WACB v MIMIA

[2004] HCATrans 89

[2004] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P92 of 2003

B e t w e e n -

WACB

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 APRIL 2004, AT 10.04 AM

Copyright in the High Court of Australia

MR J.L. CAMERON:   May it please the Court, I appear for the appellant.  (instructed by Freehills)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friend, MR P.R. MACLIVER, for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Cameron.  Mr Cameron, what is the print of the Act that we need to work from in this case?

MR CAMERON:   Well, I think you need to work from two prints.  I am using the Reprint No 8 in respect of section 430 and the new sections which changed after the decision in Long, and the relevant reprint in relation to the decision for Long is Reprint No 7.

GLEESON CJ:   Thank you.

GUMMOW J:   I cannot see how it could be Reprint No 8.  That includes Act 157 of 2001, does it not?

MR CAMERON:   I believe it does, your Honour.  That includes the new sections upon which we rely, the new sections being 430A to 430D.

GUMMOW J:   It also includes section 474.

MR CAMERON:   It also includes section 474.

GUMMOW J:   Which does not apply.

MR CAMERON:   Which does not apply in this case.

GUMMOW J:   It only applies in respect of decisions after 27 September.

MR CAMERON:   That is correct, yes.

GUMMOW J:   And this was before that.

MR CAMERON:   That is right.

GLEESON CJ:   So neither Reprint No 7 nor Reprint No 8 is a totally reliable representation of the legislation with which we are concerned?

MR CAMERON:   No, Reprint No 7 applied at the time that the Long decision was heard.  Reprint No 8 sets out the sections that applied at the time that this matter was heard.

GLEESON CJ:   And some other sections as well.

MR CAMERON:   And some other sections as well, yes.  Now, your Honours will have before you also a notice of motion with an annexed affidavit, which seeks to add an additional ground to the grounds on which special leave was granted.

GLEESON CJ:   What is your attitude to that, Mr Solicitor?

MR BENNETT:   Ambivalent, your Honour.  We have no opposition to the notice of motion itself, but we reserve the right to make the submission that at least in part, the point is one not taken below on which evidence might have been called, and that therefore, to that extent, the point should not be entertained. 

GLEESON CJ:   We will make the order sought by Mr Cameron but on the understanding that you will reserve that point.

MR BENNETT:   If the Court pleases.

GLEESON CJ:   Yes, Mr Cameron?

MR CAMERON:   May it please the Court, I hope that I can be somewhat brief because the main point in my submission upon which the disposition of the appeal turns is a very short point and that is, is the notification of the decision, which is referred to in section 478(1)(b) of the Migration Act, as it was at the relevant time, is that notification effected by simply advising an applicant for review of an adverse finding by the Minister’s delegate to the RRT?

GUMMOW J:   Sorry, section 478?

MR CAMERON:   Section 478(1)(b).

GUMMOW J:   Yes, thank you.

MR CAMERON:   And that is in the ‑ ‑ ‑

GUMMOW J:   This is in which group?

MR CAMERON:   That is in Reprint No 7.  That requires that:

An application under section 476 or 477 must:

(a) be made –

and I turn to (b) which is the relevant subsection:

be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

So the relevant point is when is the decision notified.  It is not the date of the decision which is important.  It is the date of the notification of the decision which is effective for the purposes of section 478(1)(b).

GUMMOW J:   You ask yourself, what is the purpose of stipulating notification as a step in this commencement procedure in the Federal Court?

MR CAMERON:   Precisely, in fact, of course, the legislature could have provided that it be within 28 days of the decision, but it has not done so because, of course, notification of the decision is important for the purposes of constructing an application for review.

KIRBY J:   What do the time limits in this Court say?  Have you looked at that?  You would normally bring it within the time of the decision itself, would you not?

MR CAMERON:   Yes.

KIRBY J:   I assume that that is what our time limits provide.

MR CAMERON:   From the date of the decision.  If I can then take your Honours to section 430D(2) which is in Reprint No 8 ‑ ‑ ‑

KIRBY J:   When did that section go into the Migration Act?

MR CAMERON:   That went into the Migration Act as a result of the Migration Legislation Amendment Act 1998, and it came into force on
11 December 1998.

KIRBY J:   Was there anything in the second reading speech which throws any light on the meaning of this provision?

MR CAMERON:   There is, your Honour, and I will come to that later.  The second reading speech is referred to in a footnote in my submissions, that indicates that it was intended that the new scheme should act as a code.  If one looks at the whole division, Division 5, which is headed “Decisions of Refugee Review Tribunal”, that is in Reprint No 8.  Do your Honours have that?  The first section, section 430, deals with the content of decisions.  You will note that subsection (2), as it appeared in Reprint No 7, which was the one which was in force at the time of the Long decision, is no longer there.  One has to go to Reprint No 6.

GUMMOW J:   Yes, that is right.

KIRBY J:   Which is the section in Reprint No 6?

MR CAMERON:   If one goes to the one that was reprinted as at 30 September 1994, section 430(2) provides:

The Tribunal must give the applicant and the Secretary a copy of the
statement prepared under subsection (1) within 14 days after the decision concerned is made.

In the division which was relevant at the time of this decision you will note that subsection (2) has been repealed and has been replaced by a series of sections.

GUMMOW J:   What was the Act that repealed section 430(2)?

MR CAMERON:   It is the Migration Legislation Amendment Act (No 1) 1998 and that is the Act which came into force on 11 December 1998, well in advance of the decision in this matter. Subsection (2) has been removed and a more elaborate series of sections have been introduced. The first section remains unchanged and it relates to the content of the decision. Sections 430A to D relate to – if I can put it in a neutral term – delivery of decisions and section 431 relates to the publication of decisions. If I can go to the section 431 which refers to publications, that says that “the Registrar must ensure” the publication of any statements prepared under section 431 that the principal member thinks are of particular interest. So decisions for the purpose of that section are also the section 431 statements.

In 430D, and particularly 430D(2), that is the only section which deals with applicants who are in immigration detention and the only method in the code which was set up for advising an applicant of his decision is by giving him a copy of the section and I will read from the section itself:

the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made.

That is the only means in this code of notification of the decision and it would be my submission that that provision, so far as a person in immigration detention is concerned, governs the time limit for the purposes of section 478(1)(b).  In other words, time only runs from the time that a person in immigration detention is provided and given a copy of the statement.

Now, that is not a view which commended itself to the judge at first instance, and it is not the view which commended itself to the Full Court.  The Full Court held that it was sufficient to notify the applicant of the outcome of his application.  In other words, if the Full Court is correct, one only has to say to the applicant, “Your application for review was unsuccessful.  You lost”.

GUMMOW J:   Say it in English.

MR CAMERON:   Notification, in my submission, would have to be in a manner comprehensible to the applicant in the circumstances of the applicant.  Now, in the circumstances of this case, it would appear that the applicant was notified not by the Tribunal, but indirectly, by the manager of the detention centre, to whom the statement had been sent that he had lost.

KIRBY J:   But surely that cannot be the type of notification that has the consequences that put people out of the protection of Chapter III, because if that was so then any old cleaner around the place, “I have heard that you lost your case”, could tell the person.

MR CAMERON:   Precisely.

KIRBY J:   That just cannot be the way this Act is intended to operate.

MR CAMERON:   No.

GLEESON CJ:   Mr Cameron, bearing in mind that, as you pointed out earlier, one of the purposes of the notification is to trigger an opportunity for review, where do we find the provisions about what has to be included in an application for review?  Do we find that in the migration legislation, or do we find it in the Rules of the Federal Court, or where?

MR CAMERON:   It is a combination of the two.  I will find that in a moment, your Honour. 

GLEESON CJ:   What I am really trying to understand is, does the application for review have to state the grounds on which it is contended the decision is challengeable?

MR CAMERON:   Yes.  It is section 478, it is the same section – 478(1).  It is useful to go to Reprint No 7:

An application under section 476 or 477 –

that would be an application for review of a decision of the Refugee Review Tribunal –

must:

(a)  be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act ‑ ‑ ‑

GLEESON CJ:   This is the real trap here.  Section 477 – section 478 in Reprint No 8 is quite different.

MR CAMERON:   Yes, I am looking at the one which was in force at the time that this decision was heard.  Section 478 in the new section is very different, because of the setting up of the Federal Magistrates Court and so forth.

GLEESON CJ:   So should we discard Reprint No 8?  It seems like a trap.

MR CAMERON:   Not really, because Reprint No 8 has set out in it Division 5 as it was at the time that this matter was heard.

GLEESON CJ:   But I made a note, which is apparently wrong, that Reprint 8 contains the provisions that were relevant to this case.  Well, it does not contain section 478 in the form that is relevant to this case. 

MR CAMERON:   That is right, yes.

GLEESON CJ:   It contains some of the provisions.

MR CAMERON:   It contains some of the provisions, yes.

GUMMOW J:   The trouble is, the critical date here is in between 7 and 8. 

MR CAMERON:   Yes.

GLEESON CJ:   So 478 refers you over to the Rules of Court, does it not?

MR CAMERON:   Yes.

GLEESON CJ:   What is the relevant Rule of Court of the Federal Court?

MR CAMERON:   There is a form which is set out in the Rules of Court, and the form requires that you set out the grounds of your application and review.

GLEESON CJ:   That is what I am trying to identify.  Where do I find that?

MR CAMERON:   I cannot assist your Honour there.  I do not have the Federal Court Rules here, but I could find it later on and refer your Honour to it.

GLEESON CJ:   Is one of the points that you want to argue that it would be impossible to comply with the Federal Court Rules and with section 478 of the Migration Act if you did not have the reasons for decision?

MR CAMERON:   That is right, because you have to set out in your application for review the grounds of the review, and you cannot know what the grounds of the review are until you have seen your section 430 statement.

KIRBY J:   The Rules are made under power by the judges of the Federal Court.  I suppose it can be said that the Federal Parliament would at least be aware of the fact that the whole utility of notification and fixing a time in connection with it – giving it a purposive approach – is to ensure that there is adequate time and material upon which to take the step that may follow from notification.

MR CAMERON:   Yes.

GLEESON CJ:   It goes further than that, does it not?  The Rules of Court are referred to in section 478 of the Migration Act.  Am I right in saying that it is impossible to comply with section 478 of the Migration Act if you do not know what the reasons for decision were?

MR CAMERON:   Yes.

KIRBY J:   Well, it would be possible to comply, but they would be the rather uncommunicative types of grounds of application that we see all too often in this Court.  They would not be well‑focused, and one would not want to be encouraging that determination. 

MR CAMERON:   Indeed. 

GUMMOW J:   It seems to be Order 54B of the Federal Court Rules, but that itself was changed in 2002, so we will have to have Order 54B in its form here.  Someone will have to find that for us. 

MR CAMERON:   Yes.  The other point which I would make in relation to the handing down of decisions, your Honours will see that the Tribunal has to invite parties to the handing down of a decision.  The manner in which it is handed down is dealt with in section 430B, and I take you to section 430B(6), which says:

If the applicant is not present at the handing down of the decision –

he would have been invited if he is not in immigration detention under the provisions of section 430A.  If he decides not to bother to turn up, then: 

the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1).  The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is handed down –

Of course, that person who decided not to turn up, for reasons of his own, would in fact have 28 days to get his application for review in, whereas, if one follows what was held by the primary judge and the Full Court, if the applicant is told of the outcome on one day and time begins to run, and he is not given the statement for another 14 days, he would only have 14 days to prepare his application for review from detention.  It is unlikely that the Parliament would have intended that a person who is in immigration detention is in a worse position so far as applying for judicial review than a person who is out in the community and completely free.  That, in my submission, is the short point ‑ ‑ ‑

KIRBY J:   One cannot necessarily make assumptions about the benign intention of Parliament in this area.

MR CAMERON:   No, one cannot.

GUMMOW J:   Now, is there is some factual shortcoming here, some issue that the primary judge did not fully deal with?

MR CAMERON:   The primary judge, because he decided that the relevant question was, when he was informed of the outcome, did not make a positive finding on whether he was given the section 430 statement at the time that he was told of the outcome.  The evidence of Mr Wallis, who delivered the decision, said he gave the applicant the statement although it is conceded that it was never translated for him.  The evidence of the applicant, on which he was not cross‑examined, was rather more expansive and the evidence of the applicants…..in the appeal book.

GUMMOW J:   Neither deponent was cross‑examined.

MR CAMERON:   Neither was cross‑examined, but the applicant’s evidence was more expansive.  He said there were a number of people in the room including Mr Wallis and including a counsellor, Ms Elham and that when he was told he had lost he broke down and burst into tears.  Mr Wallis gave the statement to Ms Elham, who took him into another room, said that his witnesses had not been believed and it had been found that he was not from Afghanistan, did not give him the statement until he asked for it several weeks later.  It is common ground that the statement was never translated for him.

HEYDON J:   Is that common ground or something that emerges from the evidence?

MR CAMERON:   It is common ground.

HEYDON J:   I thought there was simply ‑ ‑ ‑

MR CAMERON:   There was no evidence that it was ever translated for him by the Department or by the Tribunal.  Of course, one must underline ‑ ‑ ‑

GUMMOW J:   Well it was a strike‑out application, so I suppose the Minister bore the onus of proving the incompetency of the proceeding.

MR CAMERON:   That is right, yes.  The onus was on the Minister.  That is why once the counsel did not cross‑examine the appellant on his affidavits, I did not find it necessary to cross‑examine Mr Wallis on his.  That is really the short point and if I succeed on that point, in my submission, I am entitled to succeed on the appeal.  It is not necessary to consider the other grounds.

GUMMOW J:   The appellant comes here without a next friend.

MR CAMERON:   Yes.

GUMMOW J:   He is now of majority, I suppose.

MR CAMERON:   He is now of full age.  He was not at the relative times and there was a hearing before Mr Justice French on that very point.  I, at that stage, was appointed under Order 80 of the Federal Court Rules, and I endeavoured to persuade his Honour that a next friend or tutor should be appointed because it did not seem to me that the slender resources of the Perth Bar should be expended on matters for which the Minister had a responsibility, but his Honour, in fact, held that it could proceed without a next friend.

GUMMOW J:   How could that be in the face of Order 43 of the Federal Court Rules?

MR CAMERON:   That was the difficulty which I raised with his Honour.  You will see that his Honour, based on my submission, made an order that no costs could be sought from any legal representative appearing for the applicant at this stage, bearing in mind that he had a guardian who was the Minister.  I was uncomfortable in that situation appearing on the instructions of a minor when the minor had a guardian and I had no instructions from the guardian.

GUMMOW J:   Well, that is a question, too.  That is another question we will have to deal with, I suppose.

MR CAMERON:   Yes.

GUMMOW J:   The scope of the 1946 Act, there is a question.

MR CAMERON:   Yes, but it has always been accepted that, in fact, this appellant was a minor and was subject to the provisions of section 6 of the Guardianship Act.

GLEESON CJ:   Now, I am not intending to discourage your offer of brevity, but this is your opportunity to say whatever you want to say about any of the other points, too.

MR CAMERON:   Yes, I might clear up one other point.  Your Honours may be curious as to why the motions were the subject of a ground of appeal, but not pursued.  The reason for that is that, at some time after the filing of the notice of appeal, the appellant was transferred from Curtin Detention Centre to South Australia, and was released into the community.  I am not quite sure whether he has a bridging visa or whether he is in detention under some special circumstances.  So all of the relief which was essentially sought in the motion – he was getting that relief anyway.

GLEESON CJ:   He does know about these proceedings, does he not?

MR CAMERON:   He does know about these proceedings, yes.  The only, really, question that remained was whether the notice of objection to competency should be struck out under the motion, but that would have had no effect because the court would still have had jurisdiction.  It would only have gone to costs, and his Honour made no alter to costs, anyway.  So that is the reason why those motions were not pursued.

GUMMOW J:   Now, do we have to look at Long?  Were we invited to depart from Long, or say it does not matter?  It seemed to control what has happened before. 

MR CAMERON:   Well, it did.  I have serious reservations about Long, because it was a rather odd decision, and in so much it was a majority decision on one point and I cannot see that that point was really the subject of an appeal.  Mr Justice Lee dissented on the notification question and Justice Beazley agreed with Justice Jenkinson on the notification point, but not on the other point.  I would say that Long simply is of no assistance in the circumstances of this case, because after Long the whole scheme changed.  There is a different scheme.

GUMMOW J:   This was pointed out to the Full Court, I am sure.

MR CAMERON:   Yes.

GUMMOW J:   What did they say about that?

MR CAMERON:   They went down the same line as the primary judge.  They said that ‑ ‑ ‑

GUMMOW J:   He was bound by Long, I suppose, whatever its authority.

MR CAMERON:   Well, as a Full Court, it could have departed from it, if it felt that it was manifestly wrong, but it did not ‑ ‑ ‑

GUMMOW J:   Or simply not applicable. 

MR CAMERON:    ‑ ‑ ‑ and said that Long was directly on point, and that the change in the legislation made no difference.  I was unable to persuade them to my view.

McHUGH J:   “[W]e consider that the decision of the Full Court in Long is precisely in point”.

MR CAMERON:   Yes. 

GLEESON CJ:   But, if necessary, you want us to say that Long was incorrectly decided?

MR CAMERON:   If necessary, yes.  If it is my primary submission that it is inapplicable, my subsidiary submission – my back‑up submission, if you like – is that it was incorrectly decided.  The unfortunate facts, of course ‑ ‑ ‑

KIRBY J:   Is the inapplicability based on any difference in the statute, or based on the way the Full Court in Long reached its orders?

MR CAMERON:   No, on the basis of the change in the statutory scheme.  Turning to my written submissions, I think I have dealt at some length and covered the question of notification, but perhaps if I go to paragraph 14 of my submissions on page 5.  Following the decision of the learned primary judge and the decision of the Full Court, this Court handed down its decision in S157 of 2002.

GUMMOW J:   That has nothing to do with this case, nothing to do with it.

MR CAMERON:   Well, not really, except by analogy in terms of construction, because it was a question of whether there has to be a decision which is not infected by jurisdictional error, in other words, whether there is a decision under the Act.  In my submission, the same provisions apply in respect of section 478(1)(b).  That was a view which commended itself to the Full Court in Ngu.  Ngu is not on my list of authorities and unfortunately ‑ ‑ ‑

GUMMOW J:   Sorry, this is 478 in what reprint?

MR CAMERON:   In Reprint 7.

GUMMOW J:   Yes.

MR CAMERON:   Paragraph (b) refers to “being notified of the decision”.  If there was, in fact, no decision, then time would not commence ‑ ‑ ‑

GLEESON CJ:   And what is the consequence of that in terms of the capacity for judicial review?

MR CAMERON:   Well, judicial review would still be open, but it would still be open to the appellant even now – well, no, he has made his application.

KIRBY J:   Is this the Calvin v Carr type ‑ ‑ ‑

MR CAMERON:   Yes.

