Uelese v Minister for Immigration and Border Protection & Anor
[2015] HCATrans 48
[2015] HCATrans 048
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S277 of 2014
B e t w e e n -
PETER UELESE
Appellant
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FRENCH CJ
KIEFEL J
BELL J
KEANE J
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 5 MARCH 2015, AT 10.01 AM
Copyright in the High Court of Australia
MR N.J. OWENS: If the Court pleases, I appear with my learned friend, MR D.P. HUME, for the appellant. (instructed by Marque Lawyers)
MR G.T. JOHNSON, SC: If the Court pleases, I appear with my learned friend, MR P.M. KNOWLES, for the respondent Minister. (instructed by Australian Government Solicitor)
FRENCH CJ: There is a submitting appearance for the second respondent. Yes, Mr Owens.
MR OWENS: If the Court pleases. Your Honours should, I hope, have been handed three documents. The first is an amended notice of appeal, for which leave is sought by the appellant but with the consent of the respondent. The purpose of the amendment is to address an issue that the Minister has raised, namely, that the record does not allow one to know whether the additional information was extracted under cross‑examination by the Minister or by questioning of the Tribunal. The amendment is simply designed to accommodate either possibility.
FRENCH CJ: Just a minute. Yes, you have leave to amend accordingly.
MR OWENS: If the Court pleases. The second document is our outline of oral submissions, and the third document is a letter which was referred to in footnote 12 of our written submissions; it was in evidence below, but it did not make its way into the appeal books. I simply provide that to your Honours.
FRENCH CJ: Yes, thank you.
MR OWENS: The appeal raises two questions concerning the proper construction of section 500(6H) of the Migration Act, the text of which your Honours may find it handy to keep close by. The first relates to the sort of information to which the section’s prohibition operates, i.e. information presented orally in support of an applicant’s case.
The second question concerns the condition upon which the operation of the prohibition depends, namely, whether notice of the information was given to the Minister in sufficient time, specifically, two business days before the Tribunal holds a hearing in relation to a decision under review. The context, in which those issues arise, of course, is as follows. The Minister or his delegate made a determination under section 501 of the Migration Act to cancel Mr Uelese’s visa on the grounds that he did not satisfy the character test. Mr Uelese made an application pursuant to section 500(1)(b) of the Migration Act to the AAT for review of that decision, and on the hearing of that review the Tribunal determined that it could not take into account any information concerning Mr Uelese’s two youngest children.
Absent section 500(6H) there is no dispute that section 499(2A) of the Migration Act required the Tribunal to comply with Direction 55, which is on our list of authorities and I hope that your Honours have it. That direction required the Tribunal to take into account the best interests of Mr Uelese’s minor children in carrying out its review. It required those interests to be taken into account as a primary consideration. If your Honours have Direction 55, the relevant clauses – the principally relevant clauses are 7 through 9. Your Honours will see in 7(1)(a) the decision‑maker:
must take into account the considerations in Part A or Part B, where relevant –
In 8(1) ‑
Decision‑makers must take into account the primary and other considerations relevant to the individual case –
In 8(4) ‑
Primary considerations should generally be given greater weight than the other considerations.
Part A, clause 9 then deals with the primary considerations. Section 9(1), critically (c), says:
The best interests of minor children in Australia –
are a primary consideration. Then if your Honours turn over a few pages to clause 9.3 your Honours will see that requirement fleshed out in a bit more detail. Subclause (1) provides that:
Decision‑makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
Subsection (2) clarifies that it applies only to children who are expected to be under the age of 18 at the time the decision to cancel is made. Subsection (3), if there is more than one child, each child’s interests are to be considered individually “to the extent that their interests may differ”, and then subclause (4) sets out a whole range of specific matters to which the decision‑maker must have regard. The existence of the two youngest children was ‑ ‑ ‑
FRENCH CJ: Of course, all this links into the general obligation of the Tribunal to undertake a review.
MR OWENS: Quite, and I will come – in the context of addressing specifically the questions of construction, one of the matters to which I will refer is the other provisions of both the Migration Act and the Administrative Appeals Tribunal Act which define the function of the Tribunal, critically, as your Honour has pointed out, to review the decision and the necessity to give a harmonious interpretation to all of those provisions is something upon which we place reliance.
The children’s existence was disclosed in material before the Tribunal, and your Honours can see that in the appeal book at page 157 which is the first place in the appeal book where inmate profile documents are found. They continue on for another – up to page 179. They all look pretty similar and there is no need for your Honours to, I think, look at them individually. If your Honours look at page 158, under the heading “Visitors” at line 30, your Honours will see a column that says “Relationship”.
If your Honours scan down five down there, your Honours will see “Daughter”, “Son”, “Mother”, “Daughter”. The “Daughter”, “Son” and “Daughter” in that group are the three oldest children who the Minister and the Tribunal did take into account their interests. But if your Honours drop down another six or so, your Honours will see “Son” and then another five or so under that “Son” again. Those are the two younger children whose ‑ ‑ ‑
NETTLE J: Who is the mother there?
MR OWENS: Of those two? I am sorry, I will just check the book.
NETTLE J: That is to say, the second mother of the two children.
MR OWENS: Yes, I understand.
BELL J: It is Ms Vakauta, is it not?
MR OWENS: It is. The address is at least broadly similar; it is about four above the first son.
NETTLE J: Yes, thank you.
MR OWENS: Your Honour will see that address is given as a number 26, whereas the son’s address is number 20, but I think that must just be a typographical error. During the cross‑examination of Mr Uelese’s current partner, Ms Fatai, additional information about the two younger children emerged. Your Honours see that in the Tribunal’s reasons, critically at paragraph 4, which is on page 182 of the appeal book, and also in paragraph 64, which is on page 199. If your Honours turn to the second of those, page 199, your Honours will see about halfway through paragraph 64, the Tribunal said:
I cannot take any consideration of their situation into account –
and then says –
although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home.
All the record discloses is that there was some additional information; at least that she is referred to in paragraph 64, about these children. That was before the Tribunal which emerged during, as I say, either in response to a question put by the Minister or in response to a question asked by the Tribunal about these additional children. At the end of the day, the Tribunal said, “I cannot take . . . into account” their situation.
At paragraph 4 ‑ I apprehend that something will be made of this ‑ it is stated that the effect of section 500(6H), which was stated to be complete prohibition on considering this information, was acknowledged by Mr Uelese’s representative and that, in my submission, needs to be understood in the context of the prevailing authority at the time.
Now, at the time of the Tribunal hearing, the construction of section 500(6H) had been pronounced upon by the Full Federal Court in the decision of Goldie v Minister for Immigration (2001) 111 FCR 378. Now, rightly or wrongly, the decision in Goldie had come to be understood as saying that section 500(6H) imposed a blanket prohibition on the Tribunal, having regard to any information that was helpful to an applicant that had not been notified to the Minister at least two days before the hearing commenced.
Now, I say rightly or wrongly because if your Honours go to paragraph 25 of Goldie and the sentence that goes from the bottom of page 389 over to 390, your Honours will see that really the Full Court there, or Justice Gray, with whom the other members agreed, did not, nor did his Honour need to, I should say, go much beyond repeating the statutory language. So, it is not as if Goldie there really offered much of a gloss or an exposition on the meaning of the statutory language but, nonetheless, that statement came to be regarded as imposing, as I say, this broad or blanket prohibition.
Your Honours could see that ‑ I do not wish to take your Honours to it, and it is not on our list of authorities, although I have a copy if your Honours would like me to hand it up ‑ the decision in Milne v Minister for Immigration (2010) 52 AAR, which is Administrative Appeals Reports, at page 1, specifically at paragraph 40 but your Honours get a clear enough picture of what the prevailing position was from the submissions that were put by the Minister as to the effect of this section in the case of Jagroop (2014) 314 ALR 597 at paragraph [80]. If your Honours have that, your Honours will see in paragraph [80] there, that the Minister ‑ ‑ ‑
FRENCH CJ: On what page?
MR OWENS: Page? I am sorry, 614. Your Honours will see the submission of the Minister recorded there that:
in the light of Goldie and the authorities which have followed it –
which includes Milne –
subss (6H) . . . should be regarded as applying to every item of information presented and to every document submitted by an applicant less than the applicable two days . . . irrespective of the circumstances –
And, indeed, the extent of the submission is perhaps borne out, if your Honours go to paragraph [102], which is on page 618. Your Honours will see there that it was also submitted that the word “information” went beyond what might be referred to loosely as evidence and included submissions and the like, a submission that was not acceded to, of course, in Jagroop, and, for what it is worth, this broad construction of Goldie was also applied by the courts below in these proceedings. Justice Buchanan at paragraph 20 on page 222 of the appeal book, and the Full Court at paragraphs 29 to 31, appeal book, page 249.
The other aspect of Goldie which is relevant to understanding how matters unfolded before the Tribunal in this case is the decision in Goldie in relation to the potential utility of an adjournment to, as it were, reset the notice period. Goldie, of course, held quite unambiguously in this case that the entitlement to rely on documents or information crystallised on the first day of the hearing with the result that no adjournment could ever re‑enliven the ability to give notice, therefore there is no point to consider an adjournment. So, when we come to consider the adjournment question the prevailing view echoed all the way in these proceedings up to the Full Federal Court is, of course, relevant.
So, that is the background to how this issue all came up. Turning then to the first question of construction, the Minister no longer contends for what I think I referred to as the broad meaning of this section. The Minister’s submissions now in paragraphs 14 and 15 say that ordinarily the prohibition will not apply to information elicited during cross‑examination, either by the Minister or the Tribunal, nor information presented in reply, but what the Minister then says is there is a “qualification” to the effect that the prohibition will continue to apply if the applicant could reasonably have anticipated. Then the Minister says, could reasonably have anticipated that the information would support the applicant’s case.
