you want a separate hearing?”
MR DAVIDSON: And that of course is not applicable. I think that is of relevance to the question, certainly in terms of the practice, which I think is supported by the regulation, that if there are other family members, there is essentially an option in the applicant, an option which is not available here. Then the letter “s” is omitted in the next line, so that is “separate hearing”. In fact, that is the first point I wanted to take your Honours to. Then, “Do you want the Tribunal to take oral evidence from any witnesses?” What is ticked is “Yes”.
GLEESON CJ: I think you may have dealt with this before, but what is your submission on whether the applicant is entitled to be present while witnesses are giving evidence?
MR DAVIDSON: The Tribunal is entitled to make the applicant not present, so in other words, the Tribunal is entitled to have the evidence of the witness given in secret from the applicant.
GLEESON CJ: But not obliged?
MR DAVIDSON: But not obliged.
GLEESON CJ: So, subject to any contrary direction by the Tribunal, the applicant may be there while the witness is giving evidence?
MR DAVIDSON: That is correct, your Honour. Then page 129 is ‑ ‑ ‑
GLEESON CJ: Before you go past page 128, this form then says “Do you want to bring someone with you to the hearing?” and it raises three possibilities: adviser, friend or relative.
MR DAVIDSON: That is correct, your Honour.
GLEESON CJ: As I would understand it, that is a wrong form, an inappropriate form. On your submission, friends and relatives are out.
MR DAVIDSON: Unless they are caught up in the expression “agent” for this purpose, so I am ‑ ‑ ‑
GLEESON CJ: I would have thought adviser was intended to cover agent. But subject to the possibility that a friend or a relative is an agent, such as a lawyer or a migration adviser, this form is misleading because it suggests to the applicant that such a person is entitled to be present.
MR DAVIDSON: Yes. If the true position is that a friend or a relative are not entitled to be present, then ‑ ‑ ‑
GLEESON CJ: Which you say is the true position.
MR DAVIDSON: Which I say is the true position because they are agents, relevantly ‑ ‑ ‑
GLEESON CJ: No, unless they are agents.
MR DAVIDSON: Yes, sorry, unless they are agents, and I say they are agents because they are serving the same function as the migration agent of assisting ‑ ‑ ‑
GLEESON CJ: Put aside agents for the moment.
MR DAVIDSON: Yes.
GLEESON CJ: On your submission, friends and relatives are not entitled to be present.
MR DAVIDSON: Yes, that is correct.
GLEESON CJ: Even with the consent of the applicant.
MR DAVIDSON: That is also correct.
GLEESON CJ: So this form is seriously inappropriate ‑ ‑ ‑
MR DAVIDSON: If those people are not agents.
GLEESON CJ: ‑ ‑ ‑ because it encourages jurisdictional error.
MR DAVIDSON: Yes, that is correct, your Honour, if those people are not agents, that would be correct. Then on page 129 we have the three requested witnesses and essentially the reason is testimony as to shared events re Lebanon. There is slightly different wording, but it is materially identical. In terms of your Honour’s question, the same would apply to the letter at page 131 which I may not otherwise have taken your Honour to, but the same comment is made. This is the 9 March letter informing my client of the fact that the hearing is at 1 pm on 7 April 1999, and again there is the same statement:
You may also bring an adviser, relative or friend to help you.
It is the “to help you” that I am relying on to say they are permitted, but if they are not permitted, it is misleading.
GLEESON CJ: But a person whose presence is there because they are encouraging or emotionally supportive is not there as an agent.
MR DAVIDSON: They may well be, your Honour.
GLEESON CJ: They might be, but what if you want your mother there because you would be frightened if she was not there? She is not there as your agent. I understand that she is there to help you, but is that allowed?
MR DAVIDSON: She is relevantly there as your agent. She may not be there as your agent as a matter of contract law, but in terms of the meaning of “in private”, if an applicant was so traumatised by, for example, horrific sexual or other things that had happened to the applicant as part of the persecution that the applicant had been suffering and without the presence of the applicant’s mother the applicant would be mute and would be unable to say ‑ ‑ ‑
GLEESON CJ: Suppose an applicant is a child, a person under the age of 18 years, and suppose the applicant is represented at the hearing by senior and junior counsel and a solicitor. Can the applicant’s mother also be there?
MR DAVIDSON: If, without the applicant’s mother, the process of senior and junior counsel would be so intimidating that the applicant would be unable to put out his or her story, yes.
GLEESON CJ: In what sense is the mother the agent?
MR DAVIDSON: She is a necessary – coming back to the explanatory memorandum – there is no statutory right to counsel but assuming that ‑ ‑ ‑
GLEESON CJ: Is it possible that you could have a case in which a child is represented by a lawyer at one of these hearings? Could it happen? That is all I want to know.
MR DAVIDSON: There is no right to it, but I thought it could happen, but I will just – sorry, I have misinformed your Honours. I am told the answer is no.
GLEESON CJ: Can it happen that a migration adviser is there?
MR DAVIDSON: Yes, but they do not – they can be there but they are not appearing. They are dealing with – they are under that 427 power. So they are not ‑ ‑ ‑
GLEESON CJ: I want you to assume that a migration adviser is there. Is that an assumption you can make?
MR DAVIDSON: Yes.
GLEESON CJ: If the mother is there too, in what sense is the mother acting as the child’s agent? What is the mother doing in the child’s dealings with the Tribunal as agent for the child?
MR DAVIDSON: Well, your Honour, I had I think earlier said I am not suggesting that it is an agent in some matter of contract. I am suggesting if the mother’s presence is – if without the mother’s presence the applicant would be unable to give the frank and open account that the explanatory memorandum refers to, then the mother is as important, maybe more important, than the migration agent. But, of course, I may be entirely wrong on that and it may be that the mother is not permitted to be there, if it is a necessary thing that it be an agent as a matter of law and the mother is not an agent.
GLEESON CJ: That seems a surprising outcome.
MR DAVIDSON: Well, it might be said there is a lot in this legislation that is surprising to traditional notions.
GLEESON CJ: A possible point of view is that it would not destroy the privacy of an occasion for an applicant’s mother to be present on the occasion.