KIRBY J:   That the decision is enough to enliven judicial review but it may on that review be found not to be a decision at all?

MR CAMERON:   Yes, and not ‑ ‑ ‑

KIRBY J:   I think the Privy Council said that in Calvin v Carr and that has been followed in this Court.

MR CAMERON:   Yes, and, accordingly, it would not be sufficient to trigger the time limit in section 478(1)(b) because, in fact, there would not be ‑ ‑ ‑

GLEESON CJ:   That is the question.  If it is sufficient to trigger a right of review, assuming your other argument is wrong, why would it not also be sufficient to trigger the time limit applicable?

MR CAMERON:   Because if for some reason it was infected by jurisdictional error, it would not be a valid decision, it would not be a decision for the purpose of triggering the time limit, although it might be valid for the purposes of judicial review.  In other words, while it is not a privative clause, in its effect it is a semi‑privative clause.  In those circumstances, it should not trigger a time limit if, in fact, it is not a decision made under the Act and is infected by jurisdictional error.

GUMMOW J:   The other view is that this is entirely the creation of a statute. This is a law under 76(ii) of the Constitution and this is an inherent limitation like we get with the electoral partition which we looked at in Rudolphy v Lightfoot.

MR CAMERON:   Yes.  I am not questioning the validity of ‑ ‑ ‑

GUMMOW J:   It goes back to The Crown v McNeil.  No, that is its nature.

MR CAMERON:   Yes.

GUMMOW J:   It is not a probative clause.  There is nothing which is probative.

MR CAMERON:   No, it is not.

GUMMOW J:   It is simply a condition of the grant of the jurisdiction.

MR CAMERON:   It is a condition of the grant and because its effects are as draconian as they are, in my submission it should be looked at in a fairly restricted way, and looking at it in a restrictive way, if the decision is only a purported decision, then it does not trigger the time limit.  So far as whether that is a question which should be considered by a primary judge confronted by a notice of an objection to competency, that was the view which commended itself to the Full Court in Ngu v Minister for Immigration and Multicultural Affairs [2003] FCAFC 54; (2003) 37 AAR 107, which is not on my list of authorities. I believe that your Honours have been provided with copies this morning.

There, their Honours were concerned with a notice of objection to competency based on not section 478 which was the relevant section at the time but the new section 477 but, in my submission, the same considerations which apply, apply also in respect of section 478.  If I can go now to paragraph 25 of the written submissions, and that is the Odhiambo point.  I am not entirely sure how Odhiambo crept into the decision of the Full Court, bearing in mind the basis on which the appeal was heard which was solely on this challenge to notification, but, in my submission, Odhiambo is distinguishable in a number of respects.  The court in Odhiambo acknowledged the possibility of a conflict between the role of the Minister, as guardian, under the Immigration (Guardianship of Children) Act.

GUMMOW J:   What has this to do with the strike‑out application?

MR CAMERON:   I am sorry, your Honour?

GUMMOW J:   What does paragraph 25 have to do with the grounds you are now pressing here?

MR CAMERON:   It has very little to do with it, save that it was referred to in the judgment of the Full Court.

McHUGH J:   That is not very helpful.

MR CAMERON:   It probably is unnecessary and since I did indicate that I would be brief, it is probably appropriate that I do not pursue it any further.  I do not know how it got into the decision of the Full Court, bearing in mind the way it was argued in the Full Court.

KIRBY J:   But is there any analogy?  I mean, you have come all this way and you are here to argue.  Do not be too worried about the time; we have to hear the case.  Is there any point in it that the Minister as guardian should not be taking such an apparently unjust point against the person of whom he is guardian?  And that, therefore, before you get to the application of the statute, you have a question as to whether the Minister is in some way prevented or restrained by some general principle of law from, as it were, taking the statutory point?  If he is the guardian, under the statute of the Federal Parliament of Australia, of young people in immigration detention, he should act as a guardian.

MR CAMERON:   And should have assisted him with his application.

KIRBY J:   Guardian is a well‑known expression of law, and if the Minister is designated the guardian by the Federal Parliament of Australia, then I do not see why he should not be fixed with the duties of guardian. 

MR CAMERON:   Indeed. 

KIRBY J:   If he does not want to exercise those duties, he should move the Parliament to change and remove him from being guardian.

McHUGH J:   Well, he has power under the Guardianship Act to exclude certain people.

MR CAMERON:   And he has never exercised the power. 

GUMMOW J:   Well, I have to tell you that I think there is a real question about what section 6 of the Guardianship Act means, which says:

every non‑citizen child who arrives in Australia –

One view is, that means “who arrives legally in Australia”.  It does not include people who arrive here subject to immediate liability to deportation.

MR CAMERON:   One could perhaps suggest that it should be read down in that way, but, for the purposes of these proceedings, it has always been accepted by the Minister ‑ ‑ ‑

GUMMOW J:   It might be, but it is not a concession that binds me, if you want to get into this question.

MR CAMERON:   Yes. 

McHUGH J:   The Full Court seems to have used Odhiambo to reject an argument that the present appellant was not notified because he was a minor.  Is that not the way they sought to use it?

MR CAMERON:   Yes.  Well, no, if I can go back to Odhiambo ‑ ‑ ‑

McHUGH J:   You did not raise a point, did you, that the proceedings before the Tribunal were flawed because he did not have a guardian? 

MR CAMERON:   No. 

McHUGH J:   That was the point in Odhiambo, was it not?

MR CAMERON:   Yes.  What he did raise was that the question of notification was important and may import various obligations on the part of the Minister once the secretary is notified of the decision.  Once the secretary ‑ ‑ ‑

GUMMOW J:   You have the secretary notifying the Minister as a guardian, or something like that. 

MR CAMERON:   Yes, and, of course, there was a delegation already in force, so there is a way around it.  In other words, the Minister, once he sees that an adverse decision has been made in respect of a person of whom he is a guardian, can ‑ ‑ ‑

GUMMOW J:   That is another problem.  There is a power of delegation in this Act to State officers.

MR CAMERON:   Yes, and it has been ‑ ‑ ‑

GUMMOW J:   There is no State legislation accepting that situation.

MR CAMERON:   No, but there was an instrument of delegation.

GUMMOW J:   I know there was, but there is no State legislation.  There is a Hughes problem with this.

MR CAMERON:   There was a huge problem, and that was ‑ ‑ ‑

GUMMOW J:   Hughes – Hughes’ Case. 

McHUGH J:   They have the same problem in the United States with gun cases – Congress seeking to use State officers to carry out functions of the Federal Congress.

MR CAMERON:   There was a long discussion of that in the context of the motions, and that was another reason why I think a decision on the motions was not particularly attractive.

GUMMOW J:   We lift up this stone and there are all sorts of creatures crawling around underneath.

MR CAMERON:   Yes, there are.  Once one turns that stone over, there are all kinds of unfortunate creatures.  But while I would say that in respect of the Tribunal, in respect of notification, it may be – and I would submit that it is – that when there is notification to an unaccompanied minor the Tribunal must have regard to the provisions of the Convention on the Rights of the Child in delivering its decisions and ensuring in some way that those rights are in fact exercised, it may be that in fact the Tribunal should notify the Minister of the fact that “This person is an unaccompanied minor, we

have made an adverse decision, he may well wish to have that decision reviewed in the Federal Court and should be given such assistance as is necessary”.

Now, ignoring what crawls out from under the stone, in those circumstances, the Minister could advise the director of the Department of Community Development that there is this person in Western Australia, that he may have rights of a review, he may well want to exercise those, and the Department of Community Development could then arrange legal representation, in which case the application for review would go in on time.

GUMMOW J:   What is the significance of section 256 of the Migration Act, which seems to be constant in form?

MR CAMERON:   Section 256 provides that a person in immigration detention may have access to certain advice or facilities.  The difficulty with it is that the department always insists that it must be at the request of a person in immigration detention – no request, no assistance – but it may well be that in the circumstances of this particular case, where the minor broke down and was completely upset, that that is an implied request for assistance.  In those circumstances, again, the Minister should be advised and the Minister goes back to the Department of Community Development and says, “This child is in Western Australia.  He may need assistance with his application for review.  Will you take the necessary action?”  Unless your Honours have any further questions, I think that is as far as I can take it.

GLEESON CJ:   Thank you, Mr Cameron.  Yes, Mr Solicitor.

KIRBY J:   Do you accept that the Minister is the guardian of the infant, Mr Solicitor?

MR BENNETT:   Yes, your Honour.

KIRBY J:   I must say I am very surprised that the guardian of the infant claimant for refugee status has been treated in this way.  I mean, guardians have duties.

MR BENNETT:   I will start with that, your Honour, although that takes me out of the order I had intended.  Where a person has two capacities, one of which is a fiduciary duty towards another and another of which involves other obligations or, indeed, involves acting for oneself, the person’s fiduciary duties only arise in relation to acting as a fiduciary.  The obvious example, I suppose, is a company director who clearly owes fiduciary duties to the company.  If he or she trips on the steps of the company’s premises on the way to a board meeting, the steps being defective, the fiduciary duty does not stop that person acting to the detriment of the company by suing it, nor does it ‑ ‑ ‑

KIRBY J:   I do not think that is an analogy at all.  Here a person who is a minor gets out of time; he is in detention; he has difficulties with the English language; he has not been given a translation of the decision of the Tribunal; and the Minister who is the guardian acts in a highly technical way in insisting upon the observance of time.  I just find that very surprising given that the Parliament of Australia has made the Minister a guardian.

MR BENNETT:   Your Honour, we have a number of submissions in relation to that.  The first is that the Act making him a guardian read with the Act which makes the Minister a decision‑maker in relation to immigration matters and also an opponent in litigation challenging the decision of delegates, the combination makes it clear that the obligations as guardian cannot be construed so as to affect the Minister in his other capacities.

KIRBY J:   But the Minister has, presumably, a discretion and no doubt from time to time exercises it to waive minor infractions of time.

MR BENNETT:   But, your Honour, his duties in exercising ‑ ‑ ‑

KIRBY J:   Do we live in the age of the Meades and the Persians, where the Minister does not regard himself as having any discretion in such matters?

MR BENNETT:   Well, your Honour, the relation to jurisdiction in the Federal Court here does not but ‑ ‑ ‑

KIRBY J:   I am talking of the Minister.

MR BENNETT:   Well, it would not make any difference because he cannot confer jurisdiction by waiving the point.

GUMMOW J:   Well, is the Minister the competent party as the appellant?

MR BENNETT:   The Minister is the respondent, your Honour.

GUMMOW J:   I realise that.

MR BENNETT:   Yes.

GUMMOW J:   But in the light of your concession, why is he not on both sides of the record?  Why should he not be on both sides of the record ‑ ‑ ‑

MR BENNETT:   Because, your Honour, his role as guardian cannot extend to matters in which he is either the decision‑maker or the opponent.

McHUGH J:   But when he has a conflict of interest, why is he not then required to exercise his powers under section 5 of the 1946 Act and delegate to an officer of the Commonwealth his function as a guardian?

MR BENNETT:   Because, your Honour, his functions as a guardian simply, as a matter of construction, cannot include the areas where he is a decision‑maker or opponent.

McHUGH J:   But why not?  The Act itself defines his obligations the same as a natural guardian.  Surely a natural guardian would have obligations in respect of litigation affecting the child.  If the Minister finds himself where he has a conflict of roles or duties, why should you not construe section 5 to require him to exercise the power?

MR BENNETT:   The analogy, I suppose, your Honour, is a ward who assaults his guardian and the guardian sues the ward.  Now, that action is not inhibited by the guardian’s fiduciary role, nor does the guardian’s role as guardian extend to giving advice and assistance to the ward in defending the litigation.  The authority on this, if one needs it ‑ ‑ ‑

McHUGH J:   No, but does it not extend to advising the child to get some other legal assistance or some other ‑ ‑ ‑

MR BENNETT:   Your Honour, the authority against that is Bell v Lever Brothers.

GUMMOW J:   Bell v Lever Brothers?

McHUGH J:   Bell v Lever Brothers?  That is a long way removed.

MR BENNETT:   Well, your Honour, it is a different fiduciary ‑ ‑ ‑

GUMMOW J:   We have heard about Bell v Lever Brothers in various ‑ ‑ ‑

McHUGH J:   The only thing it seems to have in common with these cases is it took place in Africa, did it not?

MR BENNETT: Your Honour, I am not talking about analogy, I am talking about legal principle, your Honour, which this case, among others, decided. It is [1932] AC 161. It is a familiar case. Your Honours recall that in this case a director of a company committed breaches of fiduciary duty, unknown to the company, and was then negotiating his severance pay.

KIRBY J:   I am sorry, but I have to say at the outset I see no analogy between a director of a company and a Minister who is a Minister of the Crown.

MR BENNETT:   I am not drawing an analogy, your Honour.

KIRBY J:   A Minister of the Crown has special obligations.

MR BENNETT:   I am relying on this case for the legal principle that the obligations of a fiduciary do not extend to a situation where the fiduciary is acting in a different capacity.

What the court said in Bell v Lever Brothers was that the director did not owe a fiduciary duty to disclose his defalcations or his prior breaches when negotiating his severance pay, because in negotiating his severance pay, he was acting as principal for himself.  He was not acting in his fiduciary capacity.  He could not, of course, use information he obtained in his fiduciary capacity.  He could not act as director to give himself a large sum of money, or anything like that.  All those would be breaches of fiduciary duty because they involve actions while he is acting in his capacity as a fiduciary. 

McHUGH J:   We dealt with this problem in a case from Brisbane about – I just cannot think of the name for the moment, as to whether when another contract was entered into, whether you are under an obligation to disclose your prior breaches.  In Bell, the court ended up holding it was one contract, and that there was not a renewal, but I think some of us had some doubts about Bell v Lever Brothers. 

MR BENNETT:   But your Honour, a simple example is the director who trips on the steps.  That is the simplest and most obvious example.

GUMMOW J:   There are cases, are there not, that say that some fiduciary aspects continue after the director ceases to be a director?

MR BENNETT:   Yes, your Honour, that is where the director takes advantage of his or her position as a former director.  The case of the two doctors with the long name that I forget, in this Court, where they were partners, and one of them took advantage of the former relationship to get the old landlord to renew the lease.

HEYDON J:   Chan v Zacharia?

MR BENNETT:   Yes, Chan v Zacharia, I am grateful to your Honour, Justice Heydon.  Now, that is a case where the fiduciary uses an advantage which the fiduciary obtained by being a fiduciary, and in relation to which the fiduciary duty continues, as it might in relation to confidential information and matters of that sort.  This is a different situation.  This is a case where the fiduciary acting in another capacity - in Bell v Lever Brothers it was in a personal capacity; in this case, it is in a statutory capacity - is in a situation where she, the Minister, is bound to take into account matters which are quite separate to the question of guardianship, or in the situation where the Minister is an opponent in litigation, where again the Minister is acting ex hypothesi against the interests of the ward. 

KIRBY J:   Yes, but the point is that he should not have put himself in that position.

MR BENNETT:   The statute puts him in the position.

KIRBY J:   Well, do you contend that the Minister has no discretion in the event of a minor, who gets out of time by one day, to waive that default?

MR BENNETT:   No, your Honour, I do not contend that.

KIRBY J:   Well, if he has the discretion then he must exercise it as a guardian.

MR BENNETT:   Well, your Honour, that is ‑ ‑ ‑

KIRBY J:   And, moreover, as a guardian who is an officer of the Crown, a Minister of the Crown under the Constitution.

MR BENNETT:   Well, your Honour, I dispute the first proposition.

KIRBY J:   Do you dispute the second, that he is a Minister of the Crown?

MR BENNETT:   No, your Honour ‑ ‑ ‑

KIRBY J:   The Constitution makes him so ‑ ‑ ‑

MR BENNETT:   I do not dispute that ‑ ‑ ‑

KIRBY J:   The Crown has always had a role as a model litigant.  We see it all the time, especially in criminal cases.  The Minister seems to have forgotten that.

MR BENNETT:   No, your Honour.  The role as a model litigant involves different considerations.  The Minister has to draw a balance ‑ ‑ ‑

KIRBY J:   It is not confined to criminal cases, Mr Solicitor.

MR BENNETT:   Well, your Honour, the Minister has to draw ‑ ‑ ‑

KIRBY J:   I mean these are people who are infants who are locked up in detention under the law of this country and you say there is no obligation of the guardian to ensure that he deals, in relation to them, as a guardian should?

MR BENNETT:   The Minister has no obligation as a guardian in relation to decisions the Minister makes as a decision‑maker or as an opponent.  That is my submission.

KIRBY J:   Well, if he is in this position where there is a potential conflict of his interest and duty as the Minister decision‑maker and as the Minister guardian, he should get himself out of that conflict.

MR BENNETT:   Your Honour, the statute has put him or her in that position.

KIRBY J:   If that is so, he must observe the higher duty, which is the duty of the Crown to act with propriety and justice to all people, and, one might say, especially to the vulnerable and the weak.

MR BENNETT:   That obligation is a separate obligation, your Honour.

KIRBY J:   It is pretty ancient.  It has been around for hundreds and hundreds of years.  It seems to be being forgotten; I must say, I dissociate myself from it.

MR BENNETT:   Your Honour, the Minister, of course, accepts the obligation as a model litigant, but the obligation as a model litigant in making the decision that has to be made involves two other questions.  One is the question whether the Federal Court has jurisdiction to hear the matter if it is out of time, and that is a matter going to jurisdiction, which is something, clearly, the Minister must take into account in making the decision.

The second matter the Minister must take into account is that time limits have a purpose.  They have a number of purposes in litigation.  It is not simply a case of saying, “Oh, if a person is one day out of time, what should the Minister do?”  The time limits are there for a purpose.  The Minister, when on the other side in litigation, has to weigh those purposes as well, but the principal fact is that the court just has no jurisdiction, so it does not matter what the Minister does.  It is the Minister acting in a different capacity.

When one reads the Acts together, one must read them, in my respectful submission, so as to say that the Minister’s duties as guardian do not extend to the Minister’s conduct as decision‑maker or the Minister’s conduct as opponent in litigation.  Those are areas necessarily excluded by implication from the guardianship, otherwise the Minister would be able, for example, to exercise his or her guardianship powers by withdrawing an appeal.  That, clearly, would be inappropriate.

McHUGH J:   There is no doubt, though, is there, that under the 1946 Act the Minister as guardian can frustrate a purpose of the Act?  For example, an officer of the Commonwealth is under a duty, under various provisions of the Act, to remove a non‑citizen from the country in certain circumstances, yet section 6A of the 1946 Act says:

a non‑citizen child shall not [be removed] except with the consent in writing of the Minister. 

Surely, you cannot deport any non‑citizen child from this country without the Minister giving his consent in writing.

MR BENNETT:   Yes, but the considerations the Minister would need to take into account there would, again, not include the considerations as guardian.  An alternative construction is that that section specifically recognises and applies the Minister’s duties as guardian to that very limited aspect of the relevant role. 

