Uranek v MIMIA

[2004] HCATrans 245

[2004] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B21 of 2003

B e t w e e n -

BOZENA MARIA URANEK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.30 PM

Copyright in the High Court of Australia

MS B.M. URANEK appeared in person.

MR P.G. BICKFORD:   Your Honours, I appear for the respondent.  (instructed by Blake Dawson Waldron).

GUMMOW J:   Yes, Ms Uranek.

MS URANEK:   Firstly, I would like to ask the honourable Court to give me a little bit of more time because I never received any legal advice, and maybe my arguments they are not ‑ ‑ ‑

GUMMOW J:   So you wish to adjourn this application, do you?

MS URANEK:   No, I would like to maybe extend the time if I could have a little bit more time than the 20 minutes.

GUMMOW J:   No, I do not think so.

MS URANEK:   And is it possible because I will be reading the transcript of my pleading, is it possible that I hand the pleading for you, because my English pronunciation is not always correct, so you could have it in front of you to see.

GUMMOW J:   Yes, you wish to hand up the transcript from which you are going to speak?

MS URANEK:   Yes.

GUMMOW J:   Yes, very well.  We can follow what you are saying then.

MS URANEK:   And there are two other documents but they are relevant.  Maybe you will – I do not know if I should – I supply the documents that they are important in this matter, that the relevance…..could use in further stage.  I will start, I will not read all of it, I will just read the part ‑ ‑ ‑

GUMMOW J:   Yes, I think you had better proceed because your time ‑ ‑ ‑

MS URANEK:   From point III.  Your Honour, I can advance various grounds for making of an order nisi.  At least one ground asserts jurisdictional error by reason of failure to accord procedural fairness.  The ground is that the Full Federal Court of Australia and the Federal Court of Australia erred in denying on the evidence before it, that procedures that were required by AAT Act 1975 and the Migration Act 1958, or the regulations to be observed in connection with the making of the decision were not observed by the Tribunal with respect to its review of the delegate’s decision and in the reaching its ultimate decision.

And on the next page one sees the Tribunal failed to accord procedural fairness because it did not comply with the obligation imposed on him by paragraph (2B) of section 43 of AAT Act 1975.  The Tribunal did not make any finding with respect to my claim in my written submissions prior to the Tribunal hearing, and in my testimonial evidence at the Tribunal hearing, namely that I tried very hard and for five months to resettle my family in the Netherlands in 1999, and I failed because my children could not cope with the problems of the language, the culture and especially with social environment.

I also said at the hearing that my family in law did not accept our marriage and that was reflecting badly on my children and we were isolated, and it reflected on my relation with my children.  You can see from Tribunal transcript, appeal book page 34 and appeal book 13.  Do I need to – and I did raise the argument in my written submissions and my pleadings before Justice Kiefel and the Full Federal Court.  See transcript proceeding before Justice Kiefel, appeal book page 114. 

Now point (iv) - as a result, the Tribunal has not made a bona fide attempt to exercise its power.  No attempt was made to exercise a power knowingly to act conformably with duty.  Point (vi) - as result of the Tribunal’s failure to comply with section 43 of AAT Act 1975, its decision is reviewable by the Federal Court on the grounds of section 476(1)(a), (b), (c), (e).  The Full Federal Court stated at paragraph 29:

of the Tribunal’s reasoning process is not a per se ground of invalidity under the Act.  Whatever the effect of s 501G(4) -

Actually the paragraph 501 of Migration Act refers to the decision made by the Minister and not the decision made by the Tribunals. The paragraph 501G states:

the Minister must give the person a written notice that:

(c)      sets out the decision; and
 . . . 
(e)      sets out the reason –

The subparagraph 501G(4) is read as:

A failure to comply with this section in relation to a decision does not affect the validity of the decision.

But the subparagraph 501G(4) applies only to the decision made by the Minister and not a decision made by the Tribunal.  The decision of the Full Federal Court was then an improper exercise of power as it involves an incorrect application of the law.  The Full Federal Court wrote that in paragraph 29:

a bare failure to provide an adequate reasons statement would not constitute a jurisdictional error permitting challenge to the anterior decision which the statement purported to explain -

The Full Federal court was referring to the subparagraph 501G(4) and that was wrong, of course, as the Full Federal Court itself was addressing the Tribunal decision.  The Tribunal was under the duty to provide not only its reason; the subparagraph (2B) of the section 43 of AAT Act 1975 specified the Tribunal must provide its reasons and:

those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

In the case of Minister for Immigration v Yusuf [2001] the majority held that the failure to make findings on material questions of fact is a jurisdictional error, and the decision is reviewable. Breach of procedural fairness, jurisdictional error, and section 75(v) – in Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ concluded that in paragraph 41:

if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under section 75(v) of the Constitution.