MR DAVIDSON: Yes, your Honour, that may be correct, but it would destroy the privacy of the occasion for a witness to be present in the way the witnesses have been present here. After the letter at 131, the transcript of the hearing, your Honour Justice Callinan’s questions - I think we have adequately dealt with what I would call the early part of the hearing and therefore I do not need to take your Honours again to pages up to page 15 and the remainder I can take your Honours to fairly quickly. My client, the appellant, at page 16, lines 14 to 21 makes his first appearance. I do not think I need to read that, but it is at 16 starting at line – where he has a very short appearance and then the questions are resuming of the other applicants.
At 22 to 26 is essentially evidence that is identified as coming from my client. Again, I do not think I need to take your Honours to the detail of that. At appeal book 26, line 44 it reverts back to another applicant. I want to take your Honours to page 31, about line 13 and this is where we are starting to – everyone is starting to be questioned together and the Tribunal member – my client who is AC – he is sometimes called AC and sometimes S – is answering a question and then it says:
You don’t all have to wait for Mr A to answer, you can answer too. Mr K go ahead.
[Everyone talking at once.]
It is apparent from the transcript that occurs a heck of a lot of times and that is – this case is an example where…..this all seemed a sensible procedure. It was not a sensible procedure. It is just impossible to tell who is answering what questions.
HAYNE J: What does that matter? You make no complaint that there has been a failure under 425. You do not say there has not been a proper hearing. Your complaint is about privacy. What does it matter that people talked over one another, that the conduct of the hearing was difficult? They may add colour to the point but what do they add to the point?
MR DAVIDSON: If the privacy requirements had been satisfied, you would not have the talking over one another. You would have more chance of a correct decision on the merits. In a situation where we are talking about peoples’ lives ‑ ‑ ‑
HAYNE J: The seriousness of this is self‑evident. I do not underplay it. Do not suggest I do.
MR DAVIDSON: Your Honour, I do not think I was trying to ‑ ‑ ‑
HAYNE J: But the point you make is one about privacy. It is not one about the sufficiency of the hearing.
MR DAVIDSON: Yes, your Honour, with the qualification that the four hearings together is said to mean that there is not privacy. I still persist in saying that this transcript does show problems that will arise were this Court to construe section 429 in a way that you could have four applicants having their hearings together.
If you can have four applicants having their hearings together – let us say you have a boatload of people all from the same village, all with the same circumstances, all represented by the same migration agent, why cannot we have a hearing at the entertainment centre providing it is all closed all to the public ‑ ‑ ‑
GLEESON CJ: Problems of the kind that were anticipated by the Tribunal member and are referred to her on page 15 of the appeal book at line 39.
MR DAVIDSON: Yes. She is doing her very best to ensure those problems do not arise but, in my submission, she has failed, and that is partly why I am taking you to some of these examples in the transcript.
GLEESON CJ: To what point of relevance to the appeal does your submission that she failed go?
MR DAVIDSON: It is not an essential point but when one is looking at the context of 429 and what is a sensible, rational construction in all the circumstances, a construction that permits to occur again what has occurred here, in my submission, would not be a sensible and rational construction. I think a comment was made at the beginning of the hearing, this seemed a pretty sensible way of dealing with it. That presumably…..some relevance and this is designed to show it actually was not - it might have been well‑meaning, it might have been designed to be helpful and fair but it actually is an example where some of the risks that the section is designed to avoid have inevitably occurred.
GLEESON CJ: I might have misunderstood the history of this litigation but was there not an attempt on your part at an earlier stage of the proceedings to run an argument that he was prevented by this procedure from putting things that he wanted to put?
MR DAVIDSON: No, your Honour, not in the litigation. There was the letter from the migration agents that his Honour Justice Callinan took me to, which I think was at page 141, and at page 141 there is a complaint made after the Tribunal hearing and I have addressed that and it may be that the construction is that there was a complaint by the migration agent. That was the only matter done. There has been no complaint about it in any court hearings.
GLEESON CJ: We are not dealing with an argument that there was a denial of procedural fairness.
MR DAVIDSON: That is correct, your Honour. Can I just say this in terms of these proceedings, it is probably an unnecessary point to say but when I first looked at these proceedings just before the special leave, it struck me that there was a four-year delay between the decision and the application for judicial review. Can I just make it clear there has been no hint of complaint about that in any of the proceedings and there are good reasons for that. My friend Mr Williams has confirmed to me that the discretionary relief is not being sought on the basis of any delay, it is being sought on the basis of consent acquiescence, the points we have been discussing. So the answer to your Honour’s question is there has been no complaint in court proceedings about this. The high point of a complaint is that letter at 141. Back at page 32, line 4 ‑ ‑ ‑
GUMMOW J: Where are we going, Mr Davidson. We have been going for some hours now.
MR DAVIDSON: Yes, I know, your Honour. I suppose it is my inexperience of just hoping to have taken your Honours to what I say are the relevant statutory provisions and the relevant facts and I am hoping to conclude that shortly but - and indeed, I think in precise answer to your Honour’s question I have two more references to give. At page 32, line 48 – and I am apologising in advance if this is said to have been done just to add colour but it is not. This is the point at page 32, line 48, where we really revert to just essentially references to applicant.
This is the stage where the transcriber essentially gives up and we have had everyone talking at once. Not every example, but essentially from here we cannot tell who is answering questions and there are four people all speaking at once. There is one interpreter. This process of mixing of witnesses and applicants cannot assist the Tribunal. The last reference in the transcript - and this is really just for the Court’s information – is at 44, line 29 is the point where Mr R, the first applicant, comes back into the hearings, so after two hours he is brought back in and then all four are together.
So I would submit that from the transcript it is clear – and this point is not disputed – that there was a change after three hours of questioning ‑ the questioning just to the first applicant alone, subject to with the girlfriend – to a different procedure, namely the questioning of my client in the presence of the other applicants, and I would submit that this caused considerable difficulty in the multiple hearings, and whether that is relevant to the issue of construction is another question, but my submission is that the transcript makes it plain that this process did not work, it did not work sensibly.
GLEESON CJ: Your point of construction would be exactly the same if the only other person present at the hearing was a deaf mute, would it not?