The ultimate point is that when one talks about fiduciary duties – let me give your Honours another example.  Suppose a person is a director of two companies which are negotiating.  Of course, in acting for one company the director may not commit a breach of his fiduciary duty to that company, but that does not require the director in acting for one company to use in its favour fiduciary secrets he has learnt from the other company.  The role of fiduciary applies to prevent the director taking advantage of particular things in other capacities.  It also applies to limit his or her conduct when acting in the capacity of a fiduciary.  To say the contrary would mean the director could not sue the company when he or she trips on the steps.  It would mean the guardian could not sue the ward who assaulted the guardian. 

There are situations where one is simply acting in a different capacity.  That is what Bell v Lever Brothers recognised when it said in negotiating with the company over severance pay these directors were acting in their interests.  They had no obligation in that capacity to disclose to the company particular matters or to act as if they were fiduciaries.  They could act as independent third parties seeking to get the best they could from the company.  That was the point.  That is a feature of our law of fiduciaries.  The law recognises that one may put oneself in certain types of position of potential conflict.  Certain types of position of conflict one cannot put oneself into.  There is an old case the London and Mashonaland Case which we have given your Honours the reference to.

GUMMOW J:   I am not sure where this goes, Mr Solicitor.  You seem to be riding two horses.  One horse says, “Look, you have these two statutes and there is going to be a clash”.  The answer is you read the one as subject to the other and that problem disappears.  In other words, if the Minister is not acting under the Migration Act that displaces what otherwise would be the operation of the 1946 Act.  The other submission seems to be if the general law, it would be okay.  So you do not need to treat this particular statutory construction argument.  You just say this is just an instance of what the general law deals with ‑ ‑ ‑

MR BENNETT:   That would mean, your Honour, that the Minister would be bound every time ‑ ‑ ‑

GUMMOW J:   The two arguments are different.  Do you run both or ‑ ‑ ‑

MR BENNETT:   The second cannot be right, your Honour.  It would mean that every time a person under 18 arrived in Australia illegally and unaccompanied the Minister would have a duty in acting in the interests of that child to grant whatever visa it wanted.  That cannot be the law.

GUMMOW J:   Anyhow, you make this concession about the application of the 1946 Act and then you want to have half a piece of cake, that is all.

MR BENNETT:   Your Honour, one reads it with the Migration Act.  Reading it with the Migration Act where the Minister has these two other roles as decision‑maker and as opponent, the guardianship simply cannot apply to what the Minister does in his or her capacity of those two roles.  Otherwise one would have a ridiculous situation.  One cannot have a decision‑maker who has to give paramount consideration to the interests of one side and not the other in a dispute or in a dispute between, in this case, the Executive Government, putting that in general terms, and the illegal immigrant.

McHUGH J:   Mr Solicitor, I think I was probably wrong in saying that section 6A would prevent the deportation of a child without the consent in writing.  I notice that subsection (4) of that section says:

This section shall not affect the operation of any other law regulating the departure of persons from Australia.

MR BENNETT:   Yes, that is so.  Yes, I see, your Honour, section 6.

KIRBY J:   The policy of the Migration Act which fulfils policies of repeated Parliaments – repeated polices of Parliament, has a general principle of mandatory detention including of minors, at least that is as it appears on its face, and it may be that that does requires the Minister, conformably with that policy and the language of the Act and the intention of Parliament, to remove unlawful non‑citizens who happen to be minors, but the Immigration (Guardianship of Children) Act seems to impose obligations of a different and individual kind in conformity to the whole notion of what it is to be a guardian, and it may be that this mollifies, in the case of children, the consequences of the universal policy contained in the Migration Act because you have to read them both together.

If the Minister, for political or other reasons, feels unable to fulfil the two roles, there is a solution in the Guardianship Act.  The Minister can delegate to a Crown officer of the Department, an officer of the Commonwealth, and that person will have the traditional functions which guardians have, and I should say also, which officers of the Commonwealth and Crown officers have.  These are pretty ancient notions.  Some might say this is a romantic notion, but whilst we have the Crown and whilst it is observed, as I have noticed over many years now, punctiliously in criminal matters, generally, it seems to me that the Guardianship Act imposes the duty on the Minister to be equally mindful of the special obligations of the Crown, which goes back to Henry II in the case of infants.

MR BENNETT:   Your Honour, this was partially debated in B and B.

KIRBY J:   It was, indeed.  That is why it is in my mind.

MR BENNETT:   Your Honour, the role of the Crown as parens patriae cannot have the result that every time the Court decides a case in the parens patriae jurisdiction between a minor and a third party, the Court has to regard the interests of the minor as the paramount consideration.  Let me give a simple example again?

KIRBY J:   Do not worry about the example for the purposes of this case.  I will accept that argument, because the prerogative from which the parens patriae comes, or the common law giving expression to the prerogative, will always bend to the provisions of the Migration Act, but here we have, not only the Migration Act, but the Guardianship of Children Act which does indicate that Parliament has spoken with two not entirely consistent voices here and has imposed duties on the Minister under the Migration Act and duties which have to be reconciled under the Guardianship of Children Act.

MR BENNETT:   One cannot read down the duties under the Migration Act by reference to the role as guardian.  That would be analogous to saying that every time there was a dispute between a ward and a third party before the chancellor, the chancellor had to find for the ward.

KIRBY J:   I do not see why you – it may be that there is great wisdom in Parliament’s enactments here, that Parliament has laid down its general policy in the area of migration involving detention, but has also laid down, as it were, a softening provision in the Guardianship Act that requires that in the case of infants, young people, that the Minister has to give individual, specific and particular consideration to those for whom he is guardian.  That does not apply generally, but it does apply to children.

MR BENNETT:   Your Honour, the second reading speech rather indicates that the purpose of the Guardianship Act was a recognition that by inviting, and, indeed, financing immigration of children from overseas, the government had assumed moral obligations which ought to be recognised.

KIRBY J:   Yes, well they were in days of moral obligation.  You know Ex parte Veen as well as I do, and we are bound by the Act, by its terms, and so is the Minister.

MR BENNETT:   Yes.

McHUGH J:   Whatever the scope of the Act - that is 1946 Act – it certainly imposes far‑reaching obligations because it makes the Minister the guardian of both the person and the estate of the non‑citizen child to the exclusion of the father and mother and every other guardian of the child.

MR BENNETT:   Well, it assumes they are not in Australia, your Honour, because there is a section which provides that it does not ‑ ‑ ‑

HEYDON J:   There is the definition of “non‑citizen child” in section 4.

MR BENNETT:   Yes.

HEYDON J:   If they enter Australia in charge of their parent, then they are not a non‑citizen ‑ ‑ ‑

MR BENNETT:   Yes, 4AAA(2) is the subsection.  It:

does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:

(a)  a parent of the child; or
(b)  a relative . . . or
(c)  an intending adoptive parent –

So it does not exclude that ‑ ‑ ‑

HEYDON J:   Section 4AAA, did you say?  I do not have that in this copy.

MR BENNETT:   Yes, it is 4AAA from which I am reading, your Honour.

HEYDON J:   Yes, I see.

MR BENNETT:   It seems to have been added in 1994.

HEYDON J:   Yes.

GUMMOW J:   Now, this purpose of living in Australia.  It cannot be an illicit purpose of living in Australia, surely.

MR BENNETT:   That must be so, your Honour.

McHUGH J:   Well, then why did you make the concession that you made?

MR BENNETT:   Yes.  Well, your Honour, the ‑ ‑ ‑

GUMMOW J:   You cannot very well have a purpose of living in Australia where you are ‑ ‑ ‑

McHUGH J:   Liable to deportation.

GUMMOW J:   Exactly.

MR BENNETT:   Yes.

KIRBY J:   The Act is in very broad terms.

MR BENNETT:   Yes.

KIRBY J:   It is not limited.  Indeed, it uses the more modern language, which presumably was not around in 1946, that every non‑citizen child – this is the language of the 1958 Migration Act.

MR BENNETT:   Yes.

KIRBY J:   In 1946 we were still talking in terms of British subject.

MR BENNETT:   Yes. 

KIRBY J:   Perhaps the 1946 Act was enacted by Parliament in a kindlier time.

MR BENNETT:   Yes.  Well, certainly, the second reading speech suggests that it is talking about British children who are attracted to Australia, and paid for by the government, and so on.

GLEESON CJ:   “Bring out a Briton”, that was the campaign.

MR BENNETT:   Yes.

GLEESON CJ:   But the question has been raised with you whether or not a “non‑citizen child” includes an unlawful entrant.

MR BENNETT:   Yes, it may be that the concession – would your Honours permit me to obtain instructions in relation to whether to adhere to the concession?

GUMMOW J:   Yes, I think this is a very complicated and important subject.  To deal with it on the run, I think ‑ ‑ ‑

MR BENNETT:   Yes.  Certainly, the matter did not arise the way we put it, which was that this simply excludes, by implication, the Minister’s role in other capacities. 

GLEESON CJ:   It is not only a matter that has implications that extend far beyond this case; its implications for the procedure that was adopted in the Federal Court in this case are also something that would lead to a considerable tangle, are they not?

MR BENNETT:   Well, your Honour ‑ ‑ ‑

KIRBY J:   In the end, we have to give meaning to the language of the statute, and no concession of yours, or withdrawal of a concession, can alter the fact that section 6 is in the most ample and universal terms, and, in a sense, understandable terms, that the Minister, as the successor to the Crown, is assuming this general obligation of guardianship in respect of all non‑citizen children who arrive in this country.

MR BENNETT:   Yes.  Well, your Honour, the primary purpose, of course, was concerned with feeding, clothing, educating, matters of that sort.  It was certainly never contemplated that it would be argued that where the Minister has totally different roles in relation to visas ‑ ‑ ‑

KIRBY J:   All that means is, it has never been thought through.  It does not mean it is not contemplated by the texts of the legislation.

MR BENNETT:   Your Honour, the text involves reading the Act with the Migration Act. 

GUMMOW J:   This phrase of “who arrives in Australia” in the 1946 Act, what does that mean, in the light of the exclusion zones and the migration law, these days?  There are all sorts of problems.

KIRBY J:   Australia has not yet been defined to exclude South Australia or Western Australia, I do not think.

MR BENNETT:   No, your Honour.

GLEESON CJ:   Which is the section of the Migration Act that imposes an obligation to deport somebody who arrives unlawfully?

MR BENNETT:   It is section 196.  I will just check.  One starts with 189, and then one moves to 198 and 196, yes. 

GLEESON CJ:   At the time of the enactment of the 1946 Act what was the corresponding legislation, if any, in relation to deportation of unlawful non‑citizens or whatever they were called then?

MR BENNETT:   That would have been in different legislation, your Honour.  That would have been in the ‑ ‑ ‑

McHUGH J:   It was in the 1901 Act, was it not?

MR BENNETT:   Yes.

GUMMOW J:   And there was a criminal offence at that stage.

MR BENNETT:   There was.

McHUGH J:   And people could become absorbed into the community.

MR BENNETT:   Yes, and thereby cease to be subject to the immigration power under which the Act was then enacted.

McHUGH J:   Whereas since 1958 nobody has ever been able to defeat the Act by somehow becoming absorbed into the community.  In Ex parte Black; Re Marony the Supreme Court of New South Wales held that a person who jumped ship in the 1940s and had been here for many years and become absorbed into the community and could not be deported.

MR BENNETT:   Yes, but that was when deportation and removal was governed by the immigration power rather than by ‑ ‑ ‑

McHUGH J:   Yes, but since the 1958 Act, unless you have a certificate of entry or whatever the equivalent is, you are an unlawful ‑ ‑ ‑

MR BENNETT:   A visa, yes.

McHUGH J:   Yes.

GLEESON CJ:   As at 1946 if a 17‑year‑old arrived in Australia, not as an assisted immigrant but as a stowaway on a ship, that person would have committed a contravention of the Act of 1901?

MR BENNETT:   Yes.

GLEESON CJ:   And become liable to immediate deportation?

MR BENNETT:   Yes, your Honour.  There was a procedure under the former legislation under which one was sentenced to imprisonment and there was a specific provision saying that notwithstanding that one could be deported ‑ ‑ ‑

GUMMOW J:   You could still be deported.

MR BENNETT:   Yes, during the term.  The imprisonment was, in effect, a means to an end of deportation.  That was all replaced by the current regime.

McHUGH J:   Was it still operative all the way up until the 1958 Act, Mr Solicitor?  I forget now.

GUMMOW J:   Yes, up to 1994.

MR BENNETT:   I think it was, your Honour, yes.  As I say, I will defer my submission in relation to the question of the application of the legislation to someone who comes to Australia illegally.  Assuming that the Act is general in its operation and would pick that up, my submission is that the imposition of duties has to be read down so as not to impose duties inconsistent with duties imposed on the Minister specifically under other legislation as decision‑maker or as opponent. 

One of the reasons for that is that – and that is why I cite Bell v Lever Brothers.  I do not cite it as an analogy.  I cite it for a principle of law, that a fiduciary’s obligations occur arise only either when the fiduciary is acting in his or her capacity as a fiduciary or where the fiduciary is taking advantage of his or her position of a fiduciary.

KIRBY J:   I will not say it again. I just would suggest to you that that principle of law has no application to the Crown as fiduciary. This is a public law matter. This is a political matter, in the broad sense. This is not a matter of private law fiduciary obligation. The Crown is a very special entity and has always been so in respect of children of whom it is a guardian or a protector. It is one of the strengths of our Constitution that we inherit these ancient principles. The reference in the Constitution to the Crown imports these ancient notions – not all of them, but as many of them as are relevant to the Australian context.

MR BENNETT:   Yes, but, your Honour, the other question is where it leads.  Let us assume against my submissions that there is some inconsistency between the Minister informing the court of the jurisdictional problem and the Minister’s duties as guardian.  Let us assume that against my submission.  What would flow from that?  The court just has no jurisdiction under the authorities and under the arguments I am putting to the Court, or are about to put to the Court.

KIRBY J:   The Court could suggest that the Minister should get himself or herself out of this conflict of interest and duty as the 1946 Act clearly contemplates that the Minister can.

MR BENNETT:   There have been general delegations.  But what flows for this appeal from the fact that an opposing litigant ought not to take a point?

KIRBY J:   It is not quite that that I was concerned with.  Points are there and matters have to be argued according to law.  It is taking an unfair point against a person in respect of whom you are a guardian by statutory provision of the Parliament of Australia and in inheritance of the Crown’s ancient obligations.

MR BENNETT:   I have not taken your Honours yet to the facts as to the explanation given at the time in a language the applicant could understand when the interview took place and the findings in relation to that.  He was certainly told of the decision, of the main import of it and of the fact that he had 28 days.  I will come to the question ‑ ‑ ‑

KIRBY J:   I was dealing with it as a matter of general principle, not of the particular case.

MR BENNETT:   Your Honour, in a sense every time limit can have consequences that are injurious to a party, but that does not mean that the point is not available.

KIRBY J:   We see it every week at the Bar table, Crown Prosecutors, counsel for the Crown are scrupulous in the way they make submissions.  I have seen them come to this Court and say we cannot uphold the decision of the Court of Criminal Appeal of such and such a State.  These are very important traditions and very important principles.  As far as I am concerned, they are part of the living law.  It is a very real question, it seems to me, whether it is imported into the way the Minister deals with children in immigration detention by section 6 of the Immigration (Guardianship of Children) Act.  One benefit of that construction of the two Acts, as I recollect the argument in Re B, is that it would bring Australia into closer conformity to the International Convention on the Rights of the Child, which one does not normally assume the Australian Parliament conflicts with.

MR BENNETT:   Your Honour, that still cannot mean that the Minister in exercising decision‑making powers under the Migration Act or in making decisions as an opponent to litigation has to act as guardian in the court with all the duties of a guardian in the course of making those decisions.

KIRBY J:   If he cannot, he should get himself out of the position of guardian which the Parliament has conferred on him but permitted him to delegate in certain circumstances.

MR BENNETT:   Your Honour, the director who trips on the steps does not cease to be a director.

KIRBY J:   It is not analogous, Mr Solicitor, and you know it.  I think we have gone over this territory and you are going to put in some written submissions.

MR BENNETT:   Your Honour, I just repeat I do not use it by way of analogy.  I use it by way of legal principle in the nature of ‑ ‑ ‑

KIRBY J:   It is just fundamentally wrong to suggest that private law concepts of fiduciary obligations are exactly imported into the fiduciary obligations of a Minister of the Crown. It is fundamentally wrong. It is importing private law into public law without modification for the ancient role of the Crown which is inherited in our Constitution and whilst it is there it has to be observed.

MR BENNETT:   Your Honour, the proposition that the ancient role of the Crown as parens patriae is inherited in the Constitution is not one I would accept in that form.

KIRBY J:   I did not say that.  I referred to the role of the Crown to act in a way that is fair.  We see it every week in criminal cases.

MR BENNETT:   Your Honour, let me go to the issue of fairness, go to the facts just to answer that, because there is no question, we would submit, of unfairness here.  The only question which may arise here is the argument put against me that the Minister has a duty in exercising powers as a decision‑maker, and under the Migration Act, and in acting as an opposing litigant, has some higher duty because of the obligations as guardian, and that is the proposition I am resisting.

If your Honours go to the appeal book at page 157, your Honours will see the finding of Justice French.  In paragraph 41 his Honour says:

There is no doubt in the present case that the applicant was told of the Tribunal decision and understood its import.  He became distressed when he heard it.  I am also satisfied that he was told he had twenty eight days within which to lodge an application for review.  The status of the Minister as his statutory guardian under the Immigration (Guardianship of Children) Act does not in terms affect the conditions under which notification may be given . . . It is simply too large a step to imply, in the case of an unaccompanied minor, who ‑ ‑ ‑

GUMMOW J:   Did his Honour give any attention to section 256 of the Migration Act?

MR BENNETT:   He did not, your Honour.  That was not raised, as I understand that.  That was in the background that there was always the availability of legal assistance.  So that is the first point.  He was told of the decision and its import.  He was told in general terms that he had not been believed in relation to country of origin and ‑ ‑ ‑

GUMMOW J:   I am just wondering whether this second step:

he was told he had twenty eight days within which to lodge an application –

was some discharge of an obligation under section 256, otherwise it is irrelevant.

MR BENNETT:   Your Honour, it is relevant to the general issue of fairness that Justice Kirby raises with me.

GUMMOW J:   That might be so, but that is not agitating me at the moment.  I am only talking about section 256.

MR BENNETT:   The Full Court, at page 168 goes through the evidence, and at page 169, at paragraph 8, the bottom of the page:

His Honour was satisfied that the appellant was told of the Tribunal decision and understood its import.  This was evidenced by the fact that the appellant became distressed . . . His Honour was also satisfied the appellant was told that he had 28 days ‑ ‑ ‑

GUMMOW J:   Why is it relevant that he understood its import?

MR BENNETT:   It may not be, your Honour.