The Minister says that that qualification is the same qualification that the Full Court read in Jagroop, and I will come to this in a moment. We can put to one side for the moment whether or not they are, in fact, exactly the same because my submission is no qualification of either kind would be read in and I will explain why in a moment. But at least ostensibly we have moved some way along towards what the applicant has been saying because the Minister now accepts that the starting point is information that comes out under cross‑examination, is not caught by the prohibition. The only question is now is there this qualification and if there is was it satisfied in this case.
Now, there is an obvious immediate point that arises in relation to this contention of the Minister now which is it cannot be, we think, seriously disputed that that was not the construction that the Tribunal gave to section 500(6H). It cannot be suggested, it certainly does not appear in the Tribunal’s reasons, that the Tribunal asked itself whether Mr Uelese could reasonably have anticipated anything in relation to this evidence. So there would still be an error of law even on the Minister’s new construction.
There may perhaps be an argument about whether relief would be granted if it could be said that no possible different outcome could result, and I will say something about that in a moment, but I just make the point that even on the Minister’s new theory, it seems to involve implicitly an acknowledgement that there was an error of law that occurred at the Tribunal stage. The Jagroop qualification is found in a couple of places, but if your Honours go to paragraphs [96] and [97] which is page 617, their Honours there said that in [96]:
We conclude that the words “in support of the person’s case” in each of subs (6H and (6J) are words of qualification.
We adopt that and urge it upon your Honours and the Minister does not seem to dispute that:
They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case‑in‑chief . . . not to information or documents which an applicant may wish to present in answer to the case presented by the minister and which, at the least, the applicant could not reasonably have anticipated.
Then, the reasonable anticipation test is perhaps fleshed out a bit more at the end of the next paragraph [97] where it says:
at least when the applicant could not reasonably have anticipated the evidence or issue raised by the minister.
Now, one matter that, I think, is important to keep in mind in looking at Jagroop is that the question in Jagroop was genuinely reply evidence. What had happened in Jagroop was there was a psychologist’s report that relied on a particular metrical model that was put before the Tribunal to assess the prospects of the applicant in that case reoffending and after the hearing, the Tribunal went away and did some research and found some academic commentary that said that metrical model has some problems and used that as a basis for saying – to disregard the evidence that had been put before the Tribunal.
So, what the Full Court in Jagroop was dealing with was a situation where it said this was genuinely evidence in reply to a case or to an issue that was raised by the Tribunal. This case, of course, is different. We are not talking about evidence in reply. We are talking solely about information that was only before the Tribunal because either the Tribunal or the Minister asked a question which elicited that answer.
The point that I wish to make about that then is that one of the matters I will come to in a minute is to say that there is absolutely no textual foundation for reading in the general qualification that the Minister proposes but if the decision in Jagroop is understood as rather raising perhaps a test for when evidence will truly be evidence in reply and by that I mean by analogy to the sort of principles that are applied in ordinary civil litigation and, indeed, criminal litigation in courts about when a party will be able to reopen its case or split its case.
Your Honours know the area that I am talking about, if the evidence was unable to be foreseen or there are exceptional circumstances and so on. So, if one remembers that Jagroop is talking about evidence in reply, strictly, and then one looks then at this concept of could the applicant have reasonably have anticipated it, it may be a useful test for determining in a particular case whether evidence is actually evidence in reply and therefore excluded from the prohibition. But what it should not be, in my submission, is a general exclusion of any evidence that is solicited in cross‑examination or which is sought to be raised in reply for reasons to which I will now turn.
The first and primary matter, frankly, upon which we rely, is we say the plain and ordinary meaning of the statutory language. Now, the words presented orally in support of a person’s case, albeit that they demonstrate well the vice in legislative drafting in the passive voice, can only, in our submission, be referring to information that is presented by the applicant – I do not mean personally but as part of their case, a witness they call, a document that they tender.
FRENCH CJ: The use of the word “case” or term “person’s case” brings in an almost adversarial overlay into what is not readily characterised as an adversarial process traditionally.
MR OWENS: No. To that, I suppose, the first point to say is that the statute uses the word “case”. So, I am not sure whether your Honour is putting this to me, but my submission would be that one does not read “case” as a strict concept of case in the same way that one would read it in ordinary adversarial litigation.
FRENCH CJ: It does not view the whole of the Tribunal proceedings through the prism of the term “person’s case”.
MR OWENS: Quite, and equally, though, I do not think I can take the point too far in the other direction, because as the Court has observed on several occasions, although the Tribunal’s procedures are inquisitorial, that does not detract from the fact that nonetheless, it is to be conceived of a process whereby an applicant comes to the Tribunal and says “this is my position”, to perhaps use a different word.
The term “case” cannot be understood as it would be applied in the adversarial context; it has to be understood in the context of the Tribunal’s procedures which are flexible, and which critically anticipate a substantial role for the Tribunal itself to raise issues and to determine the correct and preferable decision, but equally, I do not wish to be taken to be making the extreme submission that there is no concept of “case”. If nothing else, the word is used in the statute; it has to be given some context in that regard.
FRENCH CJ: Are the interests of the children required to be considered under the direction and pursuant to our international obligations to be again looked at only in the context of a person’s case, or do they have some larger significance than that?
MR OWENS: Our submission is they have a larger significance because when one is looking – and I am jumping ahead a little bit here but when one looks at the obligation of the Tribunal to afford procedural fairness in exercising its functions, it is, we say, particularly important to understand that that obligation is owed in a context where there is a mandatory requirement for the interests of people who are not parties to the proceedings to be considered.
Indeed, the whole point of Article 3 of the Convention on the Rights of the Child, and presumably it was that obligation which was intended to be reflected in Direction 55, is that the interests of minor children are to be taken into account irrespective, as it were, of what everyone else’s interests are in relation to a matter that may affect them. So absolutely, yes, we embrace your Honour’s observation that the fact that we are talking about not simply matters that affect Mr Uelese personally but matters that affect a wider class of persons not represented before the Tribunal is absolutely important.
KEANE J: That feeds into the Tribunal’s inquisitorial role.
MR OWENS: Quite.
KEANE J: It is obliged to find out if it does not know.
MR OWENS: I agree, yes.
FRENCH CJ: That is a distinct question, is it not, from the critical issue question that arises within the adversarial context or the claims being advanced or expressly or implicitly by the applicant?
MR OWENS: Yes. Just to conclude the point that I was making about positively the words of the statute, of course, the flip side of that is our submission is that there is no positive reference to any sort of qualification and, indeed, neither the Minister nor, with respect, the Full Court in Jagroop proposed any textual anchor for either of these qualifications.
The third matter upon which we rely set out in our outline of oral argument is, of course, to use the shorthand, the principle of legality, the principle that legislation affecting fundamental rights must be clear and unambiguous and that ambiguity ought to be resolved in favour of the protection of fundamental rights. We say that there are two fundamental rights that are possibly engaged here.
The first is the procedural fairness obligation, and as I have just discussed with your Honours a moment ago, that is of particular significance where one is talking about – sorry, let me go back a step ‑ where the obligation on the Tribunal is to give proper consideration to information received by it bearing on the issues it must decide, then the fact that the matter it must decide relates to the interests of the minor children, not parties, and vulnerable persons by definition, is an important matter and a construction that would cut down the obligation to afford procedural fairness in that respect ought not to be adopted unless it is absolutely necessary.
It is, in a way, I suppose, stating the obvious to say that the Minister’s construction is to, in a significant field of endeavour, say that the Minister can ask questions and only answers that are helpful to the Minister can be taken into account by the Tribunal – any forensic misstep that the Minister makes can be conveniently brushed to one side, at least where one is capable of saying to the applicant, well, you ought to have had it in your mind that I might ask that question and it would have been helpful for you to have your response worked out.
The second fundamental right that we say is at least potentially engaged on the Minister’s proposed qualification is the privilege of the – the legal professional privilege. The exact content of this qualification, whether it be an objective standard, a subjective standard, whatever, is nowhere spelled out, but at least on some possible versions of such a test it may be necessary to inquire into matters that would be the subject of legal professional privilege as between an applicant and their lawyer. Again, a construction which burdens that right or privilege ought not to be preferred unless it is the only available one.
The fourth matter that we have identified is to say that this construction proposed by the Minister would lead to plain unfairness or absurdity or be irrational or unjust. We have cited the authorities for those sorts of considerations in statutory construction in paragraph 27 of our written submissions. It is really the point that I just made a moment ago that this construction obviates a significant element of risk for the Minister in conducting a cross‑examination and, similarly, it inhibits the Tribunal in raising issues that the Tribunal wants answered or addressed in the context of performing its functions and I will come to them to define them a bit more closely in a moment, but the Tribunal is limited because while there is nothing stopping it asking the question or raising the issue the evidentiary basis upon which it can then act is only going ever to be potentially half the picture, the half that favours the Minister, the half that supports the applicant is conveniently put to one side.
The fifth matter upon which we rely is really an answer to the Minister’s claim that this sort of construction is required because it advances the statutory purpose. Now, it may be accepted that at one level the purpose of this was to be unfair. In Goldie the Court made that observation, that these are drastic provisions. They are designed to disadvantage an applicant, vis‑à‑vis the Minister, but it is not, in my submission, a purpose to be imputed to Parliament that Parliament was intending to be generally unfair or unfair in all respects and, indeed, the very construction that is advanced by the Minister now reflects or respects the idea that, at least in some fundamental sense, procedural fairness is still important.
The Minister now says we accept that answers to questions in cross‑examination, police were not anticipated, and so on, may be put before the Tribunal and considered by it, so that the Minister still accepts it is not unfairness at all costs. So, one needs to look at the particular words to work out what is being done, and if the objective more narrowly defined ‑ and this appears from the explanatory memorandum, I will not take your Honours to it but we have given you the reference in the submissions ‑ the purpose there is clearly stated to be limiting the potential for delay in the review process.
