TTY167 v Republic of Nauru

[2018] HCATrans 231

[2018] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S46 of 2018

B e t w e e n -

TTY167

Appellant

and

REPUBLIC OF NAURU

Respondent

GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 NOVEMBER 2018, AT 2.00 PM

Copyright in the High Court of Australia

MR W.G. GILBERT, SC:   If the Court please, I appear on behalf of the appellant with my learned friends, MR M.L.L. ALBERT and MR J.A. BARRINGTON.  (instructed by Clothier Anderson Immigration Lawyers)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR P.M. KNOWLES for the respondent.  (instructed by Republic of Nauru)

GAGELER J:   Yes, Mr Gilbert.

MR GILBERT:   Yes, thank you.  I assume your Honours have the outline filed this morning.

GAGELER J:   Yes.

MR GILBERT:   What I was going to do was just to - obviously the first - paragraph 3 is no longer relevant in light of the ruling that your Honours have just made.  But the structure of the outline is to a very brief reference in paragraph 2 to the question of leave which is required, a short section in relation to ground 1, but the bulk of the presentation is in relation to ground 3, the unreasonableness ground. 

What I would seek to do initially is just take your Honours to some of the key documents in the core appeal book and the book of further materials to lay the factual foundation for the argument that is before you and, in particular, in relation to ground 3 because it is well established that the question of unreasonableness is very much a fact‑specific exercise.

If I can just take you briefly to the key documents, starting with the documents in the book of further materials.  In those further materials, the early part is simply the application or the transfer interview when he first – shortly after arriving in Nauru.  At page 35 of those documents there is a statement that was part of his application for protection and paragraph 4 refers to him attending school to grade 7, to being illiterate and having a low standard of education.

NETTLE J:   He was a laser operator, was he not?

MR GILBERT:   I am not sure about that, your Honour.  The next document is at page 40, which is a postponement of the refugee status determination interview.  I refer to that to support the latest submission as to his involvement in the process.  It is indicated there at about point 5 that he was “unwell” but was “eager to attend” and the hearing was rescheduled.  I simply stress the reference to his eagerness to attend and then his later attendance at that status interview.

Where this part of the submission is going is that I will later be referring your Honours to the decision made recently ‑ and each of the members of the Court were involved in that decision – of SZVFW, as to the level of involvement and so this part of the process that I am undergoing is really to demonstrate in the material what that involvement was.

The other document which is critical to ground 1 is at page 47.  That is the invitation to appear and that is the invitation which is not directed towards the applicant but is directed towards the person, Blaise Alexander, Team Leader, CAPS.  So it is directed to her and it is effectively in the third person advising of the date and place of the hearing.  Then there is the warning which one often sees, at the bottom:

if the applicant does not appear . . . the Tribunal may make the decision without taking any further action.

That is the document that is critical to ground 1.  The next document, which is at page 49, is the statement that was filed with the Tribunal and there are just two paragraphs in that that I would seek to draw the Court’s attention.  The first is paragraph 3 ‑ ‑ ‑

EDELMAN J:   Sorry, which page?

MR GILBERT:   Paragraph 3 on page 49, sir.  Paragraph 3 refers to it only being a summary of his response to the Secretary’s decision and not being an exhaustive statement.  Then it goes on:

I will provide further information in relation to my protection claims during my hearing before the Refugee Status Review Tribunal (Tribunal). 

So he is clearly saying that his statement before the Tribunal hearing, that he is going to amplify or provide further information at the hearing.

Paragraph 5 is a paragraph in relation to his mental health and that is a paragraph which later becomes relevant to the Tribunal’s decision, which I will take you to in a moment.  But the essence of what he is saying there is that he is suffering - his mental health has suffered and his memory has deteriorated and he has difficulty effectively talking about his case and getting things in the correct order and his mind jumping and having flashbacks.  So he is effectively alerting the Tribunal to problems that he has in relation to his past, his ability to account and prospectively in terms of appearing before the Tribunal. 

The next document is a lengthy submission from the firm that the Court heard of this morning, Craddock Murray Neumann, and that commences at page 54 of the further materials.  There is really only one part of that that we sought to highlight and that is at page 79, paragraph 180, and this is in the context of where the submission - is seeking to make submissions about general credibility and one can see that on page 78 towards the bottom above 174, and is making submissions about omissions from his evidence but the lawyers are making a submission and towards the end of that paragraph, the last sentence is:

It is reasonable for our client to take his next available opportunity, before the Tribunal, to provide all the information he has in support of his claims for protection.

Now, can I then just transfer to the core appeal book because that is where the Tribunal decision is and the Tribunal decision appears at page 18 and the aspects that I seek to refer to are firstly, paragraph 9 at the bottom of page 19, or paragraph 8.  This is an introduction to the decision.  He is referring to the hearing and him not attending and him being advised that if he did not attend that would go - proceed without further action but paragraph 9 is the essence of the Tribunal’s reason.

There is another paragraph a little later, paragraph 31, but there is the reference that he did not attend the scheduled hearing, no information has been provided to the Tribunal as to why he failed to attend, no application to have it rescheduled and simply in these circumstances, pursuant to section 41 of the Act, the Tribunal decided to continue without further action.

Now, that is replicated to some extent at page 25 which is the assessment of claims and at paragraphs 30 and 31.  It is here, though, that there is a reference to his mental health.  The reference in 30 is that “the applicant did not avail himself of the opportunity” and the Tribunal “was unable to explore many aspects of his claims”.  Many lacked detail and were unsupported. 

Then there is an important paragraph, in our submission, 31, where the Tribunal refers to - and perhaps if I go back to paragraph 27 which is on the bottom of the earlier page, the Tribunal is there referring to his statement in support of his mental health, and that is paragraph 5 that I took you to a moment ago.  Then the Tribunal is saying at paragraph 31, about him saying he is suffering from anxiety, depression and flashbacks - no medical evidence.  But they then say:

it is unclear whether the applicant was explaining why he may not have been able to answer questions during the RSD interview because of his mental state or whether he was indicating that he would have difficulty participating in a hearing before the Tribunal.

