WABG v MIMIA

[2003] HCATrans 310

[2003] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P87 of 2002

B e t w e e n -

WABG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 3.25 PM

Copyright in the High Court of Australia

MR G.F. BARRETT, QC:   May it please the Court, I appear for the applicant.  (instructed by Refugee Advocacy Service of South Australia)

MS S.J. MAHARAJ:   May it please your Honours, I appear for the Minister.  (instructed by Australian Government Solicitor)

GUMMOW J:   Yes, Mr Barrett.

MR BARRETT:   If the Court pleases, I regret that I have to make an application for an adjournment of this matter.  This applicant was a resident of one or other or both of the detention centres in Western Australia and came to South Australia having been unrepresented at both the federal magistrate level and at the Full Court level.  The Refugee Advocacy Service of South Australia, by whom I am briefed to make this application, looked at his materials and decided that they ought to seek counsel’s opinion on the merits of an application for leave to this Court.  He had of course, as the papers show, made his own application in handwriting.  RASSA decided to take up that opportunity and seek counsel’s opinion and could itself ‑ ‑ ‑

GUMMOW J:   This is another matter, is it not, that comes to us from the federal magistrate through one judge of the Federal Court?

MR BARRETT:   Yes, that is right.  So opinion was sought and the opinion, only obtained last week, is that the matter is not ready to proceed, that the applicant himself raises in material that he has provided, just handwritten material, matters which go to a natural justice question which, while it was not a live issue at the time of the two hearings, is a live issue now.  On the basis of that opinion I am instructed to ask for an adjournment.

HAYNE J:   How would that affect the application for leave?

MR BARRETT:   It might affect the matter if, on the face of it – it certainly would not raise the matters that are raised by the applicant himself, I appreciate that; it would have to be wholly redrafted.

GUMMOW J:   We mean in a jurisdictional sense.

MR BARRETT:   Yes, in the jurisdictional sense, the natural justice question is a live one in the light of S157, in my submission.

GUMMOW J:   Well, this has come through 476 in the old form, has it not?

MR BARRETT:   Yes.  It is raised on the materials that he has provided to counsel.  Now, we have not had an opportunity to take instructions to see what those instructions mean or to prepare the matter.  That is counsel’s opinion and I regret the application and I apologise for the inconvenience caused to this Court.

GUMMOW J:   Adjourn them until when?

MR BARRETT:   We understand it may be able to be listed in the October special leave applications.  I do not suggest that we would need until October; I just do suggest that we ‑ ‑ ‑

GUMMOW J:   Yes, there are Melbourne and Sydney special leaves on 3 October.  We will hear from Ms Maharaj.

MS MAHARAJ:   If it please your Honours, my instructions are to oppose the application for adjournment.  First of all, your Honours, this matter was listed in the Adelaide list at the request of the applicant and, secondly, it appears that there is no issue of public importance or principle raised even in the first instance to attract the attention of this Court to grant special leave.  On the basis of the material that has been filed and a study ‑ ‑ ‑

GUMMOW J:   Well, what do you say about the availability in this litigation of natural justice as a ground?

MS MAHARAJ:   Well, the law is rather clear, your Honour.  Under the old section 476 the statutory provisions very clearly speak that the natural justice grounds are very, very confined.  My learned friend has mentioned S157, but S157 talks of natural justice in the jurisdictional error context and in the context of section 474, but there are many decisions which have fallen from the Federal Court, which quite clearly lays down the principles in the ambit of the natural justice ground within the old section 476 provision.  So, even taking my learned friend’s argument at its highest, if any natural justice issue is agitated, it is rather difficult to see how it becomes a special leave point in any event on any view of the matter and we would respectfully ask your Honours not to grant the adjournment ‑ ‑ ‑

GUMMOW J:   Well, another question we have to bear in mind is what would be the possibility of special leave in any event, putting aside natural justice.  What do you say as to the prospects of success otherwise?

MS MAHARAJ:   Nil, your Honour.  I have studied the decisions of ‑ ‑ ‑

GUMMOW J:   Well, why is that?  Is it because of page 26, paragraph 3 of the judgment of Justice Hely?

MS MAHARAJ:   Yes, your Honour, and, as we have put in our written submissions, the arguments that had been agitated and a close study of the decisions reveal that the quibble of the applicant may be seeking a merits review of the decision of the Tribunal.  The matter has been through three sieves, which is the Tribunal looking at the merits and Magistrate Driver and Justice Hely paying rather close attention to the facts and, at its highest again, all the complaints appear to seek a merits review, which is not a permissible exercise of judicial review in any event.

I think the last point we do emphasise, your Honours, is that, to take my learned friend’s point at its highest and at its most generous interpretation, any argument that would touch on any natural justice issue under section 476 would not agitate an issue of principle or an issue on which there is any discord and dissension amongst the judges.  Those are our submissions.

GUMMOW J:   Thank you. Mr Barrett, can I put this to you. Any natural justice rights that you have you have attached to section 75(v) of the Constitution.

MR BARRETT:   That is true.

GUMMOW J:   At the moment our provisional view is that, that aside, and without prejudice to whatever might be taken under proper advisement, the adjournment should be refused because the special leave application itself would be bound to fail because of the matters I touched on in exchange with Ms Maharaj.

MR BARRETT:   I appreciate that.  Well, as the grounds are couched, of course, that is true, I accept; it is other grounds which are sought to be agitated.  Nevertheless, the natural justice point does have another avenue.

GUMMOW J:   Very well. What we are about to say is, of course, without prejudice to whatever rights there may exist with respect to alleged denial of procedural fairness and the procedures under section 75(v) of the Constitution. What we have before us is an application for adjournment of an application for special leave from a decision of the Federal Court constituted by a single judge, Justice Hely.

It appears to us that the application for adjournment should be refused on the basis that the special leave application itself has no prospects of success, in particular, by reason of the matters indicated on paragraph 3 of Justice Hely’s judgment.  Accordingly, the application for adjournment is refused and the special leave application is refused. 

Do you seek costs?

MS MAHARAJ:   Yes, we do, your Honour.

GUMMOW J:   Refused with costs.  The Court will adjourn to reconstitute.

AT 3.34 PM THE MATTER WAS CONCLUDED