Now, fundamentally that is achieved by the long stop deadline which is imposed by subsection (6L) which says 12 weeks from the date of the decision, if the Tribunal has not made a determination then the decision of the Minister is taken to be affirmed. So, it is not as if there is a huge incentive for an applicant to extend their stay in Villawood for a couple more weeks, particularly when one thinks it would be a rather courageous forensic decision for an applicant to say, I am deliberately going to choose to withhold some piece of favourable information, in my case, in the confident expectation that the Minister will fall into my trap and ask me a question about it, which will enable me to put it forward.
FRENCH CJ: Does the procedural fairness analysis add anything or view any different result from a consideration of the Tribunal’s function of undertaking review, in this context?
MR OWENS: Well, this is a convenient point really for me to move on to the next point, which is how do you give a harmonious construction to all of the relevant provisions and, of course, your Honour observes that the Tribunal’s role is to review the Minister’s decision, that is section 501B of the Migration Act and 25(4) of the AAT Act, and what function that imposes on it is to make the correct or preferable decision, having regard to the state of affairs as they exist at the time the Tribunal makes its decision.
So that is the function or the power that the Tribunal is exercising and the obligation is to afford procedural fairness in the discharge of that function and one consequence of the Minister’s construction is, of course, that the state of affairs by reference to which the Tribunal is required to make the correct or preferable decision in performing its function of reviewing is that it will be a state of affairs which from a particular point in time can only move in one direction against the applicant and in favour of the Minister, notwithstanding the fact that the Tribunal may know that the position is different, it is prohibited by this section from having regard to such information.
So when one looks at the review function and couples that with the Tribunal’s ability to inform itself on any matter in such manner as it sees fit, 33(1)(c), the Tribunal’s power to require any person who is a party to the proceeding to provide further information in relation to the proceeding, that is 33(2)(a), these functions are all significantly cut down by this construction.
FRENCH CJ: Well, you say that supports a narrow construction of 500(6H) to make it as harmonious as possible, as it were, with the overarching function of the Tribunal.
MR OWENS: Quite, that is exactly the submission, your Honour.
FRENCH CJ: One does not need to resort to – I mean, procedural fairness, when one is talking about the hearing rule, I suppose, overlaps with the notion of having complete information.
MR OWENS: Yes, quite.
FRENCH CJ: Quite apart from normative concepts of fairness.
MR OWENS: Quite, and in this case the aspect of procedural fairness is having regard to information which is before you which is relevant to an issue that you are required to consider and determine under, in this case, the direction. That is, I think, really what I wanted to put in relation to that first question of construction. I did just want to come back very briefly to the point I flagged at the beginning which is even if one were to adopt the Minister’s construction, the result seems, in our submission, to be inevitably acknowledgement that there was an error of law because the Tribunal did not ask itself could Mr Uelese reasonably have anticipated whatever it is one is required to anticipate.
Now, in that context, if it be said – it is not said expressly but I am confident that it will be put that, well, how could the Tribunal have come to any other conclusion than he must have been able to reasonably anticipate that these children would be a matter favourable to his case? Our submission is simply to say one cannot be so confident on the basis of the record. There may be a range of reasons about which we know nothing and can only speculate about why Mr Uelese may have anticipated that information about these two youngest children would not be supportive of his case.
To take one example, at the special leave application your Honour Justice Keane postulated that it may have been a deliberate forensic decision by Mr Uelese to select as his best case the presentation of himself as having a stable family life with one partner and one set of children to that one partner. He may have thought that is my best case. Now, in circumstances where – and in that case, obviously, it may be that the existence of these other two children, in Mr Uelese’s logic, may have been unfavourable to his case.
I emphasise this is pure speculation on my part, but it is a possibility, and in circumstances where that primary case you have only one partner with one set of children gets exploded by reason of questioning from either the Tribunal or the Minister, at that point the existence of those other children is there, it is before the Tribunal, their interests are required to be taken into account. One cannot say inevitably that on the Minister’s construction the Tribunal must have decided that it could still not have regard to this information, but the possibility is there, the inquiry was not undertaken, so this Court could not say that if the correct construction as propounded by the Minister was adopted that the result would inevitably have been the same.
Turning then to the second question, which is what I will call the adjournment issue, it is not that the statute itself talks about whether adjournments are possible, it is whether the statute would permit the notice period to be reset, because if it did not, an adjournment could never have any utility so one would not even bother asking oneself whether an adjournment ought be granted. Again, by way of pre‑emptive strike, it is put against us that no application for an adjournment was made at the hearing before the Tribunal.
All one can say about that is the record does not disclose one way or another whether an application was made, but in circumstances where Goldie was the Federal Court authority applicable at the time – and Goldie, which had been applied many times over 10 years, says you cannot reset the notice period and an adjournment cannot cure this problem – it would be unsurprising if the applicant’s representative before the Tribunal thought that there was no point in asking for an adjournment. At that point, one is down to saying ought he have preserved his position by flagging a challenge to at least the Full Court level, to Goldie, and our submission is no, that cannot seriously be suggested as a matter that could be raised against him on this part of the case.
Coming back to the statute, the question is whether the requirement to give notice at least two business days before the Tribunal holds a hearing really means two days before the hearing commences, or two days before any day on which the Tribunal holds a hearing. Goldie, of course – and this is at paragraph 31 – read in the word “began”, “before the hearing began” and, of course, that is the construction that the Full Court adopted in this case at paragraph 33(b).
In our submission, by focusing on the Tribunal holding a hearing rather than saying “when the hearing commences” or such like – and I am fully cognisant of the difficulties in saying Parliament could have done this better if that was what it wanted to achieve – but the fact is it could have said “by reference to when the hearing commences”. It did not, it says “holds a hearing”, and I do not think it is really in dispute that the Tribunal holds a hearing on any date that it sits. We do not say that it is a different hearing on any day, or that an adjourned hearing is a new hearing; it is not, it is one hearing, but the Tribunal holds a hearing on each such day.
Can I just draw to your Honours’ attention section 36 of the Acts Interpretation Act? I have copies if that would assist – I am sorry, I think your Honours have it. We simply observe, if your Honours look at section 36, which is about the calculation of time, item 7:
is expressed to end before a specified day –
The example given there is –
If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May –
We just draw to attention that Parliament is alive to the possibility of defining a period by reference to the day upon which a hearing starts, and it did not do so in this case.
The evident statutory purpose of this provision is to give the Minister time, although we emphasise not much time, two business days, to deal with an applicant’s foreshadowed case. That purpose, of course, is not undermined at all by the possibility of an adjournment. Now, we accept, of course, there is a further purpose to the statute which is to avoid delay but those concerns, of course, are more than adequately – capable of being adequately addressed in the exercise of any discretion to adjourn. Of course, the end point will always be a very relevant consideration. If an adjournment would mean that the Tribunal cannot feasibly deliver a decision in that period that would presumably be a pretty good reason for saying no adjournment will be granted.
Equally, if an applicant cannot give any very good reason why they did not give notice of information at an earlier point in time if it looks like it was a deliberate forensic decision, all the usual considerations, one would
expect the Tribunal to say to the applicant, you have had your chance. But those sorts of possibilities do not mean that one gives the statutory language an unnatural reading by saying that this notice period expires irrevocably once and for all the second the hearing starts.
It is, of course, worth reminding that adjournments might be required for a range of reasons other than on application of the applicant. The Tribunal may be ill at some point. Perhaps, more realistically, the Tribunal may raise an issue about which it requires assistance in performing its review function. If the consequence of that adjournment is that the Minister is able to go away and strap up his case but the applicant is left sitting there, notwithstanding that there is time for everyone to be doing things, it is difficult to see how that sort of outcome really advances the statutory objective.
FRENCH CJ: Are we assisted at all by reference to provisions of the AAT Act in relation to proceedings and hearings? I notice section 40(1)(c) speaks of the powers of the Tribunal including the power to “adjourn the proceeding from time to time”. Now, the proceeding encompasses the notion of a hearing but, I think, is not limited to it, is it?
MR OWENS: I cannot answer that question off the top of my head but I think your Honour is right but I can – I will look that ‑ ‑ ‑
FRENCH CJ: Holding a hearing is one thing that they do but they do not always have to hold a hearing.
MR OWENS: Quite, and one thing that is very clear is that the power to adjourn is not a direction that the Tribunal gives. There is a separate set of provisions about directions that the Tribunal can give and, of course, (6H) excludes directions hearings from the scope of this. So 40(1)(c) absolutely tells one that the Tribunal has that power to adjourn the proceeding. I think, without checking that your Honour is right, that means the matter, for want of a better word, rather than a hearing, so in all of those circumstances they are again matters of harmonisation, for want of a better word, that we rely upon. I think those are my submissions, your Honour.
FRENCH CJ: Yes, all right, thank you. Yes, Mr Johnson.
MR JOHNSON: Yes, thank you, your Honours. I think that your Honours will have the outline that we provided this morning. Has that reached your Honours? Plainly, there are going to be some things that I need to add in the light of my friend’s submissions, but broadly I will endeavour to follow this structure.
Your Honours, the first step that we have taken in this document is to say something as to the issues and could I just make clear at the outset, that whereas the appellant’s first ground of appeal refers to written material before the Tribunal, as well as evidence that fell during the period of cross‑examination, there is no dispute that section 500(6H) or its documentary counterpart would not have prevented the Tribunal from taking into account the indications in exhibit R2 that these two children existed.
My friend has drawn your Honours’ attention to exhibit R2 and my friend took your Honours I think to appeal book 158 where the names of the additional two children are mentioned and I will do likewise shortly. If one goes to page 158 and looks at the relationship column and one looks at the bottom most entries involving the word “son”, your Honours will see over the left‑hand side the name mentioned and over the right‑hand side the address.