I will develop that further later, but that is the Tribunal itself indicating that it is not clear what to make of the mental health evidence.  It is certainly put in the previous paragraph and put against us by our learned friends that there is no actual medical evidence, and that is correct.  But it is a claim that is being made, and I am not asserting that he does have a mental illness, but simply to say that that was the claim that he was making and the Tribunal at the stage at which it is deciding to proceed to make its decision is unclear as to what that means.  That is, is he saying he cannot attend or is he trying to explain away some of the difficulties he had below, or another possibility is that is he trying to foreshadow that if his evidence before the Tribunal is not as clear as it might be, there is a reason behind that, that is, the stress that he has suffered over the years.

GAGELER J:   In paragraphs 25, 28 and elsewhere, there are references to submissions by his representative.  What is that a reference to?

MR GILBERT:   Can I answer in this way:  it is unusual in the sense that there is nothing in the decision to indicate that the representative appeared at the Tribunal hearing.  Those submissions can only be a reference to the written submissions from Murray Neumann, in our submission. 

EDELMAN J:   Each of those matters is referred to in the submissions by Murray Neumann?

MR GILBERT:   Yes.  I have not, I must confess, crosschecked each one but the submissions are just by overview very comprehensive.  The only submissions that an applicant’s representative made are those submissions.  There are no other submissions within the material.  Whether there were submissions at the refugee status determination stage which there might commonly be in matters that we see in this jurisdiction, the core book and the further material are silent as to whether there was any other - so the only submissions they could be referring to, it is submitted, are the ones which were filed two days before the hearing.

Before I then pass to the grounds, the only other aspect to refer to in the Tribunal’s decision is that – and we have listed these in the outline – throughout the Tribunal’s decision it makes reference to it not having been able to clarify or pursue a particular issue with the applicant because he is not there.  There are numerous paragraphs where that type of statement – for example, paragraph 30 that I took you to a moment ago, and paragraph 32 under the heading there:

The Tribunal would have liked to clarify with the applicant –

There are numerous examples.  For example, in paragraph 34, about midway through, where the Tribunal said it:

was unable to discuss with him or clarify what his and father’s . . . involvement –

was.  The reason for referring those to your Honours is that it is self‑evident that a hearing in a matter such as this is a very, very important aspect of procedural fairness or natural justice, but the Tribunal itself exemplifies that by saying, “Well, you were not here.  There is a lot we would have liked to ask you and we have not been able to”. 

So it is our submission that it is abundantly clear that the appellant lost a real opportunity to seek to persuade the Tribunal that his claim was a genuine one and was seeking to explain some of the deficiencies that were found in the primary decision and that that opportunity was a real opportunity.

Now, can I then just pass to the grounds.  Ground 1 is from – is a short ground from our perspective.  It is a simple ground in the sense that the provision requires that the invitation ‑ or that it is the applicant that be invited.  That is quite clearly what section 40(3)(a) or (3) says in the Refugees Convention Act.  That is in the joint book of authorities, the first volume, at page 25.  The requirement is to invite:

An invitation to appear before the Tribunal must be given to the applicant with reasonable notice and must:

(a)specify the time, date and place at which the applicant is scheduled to appear ‑ ‑ ‑

EDELMAN J:   Is your submission that the applicant was not invited or that the invitation was not given to the applicant, or both? 

MR GILBERT:   Both, your Honour, both.  When one looks at the invitation that I took you to a moment ago, which quite clearly not addressed to the applicant ‑ the then applicant, it is addressed to another person, the - so it is just – importantly in this legislation, there is no authorised recipient provision which we have in the Migration Act, so the short submission is that the applicant has not been invited.  The applicant throughout the proceeding is ‑ and throughout the Act, there is no different definition of the applicant in that provision.

NETTLE J:   So, even though it is given to his solicitor and he thereafter makes a further statement and his solicitor files detailed written submissions, you maintain that he was not invited to come? 

MR GILBERT:   Yes, your Honour.  It is a question then as to what the nature of the invitation was.  So the provision is that it has to specify the time and place at which the applicant is scheduled to appear.  So what has happened here is that there has been an assumption by the Tribunal that it can give the document to another party and that that party will pass on that document in its entirety to the applicant. 

Now, we accept that the timing ‑ the chronology, that is that the further statement was filed some five – or dated some five days later, after that letter and also that the submission was then filed, the inference is open, of course, that it was responsive to the letter but the detail of the letter and as to whether or not he was given more detail or the entire detail because it is not just an invitation, it is an invitation that includes the time, date and place.  So that is how we put the submission.

NETTLE J:   Is it open also to infer that his solicitors would pass on to their client information that had been given to them regarding that client?

MR GILBERT:   To make that assumption, your Honour, I am sorry?

NETTLE J:   Not an assumption, draw an inference in the absence of contrary evidence that that is what happened.

MR GILBERT:   Well, your Honour, the question is as to who the person was who received the invitation, as to what the link between that person was, so it is a different person than the one who signed the submissions.  So that it cannot be established that the full detail of the invitation letter was conveyed to him, bearing in mind that he would have required an interpreter and this really affects whether or not he has had proper notice of the hearing.

EDELMAN J:   But I mean if - I understand your primary submission in relation to the invitation being given is that irrespective of whether or not the invitation ultimately gets to him, if it is not given directly to him it is not given.

MR GILBERT:   That is so.

EDELMAN J:   But if that is not right, then all of the subsequent questions are not matters which this Court could determine.  They are matters that ought to have been raised below.

MR GILBERT:   I accept that, your Honour, and that is why in our reply we recognise the force of what is put against us, that the materiality of what we submit is the breach is something that may well require evidence and this Court – it is not appropriate for us to seek to call evidence in this Court.  So that is why we would submit that a remittal – the primary submission is it is sufficient to establish an error of law, but if it is against, then the alternate submission is that it would then be appropriate to have that returned and that matter resolved in the Supreme Court.

GAGELER J:   There is a reference at page 47 to the recipient of the invitation to appear being a Team Leader CAPS.

MR GILBERT:   Yes, sir.

GAGELER J:   Is it common ground that CAPS is a reference to the law firm that subsequently made the submissions?

