Tran v Ruddock, MIMIA

[2005] HCATrans 758

[2005] HCATrans 758

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M201 of 2004

B e t w e e n -

BUI DO TRAN

Applicant

and

THE HONOUR PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 12.35 PM

Copyright in the High Court of Australia

MR G.M. HUGHAN:   May it please the Court, I appear for the applicant.  (instructed by Access Law)

MR P.R.D. GRAY:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr Hughan.

MR HUGHAN:   If your Honours please, in seeking to persuade the Court to grant special leave in this case, I would seek first to make a couple of comments as to what I say is the context in which this matter arises and if they appear to be trite, I do apologise, your Honour, but they are important to where I am going. 

Firstly, the applicant was subject of an adverse exercise of the discretion under section 501(2) by the Minister personally.  That is a discretion, as the Court I am sure will appreciate, which is apparently, that is on its face, unfettered but obviously one which has to be exercised with respect to the scope and purposes for which the discretion is granted.  Secondly, the fact that it was made by the Minister personally precludes merits review, but, thirdly, of course, because it is made by the Minister personally and even where a decision of this nature is made by a delegate, it is going to be essential for the decision‑maker to rely upon material provided to him or her by others and this is where it really comes to the nub of what I am saying in terms of the grant of special leave. 

In my submission, the Court should be astute to ensure that the material upon which the Minister or decision‑maker generally relies in making an adverse exercise of the discretion ought to be put in an accurate manner and what is submitted in this case is that the way in which the material was provided to the Minister was very inaccurate to the point of being misleading.

HAYNE J:   In what respect?

MR HUGHAN:   In two respects, your Honour.  Firstly, in relation to the applicant’s involvement in offending that occurred in October 1999 ‑ ‑ ‑

HAYNE J:   Is this the flats incident, the incident in the flats?

MR HUGHAN:   No, your Honour.  I was going to take your Honour to that.  It is the sentencing remarks issue, if I can call it that.  What I am speaking about is that which is dealt with at pages 3 and 4 of the application book.  There was an appearance in the Magistrates Court on 11 April 2000 where Mr Tran was convicted of a number of offences and they are set out at paragraph 14 of the issues paper, line 25, page 4 of the application book, your Honours.

The factual bases, or what might be said to be the purported factual bases that led to those convictions are set out in paragraphs 8 through to 13 leading up to paragraph 14 and it indicates at paragraphs 10, 11 and 12, certain facts involved at Sunshine on 6 October 1999.  From that comes the next statement that on 11 April 2000, the Melbourne Magistrates Court convicted Mr Tran of a number of offences set out there, possession of heroin, robbery, possession of a drug of dependence and further down the list, assault with weapon.

When one goes through the jigsaw puzzle of annexures that are attached to the issues paper one can discover that in all likelihood what happened was that the assault with a weapon charge related to the matters set out in paragraphs 10, 11 and 12 and that the robbery charge related to the matters at paragraph 8, although there is nothing in paragraph 8 that would suggest robbery or anything of the like.  Additionally, within the annexures, is a report from the police officer – it is called annexure C, I think it was – and it is set out at pages 21 and 22 of the application book which indicates at page 21, paragraph 2 of that report:

The primary charge of attempted armed robbery was withdrawn solely due to the princip[al] victim in this matter refusing to attend court -

for the reasons stated therein.  It is not made clear in that material that that incident resulted in the assault with a weapon and there is at least a very strong prospect, in my submission, that a person looking at this, the Minister at the time, obviously would have concluded that the robbery incident that is spoken of relates to paragraphs 10 through to 12 and based the exercise of the discretion on that factor.  As I say, when you go through what I have called ‑ ‑ ‑

HAYNE J:   But is there any challenge to the accuracy of what is set out in 8 to 13 of the material?

MR HUGHAN:   Yes, there was in this way.  The applicant was interviewed and that was also the interview notes which were sort of on a handwritten pro forma is set out at pages 32 and following of the application book.  At page 35 it said this: 

Police Report Dated 3/8/01 –

which is Senior Constable Wallace’s report –

read out to Mr Tran said report of offences that led to conviction of 11/4/00 is not accurate.