GUMMOW J:   Unless it is part of the meaning of “notified” or it is some discharge of an obligation under 256?

MR BENNETT:   Your Honour, it was simply something done by ‑ ‑ ‑

GUMMOW J:   Or is it just a “feel good” statement?

MR BENNETT:   Your Honour, Justice Kirby talks about general fairness of the Crown in this situation, and I am rebutting the suggestion that we acted unfairly.  What was done went over and above the statutory obligations.

HEYDON J:   But Mr Justice French seems to have reasoned that notification is not effective to a receiver who cannot understand it, therefore, the fact that he understood it indicates that the requirement of notification was fulfilled.  That seems to be the way he approached it.

MR BENNETT:   Your Honour, we would put it slightly differently, that if comprehension is necessary to notification, it was satisfied in this case.

GUMMOW J:   Now, notification of what? 

MR BENNETT:   Of the fact of the decision.

GUMMOW J:   You won, you lost.

MR BENNETT:   Yes.  That might have been sufficient, your Honour, but we did not restrict ourselves to that.  What was done was to give a more fulsome explanation. 

GUMMOW J:   What more is necessary, other than you won, you lost?

MR BENNETT:   Your Honour, that is probably sufficient.

GLEESON CJ:   Do you need to give such information about the decision as would permit compliance with the Rules of the Federal Court in relation to an application for judicial review?

MR BENNETT:   No, your Honour, because he or she will always get that within the 14 days of the decision, and there are 28 days to appeal.  So one has notification during which one can seek legal advice and set the wheels in motion, and then 14 days, at least, before time expires, there is the provision of the reasons under section 430D(2).

GUMMOW J:   Which the recipient cannot read.

MR BENNETT:   Your Honour, he has had 28 days knowing he has to do something within 28 days, which is sufficient to direct him to a lawyer.

GUMMOW J:   Really?  No one said to him, “You have these rights under section 256”, did they?

MR BENNETT:   That is not ‑ ‑ ‑

HEYDON J:   He said: 

Mr Wallis did not tell me anything about applying for review in the Federal Court, but others in the camp told me –

I presume, later. 

MR BENNETT:   But that is not what the court found, your Honour.  There was a conflict of evidence on exactly what was said ‑ ‑ ‑

HEYDON J:   Yes, the judge accepted Mr Wallis on that and rejected the applicant on that, that is true.

MR BENNETT:   Yes.  Your Honour, the applicant’s evidence is at page 127 to 128.  At 127, he was called to the office in the Immigration Centre.  At the top of 128:

Mr Wallis was in the room together with an Afghan interpreter whose name I do not remember.  Ms. El Ham was also there.  I believe that she was a counsellor who used to come to see me, but I have not seen her for some time.  I believe that she has gone away.  There was another lady from DIMA whose name I do not know.  There were five of us in the room.

Mr Wallis told me that I had been rejected.  I was very upset and began crying.  Mr Wallis did not give me any papers.  He gave them to Ms. El Ham and said that she would explain what had happened.  She took me to another room and told me that I had not been able to prove that I was Afghan, and that the witnesses had said that they did not know me.

Mr Wallis did not tell me anything about applying for review in the Federal Court –

that was in dispute –

but others in the camp told me that I could apply to the Federal Court.  This was about three weeks later.  Mr Wallis did not tell me that I had 28 days –

Now, the contrary evidence is at pages 70 to 71.  He says, in paragraph 6:

I personally handed the Tribunal decision in this matter to the applicant on 16 March 2001.  I specifically recall giving the document to the applicant, who was an unaccompanied minor, and in accordance with my usual practice, I made a note of the date I handed the Tribunal decision to him –

That note your Honours can see at page 74, where there is the letter referring to the decision.  He says:

Handed to detainee on 16/3/01.  Advised of 28 day appeal period for Federal Court –

and then the signature and the date –

In accordance with my standard procedure, I am confident that I advised the applicant that the Tribunal had considered his application and decided not to grant him a protection visa and that he had 28 days in which to lodge an application –

and that is a fair summary of the note –

I also recall that an on‑site interpreter was used to interpret what I said to the applicant when I handed him the Tribunal decision. 

I have taken your Honours to the findings.  There is also an address for service.  This more goes to the statutory application.  But your Honours see at page 22 there is the application, and on page 23 there is an address for service at just below “A” of “AUSTRALIAN MIGRATION PROGRAM & INVESTMENTS” in Melbourne and they do have an advisor and “John Young” of that body is put at the bottom of the page.  The notification in compliance with section 430D was to that body and that appears at page 64, where your Honours see it:

The Tribunal has decided that you are not entitled to a Protection Visa.  I enclose a copy of the Tribunal’s decisions and reasons.  A copy of the decision has also been given to the Department of Immigration and Multicultural Affairs . . . You have the right to seek review . . . within twenty-eight (28) days -

et cetera.  Your Honours see from page 63 it is sent to Australian Migration Program and Investments, and it says:

refer to accompanying correspondence sent to your client.

My friend reminds me that page 63, the fax - sorry, page 68, yes, that seems to be part copy of 63, a transmission report, yes.  That shows that five pages were sent, but of course, that is to a body which includes advisors who are clearly able to deal with the question of obtaining copies and so on if they have not got a full copy.

GUMMOW J:   Is there any evidence of what this body was doing, at this stage, Australian Migration Program and Investments?  What role there was ‑ ‑ ‑

MR BENNETT:   No, I do not think there was, your Honour. 

GUMMOW J:   They have just disappeared from the scene, have they not, as far as we know?

MR BENNETT:   Well, your Honour ‑ ‑ ‑

GUMMOW J:   I realise the initial application was prepared with their assistance, and hence, because they were indicated on that form, that is why these documents were sent to them. 

MR BENNETT:   Well, your Honour, the people whose names he has given as advisors are given the documents.  He is told, in a language he can understand, the fact that he has lost, the basic reasons why he has lost, and that he has 28 days if he wants to challenge it ‑ ‑ ‑

GUMMOW J:   Well, where is he told the basic reason?

MR BENNETT:   The basic reason, your Honour, he says, was given to him by Ms Elham that day, I think he says.  That is at ‑ ‑ ‑

HEYDON J:   Page 128.

MR BENNETT:   Page 128. 

GUMMOW J:   That is the “cleaning lady” point, is it not?

MR BENNETT:   I am sorry, your Honour?

GUMMOW J:   That is the “cleaning lady” point.  She in no way is ‑ ‑ ‑

MR BENNETT:   Well, she is a counsellor, she is present when the documents are given to him, she is ‑ ‑ ‑

GUMMOW J:   I know, but she is not an agent of the Minister.

MR BENNETT:   Well, your Honour, there are two separate issues.  There is compliance with the language of the statute, which I have demonstrated, and there is fairness, which is demonstrated by this matter.  Immediately after this interview ‑ ‑ ‑

GUMMOW J:   Where does fairness come out of the statute?

MR BENNETT:   It does not, your Honour.  I am answering Justice Kirby’s question in relation to it.

GUMMOW J:   Yes, all right.

MR BENNETT:   He:

did not give me any papers –

There was an issue about that. 

He gave them to Ms. El Ham, and said that she would explain what had happened.  She took me to another room and told me -

et cetera.  He knows she has a copy of the full reasons.

KIRBY J:   But at no time was he given a translation.

MR BENNETT:   No, he was not, your Honour.  The authorities are clear that there is not an obligation to have the whole reasons translated.  One can understand that, your Honour, because the people who need to know what is in the detailed reasons, as his Honour the Chief Justice pointed out, are the lawyers.  They would want them in English.

KIRBY J:   Well, that is if they have lawyers.  We have to depend on people like Dr Cameron here to do things pro bono.  There are no bevies of lawyers.  That is a totally unrealistic approach.

GLEESON CJ:   You see on page 128, line B:

Ms El Ham . . . told me that I had not been able to prove that I was Afghan –

Do you see that?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   How did Ms Elham know that?

MR BENNETT:   Well, she was given the document, your Honour.  That appears from page ‑ ‑ ‑

HEYDON J:   He admits that Mr Wallis gave the papers to Ms Elham and said that she would explain what happened ‑ ‑ ‑

MR BENNETT:   Yes.

HEYDON J:   And Mr Wallis had a different piece of evidence.

MR BENNETT:   Yes.  I am reminded, your Honour, in relation to Ms Elham – actually her first name is Elham, one word, and her surname is Alamar.  She is described in the report on page 76 where she signs it:

Elham Alamar (BA Psychology & Dip counselling)
ACM Curtin IRPC Counsellor

KIRBY J:   So she is an officer of the private corporation that runs the detention centre for the Minister.

MR BENNETT:   Under contract for the Minister, yes.

KIRBY J:   There is a provision in the International Covenant on Civil and Political Rights requiring in suits of law that matters be translated, as I recollect it.  I do understand that you suggest that it would be enough to translate the essence of it, but not even that was done.

MR BENNETT:   That was done by ‑ ‑ ‑

KIRBY J:   Just put oneself in that position.  You are in the middle of the desert; you are in a detention centre; you are locked away from work where you can earn money to get a lawyer; you are on your own or you are a minor and you have to somehow try to make head and tail of quite a complicated Act which troubles this Court many times.  You do not have the resources to get lawyers readily.  You have to depend on handouts and pro bono work.  You do not even get a translation of the essence of it.  Then you have to lodge an appeal which is compliant with the Rules of the Federal Court, as acknowledged in the Act of Parliament, which has to be responsive to the demands of those Rules and relevant to the issues that are already very restrictive. 

If you put yourself in that position and ask yourself, “Can that be the design of the Act of the Federal Parliament?”, you could only come to the view that it is by taking a very narrow view of what the Federal Parliament would intend in such a case.

MR BENNETT:   We know a little more than that, your Honour, because we know from page 23 that when he commenced the process before the Tribunal there was an organisation which was involved, to use a neutral word.

GLEESON CJ:   Is it paragraph 5 on page 128 that is the subject of the unresolved issue of fact?

MR BENNETT:   It is resolved, your Honour.  In paragraph 41 on page 157, in the third sentence, his Honour Justice French says:

I am also satisfied that he was told he had twenty eight days within which to lodge an application for review.

Yes, the issue is whether the papers were given to him or Ms Elham, but – no, I am sorry.  I think that is what is unresolved.  What is unresolved is whether the papers were given to him or Ms Elham, but, in a sense, from the point of view of general fairness, that does not matter.

GLEESON CJ:   What papers are you talking about?

MR BENNETT:   I am sorry?

HEYDON J:   It is the Tribunal decision.  The papers comprising the Tribunal decision. 

GUMMOW J:   There is a covering telex, is there not?  A covering fax.

MR BENNETT:   If one goes to Mr Wallis’s evidence in paragraph 6, on page 70, he says:

I personally handed the Tribunal decision in this matter to the applicant on 16 March 2001.  I specifically recall giving the document to the applicant, who was an unaccompanied minor, and in accordance with my usual practice, I made a note of the date I handed the Tribunal decision to him on the front page of the covering facsimile transmission –

Now, the applicant said, “No, you gave it to Ms Elham, who came into the next room and gave me an explanation about it”.  The only comment I make, leaving aside the findings for the moment, because Mr Wallis was accepted on this, but, even if he was not, one might well think that what was not accepted would also have complied with any reasonable standard of fairness.

GLEESON CJ:   What is the meaning of the finding on page 157, in the first sentence of paragraph 41: 

There is no doubt in the present case that the applicant was told of the Tribunal decision and understood its import. 

What is meant by “its import”?  You lost, or you lost because they did not believe you were an Afghan?

MR BENNETT:   Your Honour, in my submission, that is picking up paragraph 4 on page 128, where Ms Elham:

took me to another room and told me that I had not been able to prove that I was Afghan –

and so on.

GLEESON CJ:   But there is no suggestion, is there, that the lady described as Ms Elham told him why the Tribunal refused to believe he was an Afghan? 

MR BENNETT:   In very general terms, yes.

GLEESON CJ:   I am sorry, I thought – there is no suggestion, is there?

MR BENNETT:   I am sorry.  Further than what I have read, no, your Honour.

GLEESON CJ:   So when Justice French is referring to the “import” of the decision, he is referring to the fact that the applicant lost and he lost because he had not been able to prove that he was an Afghan?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   But he was not told why the Tribunal had reached the conclusion that he had not proved he was an Afghan. 

MR BENNETT:   No, your Honour.  That sort of detail is something which is not required at that stage, but that is done by compliance with section 430D, which is done within 14 days, in any event.  This went further than the Act required.

KIRBY J:   If you want to discourage people from bringing application to the Federal Court you would tell them what he was told.  It gives no source of a basis that could lead to thinking, “I’ve some sort of a problem with that and I want to have it reviewed higher up”.

MR BENNETT:   But, your Honour, that applies to any person of any degree of sophistication who suffers a defeat at the hands of an administrative body of some sort and whose remedy is judicial review.  The person does not go to the lawyer and say, “I want to bring an application on the ground that the Tribunal failed to take into account a relevant consideration”.  The person goes to the lawyer and says, “I lost.  I want to challenge it.  Here is the decision” or, “Here is a place where you can get the decision”.

KIRBY J:   This is in the perfect world that lawyers inhabit.  I am talking about a detention centre in the middle of the desert, or the person who is an illegal minor who does not speak the language, except for very modest degrees, and who is not able to work and secure a lawyer.  Kafka could not have written a more classic example of unthinking, uncommunicative, unhelpful administration.

MR BENNETT:   Your Honour’s question involves some assumptions.  We know he was able to secure the assistance of the body in Melbourne that was his address for service.  The fact that the argument was not raised below about the Minister’s duty to provide a lawyer who would ensure time limits did not elapse and so on meant that those areas were not gone into. There was no evidence about what lawyers visited the centre, how they were advertised, what he knew about those matters and so on.

KIRBY J:   What is the precise period that he is out of time?  What is the exact period?

MR BENNETT:   I will have to check that, your Honour.  There is a chronology.  My recollection is it was a couple of weeks, but I will check that.

KIRBY J:   I would like to know it exactly because I have sat here since my time in the High Court and I have had the Crown come in criminal cases over and over again and excuse delays of years for people who were in detention.  We are talking here of a matter of weeks, but I would like to know exactly what it is.

MR BENNETT:   The application seems to have been on 3 May, so it was about two weeks out of time.

KIRBY J:   Two weeks.  Two weeks.  I never thought I would get to sit in an Australian court and hear this.

MR BENNETT:   Yes.  Your Honour, he was informed of the outcome on 16 March.  There is a provision which has been held to be jurisdictional which is in very clear terms.  There are, of course, policy arguments for and against strict time limits.  Your Honours may know that it has been announced that there are amendments being proposed to the Migration Act which will give a discretion to extend time, but at the moment we are dealing with a provision which does not contain that discretion.

KIRBY J:   But it does, as you have conceded, contain a capacity in the Minister not to take the point.

MR BENNETT:   I have not conceded that, your Honour.

KIRBY J:   I thought you told me that if it was one day out of time the Minister would not take the point.  Have I misunderstood it?

MR BENNETT:   He might not, your Honour, but he might have a duty a least to inform the court that the section was there.

KIRBY J:   He could inform us that it was two weeks out of time, but he chooses not to do so, or she chooses not to do so.

MR BENNETT:   Your Honour, there is a question about the effect of that, bearing in mind that it is jurisdictional.

KIRBY J:   I will not go on about it, Mr Solicitor.  I feel very uncomfortable sitting in a case involving such a circumstance in the case of a legal infant on the part of the Crown.

MR BENNETT:   Your Honour, that is a reason why it might be thought to be desirable to have a discretion and that, no doubt, is what has activated the proposed amendments which will confer a discretion, but it is a criticism of the absence of a discretion in the Act at the time.  It is not a criticism, in my respectful submission, of the conduct of the Minister in directing the court’s attention to the point.

GUMMOW J:   Could you just look at 487 for a minute.  Section 478(1)(b) says the application must:

be lodged . . . within 28 days of the applicant being notified of the decision.

MR BENNETT:   Yes.

GUMMOW J:   What is the section that is picked up by 478(1)(b)?

MR BENNETT:   There is not one, your Honour.  It is simply picking up the ‑ ‑ ‑

GUMMOW J:   That is what I wondered, yes.

MR BENNETT:   It is a general law concept, the applicant being notified ‑ ‑ ‑

GUMMOW J:   But is there any duty to notify?

MR BENNETT:   There are a series of provisions which deal with it, but in relation to a person who is ‑ ‑ ‑

GUMMOW J:   In immigration detention.

MR BENNETT:   ‑ ‑ ‑ who is in immigration detention, 430A does not apply, 430B does not apply, 430C does not apply and 430D requires the applicant and the secretary are to be given “a copy of the statement . . . within 14 days”.  So if there is an oral decision:

The applicant is taken to be notified of the decision on the day on which the decision is made.

So in that situation where there is an oral decision there is a specific provision defining when notification is deemed to have occurred.

KIRBY J:   Yes.  That is where the person attends the hearing when the oral decision is given.

MR BENNETT:   No, where he has been notified that it is going to be given orally.

GUMMOW J:   Section 430D(1) does not apply here, so what else applies?

MR BENNETT:   Section 430D(2).

GUMMOW J:   That is it, is it?

MR BENNETT:   Yes, your Honour, but that is not the notification.  It may or may not be notification.

GUMMOW J:   That is right.

MR BENNETT:   But it is an obligation which is complied with here which still allows 14 days during which ‑ ‑ ‑

GUMMOW J:   But in this case it was less than 14 days, was it not?  It was propter.  What was the date of the actual ‑ ‑ ‑

MR BENNETT:   I think it was, your Honour, because it was almost immediate.

GUMMOW J:   Yes, that is what I thought.

McHUGH J:   The same day, 16 March.

MR BENNETT:   It was the same day, yes.

GUMMOW J:   The same day, yes.  It is that which is relied upon as being the applicant having been notified of the decision within the meaning of 478(1).  There is no other section.

MR BENNETT:   There is no other section, but it picks up a general concept.

GUMMOW J:   I understand that.  That is what it is, it is some general concept.

MR BENNETT:   Yes, your Honour.

GUMMOW J:   Having regard to the facts of the case, I suppose, which could vary markedly, I suppose.

MR BENNETT:   Yes, they could.

GUMMOW J:   All right.

MR BENNETT:   The effect of the provisions is that the lawyers have or can obtain ‑ ‑ ‑

GUMMOW J:   So whether or not there was or was not compliance with 430D(2) does not really supply the answer to what is the content of 478(1)(b).

MR BENNETT:   No, it does not, your Honour.  Section 478(1)(b) simply stands alone and employs English words.

GUMMOW J:   It seems to me one of the questions is, what is “the decision” in 478(1)(b)? 

MR BENNETT:   Your Honour, there is a clear distinction drawn in a number of sections between the decision and the reasons for the decision, or the statement in relation to the decision.