MR GILBERT:   No, I understand what – Claims Assistance Provider is what CAPS stands for, and the law firm, as I understand it, had a contract to provide that service to refugee applicants, protection visa applicants.  That is how, even though the letter was directed to CAPS, ultimately the submission is made on the letterhead of that law firm.  But that is how we put ground 1.

GAGELER J:   Thank you.

EDELMAN J:   Just so I can understand, you said right at the start there was also an alternative basis you put on ground 1, which was the invitation to appear separately from whether it was given, but the invitation to appear was not addressed to the applicant.  Is there any way, on its proper construction, that invitation to appear could really be construed as being addressed to anyone other than the applicant?  It is not really addressed to Ms Alexander, is it?  She is not being invited.

MR GILBERT:   No, it is clearly physically addressed to her but it is then a reference to the above‑named person, so it is essentially seeking to act.  That letter effectively is a conduit.  That is what is sought to be done.

EDELMAN J:   So it really does come down to the given point?

MR GILBERT:   Yes.  Ground 1, though, does have a bearing on ground 2 in the sense that, as part of our submission, we draw the distinction between the legislative regime that is in Nauru and the legislative regime that is here.

GAGELER J:    Do you mean ground 3?

MR GILBERT:   It is ground 3, I should say.  I apologise, your Honour.  The way in which we have structured the outline is really there are a number of propositions that are probably self –evident in the sense that they need not be stressed again.  Section 22 of the Act has a general provision which requires the Tribunal to ‑ that is at page 17 of the first volume – the Tribunal’s way of operating:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to the principles of natural justice and the substantial merits of the case.

So it is a very clear, short provision that sets out how the Tribunal is to operate.  The power which was ultimately exercised is one which needs to be exercised reasonably.  As I took you to the Tribunal’s reasons a moment ago, we say that those reasons, they are effectively not reasons, they are a statement to say that the person is not here, we do not have any information why they are not here and no one has made an application to reschedule.  So, it is effectively a bald statement of what had occurred. 

Then the question is the seriousness or the importance of the matter which was the lost opportunity and by indicating a moment ago where, apart from the general principle that a tribunal hearing is a very important opportunity, this Tribunal decision demonstrates how important that opportunity was because there were so many aspects which the Tribunal drew attention to that he lost the advantage by not attending.

So, if I could go to the core of the submission which is one which involves an analysis of the level of involvement that the appellant had in the process up to, effectively, two days before the hearing which was when the submissions were filed and the importance of that factor in assessing whether or not the Tribunal’s discretion was within the bounds of the legislative framework. 

In order to do that, there are two authorities that I sought to refer the Court to and if I could commence by – it is a decision – if I can deal with these at the start of this submission because there are a number of different references throughout the outline.  The first is a decision of Justice Mortimer and it is in the second volume at page 261. 

This was a case in the migration jurisdiction.  It has the same type of deeming provisions, as in the refugee provisions, and there are just a couple of passages that I sought to take you to but under the heading “Relevant Facts” at 269 and following – and I will not go through those but her Honour sets out over the next – it is really to page 274 what the level of interchange between the appellant was, Ms Kaur and the Tribunal.

This was a case about someone who was applying for a student visa and they needed to have or demonstrate a certain amount of financial capacity and that was where their case was found wanting but there was a first Tribunal hearing then it was adjourned.  The issue that arose in front of her Honour was an invitation to a second Tribunal hearing but there was a deal of email correspondence between Ms Kaur and the Tribunal both ways and the Tribunal on occasions, an officer of the Tribunal rang her so what ultimately happened was that the letter of invitation to the second hearing was returned unclaimed and Ms Kaur did not appear at the second Tribunal hearing and the decision was made in her absence but the fact that it was unclaimed was not so much to the point. 

If I could just take your Honours to paragraph 50 on page 277 where her Honour, because there was a question, did the Tribunal know the letter had been returned or not but her Honour there refers to that not being a key issue effectively, but in the last part of that:

the Tribunal officers and the member . . . knew the first appellant had not responded to the hearing invitation.  In the context of the facts of the course of this particular review, that was highly unusual behaviour for the first appellant.

Then the other authority that I will take you to shortly, a decision of this Court, makes the same point.  Paragraph 83 is the other paragraph I want to take you to, and again this is taken up in your recent decision, not by reference to her Honour I should say, but the same concept is taken up, but it is suggesting that effectively just because somebody does not come, that is not a reason to make an inquiry but:

the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course it has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances.

At 123 on page 293, her Honour expands upon that point by saying:

How the discretion should be exercised will fall to be decided by the Tribunal, in accordance with its function under Pt 5 and taking into account matters such as the facts and circumstances of the individual review applicant, the course of the particular review and what is at stake for the review applicant.

Now, obviously in a refugee application what is at stake is particularly significant.  That brings me to the decision of this Court, and this is the authority that we notified the Court last week, last Wednesday, Minister for Immigration and Border Protection v SZVFW 92 ALJR 731. Now, I am conscious that each of your Honours was in this case and in the outline we refer to a number of passages throughout this judgment that are significant for the purposes of the appellant’s argument.

We bear in mind, of course, that because unreasonableness is so fact‑specific, comparison of cases one needs to be cautious of ‑ and I am not seeking to argue that because in X case a decision followed then it should follow in our case ‑ but, in a way, there were almost too many passages in this judgment that are of significance to this case, in our submission.  I will perhaps to some extent be guided by your Honours as to whether you wish me to take you to each of those passages.  It is a recent decision and each of you wrote judgments in it.

GAGELER J:   You might indicate the paragraphs on which you rely and you should ‑ ‑ ‑

MR GILBERT:   Would you wish me, though, to take you to those specific paragraphs?

GAGELER J:   You can feel free to take us to a particular purple passage if you wish, otherwise we will treat it as relatively fresh in our memories.

MR GILBERT:   Yes, of course.  Thank you for that indication.  There are a number of parts of the judgments that refer to the proposition that there is a presumption of irregularity and it is fact‑specific, so I do not need to take your Honours to those.  At paragraph [16] in the Chief Justice’s judgment just before your Honour starts, there is a reference there to the primary judge and then the last sentence:

The fact that the Tribunal could contact the respondents is but a factor which it could take into account in deciding whether to proceed to make its decision ‑

Her Honour the Chief Justice is there saying it is a factor but clearly there is not an obligation in every case, and clearly simply the fact that it was possible to contact a person does not end the matter. 