So, it is evident from these documents that persons of that name who were said to be the son of the applicant, who resided in the address over on the right‑hand side, were visiting and no one is suggesting that the Tribunal could not have regard to that, that there are other documents of the kind, for one, that I have just taken your Honour to, which are materially identical and we have listed those appeal book pages in the third line at paragraph 4 of the outline. I will not take your Honours to them.
That, I think, is an important qualification to make at the outset that what we are essentially concerned with here is the impact of section 500(6H) insofar as it required that the Tribunal must not have regard to information presented orally in support of a person’s case. We are looking at whether material that fell from Ms Fatai, insofar as it is revealed, falls within that description. Then, there is a separate issue as to whether or not the – the separate construction issue as to whether or not the ability to lead further evidence could have been supplied via an adjournment. That adjournment issue we have attempted to paraphrase in (ii).
Before I go any further, could I just take your Honours to the two critical paragraphs of the AAT’s decision in relation to evidence regarding the two extra children and what the Tribunal did with it. I will start with paragraph 4 of the Tribunal’s reasons on page 182 of the book. The Tribunal there says:
Mr Uelese has three children aged eleven, eight and six with Ms P Fatai whom he says he plans to marry in early 2013 if he is permitted to stay in Australia. Mr Uelese also had two other children aged approximately five and four. The information about the other two children came to light during cross‑examination of Ms Fatai. The effect of s 500(6H) of the Migration Act 1958, which was acknowledged by Mr Uelese’s representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing.
Those words “prevented from eliciting oral evidence that may have supported his case in relation to these children” seem to have been primarily directed to – seem to have envisaged evidence which would have the result of strengthening his application for review. The paragraph, I think, that has to be understood in the context of paragraph 64 including the end of paragraph 64. If I could just take your Honours to that, it is on page 199 and the Tribunal says:
As already stated, Mr Uelese has been involved in an on and off relationship with Ms Fatai for approximately 12 years, and they have three children aged eleven, eight and six. No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross‑examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children.
That last sentence is important in two ways; firstly, regardless of whether the Tribunal thought that it could take the evidence from Ms Fatai into account, regardless of that, the Tribunal nonetheless did undertake its own evaluation in that last sentence of that evidence. It addressed whether or not it was able to say, based upon that evidence, that a decision to cancel or a decision not to cancel would be in the interests of those two children.
BELL J: Well, there is a tension between that sentence and the penultimate sentence, is there not, because the penultimate sentence is a statement that the Tribunal cannot take into consideration the situation of those children in making the correct and preferable decision.
MR JOHNSON: Yes, I can see that tension.
KEANE J: Is it not that the Tribunal limited the extent of its inquiry? The Tribunal says in the penultimate sentence:
I cannot take any consideration of their situation into account –
and it is on the basis of that foreshortened or truncated inquiry that the conclusion is expressed that a determination as to what is in their best interest is not possible. That conclusion follows from the fact that the Tribunal has thought that it has had imposed upon it a foreshortening of its inquiry, a truncation of its inquiry.
MR JOHNSON: Two things, if I may, in relation to that. On any view, the Tribunal plainly considers that 500(6H) would prevent it from receiving further oral evidence in relation to the children. In that sense, I agree with your Honour. With respect to truncating the inquiry, what the Tribunal has in mind, I respectfully submit, given the whole flavour and balance of the rest of the paragraph, is it is looking to see whether or not it can take into account their best interests meaningfully in this matter. The significance of the best interests of the children of course lies in Direction No 55. My friend took your Honours to Direction No 55 before, and your Honours have seen it before, your Honours realise that one of the primary considerations to be taken into account is the best interests of the children where relevant. When one goes to page 60 one finds that the requirement in 7(1), near the top of 60, is to:
take into account the considerations in Part A or Part B –
those include the best interests of the child –
where relevant, in order to determine whether a non‑citizen will forfeit the privilege of being granted, or of continuing to hold, a visa ‑ ‑ ‑
BELL J: I am sorry, where are you at the moment?
MR JOHNSON: I am sorry, your Honour. I am on page ‑ ‑ ‑
FRENCH CJ: You were referring to the direction.
MR JOHNSON: I am sorry, I accidentally read the number at the bottom rather than the number at the top. It is at page 96 of the appeal book.
FRENCH CJ: It is the direction that we have been handed, is it not?
MR JOHNSON: Yes.
FRENCH CJ: It is paragraph 7.
MR JOHNSON: Paragraph 7(1)(a) –
must take into account the considerations in Part A or Part B, where relevant –
I am just emphasising those words “where relevant” and the considerations in Part A include the best interests of the child. But returning to paragraph 64, what the Tribunal is saying ‑ and I am returning particularly to your Honour Justice Keane’s reference to truncating the inquiry ‑ what the Tribunal is saying is, look, I cannot take this any further. The evidence that I have got before me does not allow me to say whether their best interests are relevant. It does not allow me to say whether their best interests would be favoured by a decision one way or the other.
BELL J: The difficulty with that submission, so it seems to me, Mr Johnson, is that is not what the Tribunal says in the penultimate sentence. The Tribunal says that it:
cannot take any consideration of their situation [of those children] into account in coming to a decision –
Now, I appreciate there is something of an ambiguity when one then goes on to read the balance, but it is a difficult argument to make good when there is a clear statement that it is the situation of the children that cannot be taken into account as distinct from a conclusion that in the circumstances the Tribunal is unable to determine one way or the other where the best interests lie.
MR JOHNSON: Obviously, I would not be making the submission without that last sentence, but it becomes a question of how broadly and how literally one reads the word “situation” and, in my submission, given the focus of these paragraphs and given the way in which all of this is situated in an analysis of the way in which the direction applies to this case, when the Tribunal is using the words:
I cannot take any consideration of their situation into account in coming to a decision –
what the Tribunal has in mind is that I cannot take into account the best interests of the children in coming to a decision in this case. Why? Because the balance of the paragraph explains, I only have so much information, that information which I have does not enable me to say whether a decision one way or the other would be in their interests.
BELL J: I suppose against that is that the penultimate sentence comes immediately after the reference to the provisions of section 500(6H).
MR JOHNSON: Well, in a sense, I do not see that as being against what I am saying because, once again, I think that the focus of this is not upon whether or not – the focus upon this is whether or not it can take into account – sorry. Section 500(6H) plainly is concerned with the extent to which the Tribunal can consider information which was support of an applicant which is not set out in a statement provided two days before; no dispute about that. But the fact remains that the Tribunal has not simply said, well, because of 500(6H) I am just not going to say anything at all about these children.
It at least tells us that having regard to the information that it has already got, it cannot make a decision whether their interests are served one way or the other. Now, what that means is that – all this does not help at all in relation to the adjournment point. Insofar as this case is concerned with what the Tribunal did with the evidence that it already had, then it would seem that that evidence could not have made a difference to its decision because it was not enough to enable the Tribunal to decide whether a decision to cancel or a decision not to cancel was in their best interests.
Now, that is not to say that the Tribunal made a legal error if the Tribunal considered that it could not take into account the evidence that had fallen from Ms Fatai. That comes to what we say under the construction heading in due course, because we say that evidence which fell from Ms Fatai not set out in any statement provided before the hearing, which was in fact evidence which was in support of the applicant’s case, which had the purpose or effect of being support of the applicant’s case, is in fact excluded by section 500(6H).
All I am saying to your Honours, relying particularly on that last sentence at paragraph 64, is that, even if we were wrong about that, there would be a real question as to whether or not that error could have affected the decision, but that is not to give prominence to that argument over what at least for the purposes of the case load is the more important one, which is how do we deal with section 500(6H)?
NETTLE J: Mr Johnson, is the Minister’s position that if the counsel for the Minister cross‑examines one of the applicant’s witnesses and gets some answers favourable to the Minister and some which are unfavourable, he may in final address rely upon the favourable and exclude the unfavourable?
MR JOHNSON: The Minister, sorry ‑ ‑ ‑
NETTLE J: The Minister’s counsel cross‑examines one of the applicant’s witnesses, gets some answers which are favourable to the Minister and some which are unfavourable; is it the Minister’s position that his counsel may then rely on those which are favourable to the Minister and exclude those which are unfavourable?
MR JOHNSON: I would not adopt that as a blanket proposition, your Honour, at all because there may very well be responsive answers in cross‑examination which go to, in effect, restoring the applicant’s credit from some collateral attack. But if, on the other hand, the evidence is evidence which, looked at objectively, is evidence in support of the applicant’s case, well then, in those circumstances, it is excluded.
NETTLE J: Even though the Minister could rely upon the answers he got in cross‑examination which he perceived to be favourable to his own case?
MR JOHNSON: Well, yes, and cross‑examiners often do that, of course. They place reliance upon part of the result of a cross‑examination and not other parts of the result of a cross‑examination. Provided that ‑ ‑ ‑
NETTLE J: They do, but usually the opposing counsel then relies upon the aspects which are unfavourable. You say that would not be available in this circumstance?
MR JOHNSON: Well, I am not envisaging someone making misleading submissions, but I am resisting the suggestion that it is a consequence of our submission that the Tribunal must regard everything which falls from the applicant under cross‑examination or falls from the applicant’s witnesses under cross‑examination that may be of some assistance to the applicant; that all of that has to be ignored.
We accept that there may, for instance, be some collateral attack upon an applicant, that an applicant might be cross‑examined as to some prior inconsistent statement, for example, that there might some evidence given which is restorative of his credit, but if the evidence is such that it falls within the category of evidence which ought reasonably to have been expected to be in support of the applicant’s case and included in the statement, well then, it should not be allowed.
NETTLE J: Thank you.
FRENCH CJ: At the heart of this case is the intersection of 500(6H) with the directions power - section 499 - and the binding effect of the directions and, rather than looking at it from the point of view from the general gamut of cases in which things may come up in cross‑examination which are favourable or unfavourable, this is a particular case in which the Tribunal appears by applying 500(6H) to have precluded itself from inquiring into the best interests of the children, which it is required to consider under the direction by force of section 499.