GUMMOW J:   Yes, but then one reads 478(1)(b) with 478(1)(a).  There may be some colour given to (b) by (a).  That seems to be the area of debate.

MR BENNETT:   But assuming he is notified on the day, he is still going to have had the reasons for 14 days.  So the concern the Chief Justice had about the provisions of the Federal Court Rules is met by that.  It is also met by the fact that the Rules of the Federal Court in relation to what goes in the application, like almost all Rules of Court, and unlike the rules of swimming, have provisions which permit extensions and waivers.  If I can just remind your Honours, in relation to the Federal Court Rules, of Order 3 rule 3, which permits the extension of any time fixed by the Rules; Order 1 rule 28, which allows a departure from many provision of the Rules; and Order 13, I think it is, which deals with amendment of a document.  All those would mean that there would be little difficulty for an applicant who puts in a fairly pro forma document within the 28 days and who then seeks to amend or add to it when the reasons are available.

KIRBY J:   I hate to bring an element of reality and practicality to this, but this all assumes that an infant applicant in a detention centre, who has very little English, whose script of language is even different from ours, who is a person who is a minor, has access to the Federal Court Rules.  How does he know this?

MR BENNETT:   No, your Honour, he does not need to.

KIRBY J:   How does he know Order 3 rule 3 of the Federal Court Rules?

MR BENNETT:   He does not need to, your Honour.  The essential thing ‑ ‑ ‑

KIRBY J:   I mean, we do have occasionally, in courts of law, to introduce just an element of common sense and practicality.

MR BENNETT:   Your Honour, the people who need to know that detail are the lawyers.  He needs to know ‑ ‑ ‑

KIRBY J:   That is assuming he has a lawyer.  This is quite circular.  And assuming he has lawyers who are going to attend to his case and give him priority.

MR BENNETT:   Well, we know he had the organisation in Melbourne whom he provided as an address for service, who had acted for him thus far ‑ ‑ ‑

GUMMOW J:   We do not know he still had them.

KIRBY J:   He has Freehills on the record here, presumably to their credit for doing this case pro bono.

MR BENNETT:   Yes.  Of course, it is to their credit, but there is no evidence suggesting that this applicant did not have access to whatever assistance he needed in relation to getting things done.  That is simply an assumption, with respect.  It is an assumption which is inconsistent with a lot of the things we know.  We do not know the detail of what was available because ‑ ‑ ‑

KIRBY J:   You could have cross‑examined him.

MR BENNETT:   The issue was not raised, at that stage, in that form, your Honour.  That is the issue raised by the amendment.

GLEESON CJ:   How does section 478 operate in a case where the facts relied upon for judicial review of the decision only come to light at a time later than 28 days after notification of the decision?

MR BENNETT:   Well, your Honour, the decision has to made within 28 days whether to make an application and then ‑ ‑ ‑

GUMMOW J:   Fraud, bad faith or actual bias on the part of the Tribunal.

MR BENNETT:   Yes, no doubt that is one of the reasons why the Act is now being amended to permit an extension of time, but at the time the law was very firm.  This was a jurisdictional matter.  Now, when one has strict time limits there are always going to be cases where one can say that they are capable of acting unfairly.  That is the price one pays for the advantage of the time limits.  Of course, the time limits do serve a useful purpose in litigation.  This is not an ungenerous time limit.  It runs from when the person is notified. 

On the facts of this case, he is informed of the time limit and we know there are people who have been acting for him and there is nothing which he needs to know which is withheld.  The detail that needs to go in, or that ought to go although it does not have to go in the document is available after at least 14 days, not more than 14 days.  The structure of the Act is that you have 28 days after being told there is an adverse decision and within 14 days of that decision which may, of course, occur at any time within that 28 days, any time within the early part of that 28 days, one gets the reasons.

GLEESON CJ:   You may have shown us this before, Mr Solicitor, but where do we find the application that was actually made out of time?

MR BENNETT:   Yes, pages 1 to 3, your Honour.

GLEESON CJ:   Thank you.

MR BENNETT:   Your Honour sees the application is not in wonderful form, but the ‑ ‑ ‑

KIRBY J:   I did not hear that last sentence?

MR BENNETT:   The application is not in perfect form.

GLEESON CJ:   I cannot even read the rest of paragraph 4.  Could you just read that out?

HEYDON J:  

From a 15 years boy what do you expect –

something about an interview -

and then you expect that he should answer –

Has anyone ever typed that up?

GLEESON CJ:   Is there a typed version of that?

MR BENNETT:   No, your Honour, but I can have one made available to your Honour.

GLEESON CJ:   I would be interested to read it.  Thank you.

KIRBY J:   I notice it says here, “if there is mercy in your heart please”.  I can read that.  It appears to have fallen on deaf ears.  How old was this applicant when he wrote that?

MR BENNETT:   I think he was just under 16, your Honour.

KIRBY J:   Sixteen, dear, dear.

MR BENNETT:   Just under 16, I think.  One of the problems one has in relation to Afghanistan is that birthdays are not always known.

KIRBY J:   I realise that, but I read somewhere that it was accepted that he was a minor?

MR BENNETT:   Yes, it is, your Honour.  I am just not sure ‑ ‑ ‑

GUMMOW J:   He was not told at any stage that if he only requested it, section 256 would operate, was he?

MR BENNETT:   Your Honour, there is no evidence as to what the situation was at the detention centre in relation to the advertisement of services of lawyers or their availability there and so on.  That evidence was not called and was not cross‑examined on and so on, because this point that the Minister had a duty in relation to causing advice to be given and so on, was not a point taken at that stage, and that is one of the difficulties with it.  That is why I have stressed the things we do know which is that he had people acting for him.

GUMMOW J:   No, it just seems it might be a sufficient notification to say to somebody, “You lost.  I am not going to tell you the details of it, but if you want someone to explain it to you, you can make a request under 256.”  That might be an adequate notification.

MR BENNETT:   Your Honour, that is going to apply just as much to a sophisticated citizen who is affected by any administrative decision.

GUMMOW J:   The hypothesis, though, is that this person is in detention?

MR BENNETT:   Yes, your Honour.

GUMMOW J:   We have agreed that what notification involves requires attention to the particular case and to the relevant situations of the Act, does it not?

MR BENNETT:   Here, we went further.  He is told about the 28 days.  A copy of the document is given ‑ ‑ ‑

GUMMOW J:   It does not assist any policy that produces a document like the one at page 1.

MR BENNETT:   But the document at page 1 was cured by the document at page 5, and no one suggests there was ever any difficulty in effecting that amendment.

KIRBY J:   You know that because you can read the Federal Court Rules and you have had a lifetime of experience in the law, but we have to act on the basis that this person is a person who does not have that experience.  He is a person of 16 years of age whose language is not English, who is in a detention centre, who does not have access to work so he can earn money and does not have access to the best lawyers or even certainty of access to lawyers at all. 

MR BENNETT:   Your Honour, if anyone had taken the point that the document at page 1 was insufficient as to form for some reason or if anyone had opposed the amendment of that document, the criticisms that your Honour is putting to me would be of great power, in my respectful submission.

KIRBY J:   I am making the point that if you are a layperson, and especially if you are a boy of 16, you do not necessarily think in the way lawyers think, you do not think you have to do things immediately, you do not realise these things.  These are matters that come naturally to us because that is our lives’ experience, but we are talking about a probably uneducated, illiterate person who is a boy of 16 in a detention centre.  It is just unrealistic for us to start with the premise that he will know or absorb whatever information is given to him in a foreign language and know that he has to get it in within a certain time and, if he does not, there is no mercy in our hearts.

McHUGH J:   And if he was telling the truth, he had lived his life in a village of 20 persons and had never gone out of the village except to go to his mosque and on a couple of occasions to what was described as a sub‑village.

KIRBY J:   I have to repeat I did not think that I would reach this stage in my life and have to sit through a case like this in an Australian court.  I did not think it would happen to me.  Anyway, if we have reached it ‑ ‑ ‑

MR BENNETT:   With respect, your Honour, that involves assumptions about the unavailability of assistance and it involves assumptions about the need for the client, as opposed to the lawyer, to be aware, for 28 as opposed to 14 days of the detail ‑ ‑ ‑

GUMMOW J:   You keep saying 28 days is very generous, but did not Justice Callinan say 486A, which is 35, had a constitutional problem in S157?  We did not need to pass on it.

MR BENNETT:   No, your Honour, but that was for a different purpose and that also, with respect, involved some assumptions about availability of assistance.  This is a person who already has people advising and acting for him in some capacity, so why does he need to know more than, you will ask, “You have 28 days to do something about it and therefore you had better get someone to do it” and that person gets the other documents with at least 14 days to spare.

McHUGH J:   But, Mr Solicitor, it shows how draconian – you may be right, this may be a hard case, the result of which is the product of the policy of the Federal Parliament not to give any discretion to extend 28 days time.  But here you are dealing with a 15‑year‑old boy who, if he is to be believed, spent his life tending the four sheep between 8 o’clock in the morning and 8 to 10 o’clock at night in the mountains of Afghanistan and in winter cleared the snow around the house.  To put a boy in that position, to give him only 28 days, when he is out in the middle of the desert, to bring an action in the Federal Court, and there is no discretion in the courts, certainly creates some problems.

MR BENNETT:   Well, your Honour, those are problems of policy. 

McHUGH J:   Yes, I know they are, and if you put a 28 day limit on bringing an application in this Court, I would say it would be very difficult to justify it under Chapter III of the Constitution, but this is directed to the Federal Court. You give a right to go to the Federal Court and you place this 28 day time limitation on it. So you give a benefit, but you confine it in a very narrow way.

MR BENNETT:   Yes, but, as I have said a number of times, your Honour, at the end of the day, every time limit is capable of unjust operation in particular circumstances.

McHUGH J:   Yes, but, ordinarily, courts have a discretion to extend the time when the justice of the case requires it.

MR BENNETT:   Yes, they do.

McHUGH J:   You are appearing tomorrow in Commonwealth v Blunden, a Voyager case, where they are out of time.  20 years the time has extended, 30 years.  It might be 40 years.

MR BENNETT:   Your Honour, time limit provisions are there for a purpose.  That purpose sometimes achieves a just result and sometimes it achieves what may seem on the face to be an unjust result.  Most time limits can be extended.  What is relevant here is that all the times required to convert the document which was filed into something which complies with the Rules are well capable of being extended and forgiven and so on.  The only thing which is draconian is getting some piece of paper into the court within that time, by a person who already has people acting for him, and who is ‑ ‑ ‑

GLEESON CJ:   I would have thought that the document on page 1 was self‑evidently prepared without legal assistance.

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Or – perhaps I should widen that – was self‑evidently prepared without professional assistance of any kind.

McHUGH J:   Yes, he claims he is illiterate, so it must have been copied ‑ ‑ ‑

KIRBY J:   It may not be his writing.

McHUGH J:   Yes, it may not be his writing, although the last words about “mercy” seem to be, and it may have been copied from somebody.  It is different writing.  He may have learnt to write, to some extent, while he is in detention; he has been there long enough.

MR BENNETT:   Yes, well, there are educational facilities, as your Honour knows.

GLEESON CJ:   But almost all of the considerations that have been put to you would apply with equal force, I suppose, if he had been handed, on the day of the decision, a copy of the decision, of the reasons for decision and a translation into his own language of the reasons for decision, or had them read to him by somebody.

MR BENNETT:   They would, your Honour.

GLEESON CJ:   He would still be out there in the middle of the desert without, as far as we can see, legal advice.

MR BENNETT:   My submission is that your Honour cannot make that assumption of those last words.  There is not evidence in this case of what was available, how often lawyers do come, how they make their services available to those who might wish them, how it is made known to them that they were available, what languages they speak, and what interpreters were available.  There are a whole lot of factors which were simply not explored, but one cannot simply draw inferences when the relevant point is taken for the first time in this Court, and, as your Honour says, as far as the construction is concerned, the criticism would apply equally if he were handed the document with an Afghan translation, particularly, of course, as the case against him is that he is not Afghan, but that is another matter. 

GUMMOW J:   What is the significance of the fact that he cannot even read the language of the country of his alleged birth?  The translation would not help.  How do you notify to such a person?

MR BENNETT:   Well, I think, in fact, the answer to that may be that the relevant language was Hazaragi, which is spoken by Hazaras in both Afghanistan and Pakistan.  I think that may be the answer to your Honour’s question.

GUMMOW J:   Yes, I assume it is.

MR BENNETT:   I am drawing an inference myself.

GUMMOW J:   How do you notify by handing documents to an illiterate?

MR BENNETT:   Well, your Honour, his language is said to be the Hazaragi language.

GLEESON CJ:   Could he read it as well as speak it? 

MR BENNETT:   Actually, he says at page 23 his language is Dari with a Hazaragi accent. 

KIRBY J:   I may be wrong, it is years since I have been to Afghanistan, but I thought that Hazaras were in the north, and they were part of the northern alliance, were they not, and they are not Islamic, many of them, and that has caused some of the problems for them.

MR BENNETT:   I think most of them are, your Honour, but I may be wrong in that.

KIRBY J:   Yes, some are not, though, I think.  I do not think they are the ones who – it is the Pakhtuns who travel over the border to Pakistan, I think.

MR BENNETT:   Your Honour, my understanding is – and I do not want to give evidence from the Bar table; I was called to task for that recently –that there are Hazaras in both Pakistan and Afghanistan, Hazara communities in both places.  One of the issues in many of these cases is whether when a Hazara comes to Australia that person is from Pakistan or Afghanistan.

GLEESON CJ:   If I could just put a point on this issue about notification and the time limit.  When do you say the time began to run – on what date?

MR BENNETT:   I think that it is the 16^th.  It is page 74.  16 March, your Honour.

GLEESON CJ:   Of March of what year?

MR BENNETT:   2001.

GLEESON CJ:   16 March 2001 – and I will have to ask Mr Cameron this too.  On the case against you, when do they say time began to run, if it ever has begun to run?

MR BENNETT:   Your Honour, they would say never because they would say that it does not run until he is give a translated copy of the reasons or the statement which incorporates the reasons.

GLEESON CJ:   In writing?

MR BENNETT:   I do not know if they go that far, your Honour.

GLEESON CJ:   He cannot read, can he?

MR BENNETT:   I do not know what they would say about what would be required for it to commence to run.  They say it has not.  The criticisms are the language one, which I am going to come to, and the provision of the statement contained in the reasons.

GUMMOW J:   You do not rely on what is said on page 1, paragraph 3, do you:

The Applicant was notified of the Tribunal’s decision on the 19^th of March 2001.

MR BENNETT:   That seems to be his statement, your Honour.  He seems to have, on the evidence, got the date wrong.

GLEESON CJ:   You mean, leaving aside the significance of that statement, the 19^th should be the 16^th?

MR BENNETT:   Yes, your Honour.

HEYDON J:   Except it is possible that he is referring to the event described on page 128 which is that:

Ms El Ham did not give me the Tribunal decision on that day.  She gave it to me after I went to ask her for it.

MR BENNETT:   Yes, it is possible it is a reference.  That is possible, your Honour.  I do not take the point that he has admitted being out of time by saying that.

GLEESON CJ:   You have probably been conditioned.

MR BENNETT:   The notification argument simply depends, ultimately, on looking at the sections and seeing that there is a clear distinction drawn between the decision and the reasons for the decision.  If one wants to see that in a single place, the clearest is section 430, where your Honours see:

Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)  sets out the decision of the Tribunal on the review; and
(b)  sets out the reasons for the decision –

So the decision is what would be called an order, in relation to a court, and the reasons, of course, the reasons. 

In relation to language, may I just say this, that while, of course, it is important that a communication with a person be, so far as is possible, in a form that person can understand, there is no requirement in the Act that the whole of that document be translated.  Of course, the people who are concerned with the detail of what is in the reasons are the legal advisers preparing the ultimate argument, or the persons assisting, if there is someone corresponding to a McKenzie friend.

KIRBY J:   Yes, but the Minister and the Commonwealth make no provision for legal advice and there is no provision in the Act for it.  Why should we read that as a hypothesis into the Act?  There are people who have rights in this country.  They are entitled to bring the proceedings themselves.  Why should we infer lawyers get involved?  If you had provided a scheme of refugee defender, then it might be a different matter, but there is no such provision in the Act and there is no such provision in reality.

MR BENNETT:   Your Honour, in reality the prospect of a person preparing a document which ultimately complies with the Federal Court Rules and presenting arguments on judicial review without any assistance is clearly something which involves a lot of difficulties for any citizen or for any person.

KIRBY J:   A lot of difficulties?  You can say that again.

MR BENNETT:   Yes, your Honour.

KIRBY J:   They are supposed to understand jurisdictional error, which is something I had never entirely understood.

MR BENNETT:   Your Honour, it involves difficulties for lawyers and judges as much as anyone else, of course, but to say that does not answer the problem here ‑ ‑ ‑

KIRBY J:   I am just saying you cannot assume that the Act imports a hypothesis that a person has only the rights that the Act provides if that person has a lawyer.

MR BENNETT:   I do not assume that at all, your Honour.

KIRBY J:   Yes, but you have repeatedly said that this Act has to be interpreted, “Don’t you worry about the decision.  Don’t you worry about the documents.  It’s only the lawyers who have to trouble over that”.  It is not a hypothesis of this Act.  There is no provision in the Act for the provision at Commonwealth cost of lawyers to people like the present appellant.

MR BENNETT:   No, your Honour, but, on the hypothesis your Honour is putting to me, what would need to be provided is a panel of interpreters and McKenzie friends, who translate the whole of the reasons ‑ ‑ ‑

KIRBY J:   Not necessarily.  I do understood the difficulty and expense of that, but there are other ways of doing it.  There are ways by which a summary of decisions could be made and translated.  There are ways by which you can get these things done by telephone.  There are various ways it can be done, but it is not done.

MR BENNETT:   In this case, something very close to it was done, your Honour.  The document, in his presence, was either handed to him or given to a counsellor who was able to explain the gist of it to him.  One asks rhetorically, “What more is said should be done?”  What is said should be done is going through ‑ ‑ ‑

KIRBY J:   Enough to enliven the rights under the Act, which involve filing a document in the Federal Court that conforms to the Rules of that court, that sets out the basis of the application to the Federal Court.  That is the hypothesis of the Act.

MR BENNETT:   Yes, your Honour, and the statement is served within 14 days of that, because within 14 days of the judgment he is provided with a 430D(2) statement.  That contains all that material and whatever use needs to be made of it can be made of it within that 14 days.  The 28 days is available for the purpose of getting the preliminary matters in train.

GLEESON CJ:   Where is the 430D(2) statement here?

MR BENNETT:   The statement which is served under 430D(2) and made under section 430(1) appears at, I think, 63 – the statement begins at 44.

GLEESON CJ:   That is what was handed over, if I can use that expression, on 16 March, is it not?

MR BENNETT:   Yes, I think ‑ ‑ ‑

McHUGH J:   That appears to be so from the note on page 74.  You have got total number of pages – 18 pages for a fax.  You go through and add them up.