If I could then go to page 773, in your Honour Justice Gageler’s judgment, your Honour, from paragraph [69] and following, refers to the significance of the statutory regime under which this decision was made and the exhortation in relation to section 420, but to be fair, just, economical and quick; also the relevance of section 422B, it being an exhaustive statement.  The Tribunal, in the case before you, was entitled to look at that exhaustive statement and take that into account in reaching a decision as to what it was to do; also, that it was entitled to take the view that section 425 had been complied with.

The question of whether then the compliance with the statutory regime, the fact that 420 has what we have referred to in our outline as an efficiency component, because section 420 is larger or greater than section 22 that I took your Honours to earlier.  It is a factor that is not to be taken into account or is simply not present in our legislative regime that we are dealing with.

But the aspect that – and your Honour amplifies that in paragraph [69] and in paragraph [70] indicates that there was nothing about this case that was in the realm of extraordinary and that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.  So, by analogy from that we would submit that in the facts of our case there is every reason to believe that if the Tribunal had contacted the appellant then it would have elicited a response.

The other part of the judgment just to highlight, with respect, is in the judgment of your Honour Justice Nettle and Justice Gordon.  There at page 737 at paragraph [119], your Honours indicate that ‑ and this appears in other judgments as well ‑ is that what was significant in the case before you was that there was a deeming provision as to the invitation that was sent and the fact that the primary judge had really not taken account of the importance of the deeming provision. 

Now, just returning to Kaur for a moment, there is a deeming provision, there was in that case, and it was deemed that Ms Kaur had received the notice but, effectively, what her Honour found is notwithstanding that deeming provision, all of the other conduct or contact overrode that deeming provision.  By comparison, in our case, there is in the Nauru legislation no deeming provision but again, your Honours, Justice Nettle and Justice Gordon go on at [121] and draw attention to the fact that the primary judge had not paid regard to the lack of interaction between the parties with the delegate and then so that ultimately in that paragraph it was concluded that the failure attending was not “unexpected or remarkable”. 

In this case, as your Honours will recall, the refugee applicants had not gone to their interview with the Department, notwithstanding that a Mandarin speaking person at the Department had phoned them directly and rescheduled the hearing, so they did not take up any opportunity to attend the departmental interview.  They applied to the Tribunal but then when sent a letter from the Tribunal inviting them to provide any further material, provided none, and then when the hearing invitation went, they did not go to the hearing.  So, the background for those applicants was really – the Court found and your Honour found that the primary judge just had not paid attention to that aspect on top of the question of the lack of the attention to the deeming provision.

At paragraph [122] of that joint judgment in essence saying that their behaviour before the Tribunal was consistent with their behaviour before the Department, that – and at [123] there was that ‑ to look at their approach throughout the whole process. 

Now, the last passage or passages is in the judgment of your Honour Justice Edelman at paragraph [140] which is on page 741 and there your Honour refers to additional matters that went to your conclusion that it was not unreasonable and the first was the reference to the “fair, just, economical . . . and quick”, which Justice Gageler had earlier referred to, and then the deeming provision, and again the relevance of section 422B. 

And your Honour then in [141] refers to their history, the fact that they were obliged to notify change of address, the deeming provision and then, as your Honour said at the conclusion of [141]:

It would have been reasonable to infer that a rescheduled hearing before the Tribunal might have been futile. 

So, again the circumstances of that case and the legislative regime in summary that led to that decision were that the appellants had ‑ or the respondents I should say in that case ‑ had not been engaged in their process and that it was hardly surprising that the Tribunal decided to proceed without taking any further action.

The contrast we submit here, and it is set out in the outline, and I took your Honours to some of the relevant portions of his involvement, is that it is hard to imagine an applicant, a refugee applicant, being more involved.  He attended his transfer interview; he attended his refugee status determination interview; he gave them additional documents; he then files a statement taking issue with the matters in the earlier determination against him.  He then amplifies his claims and says, this is a summary and I will be able to amplify them, or not quite his words, but at the hearing.  And then the lawyer’s submission two days before the hearing is saying that he is going to be able to provide information at the hearing. 

So that by the time of 6 May it is submitted that his non‑attendance was remarkable or out of character or out of the ordinary, whatever description one has and, like the appellant in Kaur, that active involvement pointed all in the direction that he was going to be and wanted to be actively involved in his case.  Now, added to that in terms of the question of reasonableness, what we submit is that the Tribunal was well aware that he claimed to be suffering from a mental illness, part of which was in relation to his memory.

So that when the Tribunal is confronted with the situation where there is effectively – or there is no appearance, the factor that he claimed to suffer a mental illness was, in our submission, relevant to the exercise of their discretion and it did not need a report from a psychiatrist or a psychologist.  It was sufficient that the claim was made, in the same way that refugee applicants make a large number of claims about a large number of aspects, but it was something that he – he was unwell at the time of the refugee status interview.  He makes it very clear that he is unwell at the time of making his statement.

So, it is submitted that is a relevant factor in the Tribunal determining, well, we have two choices here.  We can seek to find where he is and why he is not here.  It would appear the lawyers are not there.  So normally what one would have expected is that if there is a lawyer, it does not appear there is any formal - on the record like a formal case, but one would have expected a call to the lawyers to say, your case is on, what is happening? 

But that leads us into the issue in relation to judicial notice because it is again in contradistinction, say, to the case that your Honours delivered judgment in recently.  It is submitted that - it is self‑evident that Nauru is a very small place and we would seek to take that submission further.  The Court has heard in the earlier case this morning and in here of refugee processing centres.  We would seek to take that further by saying there are three refugee processing centres and the appellant could only have been in one of those three.

But if the Court is against us on that further detail we would still rely upon the fact that Nauru is very small and there are a very limited number of places that a person could be and also a very limited number of places that the lawyers, the claims assistance providers, could be as well.

So when one factors in that he is someone who claims to have a mental illness, who has been involved in his case literally until two days before, via the most recent correspondence, the submission, then acting reasonably it is our submission that the Tribunal – and we accept it is but a factor, as her Honour the Chief Justice said, but in this case it is a factor that is of some significance because if one is in Melbourne or Sydney and a person has not appeared the prospect of trying to find them or contact them may not be an easy task.