In Ex parte Aala, paragraph 66, “It is now clearly established that the denial of procedural fairness constitutes jurisdictional error for the purpose of the grant of prohibition”.  In Plaintiff S157/2002 in paragraph 76 the High Court unanimously held:

that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all” -

The Tribunal failed - that is in d, from the end of – to the requirement of Hickman principle as it did not have a bona fide attempt to exercise its power because, on to page 5 ‑ ‑ ‑

GUMMOW J:   Ms Uranek, what you have to persuade us is that the Full Court of the Federal Court was in error.  We are not hearing an appeal for the Tribunal.  We are invited to take on an appeal from the Full Court of the Federal Court.

MS URANEK:   Yes. 

GUMMOW J:   Do you deal with the areas you say exist in the Full Court of the Federal Court’s decision later in this written outline?

MS URANEK:   Yes.

GUMMOW J:   I think you do.

MS URANEK:   Okay, so I will need everything for…..Tribunal.

GUMMOW J:   It might be better if you advanced your oral presentation.  It is really paragraph vii, is it not, on page 3?  Is that where you deal with the Full Court of the Federal Court?

MS URANEK:   Yes.  The Full Federal Court stated at paragraph 29 - that is when it was applied, section 501G(4) in the place of the proper section.  Should I repeat?

GUMMOW J:   You take your own course, but I have indicated what I have indicated.

MS URANEK:   Yes, the Full Federal Court stated, at paragraph 29, appeal book page 142:

of the Tribunal’s reasoning process is not a per se ground of invalidity under the Act.  Whatever the effect of s 501G(4) -

Actually, paragraph 501 of the Migration Act refers to the decision made by the Minister and not the decision made by the Tribunal. Paragraph 501G states:

the Minister must give the person a written notice that:

(c)      sets out the decision; and
 . . . 
(e)      sets out the reasons –

Subparagraph 501G(4) is read as:

A failure to comply with this section in relation to a decision does not affect the validity of the decision.

But subparagraph 501G(4) applies only to the decision made by the Minister and not the decision made by the Tribunals.  The decision of the Full Federal Court was then an improper exercise of power as it involves an incorrect application of law.  The Full Federal Court wrote that, in paragraph 29:

a bare failure to provide an adequate reasons statement would not constitute a jurisdictional error permitting challenge to the anterior decision which the statement purported to explain –

The Full Federal Court was referring to subparagraph 501G(4) and that was wrong, of course, as the Full Federal Court itself was addressing the Tribunal decision.  The Tribunal was under the duty to provide not only its reasons, that is subparagraph (2B) of section 43 of AAT Act 1975, the Tribunal must provide its reasons and:

those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

In the case, Minister of Immigration v Yusuf [2001], the majority held that the failure to make finding on material questions of fact is a jurisdictional error and the decision is reviewable.  That is the breach of procedural fairness ‑ ‑ ‑

GUMMOW J:   Yes.

MS URANEK:   Yes, breach of procedural fairness, jurisdictional error and section 75(v). In Re Refugee Tribunal; Ex parte Aala, Gaudron and Gummow JJ concluded that, at paragraph 41: 

if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under section 75(v) of the Constitution.

In Ex parte Aala, 66, “It is now clearly established that a denial of procedural fairness constitutes jurisdictional error for the purpose of the grant of prohibition”.  In Plaintiff S157/2002, in paragraph 76, the High Court unanimously held:

that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all” -

Most of the mistakes that the Tribunal - that I presented it in the Federal Court and the Federal Court just did not, I think, listen to my arguments.  That is why I repeated it here because all the same arguments I presented in the Federal Court and in the Full Federal Court about when my hearing was held and my children and my friends were asked to leave and I stated about that in Full Federal Court…..  The Full Federal Court gave me my rights.  So anything that concerned, what has happened to me in…..in this situation. 

GUMMOW J:   Yes, now what else do you wish to add? 

MS URANEK:   I did not know that I should have brought only the Full Federal Court…..argument that started from the beginning of what was happening to me.  The only thing that I can add is that because I never had any legal advice, I did it this way.

GUMMOW J:   Thank you.  The Court has no need to call on you, Mr Bickford. 

The Full Court of the Federal Court held that, whatever the shortcomings in the statement of reasons by the Tribunal, no case had been made out of jurisdictional error as necessary for judicial review by the Federal Court of the Tribunal’s decision.  There are insufficient prospects of success of an appeal to this Court from the decision of the Full Court to warrant a grant of special leave.  Accordingly, special leave is refused with costs. 

The Court will adjourn. 

AT 12.46 PM THE MATTER WAS CONCLUDED