MR JOHNSON: Firstly, your Honour, if there was a collision between 500(6H) and the direction - and, in our submission, there is not; one can apply the direction consistently with 500(6H) - then 500(6H) in relation to this would be more specific and would prevail.
KIEFEL J: But the evident purpose of 500(6H) is to allow the Tribunal time so it is not caught out, so to speak. It is to allow it time to prepare, and efficiency is what underlies this, but efficiencies can be met in the normal run of a case by a tribunal where something like this occurs by using its adjournment powers. I mean, what is the difficulty? Why is not the purpose of 500(6H) met by a tribunal using its adjournment powers?
MR JOHNSON: The purpose of 500(6H), we say, is ultimately threefold, and those purposes are alluded to in paragraph 32 of our submissions. But essentially those purposes are to enable the respondent to consider in advance and to respond to information in support of a review applicant’s case.
KIEFEL J: Yes.
MR JOHNSON: But that in the context of the remainder of section 500 which includes provisions which (a) restrict how soon the Tribunal can commence a hearing - that is 500(6G) - and also section 500(6L) which has the effect that if the Tribunal has not decided the application within 84 days of the decision under review being furnished to the applicant, then there is a deemed refusal of the application. The interest is in trying to make sure that the case can be heard without the Minister being disadvantaged, but to make sure the case can be heard within that period without that deemed decision provision coming into being, and to avoid delay. General avoidance of delay is also one of the things which was mentioned in the second reading speech and in the explanatory memorandum.
There are many ways in which courts and tribunals can manage delay, but it is not just about managing delay in a vacuum; it is about managing a delay in circumstances where the very same section is inserting these limits on how soon the Tribunal can start, how late it can finish its review without there being the highly undesirable, one would have thought, result of deemed dismissal of the application, in effect, and within all of that, the section is aiming and purposed towards ensuring that the Minister has an opportunity to be apprised of, and an opportunity to respond to ‑ ‑ ‑
KIEFEL J: I can understand that. The context that you put forward is perfectly understandable from the structure of the provisions of the Act, but it has to be workable in the sense that things are going to occur in the course of an inquiry and the nature of an inquiry before the Tribunal will throw up these issues. That is part of the reason it has an adjournment power. I think what you have to confront is, you have to be in a position, I think, to say that it would be unworkable for the Tribunal not to have an adjournment for two days.
MR JOHNSON: One can never say that it will always be workable or unworkable for a tribunal to have an adjournment for two days, but if the position was, as contended for by the appellant, that section 500(6H) only applies to evidence which an applicant chooses to give in-chief, then one could have a situation where adjournments, perhaps multiple adjournments, were being forced. There are different ways in which these problems can be dealt with, no doubt, across the overall gamut of the management of court cases and tribunal proceedings, but the method that the Parliament has chosen here, expressed in 500(6H), is to require – not to directly require, but to indirectly require – an applicant to include in the statement given to the Minister two days before the hearing starts ‑ ‑ ‑
KIEFEL J: One could well understand a tribunal in that circumstance perhaps saying if there was an attempt to put the information before the Tribunal in breach of that provision, that this is not going to occur; you have had your opportunity.
MR JOHNSON: That is right.
KIEFEL J: That is quite a different scenario. This is information which has come forward in a process before the Tribunal where the Tribunal has a direction about what are the matters that it has to take into account. It has to direct itself to these matters.
MR JOHNSON: But the applicant must have known that he had these two children who were coming to visit him.
KIEFEL J: The applicant did not put this information forward.
MR JOHNSON: Well, indeed, and that is the problem.
KIEFEL J: So the notion of a purposive – an intended delay on the part of a person in the applicant’s position is not the scenario that we are dealing with.
MR JOHNSON: Well, it does not necessarily have to be an intended delay. The material which was put forward by the applicant – I will not take your Honours through all of it - but to the extent that there is material put forward by the applicant up to and including the time of the cancellation decision, that material that the decision‑maker receives always speaks of three children, and not the extra two. That is all clear.
But he had an opportunity to put forward a case that included the best interests of those children prior to the hearing starting. Prior to the hearing starting he could have put forward a statement which included such information as he wanted to adduce as to the best interests of those children and how the best interests of those children would be served by a decision one way or the other. Now, that did not happen.
KIEFEL J: But this is not a question of procedural fairness to the applicant. It is a question of the Tribunal’s exercise of its powers and whether or not in light of the ministerial direction that something is a relevant consideration, the Tribunal can direct itself to ignore that because of efficiencies.
MR JOHNSON: Well, two things, your Honour. First of all, the direction is only obliging the Tribunal to have regard to the best interests of the children to the extent that they are relevant. Because the material before the Tribunal was so pauce and simply was not enough for the Tribunal to form ‑ ‑ ‑
KIEFEL J: Only because the Tribunal put itself in the position not to ask any further questions.
MR JOHNSON: Well, the Tribunal was observing the requirement of the statute that the Tribunal not consider any evidence in support that is led after the – not to consider any evidence in support not included in a statement provided two days before the hearing.
KIEFEL J: The Tribunal was not giving literal meaning to the statute, was it, because it was not information presented orally in support of the person’s case.
MR JOHNSON: In my submission, it was information presented orally in support of the person’s case because that is not answered simply by looking at the stage of the person’s time in the witness box when the evidence falls. This is a Tribunal which does not have to have distinctions between examination‑in‑chief and cross‑examination and re‑examination. It is a Tribunal which is not bound by the rules of evidence and which is generally free, subject to the statute of course, to fix its own procedure and ‑ ‑ ‑
FRENCH CJ: Once the children are in the equation, you would say it is constrained by the notion of relevance - well, I suppose it allows the possibility that the removal of the father of the children is irrelevant to their best interests, but it does not seem to be – once the children are in the equation, why should the Tribunal be confined by the presentation of the applicant’s case in exercising its duty to have regard to their best interests, including the question of relevance that is anterior?
MR JOHNSON: Yes, the primary answer to your Honour’s question is that the requirement in the direction should not be placed above or regarded as, in effect, the leading requirement to the procedural restriction – not just procedural but the restrictions embodied in section 500. That is one answer. The other answer, your Honour, is that I am not trivialising all of this in using the word “relevant”. I am not suggesting, for instance, that the father of a child is not, in a general sense, relevant to the child. What I am saying is that when one is looking at what the direction requires, the direction is not requiring that the primary interests of every child be taken into account. It is focused upon children under 18 where their interests are relevant.
KIEFEL J: Are you saying section 500(6H) makes it irrelevant?
MR JOHNSON: Section 500(6H) puts a cap, if you like, upon the evidence in support of the applicant that can be put forward as to that issue. Now, if the Tribunal gets to its hearing and all that it has is the pauce detail that it mentions in paragraph 4 and 64, in effect, nothing further having been put forward by the applicant.
KIEFEL J: But is that not to elevate what is a procedural provision which is intended to promote efficiency into something approaching a substantive evidentiary provision?
MR JOHNSON: It is intended to do more than promote efficiency, as we were discussing before, and it is a provision which, read as a whole, alters in a great number of ways the way in which the AAT would otherwise work. Just dealing with his Honour the Chief Justice’s concern about whether there is a tension between the direction in section 500(6H), I am simply making the point that if the Tribunal gets to the stage where its hearing is reached and nothing has been put forward by an applicant which shows that it is in the best interests of the children that his visa not be cancelled, and all that the Tribunal has before it is what I have described as this paucity of information that the Tribunal here obviously found, or told us, was not enough to let it decide one way or the other.
In those circumstances, then in the context of paragraph 7 of the direction the best interests of those children are not relevant in this case. At that point, there is no conflict at all between the requirement of the direction and section 500(6H). Mr Knowles reminds me that section 499(2) of the Act provides that:
Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
So that rather favours the submission that if there is a conflict between 499 and section 500, then it is 499 which ought give way. I think that the discussion that we have already had, although more interactive than simply a following of the outline, probably ‑ ‑ ‑
FRENCH CJ: That is what tends to happen here a bit, Mr Johnson.
MR JOHNSON: I know. I know, and a very useful process, of course, but I think that probably much of what I have said there is pretty much covered in our discussion. But I would like to take the Court’s time by going into a bit more detail, particularly to Jagroop and to Goldie and to Paerau, and in doing this I am mindful that the Court is looking in this case at some questions as to the construction of section 500(6H), which obviously might have some general importance and we think that it is important for us to just show the Court what those main authorities in the Federal Court are indicating, particularly since as your Honours will have noticed ‑ ‑ ‑
FRENCH CJ: Relevantly, I hope to this case. This is the decision of this case, not an exposition of things generally.
MR JOHNSON: Yes, indeed. My friend referred in the course of his address before to the way in which Jagroop had recited or paraphrased submissions by the Minister in that case and your Honours will have seen from footnote 16 of our submissions that we are not adopting that. We are adopting a position which, in our respectful submission, is perfectly in accordance with Jagroop, and also Jagroop says some things to help put this present case of Uelese in context as well.
So, if I could perhaps go to Jagroop and Jagroop is in I think, your Honours, tab 10. Sorry, I thought your Honours had a bundle but your Honours do not – Jagroop v Minister for Immigration and Border Protection 314 ALR 597. This case was dealing with very different facts from what we have got here, but it ended up making some very general statements about the way that section 500(6H) operates. Broadly, what had happened in Jagroop was that there was an expert’s opinion which was found to be worthless and not followed by the Tribunal because of some articles which the Tribunal considered, neither of which had been referred to at the hearing.