One could say you do not need to do that but given the confines and the ease with which it would have been to make that inquiry of either himself or the lawyers who had submitted the submission, in the context of the history of the matter and the context of his claimed mental illness, we submit that that points to this decision being outside the bounds of reasonableness.

The last point we make in our outline is the statutory context which, of course, is significant and relevant, as are the factual circumstances.  We there draw attention to matters I think I have already touched on – that is, that there is not the equivalent efficiency provision.  There is no deemed service.  There is no authorised recipient and also a matter that was touched on I think by your Honour Justice Edelman in the passage that I referred to earlier in SZVFW, there is no obligation to notify a change of address in Nauru, and perhaps not surprisingly because there are not many addresses one can be at.

Those distinctions in our submission in totality take the decision that was made to, in circumstances where he had been on the island for something like – he arrived in September 2014 – so at least two years.  One could say that the principal purpose for him being there was to seek refuge in those circumstances without a history of non‑compliance or obfuscation or continual deferrals - that this was a case that warranted the Tribunal not exercising its discretion to just proceed without him.  So they are the matters, unless there are any other matters.

GAGELER J:   Thank you.  Mr Kennett.

MR KENNETT:   Your Honours, both grounds are, of course, new.  Ground 1 is something that was not raised at all below.  Ground 3 overlaps with issues that were canvassed below.  You will have seen in the written submissions that we resist ground 1, in particular, on the basis that it does turn on questions of fact which might well have been the subject of evidence.

EDELMAN J:   It would not turn on questions of fact if “given” were construed to mean “given personally and directly”, would it?

MR KENNETT:   It may still, your Honour, for this reason.  What it ultimately comes down to, on our understanding, is whether the Tribunal had available to it the power in section 41 which is predicated on the review applicant having been invited to attend a hearing.  Now, that does not, at least, in terms, call for an analysis of whether every part of section 40 was complied with let alone whether the Tribunal correctly construed section 40.

So, when our friends say in their reply that one can find an error of law and then remit the case for fact finding about whether it had an effect, that does not work, in our submission.  There would only be relief if there had been a purported exercise of section 41 in circumstances where it was not available and that must depend, we would say, in part on the factual questions that we have identified.

NETTLE J:   Meaning thereby that CAPS passed on the information to him.

MR KENNETT:   Yes.  Well, did CAPS pass on the information, who precisely are CAPS, what are their responsibilities, were they – what authority did they have to receive communications on behalf of this applicant or applicants generally, matters of that sort.  There is, as your Honours will have seen in the written submissions, a provision in Nauru’s Interpretation Act that allows for documents to be served on a representative.  There may well be evidence that could have been led about whether that relationship existed between ‑ ‑ ‑

NETTLE J:   Although you seem less than assertive as to whether it was, in fact, service of a document within the meaning of the provision, at least, within your written submission.

MR KENNETT:   We would wish to be able to rely on it.  We would wish to have the evidence, assuming it can be found, to make that submission.  It is a hard submission to make in the evidentiary – in the relative vacuum in which we currently find ourselves and this is part of the reason why we say ‑ ‑ ‑

EDELMAN J:   It is just a question of law, though, is it not, the question that Justice Nettle is putting to you, which is whether “given” means “served” to get the benefit of the section 101 of the Interpretation Act?

MR KENNETT:   I follow that, your Honour.  Yes, that is right. 

EDELMAN J:   That is the way you get into the agency point because you construe “given” as meaning “served”.

MR KENNETT:   Yes, I accept that, your Honour.

NETTLE J:   But you also seek to get there by common law agency either actual or ostensible, do you not?

MR KENNETT:   Yes, yes.  Or we would but can I ‑ so, the first aspect to this, we would say, is that it is because of where this ground has to get to it is not enough to say here is an error of law, the ground is made out, therefore if there are factual questions hanging over, we send it back.  That would not be a circumstance in which reviewable – in which appealable error had been identified and in which it would be proper to send the case back for fact finding.  In order to find the appealable error, one would need to find that the – that the error of law, if it be so, had led to steps being taken which were beyond the statutory power. 

GAGELER J:   Well, let us take that in some stages.  There was an exercise, or purported exercise of power under section 41, a jurisdictional precondition to which is that the applicant had been invited to appear.

MR KENNETT:   Yes.

GAGELER J:   Is that reference in section 41 to an invitation under section 40?

MR KENNETT:   Well, one way in which we would put this is no, not in terms.  So there are really and I have – there are three levels of response, I think, and your Honours can see them, I hope, reasonably clearly in paragraphs 4, 5 and 6 of our outline.  The first one is to say one cannot find, on the existing material, that the appellant had not been informed of the time and place of the hearing.  Rather, we would say to the extent that the material does support an inference it supports the opposite inference because as we have seen, quite soon after the invitation was dated we had a supplementary statement that was quite detailed that had plainly been prepared with assistance.  We had the very detailed submissions of the appellant’s solicitors ‑ ‑ ‑

EDELMAN J:   But that only supports you if “given” is read as “received” or read as “given or received”.

MR KENNETT:   Well, your Honour, at our first level, and this is the point we make in paragraphs 26 to 28 of the written submissions, and we draw a comparison there with the refugee case in this Court, SZIZO, and say even if there was not compliance with section 40, its purpose was achieved.  An invitation to the hearing was effected and there is no sensible basis upon which one would read section 41 as not being available.

EDELMAN J:   That submission is in more than little tension with your submission about “given” meaning “service”.

MR KENNETT:   It is in a different universe, your Honour, by which I mean that section 41 does not refer to section 40.  It does not say “invited in accordance with section 40”.

GAGELER J:   Gosh; it does come next after section 40.

MR KENNETT:   It says “invited” and we would submit it can properly be read as referring to a case in which an invitation has been effected.

EDELMAN J:   It uses exactly the same words as the heading to section 40.