MR DAVIDSON: A deaf mute ‑ ‑ ‑
GLEESON CJ: What does it add to your argument of construction that there were four or forty people talking over one another if the presence at the hearing of somebody other than the applicant or an agent of the applicant produced the contravention of section 429?
MR DAVIDSON: Yes, that is correct, your Honour, but I would say this, if four are permitted to be present – if the proper construction is four can be present, then the proper construction is that 400 can be present. Your Honours, I do see the time and it may be that I turn to the next aspect of argument on the proper construction of “in private”. It may well be that we have really debated any of the points that I wanted to raise. I am not sure if I would be just – I was proposing to deal in reply in any event with other aspects of the grounds of appeal. Seeing the time, if I would just be able to ascertain that there was nothing that was intended to be raised that now has not been addressed by the questioning approach, that would be my submissions.
GLEESON CJ: All right, you go ahead and do that.
MR DAVIDSON: Your Honour, one comment that I think is adequately made in the reply, but I would ask the Court to read the passages that are set out from the judgments of Justice Lockhart and then the joint judgment of Justices Beaumont and Einfeld in NCSC v BT is that, read in context, those passages actually entirely rebut what the respondent essentially extracts from the passages and says their Honours agree that the dictionary method – if it is not in public, it means it is in private.
Reading what their Honours actually had to say, the decision in the case, all their Honours are on the Scott v Scott line of territory that when something is chosen to be in private where that was a discretion then anything that would destroy the privacy, there is an implied power to prevent that. It is no support for the proposition that that is a dictionary matter, what is submitted to be a simplistic use of the dictionary, and I am not going to repeat what we have put in our written submissions about the proper dictionary analysis which the appellant submits is closer and more supportive of the construction argued for here.
GLEESON CJ: That would support an argument, would it not, that if an applicant said, “I would like to be accompanied by my friend the journalist”, the Tribunal could say, “Only on the basis that the journalist gives an undertaking not to publish anything that goes on in these proceedings”?
MR DAVIDSON: Yes, undoubtedly, and indeed the Tribunal could say no.
GLEESON CJ: That would be an implied power.
MR DAVIDSON: Yes. Your Honours, I was going to take you to the material that has been put in the supplementary appeal book and I was going to use that not as evidence of the truth of what was being said because my client was disbelieved – this is in the cross‑examination material the respondent wishes to put in – but as really highlighting the nature of problems that their construction of section 429 would deal with. It may be that can either be dealt with by way of reply or I can just identify passages of the transcript that I would ask the Court to look at and would submit these highlight the very style of problem that the respondent’s construction would lead to, or perhaps I could just give the Court a note of those transcript references. That might be quicker.
There is a reference to a cleaner example and it is suggested the absurdity of our client’s construction. In response to that we would say in fact, if the cleaner was there, that would be jurisdictional error. The very purpose is to prevent that. Let us say we had a claimant who was a West Papuan and a cleaner was inadvertently there, you do not know what the consequences are. The cleaner might also be employed by the Indonesian Embassy and, in terms of that example, you cannot tell in advance what the consequences of breach are and it is so important that it is set out that that would be jurisdictional error.
I have made reference in the list of authorities of some paragraphs of judgments that I have taken the Court to. I think that is unnecessary, but I was going to take the Court to some of the paragraphs that are indicated in the list of authorities. The list of authorities did not have the reference in Percerep but I have given that in oral submissions. Subject to matters in reply, they are the appellant’s submissions.
GLEESON CJ: Thank you, Mr Davidson. We will adjourn until 2.15 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.19 PM:
GLEESON CJ: Yes, Mr Williams.
MR WILLIAMS: At the least because the appellant and his co‑applicants sought to make a single common case, each based on the others’ accounts, there was no breach of the private hearing requirement for the evidence for the appellant to be taken in the presence of the others. On the particular facts here, each was entitled to know the substance of what the others had said in the common case that they advanced to the Tribunal. Here each knew of, prior to the hearing, and placed express reliance on the others’ accounts, an account of shared involvement in shared events.
Page 117 of the appeal book is instructive as to the way in which the appellant’s account and that of his co‑applicants were put. At page 117 at about line 30 the advisers note that the four men “were together for the events which form their claim”. We emphasise the collective “their” and the singular “claim”. To the same effect at page 126 is the first of the two responses to hearing offer, apparently from the appellant himself. The second page of it is at 126 where the anticipated evidence is described at about line 10 to 15:
we applied about the same case, and we had the same problem together –
and of course the second form at 129 that the Court has been taken to is to similar effect.
The appellant knew that each was to be a witness in the other’s case. This is clear from the evidence that he gave in cross‑examination before the federal magistrate which is in the supplementary appeal book at page 13. In the supplementary book at page 13 at about line 10 he is asked by my learned junior:
Well, when you came to go to the Tribunal hearing, you knew, didn’t you, that your three friends were going to be witnesses in your case?
THE INTERPRETER: Yes.
MR WIGNEY: And they had asked if you would be a witness in their case as well, hadn’t they?
THE INTERPRETER: Yes.
Then at about line 22:
MR WIGNEY: In short, they, you claimed, had the same problem as you had, with that group, in Lebanon, correct?
THE INTERPRETER: I’d say so, yes.
Then at 24:
MR WIGNEY: They knew all about your claimed fear of persecution in Lebanon, didn’t they?
At the top of the page:
THE INTERPRETER: Yes.
GLEESON CJ: What page is that?
MR WILLIAMS: That was at pages 13 to 14 of the supplementary appeal book, the transcript of cross‑examination. Where each was put forward as a witness in the other’s case as to shared events, each was entitled to know either directly or indirectly through the presence of their adviser the substance of what the others had told the Tribunal.
First, the rules of procedural fairness which were applicable at that time required the disclosure of anything adverse and an opportunity to deal with it. Secondly, section 425 required the Tribunal to invite the appellant to appear and present arguments relating to the issues arising in the review. Presenting arguments involves knowledge directly or through the adviser of the substance of the evidence given in the case.