If your Honours need to find the facts of Jagroop, it is probably paragraphs [43] and [46] which will most usefully assist, but I would rather move on to what it says about the provision. In paragraph [75] on page 612, their Honours say:
The evident purpose of these provisions is to give the minister an appropriate opportunity to meet the case to be presented by an applicant at the hearing in the AAT, and to avoid the necessity for adjournments.
If your Honours go then to paragraph [84], their Honours are speaking of Goldie and the line of authority following it, and they say:
In our view, subject to one possible exception –
the one possible exception turns out to be this present case of Uelese –
the decisions in Goldie and those which follow it do not foreclose the question of whether ss 500(6H) and (6J) preclude the AAT from having regard to information, documents and submissions of an applicant in response to matters raised by the minister, or by the AAT itself, when the applicant could not reasonably have anticipated those matters ‑
We are emphasising, of course, those last words after the comma –
Goldie itself concerned a different question, namely, whether s 500(6K) had the effect that the minister could not rely at the hearing in the AAT on documents which the minister had not produced within the time specified at the AAT’s direction . . . That is to say, Goldie was concerned with the effect on the minister’s ability to present information and documents at the AAT hearing, and not that of the applicant.
Then, the next paragraph talks about other decisions of the Federal Court, and points out that those are not really concerned with the effect of these provisions on evidence in response to the Minister or the AAT itself. Then, paragraph [86]:
The possible exception which we mentioned is the decision of the Full Court in Uelese –
and they say in the last sentence of [86] that –
On one view therefore, Uelese is a case concerning the use of information raised for the first time during the cross‑examination of an applicant’s witness ‑
Paragraph [87] –
However, three matters about the decision in Uelese may be noted. First, the appellant had presented his case to the AAT on the basis that he had three children whose interests should be considered, and had not relied on his fatherhood of the two additional children at all. Not only this, but the very nature of the case was such that it was reasonable to expect the applicant to have raised his fatherhood of two further children in his own case if it was to be relied upon as part of that case. Second, the reasons of the Full Court do not suggest that, as a general principle, the AAT may not have regard to the answers of a witness in cross‑examination, unless advance notice of the content of those answers had been given. Third, Uelese was not a case of the minister presenting evidence, or the AAT itself identifying material, of which the applicant had had no prior notice. Accordingly, we do not regard Uelese as precluding consideration by this court of the issue raised by the appellant on the present appeal.
Implicitly, their Honours do not see Uelese as being inconsistent with their subsequent decision because the purpose of all of that is to look at the extent to which they may be obliged to follow, at least as a matter of comity past.
KIEFEL J: But the first matter to which the Full Court relies upon, the first matter referred to in paragraph [87] which is in fact two matters, would be relevant to a question of whether an adjournment should be granted, but they are not matters which are addressed to the statutory requirements, are they?
MR JOHNSON: Well, except that all of what this Full Court, this Jagroop Full Court, is saying there in paragraph [86] is looking through the prism of section 500(6H). So, all of those statements in that sense are made in that context. The particular paragraphs where their Honours point to – the particular paragraphs, I think, which are of most significance next are [94, [96] and [97]. If I could just take your Honours to paragraph [94] on page 616, their Honours say – they speak of the need to give close attention to subsections (6H) and (6J). They say:
It is significant in our opinion that subs (6H) and (6J) are not expressed in unqualified terms, for example, by referring simply to any “any” information presented, or to “any” document submitted, by an applicant. Instead, it is only that oral information and those documents presented “in support of the person’s case” which are the subject of the prohibition. In context, the term “in support of the person’s case” appears to be a qualification on the otherwise broad scope of the two prohibitions. It seems apt as a reference to the information and documents to be provided by applicants as part of their case‑in‑chief.
If I could just pause there, as your Honours will have seen from our submissions, we do not embrace the proposition that the section is necessarily dependent for its operation on whether or not the evidence is given during the period that we call “case‑in‑chief” or the period of cross‑examination or the period of re‑examination. The question remains always the one under the statute of whether the information is presented or would be presented in support of the person’s case. So, we are talking about information which has the purpose or effect of supporting the person’s case. Their Honours then say in [96]:
We conclude that the words “in support of the person’s case” in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case‑in‑chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the minister and which, at the least, the applicant could not reasonably have anticipated.
Just pausing there, although their Honours are generally taking the view that this section applies to evidence‑in‑chief as opposed to evidence in cross‑examination, their Honours are nonetheless allowing that the section may apply where that evidence in cross‑examination is such that the applicant could have reasonably anticipated it to be evidence in support of his or her case.
Similarly – and I will not read the whole paragraph – but your Honours will note that paragraph [97] is concerned with re‑examination. They take a similar position in relation to re‑examination. Your Honours will note that paragraph [97] also ends with the words:
at least when the applicant could not reasonably have anticipated the evidence or issue raised by the minister.
We are embracing that. We are saying it is not that there is a different rule applicable depending upon whether the evidence falls or is sought to be elicited during chief or cross‑examination or re‑examination. The question is the one raised by the statute and if the evidence is such that the review applicant ought reasonably to have anticipated it to be in support of his case, well then, it is caught by the prohibition.
FRENCH CJ: That is what really you rely upon Jagroop, to support your proposition as to the existence of that qualification.
MR JOHNSON: Yes, “qualification” is the word that is used in Jagroop; “qualification” is the word that we have used. It might not necessarily be a carve‑out and an exception. In my submission, it is more a matter of the Court looking at what the Parliament intended by the words that are in fact used. Of course, we are speaking of a tribunal which, if it likes, could conduct one of these hearings in a round table situation without there being any distinction between examination‑in‑chief or cross‑examination or re‑examination. Another thing, not of importance to the present case perhaps ‑ ‑ ‑
FRENCH CJ: Well, then we do not need to hear about it, do we?
MR JOHNSON: Very well. I will not spend nearly as much time in relation to Goldie. I will just take your Honours to the two relevant paragraphs - Goldie v Minister forImmigration and Multicultural Affairs (2001) 111 FCR 378 - and the facts are perhaps sufficiently referred to in paragraphs 12 and 16. The two paragraphs which are important and which have been referred to in submissions are paragraphs 25 and 31.
FRENCH CJ: At page, sorry?
MR JOHNSON: I am sorry, paragraph 25 starts on page 389 ‑ ‑ ‑
FRENCH CJ: Thank you.
MR JOHNSON: ‑ ‑ ‑ and goes over to page 390, and paragraph 31 is on page 391. In our written submissions we have referred to paragraph 25 directly in relation to the adjournment point, but the statements that are made in paragraph 25 about the purpose of the provision are equally relevant to both limbs of the argument before this Court today. At paragraph 25 Justice Gray says:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced . . . The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
Of course, this particular case was one where the applicant was in effect seeking to stop the Minister from relying upon particular material, and their Honours say in paragraph 26:
It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review –
and so on. Paragraph 31 is specifically in relation to whether or not the two‑day period can be restarted by adjournment. That is on page 391 and starting, if I may, about halfway through the paragraph, the court there notes that:
counsel for the Minister invited the Tribunal to give the appellant an adjournment for some days to consider the contents of the s 37 documents.
If I could just pause there, these were not section 37 documents in the case before the Tribunal. These were section 37 documents that had existed in prior litigation between the parties. Then the court says –
The appellant declined this offer. In any event, the offer was probably based on a misunderstanding of the effect of subss (6H) and (6J). Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing. Compare Re Morris; Morris v Maroudas –
That was a case where the court had granted an adjournment ‑ obviously it was not a migration case – and the court had to consider whether a costs certificate should issue and the court found that it should not because the adjournment was not a discontinuance of the hearing and it was not an order for a new hearing and those would have been the circumstances which entitled a costs certificate.
KIEFEL J: Mr Johnson, it is not entirely clear to me from the Tribunal’s reasons whether the applicant actually sought to rely upon the information which was adduced in cross-examination.
MR JOHNSON: Well, I think the short answer, your Honour, is no, it did not. But the only evidence before your Honour on that, and all that I am meaning to refer to, is paragraph 4 ‑ ‑ ‑
KIEFEL J: I am not suggesting that that necessarily favours the applicant. It really raises the question of why we are listening to argument about it.
MR JOHNSON: On page 182, after that middle sentence where the Tribunal notes:
The information about the other two children came to light during cross-examination of Ms Fatai –
they say –
The effect of s 500(6H) of the Migration Act 1958, which was acknowledged by Mr Uelese’s representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements ‑ ‑ ‑
KIEFEL J: So there was obviously some discussion.
MR JOHNSON: There was some discussion; we can infer that from the paragraph.
BELL J: And one might infer in the light of Goldie that a concession was made.
MR JOHNSON: We are perfectly content with the inference being drawn that in the light of Goldie there was no effort to take the matter any further.
BELL J: The way it is recorded is that Mr Uelese’s representative acknowledged that Mr Uelese:
was prevented from eliciting oral evidence that may have supported his case ‑ ‑ ‑
MR JOHNSON: That is right. As I said before, one would read what this member is saying in paragraph 4 in the context of all that she says, including paragraph 64. What had fallen was not enough, and it seems that there was mutual acceptance that he could not lead any more - in effect, it could not go any further.
KIEFEL J: So this case turns almost completely on whether the Tribunal was duty-bound in any event to direct itself to the evidence, and to take it further because of the directions.
MR JOHNSON: Well, and to take it further.
KIEFEL J: So it is a failure to take into account a relevant consideration or not.
MR JOHNSON: Well, no; the grant of leave was in fact restricted to the construction points. But even apart from that ‑ ‑ ‑
KIEFEL J: But the question is whether there is a tension between what the Minister argues is the underlying purposes of (6H) – not on its literal view, but its underlying purposes – and any duty on the part of the Tribunal to take into account the interests of the children under the direction as a relevant consideration. That is it. That is what this turns on. There are no issues about procedural fairness, because it was not relied on.