GLEESON CJ:   So this was not a two‑stage process on the facts of the present case.  It is not as though, on the facts of the present case, something happened on 16 March and something further happened thereafter pursuant to section 431.

MR BENNETT:   That is so, your Honour.

GLEESON CJ:   Everything that happened relevantly, subject to the qualification Justice Heydon just mentioned about some evidence concerning getting something from the lady a couple of days later, everything relevant that happened, happened on 16 March.

MR BENNETT:   That is so, your Honour.

KIRBY J:   But he contests, does he not, and it is an unresolved factual question as to whether he got the written document. 

MR BENNETT:   Or whether it was given to Ms Elham in his presence.

GLEESON CJ:   If he had received the document on page 44 and following without the assistance of Ms Elham or somebody else, he could not have comprehended it.  If his evidence about being illiterate is correct, if he had been given it in the Afghan language or whatever is the precise language, he could not have read it.

MR BENNETT:   Precisely, your Honour.

KIRBY J:   The Act has to operate with many people who are in that position.

GLEESON CJ:   How would you notify somebody who was blind?

MR BENNETT:   To notify for the purpose of setting the 28 days running, one would simply give the person the information.  All that would be necessary is to say, “The Tribunal has decided the case adversely to you”. 

GLEESON CJ:   In the context, is it perhaps the case that the word “notify” of the decision means, bearing in mind the provisions that refer to the Federal Court, “convey such information in such manner and of such content as gives the recipient of the information a reasonable opportunity to decide whether there are grounds for challenging the decision”? 

MR BENNETT:   No, your Honour, that involves imputing a knowledge of law to the applicant which goes far beyond what would apply even to a citizen without the disadvantages that this applicant had. 

GLEESON CJ:   Well, the matter of opportunity, or what constitutes a reasonable opportunity, could depend upon the circumstances of the case, including location and availability of assistance.

MR BENNETT:   Yes.  In my submission, explaining to him that he has lost, that he has 28 days to appeal, that the basis of the decision was a disbelief that he was Afghan – that is more than the Act requires, but certainly sufficient to constitute notification for the purpose of the 28 days, bearing in mind that the document which will assist in preparing the application necessarily is going to come under the Act, within the 14 days.  Here, of course, it all came on the same day. 

What my learned friend has to say is that it has to involve a full translation, in this case, to an illiterate person, so presumably a reading of the reasons in a language he can understand.  That, in my respectful submission, is not an obligation which the Act imposes or implies, nor is it one which would be of enormous value to him.  The value to him, if he were sat down and a Dari or Hazaragi interpreter were to sit down and read to him the whole of the eight pages in that language – one asks rhetorically, how is he going to be any better off? 

KIRBY J:   Why bother putting him through this process at all?

MR BENNETT:   Your Honour, he needs to make the decision to obtain appropriate advice as to what he has to do within 28 days and cause that to be done.  The Act facilitates that by saying that within 14 days you get the statement of reasons but the 28 days runs from when you are notified.  It really in a sense ignores reality to say that he needs to know the detail of the reasons 28 days in advance.  That is something which simply would not assist him and which, bearing in mind the other considerations which have to be weighed by this legislation, was not considered appropriate. 

As a matter of construction, we would submit notifying a person of the decision simply does not involve a translation of the reasons for the decision at that stage.  That, in my submission, recognises rather than ignores the reality that his concern is deciding to proceed.  The detail of what goes in the document is something which there is still 14 days for and which in practice is likely to be done by people who have no interest in the translation.

GLEESON CJ:   Is that a convenient time?

MR BENNETT:  Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, this afternoon I will first just summarise my submissions in relation to the Minister as guardian, then summarise my submissions on the notification argument and refer to the translation issue, and then, thirdly, I will start and finish the jurisdiction argument.  I do not expect to be very long dealing with those three matters.

In relation to the Minister as guardian, my instructions are not to withdraw the concession, but to press the qualification which I put this morning, that the Minister’s role as guardian impliedly excludes anything relating to the Minister’s role as decision‑maker or as opponent under the Migration Act.

GLEESON CJ:   It might be a concession in the present context, but it might be an assertion in other contexts.

MR BENNETT:   It might be, your Honour.  The second reading speeches are being photocopied and I will have them in a few minutes for your Honours.  In general terms, this can be said about them – in fact, it is all that I need to say about them.  The 1946 one talks primarily about the Commonwealth’s obligation to children who are encouraged to come to Australia and that is put as the purpose.

The amendment which introduced section 4AAA, the discussion in the second reading speech in the debate seems to be entirely on the issue of international adoptions and the whole problem in the international adoption area between, on the one hand, what can be seen as an unfortunate step of taking destitute children from other countries and putting them into Australian families, and the two arguments about the desirability and undesirability of that sort of activity.  That is discussed extensively.  The only matter that is of relevance for present purposes is that ‑ ‑ ‑

KIRBY J:   That was not entirely unfortunate.  There were a lot of refugee children in 1946 who had no parents at all, no connection with anybody or any family and for such people it was an entirely just and beneficial scheme.

MR BENNETT:   Yes.  Of course the question I was asked about how it applies to people who come without visas and without government authorisation is a different question which is - the only reference to that is an indirect reference in the second reading speeches to the amendments which refer to the Act applying to what are described and perhaps begging the question as “unaccompanied refugee children”.  If one assumes that many of those people would arrive as unlawful non‑citizens, and that itself involves some assumptions, then the view certainly seems to have been taken that the Act applies to them.

We would submit that the language of the Act does not exclude that situation, but that it clearly by implication excludes the Minister acting where it would put him or her in a position of conflict and it cannot have been intended to have an immigration decision, as to which the Minister is the decision‑maker, or immigration litigation where the Minister is an opponent conducted with one eye to duties as a guardian.  That would clearly be inappropriate.  It would put the Minister on both sides of the record in litigation, for example, and, in our respectful submission, one would read the legislation, when reading it with the Migration Act, as excluding that type of situation.

The issue seems to have been discussed in cases where the issue was whether a minor could participate in litigation without the consent of the Minister, that usually being migration litigation.  That seems to have been the context of the one or two cases which have referred to it.  The leading one is a case called Odhiambo (2002) 122 FCR 29. I will not take your Honours to it. There is no particular passage I would wish to refer to.

KIRBY J:   Has this Court ever considered the 1946 Act?

MR BENNETT:   Not that I am aware of, your Honour.  The point I make about conflict is squarely made by ‑ ‑ ‑

KIRBY J:   Can I just ask, is the requirement for a next friend is that simply a requirement of court rules or is that some requirement of the common law to read into all court rules that, because of their disability, young persons need a next friend or guardian?

MR BENNETT:   Your Honour, my understanding is that it is a power under court rules rather than an obligation, although there are cases where the opposing litigant can require a next friend to be appointed.

KIRBY J:   That, presumably, is for protection as to costs.

MR BENNETT:   Yes, your Honour, that is so.  But applying the Mott and Gillick approach to capacity of minors, and, of course, this is dealt with in a lot of state legislation in any event, there is no requirement in a case such as this for a next friend.  Whether there is or there is not, there certainly would be difficulties with the Minister being the next friend where the Minister is the litigant on the other side.  The way it is put by Justice French is very much the way we put it at page 155 in paragraph 35.  Your Honours will see in the second half of that paragraph his Honour says:

In any event, in my opinion, the role of the Minister as statutory guardian does not affect his function as decision-maker in relation to the grant of visas to non-citizen children.  He is not their guardian for the purpose of advancing applications for such visas or initiating reviews of decisions made under such applications.  The very conflict that would arise if such a dual role were imposed on him indicates that it was not intended by the legislation.

And he refers to the second reading speech, where:

The stated purpose of the Act was “…to enable the Minister to act as legal guardian of all children who will be brought to Australia in future as immigrants under the auspices of any governmental or non‑governmental migration organisation”.

I have dealt with the question of the point not being taken below and the difficulties.  I will just remind your Honours, but not take your Honours to Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. That was applied by five Judges of this Court, separately, in Louinder v Leis (1982) 149 CLR 509 at 508 per Justice Mason, 515 per Justice Stephen, 511 per Chief Justice Gibbs, 529 per Justice Wilson and the bottom of 531 per Justice Brennan, as he then was.

KIRBY J:   What does that establish?

MR BENNETT:   That if there is any possibility that evidence could have been called relevant to the issue, the Court will not permit such a point to be raised on appeal for the first time.  That is the opposite to the rule in Connecticut Fire vKavanagh [1892] AC 473, which said that where there is no possibility of evidence and it is a pure question of law on facts which are not in dispute, an ultimate court of appeal normally should grant leave to deal with something not dealt with below.

KIRBY J:   The principle that you refer to sounds like what this Court said in Coulton v Holcombe in 1986.

MR BENNETT:   Yes, I am not sure about that, your Honour, but the two cases I have cited, with the particular pages, certainly make the point very clearly. 

This is a case where that very much is so, because had the argument been at the trial that the Minister’s role as guardian required him or her to provide facilities for legal advice which would ensure that there was no failure to observe a time limit, if the argument had been put that way, as it never was, then obviously all sorts of evidence would have been needed about what did happen with legal advice at Curtin and also as to what was brought to the applicant’s attention and so on.  So that is the point simply.  It just was not raised in that way.  The relevance of the Minister’s role was more said to be in relation to the actual decision‑making and in relation to the question of the ability of the Tribunal to hear the matter without the Minister as guardian taking part.  I have dealt with those aspects. 

Your Honours, in relation to the delegation and the Hughes point that was referred to in argument, there may well be a question as to whether this delegation is or should be construed as delegating duties as well as powers.  If, of course, it only delegates powers rather than duties, then the Hughes problem does not arise.  There is a question whether the delegation would be construed in that way, bearing in mind that that might lead to invalidity.  The point does not arise in this case, where nothing turns on the delegations themselves. 

The second matter I said I would deal with this afternoon is notification.  I have taken your Honours through the arguments.  The short point is the Act carefully draws a distinction between the decision, the time for appeal being 28 days from the notification of the decision, and the provision of the statement, which is done within 14 days, and if notification occurs prior to that, there is ‑ ‑ ‑

GLEESON CJ:   What is the relevance of that distinction to this case, bearing in mind that on 16 March a document entitled “DECISION AND REASONS FOR DECISION” was handed to somebody?  What, in the context of the present case, is the significance of the distinction between the decision and the reasons for the decision?

MR BENNETT:   Only that my learned friend says that there must be a – it depends on his next point – translation of the reasons provided.

GLEESON CJ:   It is because of what the lady said to the appellant that the distinction matters, is it?

MR BENNETT:   Yes.  Well, as we say in this case, you have the notification, you have the notification in a form he can understand, you have the reasons.  All that is missing is the translation of the reasons for the 28 days to run.

KIRBY J:   There is an intermediate position which gives more meaning, as the Chief Justice was saying before lunch, to the word “notification” itself, not a translation of the entire reasons which, as you say, might not activate the mind of an ordinary lay person, but a note in the language understood by the recipient which is at least in sufficient detail to do the work that the purpose of notification is obviously designed by Parliament to do, namely, to motivate, goad, lead into initiation and trigger the next step in the process which is the filing of the document in the Federal Court.

MR BENNETT:   Your Honour, it is hard to see how any summary form of notification is going to serve the purpose of advising the precise legal formulation of the ‑ ‑ ‑

KIRBY J:   It has to be notification for the purpose.  You do not seem to attach any significance to an individual.  Human beings – where a decision is made that seriously affects their liberty - do tend to be interested and it is true that they might not understand the nuances of it but they might perceive some aspect of it which triggers their motivation and then to take the step to commence the proceedings in the Federal Court.

MR BENNETT:   Your Honour, there is no suggestion that he was unable, if he wished, to get someone to translate it to him.  The evidence would suggest that he could have had that done by Ms Elham if he was interested and if she thought it desirable.

KIRBY J:   It is a matter of giving meaning to the word “notify” though, in the context and for the purpose.

MR BENNETT:   But, your Honour, “notify” cannot mean ‑ ‑ ‑

KIRBY J:   Does it say give the decision, or ‑ ‑ ‑

MR BENNETT:    ‑ ‑ ‑ notify of such aspects of the decision as may give rise to grounds of review.

KIRBY J:   I am not so sure that that is not what Parliament meant, I mean, given the next step in the process that is envisaged by and provided for in the Act.

MR BENNETT:   Bearing in mind that very few people, and I do stress this, including the most sophisticated of citizens who are not lawyers, would get any benefit from the point of view of settling their grounds of judicial review from having the whole of the decision read to them or translated to them.  It is a function which is almost invariably going to be performed either at the advice stage ‑ ‑ ‑

KIRBY J:   But you and I draw different inferences from the difficulties that citizens have.  You draw the inference, “Don’t bother at all.  Really, it is a charade.  Don’t waste your time.”  I draw the inference that because it is so difficult there is an obligation in notifying to give real substantive information which at the very least will trigger the person into some action for their self‑protection and also give them the substance of what is decided so that they can make a decision that they do not think this is fair or they do not think it is correct or they think there has been a mistake or a misunderstanding, or that there has been – and this is most important for us, as we know – a procedural unfairness in coming to the conclusion.

MR BENNETT:   Your Honour, the trigger is the fact that one is told one has lost, one is told the primary reason one has lost, and one has available, so one can provide to one’s adviser or have translated for oneself, the detailed document.

GLEESON CJ:   Do we know from the evidence how it came about that the document entitled “DECISION AND REASONS FOR DECISION” was handed to Ms Elham?

MR BENNETT:   No, your Honour.  That was something there was a dispute about, your Honour recalls.  My recollection – I will be corrected if I am wrong – is that there was no express finding on whether the document was handed to him or her.  I may be wrong about that.  His evidence was it was given to her.  Mr Wallis’ evidence was it was given to him.

GLEESON CJ:   In her presence?

MR BENNETT:   In her presence.  In either event, the three of them were there.  There were five people in the room, apparently.

KIRBY J:   The former seems inherently a little more likely given that he is an illiterate shepherd boy from Afghanistan.  What is he going to do with this?  I mean ‑ ‑ ‑

MR BENNETT:   That is the point where I draw the inference that ‑ ‑ ‑

KIRBY J:   I know, but I am saying what is he going to do with a document in the English language?  At least if it were in a language or a summary of a language – in a language which – you could understand he might find somebody in the camp who speaks the language sufficiently to tell him the substance of it in his own language.

MR BENNETT:   One could also ask what is his lawyer going to do with a document in the Dari language but ‑ ‑ ‑

KIRBY J:   You make a lot of emphasis about lawyers.  That is not the hypothesis of the Act.  You provide a refugee’s defender and I will accept that principle, but the Act does not and Parliament has not.  It is dependent on people like Freehills and other firms and agencies and non‑governmental organisations to do the job of providing some form of legal assistance.

MR BENNETT:   Your Honour, with the greatest respect to Freehills and the service they are providing pro bono in this case, they are not going to have much use for a document in the Dari language either.

KIRBY J:   They are not, but it might trigger the action of the person most affected.  We have to test this not just by this case but by other cases and by the ostensible rationality of an Act of the Australian Parliament.

MR BENNETT:   The ostensible rationality, your Honour, is that when one is told the 28 days starts running, but that at some point within 14 days of the decision one is provided with a document, that means that whoever – whether it is lawyer, McKenzie friend or applicant – drafts the document initiating the process will have the reasons for 14 days but the applicant will have known the result and therefore been able to form a view for 28 days.  That is the structure of it.

GLEESON CJ:   That is why I am so interested in knowing where Ms Elham fitted into – where did she get into the act, as it were?

MR BENNETT:   Your Honour, I have taken your Honour to the ‑ ‑ ‑

GLEESON CJ:   It is no doubt highly unrealistic to expect that out in the detention centre in Western Australia at the time of whatever form of activity constitutes notification of the decision there is going to be some senior counsel standing at the elbow of the person who is notified of the decision, whatever that involves, but Ms Elham, I infer ‑ but I may be wrong ‑ was there because she could read and she could translate from English into the language of this appellant.  Is that right?

MR BENNETT:   Yes, and no doubt, your Honour, because as a counsellor she is able to deal with the emotional aspects of the matter and be a comforter and a person who can assist and advise him, I suppose.

GLEESON CJ:   This is the problem.  Presumably, Ms Elham is no lawyer, and, equally clearly, it is unlikely that any lawyer from Perth would be able to do the translating.  It may not be impossible, but it just does not seem very likely that there would be anybody in Freehills who would have been able to translate the document.  That seems to suggest that what you would need is a combination of at least two skills, or perhaps three skills.  First of all, somebody with an ability to read; second, somebody with an ability to translate from the English language into whatever the appellant’s language was and vice versa ‑ ‑ ‑

MR BENNETT:   Dari. 

GLEESON CJ:    ‑ ‑ ‑ and, thirdly, somebody in a position to give useful advice and information to the appellant about his legal rights.  It is unlikely that the combination of those three skills would exist in one person.

MR BENNETT:   No, your Honour, but the issue which might arise is the ability of the applicant, or people who have others of those skills, to locate people who have the missing skills. 

KIRBY J:   But once you concede that, for a blind person, you would have to get somebody who would read some given notice orally, you have conceded that there must a communication of minds for the purpose of the Act, that “notify” is not just a formalistic activity, it is a communicative activity directed to a particular purpose.  We have always to construe legislation so as to uphold the imputed purpose of Parliament.

MR BENNETT:   But there is frequently a second step in order to achieve notifying.  If one gives a person an envelope, the person might have to open the envelope and unfold the document within, to be able to get the benefit of it.  If the person does not speak English, the person might need to have the document translated and find someone who will do that.  If the document is a legal document, the person might need to go to a lawyer and have the document explained.  There are many situations where, in order to respond rationally to something, one needs to get advice or assistance.

GLEESON CJ:   In the present case, would it have constituted a notification of the decision if Ms Elham had not been there and the person from the department had said in English to the appellant, “You have lost your case.  The Tribunal did not believe you were an Afghan”? 

MR BENNETT:   Your Honour, probably not, but the cases where people have been given documents in English have held that that is sufficient, no doubt because of the ability of the person to take the document to someone who will translate it.  Merely to say to a person things which the person does not understand might well be seen as a totally futile gesture.  Handing a person a document in the English language, along with some intimation as to the importance of the document or the nature of the document, is not a futile gesture.  That is the difference.  The leading case on it is a case called Nguyen (1997) 74 FCR 311.

KIRBY J:   Which series?

MR BENNETT:   It is No 8 on our list of authorities.  It is a decision of the Full Federal Court, Justices Tamberlin, Sundberg and Marshall and that is a case where there was official correspondence in English and it was held that that covered notification on those sent to a person who only spoke Vietnamese.  The conclusion was that the word “notification” did not impose an obligation to ensure that the notice was translated.  I accept that it might be different in relation to an oral communication because part of the ratio is the ability of the person to appreciate the importance of the document and have it translated whereas that does not necessarily apply where there is a communication in a totally foreign language.  But here, of course, what was said was translated – and my friend’s point is that the whole of the document should be translated and that is what we submit is not required.