Those submissions might go beyond dealing with adverse matters of the kind contemplated by the rules of procedural fairness and could and did relate to consistencies as well as inconsistencies between the accounts given by the other witnesses and the appellant himself. There is an example of that at about line 22 on page 57 of the book in the submissions being put by the advisers.
At about line 20:
My clients have at all times today, throughout the whole application and the process of applying for protection have been credible and consistent in their claims. It is my submission to this Tribunal that their claims are furthermore strengthened by each others testimony.
Your Honours, I should say that I understood from what my friend said that it is common ground that section 425 applies to this application for review. We have supplied to the Court yesterday a document headed “Section 425” which traces the transitional provisions and the operation of the transitional provisions in some little detail. I do not need to take the Court through that document in any detail, simply to refer to the fact that it is, as I understand it, common ground that section 425 did apply to the application for review and to indicate that the reason for that is found on the last page of the bundle of materials that we have handed up. Once it is accepted that each applicant was entitled to know the substance of the evidence of the others who were called as witnesses or to be called as witnesses in their case, whatever privacy they may have against the rest of the world, they had none against each other with respect to that evidence. The applicant at no time suggested to the Tribunal or to his adviser that he had any separate or additional claim as evidence to that effect in the 10 or so pages of transcript that we have handed up in the supplementary book. His evidence to the federal magistrate that he in fact had a separate claim was specifically rejected by the federal magistrate as false. The obligation to conduct the hearing in private does not extend to keeping evidence of witnesses secret from an applicant; the statute, indeed, is to the contrary. Where the applicant is also a witness for another, there is no obligation to keep the applicant’s evidence secret from that other.
So on the facts here there was no privacy between the appellant and the co‑applicants concerning their protection claims because each had adopted the other’s account as part of their own claim by nominating them as a witness. Only those the appellant had expressly made privy to his claims in that manner were present during the hearing and at the very least for that reason there was no breach of the privacy rule in section 429.
GLEESON CJ: That is not quite accurate, is it? Was not the girlfriend there?
MR WILLIAMS: Not during the appellant’s evidence, your Honour. The girlfriend was present during the evidence of the first witness, Mr R. She was the girlfriend of Mr R.
GLEESON CJ: But if these applications were all being heard together, then she was present at least during part of the hearing, was she not?
MR WILLIAMS: She was present during the hearing of the evidence of Mr R. To that extent, to the extent to which the evidence was being taken together, she was present during that part. She was not, however, present during the evidence of the present appellant or any other applicant.
GLEESON CJ: How many hearings were there?
MR WILLIAMS: Your Honour, there was one joint taking of evidence. There was after that hearing the receipt of separate submissions, at least on behalf of the present appellant, making specific points on his behalf. The evidence does not show whether there were also separate submissions put on behalf of the other applicants.
GLEESON CJ: I am not saying this is fatal to your case, but I am just pointing out that on that approach the girlfriend was there during part of the hearing, so it is not completely accurate to say that the only people who were present during the hearing were the four applicants.
MR WILLIAMS: Yes, I withdraw my submission to that extent. At no time during the hearing of the present appellant’s evidence was any person present other than somebody who had been made privy to his application by his own acts. That is, with respect, a more accurate way and the primary way in which I put it.
So on the facts of this case it is not necessary on the Minister’s primary submission to make a finding of consent or waiver, although we develop in written submissions the contention that there was consent here. We adhere to those submissions. I do not propose to repeat them orally.
GLEESON CJ: Leave aside the facts of this case as you have just put them. Suppose you had a straightforward case of one application and one applicant and the applicant turns up at the Tribunal with a friend and says to the Tribunal, “I would like the friend to be present”. What does section 429 have to say about that?
MR WILLIAMS: In our submission, the friend could be present. The persons who might be permitted to be present within the privacy contemplated by section 429 could, in our submission, be described as falling into two groups. First, there are persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal’s function. Obvious categories within that are interpreters who are expressly referred to indirectly in the statute, officers of the Tribunal, a security officer of the Tribunal – a security officer, if the Tribunal thinks that such a person is necessary in the particular case. So that is one category: those reasonably necessary to the discharge of the Tribunal’s functions.
The second group, in our submission, are persons who are made privy by the applicant. That includes, in our submission, migration agents who have no statutory or at least no direct statutory entitlement to be present. We would also include within that group support persons for the various categories contemplated by your Honour the Chief Justice’s question to my friend this morning. The presence of such persons would, in our submission, be subject to the Tribunal’s implied power to control the proceedings so that if the applicant sought to bring, say, 20 or 30 such persons it would be within the Tribunal’s power to give directions in that respect, but we contemplate that such persons would fall within the shroud of a private hearing.
GLEESON CJ: A possible point of view is that neither the expression “in private” nor the expression “in public” is of precise denotation. When section 35 of the AAT Act says that hearings will be in public, that does not mean in Martin Place, nor does it mean that a television company can come in and record what is going on. I mean, what amounts to holding a hearing in public is itself a fairly flexible notion, I would have thought.
MR WILLIAMS: We accept that, with respect. The majority in the Full Court used the ordinary meaning of those terms as its starting point but at least implicitly in the terms in which they decided the present case, in our submission, recognise that it was not a simple matter of saying that the public at large must be excluded but anyone else could be brought in. The categories of persons who might be at a hearing which is nevertheless private does not fall for precise definition in this case but, in our submission, they could be described in those two broad ways that I have put it.
Certainly, where each adopts the other’s evidence as part of his case, the presence of each is within the contemplation of a private hearing. The construction advanced by the appellant cannot accommodate a common claim by two or more persons each relying on the other’s evidence without prejudicing in other unspecified ways the fairness of the hearing. If each person is to be called as a witness, then whether the evidence is heard separately and in secret, to use a neutral term, or concurrently, or sequentially in the presence of each other, in such a case each has a right to know prior to submissions the substance of what the other said, to know that either directly ‑ ‑ ‑
GUMMOW J: Your submission comes to this, does it not? Section 429 would ordinarily be construed so as to accommodate rules of procedural fairness or rules of procedural fairness may indeed require what happened here – putting aside the girlfriend for a minute – therefore what happened here, which accommodated the rules of procedural fairness, would not be outside 429 unless some special strained meaning were to given to “in private”.