MR KENNETT:   It does, although “invite” is not necessarily a term of art.  There is no functional - or there is no reason other than words why one might wish to say a person who has been informed of the time and place of the hearing and does not appear is not subject to the potential exercise of the jurisdiction - of the power in section 41.  So it would be to prefer form over substance to say there was a breach of some aspect of section 40.  He still found out about the hearing.  He was still able to be there.  Because there was technical noncompliance with section 40, the Tribunal did not have available to it the power in section 41.  That is the first way we would seek to put this.

The second way is in paragraph 5 where we note that section 40 does not prescribe the form of an invitation; it prescribes some of its contents and it does not give a list of ways in which the invitation is to be conveyed.  It uses the word “given” in subsection (3), but that is perfectly capable of being read, we would say, as just meaning conveyed.

It should not be understood to mean served personally.  If it does, then “served personally by who” would be the next question.  It is presumably not envisaged that Tribunal members have to go and find people and serve them so this would be always be effected by an officer or an agent of the Tribunal and so we come back to the question of ‑ ‑ ‑

EDELMAN J:   What about the history of all of the Interpretation Acts that unlike section 101 that defines “serve” in terms which include “give” and other similar verbs – for example, the Interpretation Act (WA) says where a written law authorises or requires a document to be served there the word “served” is used or words such as “give”, “deliver”, or “send” and then there is the expanded meaning of “service” allowing for service by post and so on.

MR KENNETT:    In section 100 of the Interpretation Act and it is behind tab 11 in the bundle of authorities ‑ ‑ ‑

EDELMAN J:   I see.  You have the “give” that comes in under 100, rather than 101.

MR KENNETT:   Yes.  My junior has just reminded me of that, your Honour.  So we then get, as we would submit, “give” equated with “serve” and then “serve” is the term used in section 101.

EDELMAN J:   So then you have the factual issue, you say, about whether or not Ms Alexander was authorised.

MR KENNETT:   Yes.

EDELMAN J:   Right.

MR KENNETT:   Now, as to that, your Honours may have noticed a couple of things about the documents in this case.  Firstly, the document at page 47, which is the communication to Ms Alexander, is brief, very concise and would be a strange thing to write in the absence of some pre‑existing arrangement for CAPS to do something with these invitations.

GAGELER J:   A pre‑existing arrangement between what parties?

MR KENNETT:   Well, at least between the Tribunal and CAPS.  The other thing that may be of some relevance is, if your Honours go back to page 45 in the same bundle, you see the review application form which is a model of brevity and does not include a space for the applicant’s address.  Now, as my friend observed, this might be because there are not all that many addresses to use.  But that, at least arguably, also is predicated on there being some mechanism, some administrative arrangements in place for the Tribunal to communicate through an assistance organisation with review applicants. 

So it is possible, we would submit, to infer that – and this may not get us into the Interpretation Act provision – but there is some form of arrangement whereby Ms Alexander’s organisation had the job of finding applicants and conveying invitations to them and “given” may accommodate being given to the applicant by a person acting on behalf of the Tribunal, but before we get there – and I had rather strayed in what I have just said into paragraph 6 of my outline - but before we get there we would submit, as we do in paragraph 5, that section 40 is satisfied if as a matter of fact the substance of the invitation has been conveyed, that is, the time and place of the hearing and its nature, and we say one cannot find – but that did not occur.

One aspect of my introductory observations about whether these grounds should be in play at all that I forgot to mention is this.  The appellant in his appeal below, that is, his appeal to the Supreme Court, advanced a contention which is irreconcilable with the position he now proposes to take under ground 1, and that is a reason quite apart from evidence why the ground should not be entertained.

At page 31 of the core appeal book is the notice of appeal that was filed in the Supreme Court, and it is enough to look at the first three subparagraphs of ground 1 on page 31.  He said that before the hearing he told his representative that he felt sick and could not go ahead, he did not attend because he was feeling unwell, and he asked his representative to have the date adjourned. 

Now, he does not say it in terms, but none of those propositions make any sense at all unless he is accepting that he knew the hearing was on before it was on.  He now wishes – he was unrepresented at this stage, although we submit that that does not matter.  He now seeks in this Court to maintain an argument that he was not made aware of the hearing.

GAGELER J:   I am not sure he goes that far, does he?  He just says there was non‑compliance with section 40 and, therefore, the extraordinary power that was exercised against his interests under section 41 was unavailable.

MR KENNETT:   Perhaps that might be clarified in reply.

EDELMAN J:   But there is no inconsistency between him saying I had heard about it and him making a submission in this Court contrary to your submissions, for example, but it is not sufficient compliance with section 40(3) for a person to be told of the substance of the invitation, say eighth hand, by another refugee at the centre.  If your submission were correct, then it would not matter how the message got to him provided he has ultimately heard it and it does not matter how unreliable the person is that tells it to him, the message has been conveyed.

MR KENNETT:   If my first answer is right then that would be so, eighth, ninth, tenth hand, it would not matter.

EDELMAN J:   It seems a remarkable construction.

MR KENNETT:   We would submit, no, because section 41 turns on textually the fact of an invitation, not an invitation in a particular form or in compliance with any particular regime.

EDELMAN J:   No, but an invitation is given, not an invitation that is received.

MR KENNETT:   Well, I am talking about section 41 and what it must turn on in the sense of legislative intention is a circumstance in which it is rational or appropriate that the Tribunal would be empowered to proceed without taking further steps to hear from somebody and those circumstances arise as a function of reality.  I am harking back to SZIZO again, functions of reality and practical considerations and actual fairness rather than compliance with particular requirements of section 40. 

So, if our friends – if the position against us is not that he did not know but that, to the extent that he did know he found out about it, or to the extent that he did know there was non‑compliance with some part of section 40 then that is a rather more technical, with respect, ground and a rather less meritorious one, with respect, because it is seeking to rely on a non‑compliance with a section of the Act which is not shown to have had any real effect in terms of production of any unfairness.

For the reasons I have sought to indicate, we would submit that section 41 should not be read in the way that it is apparently being construed on that argument.  Those are our submissions in relation to ground 1.            I would like now to move to ground 3 which is a legal unreasonableness ground and therefore, as my learned friend says, a fact dependent argument. 

The present case, of course, is different to the facts in SZVFW.  The applicant – the review applicant there, as we have seen, had not engaged with the process.  The present applicant did engage with the process up until just before the hearing.  That does not, of course, make SZVFW a case against us or in favour of our learned friends, it just makes it a different fact situation. 