HAYNE J:   Yes, so the Minister has the police version and Mr Tran’s version.

MR HUGHAN:   He has a version which says the report of offences “is not accurate” and to that extent, in my submission, the problem is it does not identify what the accurate – neither identifies what the accurate picture is and that is, in all likelihood, the conclusion that there was a charge of assault with a weapon arising from the matters set out in that series of paragraphs.  That can, I have to concede, your Honours, be located as his Honour Justice Heerey indicated in his reasons and I will take your Honours to that at page 85 of the application book.  His Honour said:

Also included in the Issues Paper are certified extracts of convictions of the appellant at the Melbourne Magistrates Court on 11 April 2000, one of which records

“Defendant at SUNSHINE on 6/10/1999 did commit a breach of Act 7405.24.2 ASSAULT WITH WEAPON”.

So annexure 2, the Issues Paper, was a series of certified extracts from the courts setting out that, but again without taking the time to go through what I have described, I hope accurately, as something of a jigsaw puzzle, one does not get the proper impression and so, to that extent, in relation to that matter what I say is the issues paper is a very misleading one.

HAYNE J:   Where do you say Justice Heerey goes wrong in his reasons?  What is the error of which you would complain if leave were to go?

MR HUGHAN:   What is submitted there is that his Honour has concluded that the way in which the issues paper was structured and provided to the Minister was, if I can call it this way, sufficiently accurate when one takes into account the materials and, accordingly, that there is no consideration by the Minister of irrelevant matters or no failure to take into consideration relevant matters, and it is that finding of fact that, based on the reading of the issues paper and the plain reading that it leaves is, one, these are the facts upon which those convictions are based; two, as set out in paragraph 38 of the issues paper, Mr Tran denies that he was involved in those offences, I think it is referred to, as opposed to saying, as he did, “That’s not an accurate summary”.

So, when one puts those two things together as, in my submission, his Honour Justice Heerey has not really come to grips with, the fact that the inaccurate impression was created by the issues statement is not…..and is not appreciated by his Honour.  That is in relation to the first aspect of the two and the second aspect is in relation to the sentencing remarks issue.

In that respect, your Honours, if I can take your Honours to paragraph 31 of the issues paper which appears at page 8 of the application book where the person preparing the statement of issues for the Minister sets out some of the matters that were referred to by his Honour Judge Anderson at the sentencing hearing and sets it out, in my submission, in a way that makes it clear that that is the relevant matters, save for a few words that might appear around about lines 19, 20 or so of that page of the application book ‑ ‑ ‑

CALLINAN J:   What is important that has been omitted?

MR HUGHAN:   The critical matter that has been omitted, your Honour, is one which can be gained by going back to Justice Heerey, if I might.  His Honour there, that is Justice Heerey, helpfully set out ‑ ‑ ‑

CALLINAN J:   Page?

MR HUGHAN:   At page 86 and following – the full transcript of the sentencing reasons.

CALLINAN J:   What was left out?

MR HUGHAN:   All those things that are not underlined were left out.

HAYNE J:   I understand that. 

MR HUGHAN:   What is important that is left out is this, in my submission.  At the bottom of page 88, over on to page 89, this is speaking of counsel for the applicant in the sentencing hearing:

Mr Lavery submitted that it was an appropriate case to be adjourned so that a pre-sentence report in the form of a psychological or psychiatric assessment could be undertaken.

His Honour, the learned sentencing judge decided that would not be appropriate at this stage.

However, in view of the matters raised in the plea, it would be appropriate to ensure that the prison authorities are made aware of those matters so that the maximum advantage can be taken by the prisoner of the time he will inevitabl[y] spend in custody.

Those comments should go to the Parole Board and the matters then that Mr Lavery relied upon to make that submission are then set out by his Honour the learned sentencing judge and repeated by his Honour Justice Heerey.