MR WILLIAMS: Yes, your Honour. With respect, we adopt that. If the appellant asserts the purpose is to protect from disclosure in the country of nationality, we accept that is one of the purposes. It makes no difference whether the evidence is heard separately and later recounted or in the presence of the applicant. There is no implication to be drawn from the statute, in our submission, that the Tribunal cannot hear evidence in relation to two applications concurrently. Section 427(2) upon which the appellant relies obliges the Tribunal to:
combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.
But it says nothing as to whether evidence can be taken in two matters at once and where, for example, a witness outside Australia is relied on by two applicants in relation to one set of events, there is no reason why that evidence cannot be taken simultaneously in both cases in the presence of both applicants and the same position applies, in our submission, where two applicants rely on each other’s evidence.
If I might then turn to the question of jurisdictional error, the inquiry with respect to jurisdictional error, in our submission, focuses on an ascertainment of legislative purpose. We rely in that respect on SAAP that we refer to in our submissions. The question coming from Project Blue Sky is whether it was a purpose of the legislature that an act done in breach of the provisions should be invalid. Project Blue Sky cites with approval Tasker v Fullwood (1978) 1 NSWLR 20 in the Court of Appeal of New South Wales and specifically cites page 24. If I can take the Court to (1978) 1 NSWLR, the relevant passage is at page 24. This is cited with approval in footnote 74 in Project Blue Sky. The relevant passage commences just below line A on page 24:
The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. The intention being sought is the effect upon the validity of the Act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement.
GUMMOW J: I think page 24E is the critical point:
Is the requirement upon the applicant that he produce the agreement so cardinal to the object of the statute as to disclose an intention that its complete non‑observance should invalidate –
it? Here such a construction of the section would cut across the competing doctrines of procedural fairness.
MR WILLIAMS: Yes. In our submission, the apparently mandatory language of section 429, the use of the word “must” is but one consideration that is to be construed in its context. We accept the appellant’s description of the two purposes which section 429 serves, protecting applicants from the hazard of disclosure of claims and thereby promoting candour. But as to the first, invalidating a decision taken in breach of the requirement does not address the risk of disclosure in any event. It does not further the legislative purpose to construe a decision that involved an assumed breach of the privacy requirement in section 429. It treats such a decision as invalid.
As to the second purpose, that of encouraging candour, in the present case the express finding of fact is at page 230 of the book. This was a finding made in relation to the claim of denial of procedural fairness advanced both before the federal magistrate and pursued by notice of contention, or perhaps more properly, notice of cross‑appeal in the – I am sorry, perhaps I said that the wrong way around – but pursued by the present appellant in the court below unsuccessfully in each case.
At page 230 in the book at paragraph 27, the federal magistrate records his conclusion in relation to the fairness of the hearing:
The applicant and his migration adviser were given ample opportunity to request to speak to a presiding member in private. They were given ample opportunity to reveal whatever they wished to reveal to the presiding member. I reject as false the applicant’s claim that he was inhibited in revealing further details about his involvement with –
a particular group.
GLEESON CJ: I understand your argument that on the facts of this case, whatever the extent of the requirement of privacy in 429, this was within it. But what do you say, looking beyond this case, is the extent of the obligation, and leaving to one side again whether it is jurisdictional. What do you say section 429 mandates?
MR WILLIAMS: It mandates the exclusion from the hearing room of persons who do not fall within one of the two categories that I described in my earlier answer to your Honour the Chief Justice.
GLEESON CJ: Those being?
MR WILLIAMS: Persons whose presence is reasonably necessary to the discharge of the Tribunal’s hearing functions, interpreters, officers, security officers, if required, and those who are made privy to the application by the applicant, him or herself.
GLEESON CJ: What about friends and relatives of the kind referred to on that form that is routinely sent to applicants?
MR WILLIAMS: They are persons who are made privy by the applicant in bringing them for the applicant’s own purposes to the hearing.
GLEESON CJ: I am not sure exactly what you mean by “made privy”?
MR WILLIAMS: They are the applicant, by bringing along a relative or a friend ‑ ‑ ‑
GLEESON CJ: I am not suggesting this possibility horrifies me, but somebody might say “I would like my next-door neighbour to be along. I just want someone to come and hold my hand”.
MR WILLIAMS: Where the applicant, him or herself, brings such a person for the applicant’s own assistance or a migration adviser for that matter, there is no breach of the privacy requirement by the presence of that person. The applicant has brought them within the circle of confidence of the hearing.
GLEESON CJ: What if the applicant brought a refugee activist?
MR WILLIAMS: The Tribunal, in our submission, does have an implied power to control its procedure and to give directions if one may need more facts to complete - the example of the activist is brought for support by reason of association, by reason of knowing the person to provide them with encouragement in giving evidence, they are in no different category to a relative. If the applicant brings them for a similar purpose to the bringing of a journalist, the Tribunal may have to consider in the particular case whether it is consistent with the discharge of the Tribunal’s hearing functions.
GLEESON CJ: Does the Tribunal have an implied power to require undertakings about confidentiality and perhaps, for example, exclude people who are not willing to give those undertakings?
MR WILLIAMS: The Tribunal has a power in section 440 to make orders of a variety of kinds - if your Honour will excuse me while I turn to it. The Tribunal’s powers in section 440(1) predicated, we accept, on Tribunal satisfaction as to the public interest, include the power to give a written direction. The direction, of course, and this may address any freedom of speech concerns, by reason of section 440(2) does not excuse, in 2(a), the Tribunal from its section 430 obligations. More particularly, in subsection (2)(b) does not:
prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first‑mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.
If the applicant wishes to relay his or her account to a journalist and then take the journalist to the hearing, the Tribunal can prevent the communication of what occurs in the hearing if satisfied that it is in the public interest to do so, but cannot make an order extending to the underlying information previously communicated.