In the present case, as in any case of legal unreasonableness, the statutory context and the factual context are both important.  If we are speaking of the exercise of the power in section 41(1), and we are now speaking on the hypothesis that the power was available to the Tribunal, that was a power to be exercised for purposes consistent with the statutory scheme, of course, and on the premise that the review applicant has been effectively invited to attend the hearing.

We have noted some other relevant features of the statutory scheme, one of which was the Tribunal here is exhorted to be fair and quick and also required by section 33 of the Act to complete its review within a particular timeframe.  The evidence in this case does not show how far advanced that timeframe was, because time runs from when the registrar provides a certain body of documents to the Tribunal, and we do not know when that occurred.

So I am not making a submission that this was a case where time was about to run out for the Tribunal, but I am noting as part of the statutory context that a degree of efficiency in decision‑making was something the Tribunal was exhorted and, indeed, required by the statute to pursue. 

Another general aspect of statutory context is that it has often been noted in relation to review – merits review tribunals in this country and the same proposition, we submit, would apply to the Tribunal here, that it is not normally the task of a merits review body either to make an applicant’s case for him or her, or to go out and seek to elicit a case that the review applicant has not sought to put. 

EDELMAN J:   Do you accept that the submission that the lawyers for the applicant were not present before the Tribunal?

MR KENNETT:   We do not.  We do not contend the contrary but we say that the evidence just does not show either way.  There is not, I think it is right to say, any transcript of the hearing.

EDELMAN J:   The chronology is that the submission by the lawyers, the very lengthy written submission, is dated only two days before the hearing.

MR KENNETT:   Yes.

EDELMAN J:   But there is no reference to the lawyers appearing at the hearing or making any submissions or saying anything to the Tribunal that was taken into account.

MR KENNETT:   No.  There is a reference to the applicant not appearing but there is no discussion of whether lawyers were present.  In these tribunals normally the representative has quite a limited role and might very well not be expected to make any submission in the absence of their client.  So I cannot say to your Honours that the lawyers did attend but we would submit that it is not possible to make a finding either way on that question.

What we do know is that the Tribunal had good reason to think that the appellant here was aware of the hearing for reasons that have been adverted to and whether the lawyer was there or not, the Tribunal knew that the appellant was assisted by solicitors and those solicitors had been sufficiently active to write a very thorough submission on the issues before the Tribunal on his behalf.  He had himself, of course, recently provided a further statement.

GAGELER J:   Mr Kennett, what do you say about the contents of the letter to which we were referred to at page 79 of the book of further material, which, at least on a natural reading appeared to indicate that the lawyers expected their client to be appearing before the Tribunal – paragraph 180?

EDELMAN J:   This is in a document two days before the hearing.

MR KENNETT:   That may have been the lawyer’s expectation.  From the Tribunal’s point of view, we have an appellant who is engaged, as our learned friends stress, who apparently knows when and where the hearing is on.  At least he knows it is on.  He has legal assistance.  He does not appear and nor, despite having legal assistance, is any request ever made, including after the hearing, for the hearing to be rescheduled. 

In those circumstances we would say, if a request had been made and the Tribunal had peremptorily refused it or refused it for some irrelevant reason, then that would be a different matter, but he has simply not turned up and despite having assistance, has not made any communication to the Tribunal to give a reason why he did not turn up or ‑ ‑ ‑

EDELMAN J:   Why would not then we draw the inference that his lawyers were not there, given that two days before the hearing there is a submission by the lawyers that it would be reasonable for their client to take his next available opportunity before the Tribunal to provide all the information that he has, then the Tribunal itself refers to the fact that no information has been provided to the Tribunal as to why the applicant has failed to attend the hearing and the Tribunal says that knowing and later saying that the applicant was represented.  There is no suggestion as to any submission or any question that has been put to representatives as to why it was that the applicant did not turn up.  At the very least you would expect a sentence saying the applicant’s representative had no answer for why he was not present.

MR KENNETT:   Such a thing would be normal if the lawyer was present, but its absence does not, we would say, dictate any conclusion on the matter.  The critical point here is that the applicant was not there.  The other critical point is that there is no recorded communication about it and no attempt by him or by anyone acting on his behalf to rescue the situation.  So, in our last paragraph we have sought to draw this together by reference to the matters that our learned friend had stressed on this ground.

The first of those was that this present appellant had been an active and engaged review applicant, which distinguishes the case factually from some other cases, but it does serve to confirm that he was aware of the review process, that he had assistance and that a reasonable expectation would have been that he would, if he was still wanting to participate – that he would not need to be sought out.  He would not need to be chased.  He would through his representatives make contact with the Tribunal, as he had done in the earlier process, and your Honours were taken to it in the further materials at page 40.  A reasonable expectation would have been that this was a relatively informed and hitherto enthusiastic applicant who, if he did want to participate, would not need to be chased in order to make some representation about a further opportunity to be heard.

The second matter was his claims about his mental state.  The Tribunal ‑ your Honours have been taken to the passage ‑ the Tribunal was unsure about the purpose for which that issue was being raised.

But the point is that it was never crystallised into any sort of explanation for non‑attendance or any plea to be allowed a further opportunity.  While I am here in paragraph (b) of my outline at the top of page 3, there is a typographical error, where it says “request by the Tribunal”, that should say “request to the Tribunal”.

The final matter is no doubt the Tribunal could have sent a message to the appellant.  The fact that Nauru is a small place, we would submit, does not take that proposition very much further unless it is being suggested that the Tribunal itself or one of its officers should have gone out straight away and walked around the regional processing centre looking for the appellant, that would be something unlikely to be productive. 

GAGELER J:   Mr Kennett, we are invited by Mr Gilbert to take judicial notice of four relatively specific assertions of fact, paragraph 14 of his outline.  Can we do that?

MR KENNETT:   The first is uncontroversial but really does not take things very far.  In some ways, it might be easier to find people in Sydney or Melbourne with excellent internet connections than on a small island but (a) is uncontroversial so far as it goes.  The proposition about where the appellant would be is, I think, intended to be drawn from legal requirements in place as at that time and we say something about that in paragraph 36 of our written submissions.  So, that is not clear, we would say.  I am unsure of the significance of (c).  It can be accepted that a lawyer would be likely to have an office and a telephone where the lawyer could be contacted.  That is not something specific to Nauru. 