So what is submitted is that important matters relating to this man’s emotional, personal make‑up, if I can put it that way, those matters which go to one of the important aspects of the apparently otherwise unfettered sentencing discretion are left out of the issues paper ‑ ‑ ‑

CALLINAN J:   Those matters are really covered, are they not, in paragraphs 33 to 37 of the issues paper at page 9?  That is a representation of the sorts of facts to which the sentencing judge referred.

MR HUGHAN:   To an extent that is a fair comment.

CALLINAN J:   What has been left out in paragraphs 33 to 37 was in the sentencing remarks that you say was relevant and should have been put before the Minister?

MR HUGHAN:   Two things might be said.  The apparent acceptance by his Honour the sentencing judge of a need for assessment to be undertaken, psychological or psychiatric assessment in the future, but not now because ‑ ‑ ‑

HAYNE J:   A need for the prison authorities to be aware of the fact that this man had a drug addiction problem.

MR HUGHAN:   And various other issues that are set out there.  Also, one other aspect, in terms of the motivation for the high‑rise flats offending, if I can put it that way, was the use by the applicant of the drug, Normison, which was apparently used by him on the second occasion on that day and one which I think it might be said made him lose control.

HAYNE J:   That is recorded at paragraph 39, page 10 of the application book.

MR HUGHAN:   I am sorry, your Honour, yes, I have not made myself clear.  It is recorded at paragraph 39 that Mr Tran stated these things but that is at a time when he is being interviewed.  What really is missed out there is that they are matters that were put before the sentencing judge and to a certain extent it could be said accepted by the sentencing judge in terms of his reasoning.  The fact that that material did not come into the issues paper ‑ ‑ ‑

HAYNE J:   As you have accepted at the outset, it is not merits review, where is the jurisdictional error?  Where has his Honour Justice Heerey failed to detect jurisdictional error that you say exists?

MR HUGHAN:   By failing to conclude that there were irrelevant matters taken into consideration, relevant matters left out of consideration and by failing to conclude that in the unusual circumstances of this case as opposed to the matter of Re Minister for Immigration and Indigenous Affairs; Ex parte Palme, what is submitted here is that there was an unbalanced issues statement put before the Minister.

CALLINAN J:   Look at page 11, everything that could be said, I would have thought in favour of your client – I am only dealing with your point of balance and I am not sure by any means that that goes to jurisdiction – but everything that could be said on your client’s behalf was said there. 

MR HUGHAN:   But it is said in a way that is prefaced inevitably with “Mr Tran submitted”, “Mr Tran stated” and so forth rather than as an examination of facts or an extraction of the factual material upon which the learned sentencing judge had to deal with Mr Tran and so to that extent ‑ ‑ ‑

CALLINAN J:   No, it deals with events after the sentencing.  It is not confined to events at the time of the sentencing.  Look at paragraph 47.

MR HUGHAN:   That is the only exception to that, in my submission, in terms of the characterisation ‑ ‑ ‑

HAYNE J:   Paragraph 43 deals with the officer’s reference to him seeking access to “Erica Unit so that he could address his heroin addiction”.  All that is happening while he is in goal.

MR HUGHAN:   Yes, your Honour.

CALLINAN J:   You know, balancing of the facts does not go to the reception or otherwise or the failure to take into account relevant matters.

MR HUGHAN:   Your Honour, what is submitted here, essentially, and I will see if I can cut it really down to the essential couple of lines if I may, given the indication there, that the way in which the material has been presented to the Minister is, in my submission, so unbalanced and to the point of being misleading that it should have been concluded by Justice Heerey that there was jurisdictional error in terms of matters not appropriately taken into account, if I can put it that way, your Honours.  Unless there is anything further, if your Honours please.

HAYNE J:   Yes, thank you, Mr Hughan.  We need not trouble you, Mr Gray.

In our opinion, an appeal would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Accordingly, special leave is refused with costs.

AT 12.54 PM THE MATTER WAS CONCLUDED