MR JOHNSON: That is right, there is no issue about procedural fairness, but in relation to the question of whether or not it should be seen as a case where the issue is whether there was a failure by the Tribunal to take into account the interests of the children under the direction ‑ ‑ ‑
KIEFEL J: Does that not – I am sorry, I am interrupting you, please finish.
MR JOHNSON: I just did not want to let – we do not accept that the case should be so seen because effectively the two things that I have already said, that under the direction the best interests of those children would only need to be taken into account if they were relevant. If the material in relation ‑ ‑ ‑
KIEFEL J: You are saying that the applicant did not make them relevant?
MR JOHNSON: That is right.
KIEFEL J: It was not the applicant’s case. On the applicant’s case, this is the threshold question, was there a relevant consideration.
MR JOHNSON: At that point, there was not a relevant consideration because the – at the point where the Tribunal just had what had fallen from Ms Fatai, the interests of these children were not a relevant consideration because the Tribunal has told us. What had fallen was not enough to tell it whether a decision one way or the other would be in their interests. Therefore, looked at through the prism of the direction, this was not a case where the interests of those two children were relevant. If one then takes that process of consideration further and looks at whether or not that judgment should have been made by the Tribunal without going further then we run into this collision which was being discussed before between 500 and 499.
KIEFEL J: But in the way you put it the threshold question is whether the relevant consideration arises by reference to the applicant’s case or whether it arises by reference to the ministerial direction.
MR JOHNSON: The two are not disconnected. The two are not disconnected because the ‑ ‑ ‑
KIEFEL J: You say it must, even with the ministerial direction, it can only become relevant in the terms of the ministerial direction if the applicant makes it so. I understand that.
MR JOHNSON: Yes.
FRENCH CJ: Well, is not the question of relevance really – you take that out of 7(1)(a), I think:
must take into account the considerations in Part A or Part B, where relevant, in order to determine –
Now, the question whether the best interests of minor children in Australia is relevant or not depends upon whether there are any. If there are no minor children then that is not a relevant consideration.
MR JOHNSON: Well, that would be a circumstance.
FRENCH CJ: Well, the direction at 9 says:
In deciding whether to cancel a person’s visa, the following are primary considerations –
then we go to (c) ‑
The best interests of minor children in Australia –
So once you ascertain that there are minor children in Australia you have got to consider their best interests, have you not?
MR JOHNSON: Well, only if they are relevant.
FRENCH CJ: Well, where is that qualification in terms of the case because ‑ ‑ ‑
MR JOHNSON: Could I just – without wishing to avoid your Honour’s question and, in fact, wanting to answer it, could I just say that that Full Court judgment of Paerau, a couple of paragraphs of that, are helpful in adding some flesh to these ideas that I am attempting to enunciate.
FRENCH CJ: It would be great if you could take me to the text, first, of the direction and tell me how the notion of relevance works beyond the proposition that I have just put to you.
MR JOHNSON: Well, the obligation to take into account the considerations in Part A or Part B springs from paragraph 7.
FRENCH CJ: Yes.
MR JOHNSON: And, as I submitted, they arise, where relevant, in order to determine ‑ ‑ ‑
FRENCH CJ: Where they exist, in that sense.
MR JOHNSON: That is right. Now, that assumes that – sorry. If one has a case where one knows that there are children, children of the applicant, minor children of the applicant, and that the evidence in relation to those children is such that one cannot make a decision, one cannot decide whether or not their interests are served by cancellation or non‑cancellation ‑ ‑ ‑
FRENCH CJ: Well, that is the paucity of evidence. That does not go to the question of the relevance of the consideration.
MR JOHNSON: Well, it does in this sense, that if you get to the point where the consideration does not go anywhere – so one can have a situation where a particular thing which is made a primary consideration by the direction does not go anywhere in the particular case. A classic example might be if, for instance, there simply were not, in fact, any children. But what the direction seems to be aimed towards is having the best interests of the children identified and taken into account. But, as I submitted before, subject to – there is a 499 direction – so 499(2) needs to be borne in mind and so that is subject to section 500, and section 500 in this case authorised the Tribunal through subsection (H) to go no further.
NETTLE J: But why could not the Tribunal just have said to Mr Uelese, now tell me about these two children? What is their position? What are their circumstances? That would not have been information presented in support of his case, would it?
MR JOHNSON: Well, in my submission, in respect to a body such as the AAT, it is not a question of the identity of the questioner, it is a question of the nature of the information.
NETTLE J: So, if the Tribunal asked the question and got answers, it could not have regard to those answers because you would say it was presented in support of the applicant’s case.
MR JOHNSON: We are saying that the – it is not the intention of the Tribunal at that point that matters – we are saying that information will be information presented in support of an applicant’s case if the intention of that evidence, or the effect of that evidence is, in fact, to support the applicant’s case. You might be looking at this question prospectively, i.e. as to whether or not an applicant is going to be allowed to lead evidence on a particular subject, or one might be asking it retrospectively after it has already fallen. But what we say is that it does not depend upon whether it is the cross‑examiner or the Tribunal – the position is the same – the questioner, I mean, it does not matter if the questioner is the cross‑examiner or the Tribunal.
KIEFEL J: Perhaps one should not proceed upon an assumption that it will necessarily be in the best interests of the children that the applicant remain in Australia.
MR JOHNSON: That is right.
KIEFEL J: I mean, there might have been a good reason that he did not lead evidence about this, about the relationship with the children, but the point is, under the direction, whether or not the Tribunal should satisfy itself about the issue.
MR JOHNSON: Well, the way in which the Tribunal can go about doing that is, in fact, restricted by section 500(6H). We do not run away from that submission.
KIEFEL J: I understand that.
KEANE J: In any event, why would it not be relevant to the interests of the other three children to pursue an inquiry as to why Mr Uelese had not acknowledged the existence of the other two in the sense that if his view of his parental responsibilities are such that he does not even acknowledge two of his children, what does that say about his parental responsibilities to the other three? Why is it not glaringly obvious that this should have been pursued, just in terms of the interests of the other three children?
MR JOHNSON: First of all, obviously nothing was put to the Tribunal to the effect that the interests of the three children of Ms Fatai were affected by the interests of the other two. But even if it was ‑ ‑ ‑
KEANE J: But they are affected by their relationship with Mr Uelese. Why is this not glaringly obviously something that needs to be pursued?
MR JOHNSON: Well, it is a question of how far it needs to be pursued.
KEANE J: Well, that is right. That is right. It is a question of how far it needs to be pursued. Now, that may be a matter for the Tribunal ‑ ‑ ‑
MR JOHNSON: Yes.
KEANE J: ‑ ‑ ‑ but when the Tribunal stops its inquiry by saying, I must not trespass upon this because it has emerged from oral evidence, that is putting an artificial fetter on the Tribunal’s function.
MR JOHNSON: No, the fetter that it is recognising is the statutory provision in section 500(6H). It is not a question of whether or not the interests of the two additional children might be adjectivally relevant to the interests of some other person, including the first three children. What is important is that the Tribunal did, plainly, make findings as to where the interests of the three children of Ms Fatai lay. It accepted that they lay in favour of non‑cancellation and the Tribunal also made a clear finding that – I know I am being repetitive – the evidence, such as it was, did not enable them to say whether or not the interests of the two further children lay in one decision or the other.
Once it gets to that point and if, in fact, section 500(6H) has been triggered because nothing has been said at all about these extra two children or, indeed, about their impact upon anyone else prior to 48 hours before the start of the hearing – or two business days, should I say, before the start of the hearing – then, in those circumstances, the Tribunal is not obliged to go any further. It is not a matter of truncating an obligation that it has, the obligation does not arise in the first place. Again, if one has to, in effect, determine which is the leading provision between the 499 direction and 500(6H), then we have made our submission in relation to that.
FRENCH CJ: I think, Mr Johnson, we have thrashed this constructional horse to within an inch of its life.
MR JOHNSON: I think we have.
FRENCH CJ: I am not blaming you alone.
MR JOHNSON: No, no, that is all right.
FRENCH CJ: It is an interactive process.
MR JOHNSON: I am also reminded, when one goes to the Full Court judgment at paragraph 33(c) on page 250 of the book, their Honours also make findings:
nor was there any obligation on the AAT to conduct its own inquiries and seek to collect additional information relating to those children.
There is reference there to SZIAI.
BELL J: But that was a separate point that was being taken, was it not? That is not before us.
MR JOHNSON: Indeed. My point is simply that this is not a case where the Tribunal was already in a situation where it had a legal obligation to further inquire, and then truncated it. It is not an SZIAI-type case. Any further inquiry may or may not have revealed anything at all.
I am mindful of the time; I will try to speed up a little. Your Honours, I will go straight to the adjournment point, if I may. In relation to the adjournment issue, I have already taken your Honours to Goldie and what it says at paragraph 31 on that subject. Your Honours, the applicant’s submission to the effect that the time can restart after a hearing other than a directions hearing has commenced is, in our submission, not reflective of the ordinary meaning of the words, and there is no textual support for the period restarting. The words used are already clear. It is not a case where one can say because something else is not said, therefore we should take a different view. There is certainly no warrant for reading into the section any words such as “one or more days on which”.
But more particularly, apart from the text, which is obviously an extremely important consideration, the context and the purpose of the provision also advance the view that was taken into account in Goldie, and I have already made submissions to your Honours on what we say the context and the purpose of the provision are. I will not repeat those submissions.
BELL J: Mr Johnson, one thing that is not clear to me; in circumstances, where you have the stringent limit of 500(6L), what is the particular concern with delay on which you laid emphasis, I think, earlier in your submissions?
MR JOHNSON: Yes, 500 (6L) is obviously a major constraint and the task of the Tribunal is, of course, merits review and the Tribunal understandably is going to do all that it can within its powers to make sure that that 84‑day does not expire. The 84‑day period has been imposed for reasons of guarding against delay ‑ ‑ ‑
BELL J: Yes.