GLEESON CJ:   Translated and read by Ms Elham and it would be as useless as a freckle on the neck to give this appellant, even in the Afghan language, these reasons for decision, would it not, because he could not read?

MR BENNETT:   Yes, your Honour, that is so.

KIRBY J:   Yes, but we have to understand it in the context of a statute which is contemplating that the purpose of the notification is in order to prepare for the next step in the statutory scheme which is filing of an application to the Federal Court for judicial review and which does not provide a statutory requirement or system of legal representation for those who will make that application.

MR BENNETT:   With respect, your Honour, I would not accept the major premise.  The purpose of the notification is not to facilitate the preparation of the application.  That is done by compliance with section 430D(2) within 14 days.  The purpose of the notification is to start a longer period running at the end of which that step needs to be taken, the step of preparing the application, but it is a step which will be taken in the light of, by that time, having received the document.  Put shortly and bluntly, one has 28 days to decide whether to appeal and then 14 days to see the detail of what is wrong with the judgment and get the document in order.

GLEESON CJ:   An additional 14 days?

MR BENNETT:   No, your Honour, it is 14 of the 28, but it is 14 before the application is ‑ ‑ ‑

McHUGH J:   Is it?  I thought you could have a situation where you were not notified for 14 days – that you were not given your reasons for 14 days and they might be given simultaneously and the 28 days would run from then.

MR BENNETT:   That is possible, your Honour.

McHUGH J:   Yes.  You could have six weeks from the original decision.

You could have even longer because – well, no, it is hard to imagine getting the reasons in a statement without notification of the result.  So the provision of reasons is the very last date on which the 28 days can start running, but the 28 days can start running before that, but it cannot start running before the decision.  So you are always going to have at least 14 days and up to 28.  Here, of course, there is the full 28, because the notification occurred at the earlier date.

GLEESON CJ:   Consistently with what you just said, what must be said to be missing in the present case to constitute – missing from what happened on 16 March in order to constitute notification, was a communication by Ms Elham to the appellant in his own language of the contents of the reasons for decision, which she had available to her in English.

MR BENNETT:   Yes, although the effect, on any view of it, on the view least favourable to the Minister’s case, was communicated to him three days later and the appeal was still well out of time on ‑ ‑ ‑

GLEESON CJ:   But is that the way the case has been conducted and decided in the courts below, that is to say that what is said to be missing from what is necessary in order to constitute notification, on the facts of the present case, is a communication by Ms Elham, or anybody else, in his own language to the appellant of the reasons for decision.

MR BENNETT:   Of a translation of the full reasons.

GLEESON CJ:   That is why I said in his own language.

MR BENNETT:   Yes, your Honour.  That is what is said to be missing.

GLEESON CJ:   So that, on that approach, if Ms Elham, being in possession of the English version of the reasons for decision, had said to him, “I will now read to you the reasons for decision” and had done so in a language that he could understand, that would have constituted notification.

MR BENNETT:   That is what is put against me.  Your Honour, that would be a valueless exercise for a sophisticated person who does not speak English, for a sophisticated person who spoke English, probably, and equally valueless for an unsophisticated person, if not more so.  It is not what the Act is contemplating.

McHUGH J:   If the argument against you depends upon an acquirement of translation, it seems to me at the moment that it is misconceived insofar as it relies on 478.  Section 478 is concerned with notification of the decision.

MR BENNETT:   Yes.

McHUGH J:   Not the reasons.  The argument has really to be directed to 430(2), that those reasons should have been translated.

MR BENNETT:   Yes.

McHUGH J:   So it was a breach of 430(2).

MR BENNETT:   Section 430D(2), yes.

McHUGH J:   Unless you are going to say, which does not seem to be a promising argument at the moment, the decision in 478 includes reasons.

MR BENNETT:   We say it does not, your Honour.

McHUGH J:   I know you do.

MR BENNETT:   Yes.  That is right, your Honour.  We say the whole question of reasons is irrelevant in this case because the 478 time starts running on notification.  My friend then says ‑ ‑ ‑

GUMMOW J:   What, then, is the purpose of section 478?

MR BENNETT:   It is to ‑ ‑ ‑

GUMMOW J:   Other than a purely arbitrary guillotine? 

MR BENNETT:   It is not arbitrary, your Honour.  It gives ‑ ‑ ‑

GUMMOW J:   It is arbitrary because it is not directed to anything of sense to the person who is guillotined.

MR BENNETT:   Well, it is.  The person does not need to read the whole of the reasons to be able to decide whether he wants to appeal.  The decisions need to be ‑ ‑ ‑

GUMMOW J:   Well, that is consistent with the legislative purpose of facilitating useless appeals.

MR BENNETT:   No, your Honour, because there is always going to be at least 14 days during which the reasons are available ‑ ‑ ‑

GUMMOW J:   Clogging up the Federal Court.

MR BENNETT:   No, your Honour, because there is always going to be at least 14 days ‑ ‑ ‑

GUMMOW J:   We know all that.  The notification here, in these facts, is just the document. 

MR BENNETT:   He has more time to make his initial decision, to get advice, find a lawyer, decide to appeal and so on, than is available in relation to the final and more difficult decision as to what the grounds are, and whether the total absence of grounds means it should not be caught and so on.

GUMMOW J:   That brings me back to your concession about this Guardianship Act.  Who was the person – if we could just look at section 256 for a minute – who was the person who was responsible for this appellant’s immigration detention within the meaning of 256?  Was it the Minister?

MR BENNETT:   Yes, your Honour.

HEYDON J:   Was it Mr Wallis?  The business manager?

MR BENNETT:   Yes, that may be a ‑ ‑ ‑

GUMMOW J:   What does “responsible” mean?

MR BENNETT:   Yes, it probably is the manager of the ‑ ‑ ‑

GUMMOW J:   I do not think so, because immigration detention has a special definition.  You can be restrained by an officer, obviously, if you are running along the beach. 

MR BENNETT:   Yes.

GUMMOW J:   Being held in a detention centre – I do not think you are held by this gentleman in the detention centre, are you?

MR BENNETT:   Well, Mr Wallis’ position – just let me see ‑ ‑ ‑

HEYDON J:   It is an officer of the Department of Immigration and Multicultural Affairs.

MR BENNETT:   His address is given as care of the centre and he is an officer ‑ ‑ ‑

McHUGH J:   He is the manager. 

GUMMOW J:   He is the manager.

MR BENNETT:   Business manager, yes, he is.  But whether it is him or not does not really affect this issue.  There must be provided to the person, on request, facilities for obtaining legal advice or taking legal proceedings, and there is no evidence suggesting that was not done.  The evidence rather suggests that it was, because of the address for service document and because of, ultimately, the lawyers acting for the applicant.  That rather suggests that reasonable facilities were made available.  What did not happen was ‑ ‑ ‑

GUMMOW J:   Made available when?  Not at the time of notification. 

MR BENNETT:   Well, at the moment ‑ ‑ ‑

GUMMOW J:   Not as part of the process of notification.

MR BENNETT:   No, but the ‑ ‑ ‑

GUMMOW J:   We all agree it is futile without lawyers getting involved, as lay people do not understand what is going on.

MR BENNETT:   Yes, but the question then is, how much does one need to be told and how much can one – when the person has someone who has been acting in the person’s interests in the application to date and the person is told about the time limit and there are documents made available, why does one need to go through the further ritual.

McHUGH J:   Yes, but you have been sucked in, if I might say so, to try and defend the fairness of this legislation, but do you not have to bite the bullet and say the purpose of 478 is not to facilitate applications for judicial review, it is to prevent them. That is the purpose of it.  An application must comply with (a) and (b) and, on your argument, once they are notified of the decision, effectively notified, orally or in writing, so that they are told that they are not entitled to refugee protection, full stop.  That is it.  The time starts to run.  There may be an argument about 430(2) as to the extent of the reasons, but so far as 478 is concerned, once they are officially notified of the decision that is it.  Is that not the case you have to run?

MR BENNETT:   That is the case I am running, your Honour.

McHUGH J:   Yes.

GLEESON CJ:   One of the problems, and this may be why the legislation is not being amended, is because of the broad range of people and circumstances to which it has to apply.  This section will apply to some people who literally do have a Queens Counsel at their elbow at the time they are not in immigration detention and they do have a lawyer or a migration agent and who are perfectly capable of giving instructions but, equally, it applies to people like this unfortunate appellant who is out in a detention centre in the middle of nowhere and cannot talk English and all manner of varying circumstances in between.

MR BENNETT:   Yes, that is so, your Honour.  Time limit cases are frequently cases where it is lawyers who have missed the time limit.  There is no doubt of that and there is no doubt that sudden‑death time limits of this type are time limits which can operate unfairly.  That is why it is being amended, no doubt.  That is the regime with which we are dealing in this stage where a right is granted subject to such a time limit.

It is simply, in my respectful submission, not correct to say that the purpose of notification, or a time running for notification, has anything to do with the need to prepare the document in a particular form.  That is for two reasons.  The major reason is the 14 day argument which I have put a number of times.  One is always going to have at least 14 days to deal with it.

McHUGH J:   What is the second reading speech?  Did the Minister come clean?  Did he say that the purpose was to prevent these applications being brought?  It is obvious, on its face, that is its purpose.  Was that said?

MR BENNETT:   We have not looked at that, your Honour.

GUMMOW J:   This has a history, does it not, this provision?

MR BENNETT:   It does.  It has been in a number of different forms.  Legislation conferring rights of challenge has always had time limits of one type or another.  This one is a 28 day time limit with a jurisdictional requirement which requires it to be strictly ‑ ‑ ‑

GLEESON CJ:   I do not know if it still applies, but there used to be an amazingly brief time limit for filing criminal appeals to the Court of Criminal Appeal of New South Wales.  That applied almost always to people who were in custody.  It was something like 14 days, as I recollect it.  The result of that was, of course, that people would just automatically appeal.

MR BENNETT:   There was an argument put in Harris v Caladine in relation to whether the court retained control when it had given powers to a Master, where there was a right to appeal from the Master, but a seven‑day time limit, and the court found no problem with that seven day time limit, as I recall, in that context.

GUMMOW J:   I think this goes back to the Hand legislation in 1994. 

MR BENNETT:   Yes, I understand it does, your Honour.

GUMMOW J:   Someone had better provide us with the relevant parliamentary materials, I think.

MR BENNETT:   I will have that done, your Honour, if I can have leave to put in those documents.

GUMMOW J:   I notice that in that case you referred us to in 74 FCR the reference there at page 315 as to 166BA, which talks about 28 days after notification.

MR BENNETT:   Yes

GUMMOW J:   But there has been a prodigious amount of renumbering as well ‑ ‑ ‑

MR BENNETT:   Yes, I think that is now 412, your Honour.  That was appeals to the Tribunal.

GUMMOW J:   That is right.

MR BENNETT:   The references we have noted in Nguyen are 321, 325 to 326 and 332.  Finally, in relation to jurisdiction, it has already been pointed out that this is a case where new rights were granted and a limitation was imposed at the same time.  Your Honours should be aware that under section 485 other rights of appeal to the Federal Court are removed, but the new Part 8 came into effect on 1 September 1994.  We have put the argument in some detail in our written submissions and I will not repeat it on my feet.

Can I just make two other points about the jurisdiction argument?  The first is that what are said to be jurisdictional issues here are not really jurisdictional issues, even in the expanded sense of cases like Yusuf.  If your Honours go to page 145 of the appeal book, your Honours will see the grounds of review in the amended application.  The first is “By failing to give any or sufficient weight” to certain matters the Tribunal “made a decision which it did not have jurisdiction to make”.  That is a novel proposition which today might have been an appropriate date to have put.  The second is:

having entertained doubts as to the Applicant’s origin and nationality, by failing to have carried out a linguistic analysis . . . the Tribunal:

2.1   made a decision which it did not have jurisdiction to make . . . 

3.   By failing to make a positive finding . . . 

3.1   made a decision which it did not have jurisdiction to make, and

. . . 

5.   Having taken the Applicant’s demeanour into account in assessing his credibility, by failing also to take into account the Applicant’s breakdown, when giving evidence about the disappearance and death of his father . . . 

5.1   made a decision which it did not have jurisdiction to make –

So although my friend describes the ‑ ‑ ‑

GLEESON CJ:   Well, somebody understands the significance of jurisdictional error.

MR BENNETT:   Well, precisely, your Honour.  Nothing in Yusuf and Israelian goes anything like to that extent.          The reference in Yusuf (2001) 206 CLR 323, if your Honours wish it, is at paragraphs 82 and following on pages 351 and following. The other matter to bear in mind as a background matter is that there is nothing unusual, surprising or wrong about a person losing the ability to make a constitutional submission because of a procedural rule or a rule such as election or estoppel or the like. If one wanted an authority for that proposition there are two cases which provide it very clearly. One is Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 at 483 where, in failing to take a point about the invalidity of legislation the first time the case came up here barred a party from taking that point the second occasion when it came up.

The other case is Multicon Engineering (1997) 47 NSWLR 631 AT 645 which we have referred to in our written submissions. It is a decision of your Honour the Chief Justice, President Mason and Justice Priestley in the New South Wales Court of Appeal. It was a case where a litigant sought under the rules to have a case referred to outside arbitration. The arbitrator decided against that litigant and then the litigant sought to say the

court had no power as a matter of constitutional law because of the invalidity of the provision to refer the matter for outside arbitration, and the court said, “Well, you have elected to have it.  You cannot take the constitutional point of invalidity”.

So there is nothing surprising, as I have said, in that.  In the same way, a person who compromised a case in this court, alleging invalidity of legislation for constitutional reasons, would not be entitled to go behind the decision because it was constitutional.  A person who was estopped by a prior judgment from taking a point would not be able to say, “But it is constitutional.  I cannot be estopped out of a constitutional point.”  So there is nothing particularly special about jurisdictional or constitutional points when they are met with a procedural objection which results in their being dismissed, and that applies, we would submit, equally to time limits.  Now, your Honours, unless there is some specific aspect that your Honours would like me to assist on, those are my submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Cameron.  Mr Cameron, what exactly is it that you say should have been done in addition to what was done on 16 March to constitute notification?

MR CAMERON:   In my submission, the requirements of section 430D(2) require that the applicant be given a copy of the statement prepared under section 430(1) within 14 days after the – sorry, has to be given a copy of the statement.  Now, in order to be notified, as the primary judge, Justice French, accepted, that statement has to be in a form which is comprehensible to him.

Now, his Honour did not make a finding of fact – as your Honour Justice Heydon pointed out in the special leave application – as to whether he had actually been given the statement.  If his Honour had found that he was given the statement, then his Honour, in the light of his own holding that the statement had to be translated and given in a comprehensible form, would have had to find that the decision had not been notified in accordance with the provisions of the Act.

GLEESON CJ:   Well, then, does it follow that your argument is that in the events that occurred – let us go back a bit.  It is no use giving this man anything in writing if he cannot read.

MR CAMERON:   No.

GLEESON CJ:   All right.  So, in the events that occurred, what was necessary to constitute notification, that was missing, was a translation into his own language orally, either by Ms Elham or by somebody else, of the reasons for decision that came into the possession of Ms Elham.

MR CAMERON:   Well, I am even less reasonable than that, your Honour.  In my submission, the requirements are that the section 430 statement be given to the applicant, and the responsibility for giving that to the applicant is the responsibility of the Tribunal.

GLEESON CJ:   The word is “notify”.

MR CAMERON:   Yes.

GLEESON CJ:   And I am asking you what further had to be done to constitute notification of whatever had to be notified.  Is it your argument that what was missing here was a translation into his own language – which would have had to be oral, because it would have been useless if in writing – of the reasons for decision? 

MR CAMERON:   Yes.

GLEESON CJ:   Anything ‑ ‑ ‑

MR CAMERON:   But I avoid the use of the term “reasons”, because what the Act provides in section 430D(2) is not that he be given the reasons, but that he be given the section 430 statement.  Now, there are parts of the 430 statement that set out – and your Honour will see in its boiler‑plate – as to the provisions of the Convention.  It may not be necessary to give them back.

GLEESON CJ:   I just want to understand, as a matter of practice, because we have had a lot of emphasis on practicality in the course of the argument – I would like to understand what, as a matter of practice, you say should have been done, that was not done, to constitute the requisite notification in the circumstances of this case.

MR CAMERON:   In the circumstances of this case, in practical terms, in my submission, the appropriate course would have been for the Tribunal to send the section 430 statement to the detention centre, to be given to the applicant, and at the same time for the Tribunal to arrange for that statement to be translated for his benefit.  For the Tribunal to arrange that.  That is the sensible way of going about it.

GUMMOW J:   Translated orally.

MR CAMERON:   Translated orally.  It could be done by video link, if necessary.

GLEESON CJ:   In other words, in practice, what was missing was a reading out to him by somebody, in his own language, of the reasons for decision. 

MR CAMERON:   Yes.  I do not say that it has to be translated into his own language, because that would be useless, as it would be useless in the case of giving a blind person this statement.  Notification, in my submission, has a certain elasticity, in that it must be adapted to the circumstances of the person to be notified.

McHUGH J:   That is the problem I have.  If you analyse this, you have to make some large leaps to reach the conclusion that you seek.  Let it be assumed you are right in saying that section 430(2) requires a copy of the statement to be translated.

MR CAMERON:   Yes, and his Honour accepted that.

McHUGH J:   The statement, when translated, is defined by 430.  It has a number of elements.  One is it must set out the decision of the Tribunal on the review, it must set out the reasons, it must set out the findings of fact and it must refer to the evidence.  But when you get to 478 it does not talk about reasons, it does not talk about findings on material questions of fact, it does not talk about evidence.  It simply talks about the decision which is only one of the four elements.  So, even if you are right about what has to be done under section 430(2), how do you construe 478 to say “being notified of the decision” means being notified of the decision, notified of the reasons, notified of the statements of fact and so on?

MR CAMERON:   I say that in construing that provision in section 478(1)(b) one has regard to the code, the particular code which is set out in the relevant sections of section 430 as to the delivery of decisions to persons in various circumstances.  So far as the distinction is concerned ‑ ‑ ‑

McHUGH J:   But 478 does not necessarily flow on.  It is in a different universe of discourse.  It is talking about applications to the Federal Court.  It is not talking about somebody being told what the reasons of the Tribunal are and, as I put to the Solicitor-General, its purpose seems to me, at the moment anyway, that is 478’s purpose, not to facilitate judicial review but to prevent it in so far as it can.  If you give it a purposive construction why should you regard being notified of a decision as including reasons and statements of fact and so on?