If I could return briefly then to the question of jurisdictional error. The federal magistrate went on to make one further finding that is of relevance at page 232. It is two pages of the book that were added in, 232A and B that we attached to our written submissions, the concluding two pages of the Tribunal’s reasons, those containing paragraphs 34 and following. On page 232A in paragraph 34 the federal magistrate finds that there is a breach in the first sentence, that:
the section was breached notwithstanding that the applicant raised no objection –
This may answer part of what your Honour Justice Callinan raised with my friend this morning –
to this procedure and may have even desired it. I find that the section was breached notwithstanding that the there was no procedural unfairness . . . I find that the section was breached notwithstanding that the applicant suffered no detriment from the breach.
The same point is made in the opening sentence of paragraph 35 that there was no detriment from the breach. So the way in which the question of invalidity and jurisdictional error would need to be formulated, in our submission, is whether it was a legislative intention that invalidity would result from a breach of the private hearing requirement which did not inhibit the applicant in giving evidence from which he suffered no detriment and that did not lead to disclosure of his claims beyond the three persons who, on his own evidence, he had already disclosed them to. The answer to that question, in our submission, must be no.
Essentially the same reasons with one addition arise in respect of the question of discretion. In our submission, relief should be refused in the exercise of discretion for essentially those reasons with one additional reason and that is acquiescence in the course that was followed. The appellant was represented throughout these proceedings in the Tribunal by persons with manifest technical skill in the field. After the hearing was made he made his own separate submission to the Tribunal, which is in page 140 of the book. The Court has been taken to this, but if I might emphasise from page 140 one aspect of it.
This submission is made specifically on behalf of the present appellant and, although it may contain common matters, it is made specifically only on his behalf, as the Court will see from a number of places, including in the middle of page 140 at about line 20 the name of the matter and at the top of 141, line 5 a person for whom the service acts. That submission goes through as far as page 163 containing, of course, much common matter but specifically addressed to the appellant’s circumstances.
Apart from the complaint at page 141 that the Court has been taken to, which we say is fairly to be read as a complaint about the separate hearing of Mr R, no complaint was made and no request was made for a further separate hearing on behalf of the present appellant and no separate or additional claim of any kind was advanced. Acquiescence in the course followed both during the hearing, which we have developed in our written submissions, and after is a matter going to disentitle the appellant to the relief sought in any event.
Your Honours, the question of the relevant parties was raised. The Minister does not object to the joinder of the Tribunal and accepts that the Tribunal is a proper party in this appeal ‑ ‑ ‑
GUMMOW J: Not proper, necessary.
MR WILLIAMS: Yes.
GLEESON CJ: The Tribunal was a party, it appears from page 2, does it not?
MR WILLIAMS: Yes. What occurred, your Honour, according to my instructions, the applicant did join the Tribunal, then in the order at page 234 – and I understand that this occurred without a separate order of any kind removing the Tribunal as a party, and I understand without debate ‑ ‑ ‑
GLEESON CJ: Do you accept that the Tribunal should be a party?
MR WILLIAMS: Yes.
GLEESON CJ: We will make an order that the Refugee Review Tribunal be added as a party to this appeal and we will leave open to the Tribunal the capacity, if it desires to do so, to put any submissions to us in relation to the outcome of the appeal within 21 days of today. We will direct that the appellant serve the amended notice of appeal on the Tribunal together with a copy of this order.
MR WILLIAMS: Your Honour the Chief Justice raised with the appellant the question of a husband and wife applying and the position in respect of such an application. The position is, in our submission, that a husband and wife could be parties to a common application, to a joint application pursuant to the provisions referred to and also pursuant to a couple of items in the regulations that I might give the Court references to. I have not had the copies brought, but I do not anticipate that much will turn on them. Schedule 1, Part 1, item 1126 in clause (3)(c) and also in Schedule 2, clause 866.2.11, but the answer in part is that equally a husband and wife or indeed other family members could be a party to separate applications in circumstances, for example, where they arrive at different times. One applies, another applies later and separately, as occurred in S134 of 2002 in this Court, and in such a circumstance, in our submission, it is within the privacy limitation for the Tribunal to receive common evidence in respect of the two applications in the course of a joint hearing.
There is nothing in the requirement of privacy that would prevent that, in our submission.
GLEESON CJ: What if one objected?
MR WILLIAMS: If there were an objection the position would be different. If one said “I have separate claims that I wish to have heard privately from the other” then the position would be different.
CALLINAN J: Mr Williams, there is just one matter I am not absolutely clear about. The explanatory memorandum for this section, section 429, how long has it been in the Act? I know it has been covered but I am ‑ ‑ ‑
MR WILLIAMS: Since about 1992, your Honour.
CALLINAN J: Yes. Do we have an explanatory memorandum for the section in whatever form it was when it was first in the Act?
MR WILLIAMS: It has not been supplied to the Court but we will ‑ ‑ ‑
CALLINAN J: Other members of the Court will want it too, if you could get that to us.
MR WILLIAMS: Yes. It was inserted by the Migration Reform Bill of 1992. It was then numbered section 166DF.
CALLINAN J: And you will provide us with the explanatory memorandum for that?
MR WILLIAMS: We will supply that by tomorrow morning, if that is convenient to the Court, the relevant extract in respect of that section.
CALLINAN J: Yes.
MR WILLIAMS: My friend points out that the relevant extract is in the judgment of Justice Moore. I will check it for completeness. Perhaps that was Justice Weinberg. It is set out in the judgment of the federal magistrate but it is quoted here at the top of 245 of the book from line 1 to about line 12 and it is complete. At least the first and last sentences are. Yes, it is complete. Unless there are matters your Honours wish to raise, those are our submissions.
GLEESON CJ: Thank you, Mr Williams. Yes, Mr Davidson.
MR DAVIDSON: First, a question your Honour Justice Hayne asked as to whether the hearing was a one-off or, I think, as your Honour indicated, more likely to encompass the whole process and I think my answer was that it was probably a one-off, but your Honour’s comments may be correct. I think on reflection, in light of the material we have taken through, the hearing would not be the one-off situation, it would be the whole process and this section 429 itself is linked in with section 425 - the opportunity, so that I would like to adopt the suggestion that your Honour made as to what the actual hearing is.