MR JOHNSON: ‑ ‑ ‑ but that 84‑day period could very much imperil the Minister’s ability to deal with a case presented by an applicant, perhaps a constantly morphing case presented by an applicant.
BELL J: But there is a limit to the constantly morphing capacity of a proceeding before the Tribunal under this legislation because of the provisions of subparagraph (6L). In that circumstance, why would one read (6H) as confining the capacity of the Tribunal in the exercise of discretion where it would not run into the (6L) hurdle to grant an adjournment enabling the Minister to respond to the information that had emerged and enabling the Tribunal to complete its merits review within the period so as not to engage the drastic consequence of (6L)?
MR JOHNSON: Well, two answers, I think, to your Honour. Firstly, the Parliament, rather than simply trusting the Tribunal to manage the situation so that the period does not expire, has taken the course that it has taken in section 500(6H).
BELL J: But that would impute to the Parliament a view that the Tribunal might otherwise behave in an irrational way. The Tribunal would hardly grant an adjournment such as to trigger a (6L) consequence. What one is looking at, the capacity of the Tribunal in the management of its review to grant an adjournment, thereby giving the Minister the opportunity to deal with the new information in circumstances in which the overall time limit can still be adhered to.
MR JOHNSON: It is not a matter of assuming that the Tribunal is going to behave somehow inappropriately.
If my friend was correct in the submission that section 500(6H) only applied to evidence which an applicant chose to give in‑chief and if it turned out that there was some other evidence which was adjectively relevant which may assist which may appear to be important if it can be obtained and put on and the applicant were then free to say to the Tribunal, “Well, so that you can receive this evidence and discharge your function, please give us an adjournment”, that process might not necessarily need to be a constantly morphing situation, but that situation could occur more than once, and each occasion that it does occur brings the Tribunal closer to the effluxion of the time in question. It needs to have time to consider its decision.
BELL J: But these are considerations the Tribunal is capable of taking into account in the exercise of a discretion whether or not it is appropriate to adjourn the matter.
MR JOHNSON: The Tribunal, of course, is generally managing these things right from the outset, and these hearing dates properly ought not be occurring in a vacuum. There will be some discussion about what needs to be done and when the appropriate hearing date might be. One should not be building into that process, in my submission, in the presence of a provision such as 500(6H), multiple adjournments depending upon what comes up. Section 500(6H) is dependent, ultimately - it is Parliament’s choice of dealing with the matter. Its words, in our submission, are plain. But its purpose is to avoid the need for one or more adjournments and to assist the Tribunal to have as much time as it needs to decide the matter.
BELL J: As it needs to determine a case on less than complete information when, if it had adjourned the proceedings, it could still conclude the matter within the time limit specified under (6L).
MR JOHNSON: Well, it may or may not, and particularly if the same situation again arises.
BELL J: But, Mr Johnson, this is to ignore the capacity of the Tribunal to make rational decisions about whether or not to grant an adjournment.
MR JOHNSON: Well, with respect, no, it is the choice of a method, and the method chosen is to fasten upon the period which expires two business days before the hearing commences, or any hearing other than a directions hearing commences, and to require the Tribunal not taking into account material which is in fact in support of the applicant’s case that has not been put on within that time. There is an area of decisional choice for the legislature involved in all of this and the method that it has chosen, in our respectful submission, is clear.
It is not a construction which would involve any contravention of the principle of legality. There is no unfairness involved in this. The present case really underlines the fact that what we are talking about here is evidence in relation to a paternal relationship that the applicant himself obviously knew about but, for whatever reason, did not put forward.
FRENCH CJ: But in any event, if 500(6H) were not engaged because your “qualification” was not applicable or not correct and not a correct construction - if section 500(6H) is not engaged and information emerges, one way or another, which is relevant to the interests of a child, there is nothing to prevent the Tribunal adjourning the proceedings in order to enable it to obtain further information, or the parties to present further information.
MR JOHNSON: Yes, if 500(6H) did not apply.
FRENCH CJ: Yes.
MR JOHNSON: Of course, we are only talking about adjournment at all in the context of section 500(6H) and ‑ ‑ ‑
FRENCH CJ: We may be talking about it in the context of the Tribunal’s obligation under 499(2), read with the direction.
MR JOHNSON: And in the Minister’s submission considering the strictures of section 500(6H).
FRENCH CJ: Yes.
MR JOHNSON: But the applicant who goes to the Tribunal reviewing a decision of this kind obviously can, if he or she chooses, have discussion through a directions hearing or the like with the Tribunal as to what needs to be done and how much time is going to be necessary, and there is room in that process for procedural fairness to be afforded. There is nothing about the presence of section 500(6H) which creates procedural unfairness on the construction that we put forward.
There is no intrusion either upon legal professional privilege. My friend made a submission that if there needed to be some consideration as to whether or not the evidence was such that it could and should reasonably have been included in a statement, that that might involve some interaction with legal professional privilege. This sort of inquiry happens regularly in courts and, indeed, in tribunals where they choose to proceed in such a way
where people are looking at where, for instance, someone is trying to split a case or whether a question should be asked in re‑examination that might have been asked in‑chief.
So, in short, what we say is that one can give the section its plain ordinary meaning without there being any contravention of any principle of legality. Section 36 of the Acts Interpretation Act to which my friend referred does not assist. Section 500(6H) is focusing upon a prior period. It is looking at a period which expires two business days before a particular event. It is not talking about whether when some period of time – some prospect of period of time comes to an end. With respect to section 40 of the AAT Act, well that, of course, would be subject to section 500 of the Migration Act. Section 500, as I submitted before, in various ways alters the way that the AAT Act would otherwise operate. The AAT Act does not have any kind of supremacy or primacy over the Migration Act in that respect.
I will not take your Honours to the passages unless invited, but could I give your Honours a reference to Paerau v Minister (2014) 219 FCR 504 at 527, particularly paragraphs 117 and 118. Justice Perry there held that if the evidence is insufficient to make a decision on the children’s best interests then their interest will not be relevant in the requisite sense. It just only helps for the purposes of understanding perhaps what I might not have been so wonderfully explaining earlier. If your Honours please, those are our submissions.
FRENCH CJ: Thank you, Mr Johnson. Yes, Mr Owens.
MR OWENS: If the Court pleases. First, your Honour’s question about the meaning about “proceeding” under the AAT Act was – or your Honour’s understanding was correct. Section 3 defines a “proceeding” to include relevantly:
an application to the Tribunal for review of a decision –
and the distinction that your Honour refers to is borne out, for example, by section 32 which refers to “the hearing of a proceeding” so they are distinct concepts.
Could I also refer your Honours to the explanatory memorandum for the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill? This is relevant to my learned friend’s submissions about the purpose of this Act and so on. If your Honours turn to – I hope the pagination is the same, page 9, paragraph 37. Your Honours will see there the amendments which include all of these sections we have been talking about are necessary in order to expedite review:
The amendments balance the Government’s concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review ‑
So, the avowed purpose of these amendments was not to, as it were, prioritise expedition over all other functions. In my submission, the important function of tribunal review was intended to be preserved.
Can I just then deal with one point which I think arises out of some questions that your Honour Justice Kiefel put to my learned friend, which I think really starts from an understanding of paragraphs 4 and 64 of the Tribunal’s decisions about what really the applicant was doing in this hearing.
It is our submission that when read fairly, paragraphs 4 and 64 are clearly saying that the understanding that everybody laboured under before this Tribunal was that this entire inquiry, this entire topic, was out of bounds. So, as Justice Keane said, it is not simply a question of saying, look at what the Tribunal had before it; it did not have regard to that then in making its decision. The process was truncated because - and your Honours see this in paragraph 64 - no evidence was able to be led. It is clear that what was happening was a truncation of an inquiry that the Tribunal apparently, or otherwise the Minister, was undertaking in relation to these other two children.
I think the way that then links up with what your Honour Justice Kiefel was putting is that we say the relevance of the consideration arises in two ways. It arises by reason of the direction, plainly, but - it is our submission that it still may have arisen by reason of the applicant’s case, but when one looks at the way the applicant’s case was framed, it has to be looked at in the context of what everyone thought the law was and everyone seems to have looked at this question as being precluded to everyone.
So, it is not surprising that paragraphs 4 and 64 do not seem to reflect a positive submission by or on behalf of the applicant, saying you, the Tribunal, ought to have regard to the best interests of these children, because everyone seems to have assumed that the whole topic was out of bounds.
The way ultimately we say really that section 499 and 500(6H) go together is to say that it can be accepted that the purpose of section 500(6H) is within bounds within its terms to confine an applicant’s presentation of
their case; that is plainly what it is intended to do. There is no indication that it is intended to confine the Tribunal’s review function at all. So, it needs to be looked at as a procedural mechanism consistently with the explanatory memorandum, one being designed to balance the interests of expedition, and the necessity for the Tribunal to properly conduct a review of the decision in question.
The last point I wish to make arises out of the submission my friend made about clause 7(1) of the direction. Your Honours will recall that clause 7(1) – my learned friend relied on the words “where relevant”. It again may be accepted that at one level, that will mean the situation where the Tribunal is entirely ignorant as to the existence of other children. That may be because there are in fact no children or because, for whatever reason, the Tribunal has no means of knowing that.
But once their existence is known to the Tribunal, their interests are relevant, and it is clear, in our submission, from the heading to clause 9.3, that it is not just the best interests of minor children who are part of the applicant’s case; it is the best interests of minor children in Australia who are affected by the decision. That is what the heading says, and one emphasises that. The decision-maker must make a determination about that. Unless there is anything else, your Honours, those are my submissions.
FRENCH CJ: Yes, thank you, Mr Owens. The Court will reserve its decision. The Court adjourns until 2.15 on Tuesday, 10 March, in Adelaide.
AT 12.25 PM THE MATTER WAS ADJOURNED
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