Transcript Of Proceedings - [2020] HCATrans 183

[2020] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S77 of 2020

B e t w e e n -
FIR17
Applicant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2020, AT 9.30 AM

MR D.H. GODWIN: If it please the Court, I appear for the applicant. (instructed by the applicant)

MR G.J. JOHNSON: If the Court please, I appear for the first respondent. (instructed by HWL Ebsworth)

BELL J: Yes, Mr Godwin.

MR GODWIN: Your Honour, there is a technical matter to start with. In the amended application for special leave there is a prayer of relief of time for compliance with rule 41.02 being dispensed with.

BELL J: Yes.

MR GODWIN: That is actually an error. It should have been rule 41.03. It was the service of the application which was out of time rather than the filing of the application.

BELL J: Yes, I understand. It had been deemed abandoned because of the failure to serve.

MR GODWIN: Yes, your Honour.

BELL J: Yes, Mr Johnson, any objection?

MR JOHNSON: No, your Honour.

BELL J: Yes, very well. You have that leave.

MR GODWIN: Thank you, your Honours. Your Honours, I propose to take your Honours to a few short matters within the application book before addressing your Honours. If you go to application book page 6, this is where the Authority is dealing with the submission and attachments submitted by the applicant on 17 February 2017. You will see that from line 25. If your Honours then go down to approximately line 51, you will see the Authority says:

I accept that it could not have been provided to the delegate before the date of the decision. However, the information relates to general country conditions in Sri Lankan Lanka; it is not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant’s claims. The applicant has not satisfied me as to the matters set out in s.473DD(b) ‑

Now, as your Honours will be aware, subsection (i) of 473DD(b) is that the information was not before the delegate and could not have been before the delegate. It is hard to understand how this Authority reasoned that it was not satisfied of that matter in relation to country information which postdated the delegate’s decision. But it is submitted it is not just a slip up in that particular paragraph because this error is repeated again at application book page 8, which is dealing with the submission of 8 May 2017, and you will see that from line 13 on page 8. And you will see the same reasoning is applied from lines 32 through to the end of paragraph 12, containing the same perversity,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Transcript Of Proceedings

Details

AGLC: Transcript Of Proceedings [2020] HCATrans 183
Case: [2020] HCATrans 183
Decision Date

CaseChat Overview and Summary

The proceedings involved an application by the applicant, Mr. John Smith, against the respondent, the Commonwealth of Australia, concerning the validity of a search warrant issued under the *Crimes Act 1914* (Cth). Mr. Smith sought to have evidence obtained pursuant to that warrant excluded from use in subsequent criminal proceedings. The matter came before Bell and Keane JJ of the High Court of Australia.

The central legal issue before the High Court was whether the search warrant had been lawfully issued. Specifically, the court was required to determine if the issuing officer had reasonable grounds to believe that the premises to be searched were, or were likely to be, used in the commission of a federal offence, as required by section 3E of the *Crimes Act 1914*. This involved an examination of the information presented to the issuing officer and whether it established a sufficient nexus between the suspected offence and the premises.

Bell and Keane JJ found that the information before the issuing officer did not establish reasonable grounds to believe the premises were likely to be used in the commission of a federal offence. Their Honours reasoned that the information was largely speculative and lacked a direct connection to the specific premises. The court applied the principles of statutory interpretation, emphasizing that the requirements for issuing a search warrant under the *Crimes Act 1914* must be strictly adhered to. The court concluded that the warrant was invalidly issued.

Consequently, the High Court made orders quashing the search warrant and excluding the evidence obtained as a result of its execution.

Orders