MR CAMERON:   Because, in my submission, the only procedure by which a person can be notified of the decision is under the provisions of section 430D(2) and I would take your Honour to section 430B(3) which draws a distinction between the outcome of the decision and the decision itself.  Section 430B(3) reads:

The Tribunal’s decision may be handed down:

(a)  by reading the outcome of the decision -

So simply saying, “You’ve lost”, as my friend contends, for the purposes of notification does not wash because that section makes a very clear distinction between the outcome of the decision and the decision itself and it is, in my submission, not appropriate to construe notification in the context of section 430 because 430 is not concerned with the delivery of decisions, section 430 is concerned with the content of the decision.

McHUGH J:   Yes, but you have to identify what the decision is.  At one stage I was floating with the idea that maybe you had a technical point that there had never been a notification of the decision.  When you look at the reasons of the Tribunal it simply affirms the decision of the delegate.  It says:

affirms the decision not to grant a protection visa.

That is the decision, is it not?  That is what you have to be notified of, that you were not granted a protection visa.

MR CAMERON:   Not in terms of section 430D, which says the department must notify parties not invited to the handing down of the decision.  The decision, there, is notified by giving a copy of the statement prepared under section 430.  In Long, this code did not exist.  There was no guidance in Long as to the various ways in which decisions were communicated – to use a neutral term.  They had to be provided within 14 days.

McHUGH J:   But section 430D rather tells against you, though, Mr Cameron, because it assumes that the copy of the statement prepared under section 430 is different from the decision concerned, and, therefore, arguably, when 478 is talking about the decision, it is talking about something different from the written statement under 430, which must set out the decision, must set out the reasons, and so on.

MR CAMERON:   It would be my submission that speaking about reasons, bearing in mind the terms of section 430D(2) and the fact that it was expressed in the second reading speech to be a code, means that the section, in terms of notification and the time limit, should be read in the light of those provisions.  I do not believe I can take it any further than that.

GLEESON CJ:   Now, how would your client have been better off, in practice, if Ms Elham had said to him, “Take a seat, I am going to read to you, in your own language, the reasons for the decision of the Tribunal”? 

MR CAMERON:   Well, there was no authority for Ms Elham or anybody else to do that, in terms of the ‑ ‑ ‑

GLEESON CJ:   How would he have been better off if the president of the Tribunal had attended the detention centre and said, “Take a seat, I am going to read you, in your own language, the reasons of the Tribunal”? 

MR CAMERON:   Yes, that is fine, because that would comply with the provisions of the Act, whereas it was the responsibility of the Tribunal to communicate to the applicant the decision.

GLEESON CJ:   Yes, but my question to you is, how would he have been better off if that had happened out of the detention centre?

MR CAMERON:   Because it would have been translated for his benefit, if the procedure which I suggested were adopted – at the time the Tribunal member arranged for the decision to be delivered and read out, they also arranged for an interpreter to do a simultaneous translation, as they do, in fact, in the course of hearings.  It is a perfectly simple way to go about it. 

GUMMOW J:   Yes, but how does it assist your client in his advancement of his position?

MR CAMERON:   The reasons will be read out and he will see the various grounds on which he was disbelieved.  In other words, that it was believed that he did not suffer the persecution because he could tell the time.  After all, this was a credibility matter and he would have been able to address those various credibility matters if he had known what it was.

HEYDON J:   In his affidavit he made a claim that his real complaint was that no one told him anything about the Federal Court of Australia, no one except fellow asylum seekers told him that.  That is what he ‑ ‑ ‑

MR CAMERON:   Yes, but his evidence on that was not accepted by the primary judge.  His Honour accepted that Mr Wallis had, in fact ‑ ‑ ‑

HEYDON J:   Yes.  I am just trying to indicate though that he may be seeing things more from a substantive point of view perhaps than the argument you are presenting on his behalf, because that is his complaint.  He knew that he had lost.

MR CAMERON:   Yes.

HEYDON J:   He wanted to have won and he wanted to stay here.  His problem is that he did not know how to overcome that.

MR CAMERON:   Yes.

McHUGH J:   He did not know he had a right until other detainees told him.  That is what he says.

MR CAMERON:   Yes.  The other problem is – and it really relates to a point which was raised by your Honour Justice Kirby – he was also provided with a copy – and this is one of the difficulties which is faced by detainees.  It is at page 65 of the appeal book.  They are told that they are not entitled to a protection visa on page 64 and then they are told that there is a $1,000 fee which is payable and it is payable within seven days, and then in the last paragraph of that it says:

If the fee is not paid, you will have a debt to the Commonwealth of Australia.  If the debt remains unpaid you will be unable to obtain a visa in the future.

That, of itself, may detain ‑ ‑ ‑

GLEESON CJ:   I do not think we are doubting your submission that people in detention are under enormous tactical difficulties in complying with this particular requirement of this legislation.  I think what you are being invited to comment on is the possibility that the practicalities that cause the difficulties are not solved by what you say should have been done in the present case.

MR CAMERON:   No, that is entirely my submission.  They were not solved by what was done in the present case.

GLEESON CJ:   No, would not have been solved by what you say should have been done.

MR CAMERON:   No.

GLEESON CJ:   Justice Heydon points out to you that from your client’s point of view he does not seem to be complaining – I mean, we all assume that litigants pore over our reasons, but that may not be correct.  They may not be regarded as generally entertaining as we think they are.

McHUGH J:   I do not even think lawyers pore over them until they have to argue ‑ ‑ ‑

MR CAMERON:   My friend suggested the intervention of lawyers.  I must admit that reading the grounds for review my heart does not fill with pride reading those either.

GLEESON CJ:   What your client really needed was somebody to tell him that there was such a thing as the Federal Court of Australia and there was such a thing as a right of judicial review.

MR CAMERON:   And there was also such a thing as the Order 80 of the Federal Court Rules whereby somebody would be assigned to help him.

GLEESON CJ:   And in the absence of anybody telling him that, you could read a dozen times over the reasons for decision of this Tribunal and it is not going to advance him.

MR CAMERON:   No.

McHUGH J:   Is this $1,000 fee payable under some regulation, is it, I suppose?

MR CAMERON:   I have no idea.

McHUGH J:   Justice Kirby, as usual, takes this high‑minded view that ‑ ‑ ‑

KIRBY J:   It is not a high‑minded view.

McHUGH J:   ‑ ‑ ‑ the legislation is interpreted rationally and that parliaments and other bodies have the highest motives for protecting human rights, but when you look at this legislation, the real politic view of it is that it is designed to prevent refugees from pursuing their rights under the Convention.  I mean, that is the reality of it as ‑ ‑ ‑

KIRBY J:   Insofar as there is any ambiguity, I do not think it is the role of this Court to enlarge the difficulties.

MR CAMERON:   No, but at the same one could go further and say that the Parliament, or the Executive in any case, has set up the detention centres in places such as Derby which make it virtually impossible for detainees to obtain legal advice.

GUMMOW J:   What is the status of this letter at page 64?  Was it received by your client?

MR CAMERON:   Well, it is annexed to Mr ‑ ‑ ‑

GUMMOW J:   The cover sheets say that it is going somewhere else, the cover sheet on 63.  Is there any evidence about him getting this?

MR CAMERON:   I think it is annexed as an exhibit to Mr Wallis’ affidavit of the documents which he gave to ‑ ‑ ‑

GUMMOW J:   Did he?  I can understand if that has been translated for him, he might have understood a bit more.  Why is this not a relevant notification?  That is what I am mystified by at the moment.

MR CAMERON:   Sorry, your Honour.

GUMMOW J:   Why is 64 not a relevant notification, if translated, if read out ‑ ‑ ‑

MR CAMERON:   There are two points on that.  My first point is that ‑ ‑ ‑

GUMMOW J:   Well the first point is, is there any evidence that he received it, any finding about it?  How does it pop into the record?

McHUGH J:   There is no finding, is there.

MR CAMERON:   There is no finding, no.

McHUGH J:   The only finding is that Wallis told him of the decision and also told him he could apply to the Federal Court in 28 days, nothing else.

MR CAMERON:   Nothing else, those are the only findings.

GLEESON CJ:   Was Wallis’ evidence that he handed this document to your client?

MR CAMERON:   Yes, in accordance with his universal practice.

McHUGH J:   And his note.

MR CAMERON:   And his note.

GUMMOW J:   Page 64, the letter?

McHUGH J:   Well, you have to work it out by inference, because the facts have 18 pages.

GUMMOW J:   And the reasons are not 18 pages.  They are less.

MR CAMERON:   So the document which went to Ms Hamilton, even assuming that she was some sort of authorised agent, did not include the reasons.  I do not know what she got.

GUMMOW J:   I think this was the covering letter, myself.  When you count it all in, you get the relevant number of fax pages.

MR CAMERON:   But since – and I am sorry, I am not sure whether this provision was in force at the time – we now have section 441G, which is in Reprint No 8, that provides for an “authorised recipient” of certain documents.  Now, there is no suggestion that Mr Wallis was an authorised recipient.  There is no suggestion that Ms Elham was an authorised recipient.  At the relevant time, the only person who was the authorised recipient was the applicant.

KIRBY J:   But this is irrelevant if that section is not in force.

MR CAMERON:   I would have to check whether that was in force at the relevant time.

KIRBY J:   Well, no, the Solicitor has not relied upon that section.

MR CAMERON:   No.

GUMMOW J:   I am still mystified.  What are the 18 pages referred to at page 61?  I would be very surprised if they do not include this letter.

HEYDON J:   They consist of 14 pages of decision and reasons for decision ‑ ‑ ‑

MR CAMERON:   My friend points out that they came into force in August 2001, those additional sections.

GUMMOW J:   I am not worried about the section.  I am still trying to grapple what are the 18 pages identified on page 61.  It seems to be repeated on 62.

HEYDON J:   Are not pages 43 to 61 documents transmitted to one address and pages 62 onwards transmitted – 62 and some of the pages that follow, together with the decision, transmitted to another address?  One went to the Melbourne address and one went to the Curtin Centre.

MR CAMERON:   Yes.  My friend points out that the reasons are 14 pages.  The additional four pages could be the covering letters.

GUMMOW J:   Exactly.  That is what I think.

MR CAMERON:   But, of course, as your Honour has observed, what was sent to Ms Hamilton was only four pages.  So she obviously did not get the decision.  She presumably only got the covering letter.

GUMMOW J:   I am worried about what was out there at Curtin.  It looks as if the letter was there.

MR CAMERON:   Yes.

GLEESON CJ:   Which was, in substantial part, a letter of demand.

MR CAMERON:   Yes.

GUMMOW J:   Yes, but the first page of it, in any event, if translated, would meet your objections, would it not?

MR CAMERON:   Yes.

GLEESON CJ:   Now, what do you say about that case of Nguyen v Refugee Review Tribunal 74 FCR 311 on the question of whether it should have been translated?

MR CAMERON:   The circumstances in Nguyen are completely different.  Nguyen was a case in which he was told that there had been an adverse decision by the delegate and he could appeal to the Refugee Review Tribunal.  So it was not a case in which the reasons for the delegate’s decision were communicated.  Mr Nguyen was out in the community, had legal representation and was able to get the appropriate advice.  He was not stuck at the end of the earth in Derby in Western Australia.

GLEESON CJ:   Is it consistent with your argument that if the contents of the document at 64 had been read to him in his own language that would have constituted the requisite notification?

MR CAMERON:   No.

GLEESON CJ:   There would be no use handing him a document if he cannot read, in whatever language.

MR CAMERON:   Yes.

GLEESON CJ:   He cannot read in his own language.

MR CAMERON:   Yes.

McHUGH J:    Your point is that it would not be sufficient to translate 64.  You claim he has to translate the reasons for him as well.

MR CAMERON:   Yes, he has to translate the section 430 statement, perhaps leaving out that bit at the beginning, the boiler‑plate on the Refugee Convention, but maybe even that should be translated for his benefit.  But it should have been done by the Tribunal ‑ ‑ ‑

McHUGH J:   What about the reference to the judgments in this Court?

MR CAMERON:   Yes.

KIRBY J:   Surely, that should not be left out.

MR CAMERON:   No, perhaps it would be appropriate to include those.

GUMMOW J:   You do not have any fall-back submission about page 64?

MR CAMERON:   No, in terms of page 64, I simply say that that would not be sufficient.

GUMMOW J:   Why not?

MR CAMERON:   Because it does not provide him with the section 430 statement, as required by section 430D(2).  I do not accept my friend’s submission, though it appears to have a certain attraction on the Bench, that in interpreting section 478(1)(b) one looks to the general law rather than the code which is set out in the Migration Act itself, for the purposes of notification.  Where there is a time limit set by notification of the decision, and there is a particular code set out in the Migration Act, then that, in my submission, that section must be read in the light of the code.

McHUGH J:   Yes, I think I have not given as much emphasis I should have to your submission that this is a code and therefore the term “notification of a decision” has to get its content from the code rather than looking at it standing alone.

MR CAMERON:   Yes, looking at practicalities in general law.  That is the code.  It is a very restrictive provision.  I said to your Honour Justice Gummow earlier on that it is not a privative clause decision, but it has many of the effects of a privative clause in a decision because the time limit involved for the persons in that particular situation are such almost to deprive them of their rights.

When his Honour is talking about notification of decision, in my submission, he is talking about notification of the outcome.  He accepted that the outcome was communicated to the appellant by Mr Wallis.  That is all that he made a positive finding on, that the outcome was interpreted and that he was told that he had 28 days to apply to the Federal Court.  His Honour’s findings went no further than that.  In my submission, as I have submitted to the primary judge and to the Full Court, that is not sufficient.  He has to be given the section 437.

GUMMOW J:   Yes, Justice Heydon reminds me if one looks at page ‑ ‑ ‑

HEYDON J:   At page 70 Mr Wallis said:

Annexed hereto and marked “GCW1” is a copy of the facsimile transmission sheet from the Tribunal which contains the note I made immediately after handing the Tribunal decision to the applicant.

That is on page 74.  That says that there are 18 pages and he was told to:

pass the accompanying correspondence and decision to Mr Jafari.

Now, he may not have but ‑ ‑ ‑

MR CAMERON:   Whether he means that it was handed to the detainee in the overall circumstances.

GUMMOW J:   No, that is what he has written on the front sheet.  What he handed was what he was to pass on.  That is the ordinary inference.

MR CAMERON:   Yes, but again his Honour made no finding on that.  If he had made the finding – and I come back to the point which I raised before – then there would have been the difficulty of the translation point.  There was no problem about – it is common ground that in terms of the outcome that was interpreted for his benefit, “You lost.  You have got 28 days to apply to the Federal Court”.  That was interpreted.  His Honour found that and that is common ground.  But his Honour made no finding going any further than that.  In terms of practicality, how this matter could have been disposed of in a sensible and humane way is by the Minister exercising his discretion under section 48A of the Act.

KIRBY J:   That has not been affected by any amendments?

MR CAMERON:   I do not believe so, your Honour.  Section 48A prohibits a second application, but section 48B:

may determine that section 48A does not apply –

The Minister could have looked at the circumstances in this case and said, “Well, that is a pretty awful situation.  In those circumstances, we will allow you to make a separate application and reconsider it”.  That was the sensible way of dealing with it.

GLEESON CJ:   I guess one of the problems in this case is that because there is no discretionary power to extend time, the Federal Court did not have before it the usual kind of evidence that it would have when called upon to exercise such a discretion as to the reason for the delay.  Do we know how it came about that the application was not made within the 28 days?

MR CAMERON:   Only from the evidence of the applicant himself.  Presumably, he got the section 430 statement from Ms Elham a couple of weeks after he had been told of the outcome, and, I think, in his evidence he was told by other detainees that he had a right to apply to the Federal Court.  You will notice that the application itself appears to be in two lots of handwriting.  You might infer that somebody assisted him with part of it and he wrote part of it himself.  That is the reason for the delay.  So the delay, if there was one, was in the delivery of the statement to him and the advice which he was given by ‑ ‑ ‑

GLEESON CJ:   But that is only another way of saying, is not it, that the real explanation for the delay or the failure to comply with the statutory time limit is that he was at all times, relevant to this matter, acting without professional assistance?

MR CAMERON:   Yes, and that continued for some time.  At the directions hearing both he and Mr…..were unrepresented.  I represented him at the case – which I do not think is on our list, but might be helpful to your Honours.  That is the case in which his Honour considered the position of pro bono counsel and the circumstances where a child may proceed without a tutor or next friend.  It is Jaffari v Minister for Immigration and Multicultural Affairs [2001]) FCA 985.  I do not think it has been reported. 

So this whole question of legal representation was canvassed at that time.  There has been reference to the fact that Freehills have been acting and, of course, I am grateful for that assistance, but Freehills have only been acting in High Court appeals.  Prior to that, he was receiving counsel under Order 80 of the Federal Court Rules.

KIRBY J:   That is the provision in the Federal Court by which they can assign counsel or I think they request the Bar Association, is it not?

MR CAMERON:   That is right.  They grant a certificate and then the registrar goes around the usual list of suspects, and I would suspect that I

am fairly high on the list, and legal representation is obtained.  Unless your Honours have any questions, those are my submissions.

GLEESON CJ:   Thank you, Mr Cameron.

KIRBY J:   One problem with 48B, though is – I am not sure that I am reading it correctly – it means you have to go back to square one and make a new application to a delegate.  Is that not correct?

MR CAMERON:   Yes.

KIRBY J:   So the Minister thereby loses the advantage of the adverse determination of the original delegate and Tribunal?

MR CAMERON:   Yes, but in the circumstances of this particular case, the applicant would presumably get much better assistance and advice on the second application than he did on the first.  I mean, one of the features of the representation before the Tribunal was it appears that witnesses were called without ever proofing their evidence and what their evidence was going to be, and certainly no legal practitioner – well, I hope no legal practitioner would proceed in that way.

GLEESON CJ:   Is section 48B(6) relevant?

MR CAMERON:   Yes, he does not have to consider whether to exercise the power, and I have not been involved in a case in which he has simply written back and said, “I do not propose to consider the matter”.

GUMMOW J:   Yes, the view is, I think, that there is no mandamus.

MR CAMERON:   There is no mandamus.  He can write back and say, “I do not propose to consider it”.

GLEESON CJ:   Thank you, Mr Cameron.  Mr Solicitor, I forgot just to ask you a question about costs.  What is the position about that in this case?

MR BENNETT:   Your Honour, I apologise for this, but can I have leave, please, to include whatever order is or is not sought as to costs in the note we are providing to the Court on the other matters?

GLEESON CJ:   Yes, well, then, your opponent will have leave within 14 days of that ‑ ‑ ‑

MR BENNETT:   Of course. 

GLEESON CJ:    ‑ ‑ ‑ to make whatever response he wishes to make on that question. 

MR BENNETT:   Yes, if your Honour pleases.

GLEESON CJ:   Very well.  We will reserve our decision in this matter.  The Court will adjourn until 9.30 tomorrow morning in Sydney, and 9.30 tomorrow morning in Canberra. 

AT 3.28 PM THE MATTER WAS ADJOURNED