EDELMAN J:   And could be contacted easily by telephone.

MR KENNETT:   Normally, normally, sometimes lawyers are not there when you want to talk to them but as a general rule, yes, somebody with an office is usually able to be contacted through the office at reasonably short notice.

Paragraph (d) is rather too rolled up for us to accept as a whole.  It certainly must be true that it was available to the Tribunal to – finding out

where the appellant might be, unless it was to be done instantly so the Tribunal could go and have the hearing wherever he was.

It is probably not the critical matter here, but it would have been possible, of course, for the Tribunal to seek to get a message to him through his legal representatives or through CAPS to invite him to give a reason why he had not attended and ask him whether he wanted to have another opportunity.  Of course that was possible.  It was not any, we would submit, to any great extent, easier or harder on Nauru than anywhere else, but that is only a – the availability of the mechanism, of course, does not point to unreasonableness in not using it.  It is a given that that was possible.

The question is, were there circumstances that meant it was unreasonable in the sense of outside the Tribunal’s power for it not to take that step before taking the statutory decision that it did.  We would submit, no.  The step that the Tribunal took was one clearly contemplated by the Act as a mechanism for assisting it in getting through its caseload.

GAGELER J:   Mr Kennett, this may seem a silly question but the discretion under section 41(1) I take it was a discretion that was exercised on 3 July 2016, the time of making the decision as distinct from 6 May 2016, the date of the scheduled hearing.

MR KENNETT:   I think analytically that must be right, your Honour.  There was probably a point in time where the Tribunal made a decision to take that course, but it did not irrevocably commit itself to that course until it made its decision.  So that would be the point at which, I suppose, reasonableness has to be tested.  Those are the submissions, if the Court pleases. 

GAGELER J:   Thank you.  Yes, Mr Gilbert.

MR GILBERT:   Just briefly some matters, your Honours.  In relation to section 40 and its interplay with section 41, it is our submission and apart ‑ as well as the heading that your Honour Justice Edelman referred to, the sections follow one from the other and use the same wording, so it is submitted that it is clear that the invitation to appear is one which is referred to in the previous section. 

My learned friend referred to a case of SZIZO and just briefly in relation to that, that was the most unusual of circumstances where the invitation to hearing was sent to the first or the principal applicant, but there was an authorised recipient, and all of the family and the authorised recipient went to the Tribunal and went to the hearing and then later on there was an argument that it should not have been sent to the applicant; it should have been sent to the authorised recipient.  So that circumstance is sufficient to distinguish it from the present because in that case everyone went to the hearing.  They had the hearing and there was just effectively a technical argument that it had not been complied with.

On the question of authorisation of Ms Alexander, the only time that her name appears anyone in the material is on the letter.  There is a reference earlier to a different person from the CAPS organisation as somebody who helped him with his refugee application, but it is not the same person and so there is no other material to suggest that she in particular was his lawyer and acting on his behalf, and as I think we said earlier, she was not the one who signed the ultimate submission, in any event.

In terms, though, of the inconsistency, it is submitted there is not an inconsistency because the appellant’s submission is there is a breach of the section that has not been complied with and so there is no inconsistency with what was in the notice of appeal.  But, in any event, the transcript of what occurred before his Honour Justice Marshall ‑ I have not taken your Honours to that – during part of that hearing the appellant was asked through an interpreter if he had anything to say.  It is very difficult to understand what he was actually saying, whether he was talking about his original interview or the Tribunal. 

So if one reads the notice of appeal and the transcript, which was something like 18 months after the Tribunal hearing was listed, it is simply very inconsistent and uncertain.  So the fact that that appears in his notice of appeal, it is submitted, should not prejudice him.

Our learned friends referred to section 33 and the 90‑day question.  Granted, we do not know when that 90 days began but subsection (2) of 33 refers to a failure to comply with that section not affecting the validity of the decision on an application for merits review.  It is there that it is submitted that it does not assist the respondent because it is no comparison to section 420 of our Act. 

The question in terms of whether the lawyer was present – it is unfortunate that the Tribunal decision does not deal with that question but it is our submission that it would be astounding if a lawyer was present and the applicant was not, that the lawyer would not have made some request for an adjournment or asked for the matter to be stood down, and the complete absence of any reference to any of that material supports the inference that the lawyer was not present.

It would be extraordinary as well that if the lawyer was present, say, when the applicant was not, that the lawyer would sit there through the hearing and say absolutely nothing.  There is no statutory restriction – there

is a statutory restriction here in migration matters where a representative needs the leave of the Tribunal to speak to the Tribunal, that is not the case in matters before our Refugee Review Tribunal, but there is no hint in this case that the lawyer would not play some positive role in the proceedings.  So, that for – it really does – it would be extraordinary that if the lawyer was there, said absolutely nothing, and then the Tribunal acknowledges the lawyer’s submission but does not in any other way acknowledge the presence of the lawyer.

And the absence of the request in between the date of the hearing and the date of decision, it is submitted, does not detract from the appellant’s case or assist the respondent’s case, it is simply that there was a period of time during which there was no contact or further contact with the Tribunal.  But my learned friend said that this was an informed – or words to the effect that this was an informed appellant who was engaged in his case and it is submitted that means that it was all the more unusual that he did not attend and this important aspect of him not attending was just simply left hanging.

The final matter in relation to judicial notice is, it is submitted that the applicant was there under the control of the Republic and so different to someone here who is at liberty within the community.  Our submission is not dependent on saying could they have found him in the next five minutes and had a hearing.  Practically speaking, they may not have been able to, but it would have been a relatively easy task to stand the matter down and if some answer could not be found to reschedule the hearing.  But essentially though, the Republic must have been able to know where he was.  It is not like someone here who could be living almost anywhere and so it is submitted that the aspects of judicial notice that we seek are well within the range of matters that this Court can accept.  Thank you.

GAGELER J:   Thank you, Mr Gilbert.  The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.39 PM THE MATTER WAS ADJOURNED