I have provided the references that I indicated I was wanting to take the Court to in the transcript which is in a page of items in the transcript that I am not relying on for the evidence of their truth but I am relying on these in terms of the purposes of the legislation, as indicative of the style of problem that can happen from these joint hearings. I just wish to supplement that with one additional reference in light of the evidence that my friend took the Court to. I think in the transcript on pages 13 to 14, the answer:
They knew all about your claimed fear of persecution in Lebanon, didn’t they?
And the answer:
Correct.
There are, at pages 15, 9 and 10, answers to the contrary of that. Again, the witness was not believed in this circumstance although the magistrate indicated that in his view and inconsistent with your Honour the Chief Justice’s comments in paragraph ‑ ‑ ‑
GUMMOW J: What do we add to the list?
MR DAVIDSON: I am sorry, your Honour. Pages 15, lines 9 to 10, and that is in response to the reference that your Honours were given as to pages 13 to 14 to say that this witness agreed that each of these other witnesses knew all about the claimed fear of persecution. The form said that they were certainly involved in the same events. I think my friend also said that each of these witnesses knew the entirety of their other evidence – that is obviously not the case in respect of the appellant and the first applicant whose evidence was given in private.
In terms of the comment that in these situations you would inevitably know all of the evidence of all of the other people, that is not necessarily the case particularly where some evidence is given in private. The only material that would necessarily come to an applicant’s attention would be material that is contrary or raises a concern, the sort of material that is covered by 424A. First of all, it was not the case in this case that the way the hearing was conducted each of applicant’s knew all of the other applicant’s evidence and it would not be a necessary consequence of the interpretation that the appellant is pressing for.
Your Honour Justice Callinan, when I had raised the more colourful workers’ compensation case, asked what about Vakauta v Kelly (1989) 167 CLR 568 - so it was a decision in the late 1980s. In my respectful submission though, this case by no means demonstrates that there would be found to be a waiver in the circumstances here. In that case, the High Court judge – the Court including in the joint – in the judgment of Justices Brennan, Deane and Gaudron and also Justice Dawson, clearly found that where a judge had done something that gave a reasonable apprehension of bias and counsel failed to complain about something that gave rise to a reasonable application of bias, then the right to complain about that on appeal may well be lost. But, in my submission, that is a long way away from a Tribunal member indicating the course that she is proposing to take.
CALLINAN J: I would have thought bias was much more serious.
MR DAVIDSON: That is my point – sorry ‑ ‑ ‑
CALLINAN J: If you can waive bias by not taking a point, then I would have thought you might be able to waive a pure procedural matter. But anyway, you go on.
MR DAVIDSON: Yes, I think my submission is it is the other way round. This is a case where they are represented by counsel too and of course in this case we have got the migration agents with clearly not the same rights as counsel. They are assisting but they are not able to jump up and tell the Tribunal what the Tribunal should or should not do. They do not have a right to do that. So, in my submission, your Honour, the most relevant case is actually the decision of Justice Weinberg, the Percerep Case which is in 1998 which is in the context of the migration environment where a failure by a solicitor to do something that a solicitor should have done was not a waiver.
GLEESON CJ: Put in terms of the statute your complaint is that the hearing of your client’s application for review was not in private?
MR DAVIDSON: Yes, your Honour.
GLEESON CJ: But put in concrete terms by way of particulars what you are complaining about is the presence in the room at the time your client was giving evidence of the other three applicants and the girlfriend of one of them?
MR DAVIDSON: The other three applicants. I am not sure that the girlfriend was there.
GLEESON CJ: Let us put the girlfriend to one side. In concrete terms what you are complaining about is the presence in the hearing room on the occasion when your client was giving what you have called evidence of the other three applicants?
MR DAVIDSON: That is correct, your Honour, and a couple of other things to update when I have given some inadequate answers. I was asked what is to stop an applicant going away and blabbing on about the applicant’s claim as, for example, a taxpayer might. The answer to that is that at the time of the hearing and at the time of the decision there was no express statutory power to prevent an applicant doing that. There now is a power which is contained in section 91R of the Act which was added by Act No 131 of 2001, and this is to deal with what is called the “sur place” claim where the applicant who would not have been subject to persecution does things to irritate the country of origin. So there now is a statutory provision dealing with that and the material that has provided. I have also provided a copy of the explanatory memorandum to that Act which in clause 25 refers to the new subsection 91R applies to “sur place” claims.
So the correct answer to the earlier question was there was no express power at the time unless section 440 would catch it or the implied power that I have argued to ensure that something in private stays in private, but now there are express powers dealing with that.
I also may have given a slightly misleading answer in the question can barristers, solicitors and migration agents be present. I think my answer was, well, essentially no, and your Honour said there are often cases where you see solicitors and barristers. As I understand the position from sections 276 and 277 of the legislation, a solicitor or barrister who was a registered migration agent would be able to assist because to give immigration assistance you have to be a registered migration agent and to turn up at a Review Tribunal hearing would be giving immigration assistance, so that my instructing solicitor, who is a registered migration agent, would be able to give immigration assistance, which would include being at the Tribunal, subject to the more limited rights there are, but I not being a registered migration agent could not. In section 277 there is the exception which permits us to be here in certain types of proceedings and ‑ ‑ ‑
CALLINAN J: What about a nurse or a doctor, if somebody were infirm?
MR DAVIDSON: Or if you had to visit a hospital.
CALLINAN J: An infirm person who needs medical attention, or a nurse, somebody to push a wheelchair, be present in case spasm occurs, or something like that.
MR DAVIDSON: Yes. I would submit that that situation would be ‑ ‑ ‑
CALLINAN J: It just shows that “private” cannot be an absolute word in the section, does it not?
MR DAVIDSON: I do not think there is dispute that the words “in public”, “in private” cannot have absolutely fixed – or a meaning that can be applied that will now cover every situation. In that situation – and this comes I think back to the answers to your Honour the Chief Justice’s questions about, “Well, who could be there?”, and I have given perhaps an imprecise answer which is consistent with the primary submission we have made in our written submissions, that the answer to that question, “Who can be there?”, in the nature of the purpose of the legislation is determined by who is essential to be there for the hearing and whose presence is consistent with the purposes of the legislation and, in particular, will not increase the risk of the privacy being lost. That has been the answer that I have been attempting to give. That may be the wrong answer, but that has been my primary submission.
An alternative construction of the section may be that the answer as to who can be present are those who are specifically authorised and specifically subject to confidentiality obligations, and that includes the people in section 439, which is the interpreter and so forth. It would include a migration agent, because a migration agent – I think this has been handed up as well – under the regulations has express confidentiality obligations – I think it is 3.1 – an express duty under the Migration Agent Regulations to preserve the confidentiality of his client. The alternative answer may be, although it has not been my primary submission, that in terms of mum and sisters and so forth, that the only people who could attend would be those who have provided confidentiality undertakings where ‑ ‑ ‑
CALLINAN J: That is really, is it not, simply to apply the rule of legal professional privilege to migration agents? That is what that does, does it not?
MR DAVIDSON: Yes, that is correct. What I am saying in terms of the alternate answer to your Honour’s question about those people, it might be that only if they provided confidentiality undertakings such as is sometimes the case in litigation where counsel ‑ ‑ ‑
CALLINAN J: But “must not disclose . . . confidential information”. Well, if the client has disclosed the information himself, the information ceases to be confidential information, and your client chose to disclose it to all the other people whom he invited or acquiesced in being present during the hearing.
MR DAVIDSON: With respect, your Honour, that is not the position. My client was invited to appear at a hearing, failing which he would be subject to refoulement. It was a private hearing. He requested people to be witnesses, but that does not mean that he voluntarily disclosed all of his information to those people. That is the effect of everyone being in there together.
CALLINAN J: But it is only confidential information that that regulation applies to.
MR DAVIDSON: Yes, that is correct, your Honour. The point made there, although I have put my primary submission, it may be that the answer is sharper and clearer. The one I have indicated is that, similar to the common law with Scott v Scott, to answer these questions you have to see whether the presence of that person, the circumstances would materially increase the risk of the purpose that the legislation is designed to prevent. The alternative argument would be that it is a more black‑and‑white answer and you could not be there unless you were subject to express confidentiality undertakings similar to those in section 439.
GLEESON CJ: What do you say to the argument of Mr Williams that as a matter of procedural fairness all these other three applicants were entitled to know what your client was saying?
MR DAVIDSON: I say that is incorrect. As a matter of procedural fairness they were entitled to know anything my client was saying that might damage their case and that had to be put to them under section 424A. They were not entitled, they had no interest, no need to know any information that would not harm their case, so that ‑ ‑ ‑
GLEESON CJ: Are they not entitled to know to what extent they could rely on what he said as supporting their case by way of consistency?
MR DAVIDSON: I think the answer to that is no. Apart from my comment that the answer is no based on section 424A, they are only entitled to know adverse information.
GUMMOW J: We are talking about general law at the moment.
MR DAVIDSON: Then I think the next answer is on Yusuf’s Case, which I do not know that I have the citation immediately to hand, but that in Yusuf’s Case they are entitled to know material information. Now, I may be incorrect in my analysis, but they are simply not entitled to know every single detail of every piece of evidence under this particular regime. For example, the Tribunal investigates and gets all its – it can get material from all sorts of places, and they are entitled to know material from the US State Department that could be harmful to their case, but they are not entitled to know themselves all of the information that might be supportive of their case. The Tribunal is obliged to take account of it.
CALLINAN J: Subject to the risk of accusations of collusion, it is generally regarded as a great advantage to be present when other witnesses give evidence either for or against. That is why witnesses are kept outside the court before they give evidence and why they are kept separate. So it is regarded as a great advantage generally, as I say, subject only to one matter.
MR DAVIDSON: Yes, and that influenced Justice Weinberg to say they got a tremendous deal here by being all together, but there is a difference between the position just at common law where the exceptions permitting public hearings to only be in private were where there was a very, very important reason to do so. This statutory change of the common law is because it is so important in this circumstance for hearings to be in private, so that while it might be said that it would help a witness to be able to get their story together, the downside is that there will be the risk of confidential information being disclosed which will increase the risk of the very things that section 429 ‑ ‑ ‑
CALLINAN J: I regard that as fanciful in this case because either the adviser or your client would have said, “Now, look, there are a few matters I need to discuss in private”. It would have been so easy to say that, but there is no suggestion of anything of that kind. If either the adviser, who was apparently an experienced adviser, or the applicant himself thought that, then he would have said so.
MR DAVIDSON: Well, the applicant thought that and those transcript references make it very clear the applicant was not believed and ‑ ‑ ‑
CALLINAN J: But he never asked for the others to be excluded, did he?
MR DAVIDSON: No, he did not and – we are coming back to the Vakauta v Kelly and Percereps, but ‑ ‑ ‑
CALLINAN J: No, I am not coming back to that. I am saying that it reflects a state of mind about the nature of the information that he may have disclosed whilst the others were present. That is what it throws light on.
MR DAVIDSON: Yes. I am reminded of this comment, your Honour. In one sense we do not know. He was never interviewed separately. We do not know what would have happened if he had been interviewed separately. Now, we just simply do not know that and one of the purposes of this legislation is to – not being in the position where we might find out a very unpleasant answer when the risk is increased. I think the last comment that your Honour Justice Gummow identified in the Tasker Case, the passage at 24E, and indicated if the position was that procedural fairness had been complied with, then that may be the end of the matter.
It is certainly accepted that that test is the requirement so cardinal to the object of the statute as to disclose the intention, but the submission is that the privacy – that it would be hard to think of something more cardinal, more central to the role of the Refugee Review Tribunal than the privacy obligation. So that this is a situation where it is so important with the way it is linked in with other sections, including section 425, that her Honour Justice Kiefel was correct at paragraph 47 of the judgment when she said this implies sufficient notions of procedural fairness and the mere fact that the applicant was disbelieved on his evidence does not change that position. So that a breach of this section under the test would be so central that it would constitute jurisdictional error.
GLEESON CJ: Thank you, Mr Davidson. We will reserve our decision in this matter and we will adjourn until 9.15 tomorrow morning in Sydney and 9.30 tomorrow morning in Canberra.
AT 3.24 PM THE MATTER WAS ADJOURNED
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