WACB v MIMIA

[2003] HCATrans 437

[2003] HCATrans 437

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P98 of 2002

B e t w e e n -

WACB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 10.07 AM

Copyright in the High Court of Australia

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

MR P.R. MACLIVER:   If it please your Honours, I appear for the respondent.  (instructed by Australian Government Solicitor)

McHUGH J:   Yes, Mr Cameron. 

MR CAMERON:   Your Honours should have before you the applicant’s amended summary of argument, amended draft notice of appeal and an amended application for special leave.  Those raise two new grounds.  I can indicate at the outset that I do not intend to pursue, and I have indicated to my friend, the second new ground, which is that the applicant’s application for a protection visa was invalid, having been signed by him as a minor.  I do not propose to pursue that.

KIRBY J:   So it comes down to the guardian point, does it?

MR CAMERON:   No, the guardian point is out.

McHUGH J:   Is out?

MR CAMERON:   Yes, it comes down to whether there was notification, in terms of the Act – notification of the decision – but also the new ground which is raised as a result of the decision of this Court in S157 and of the Full Court in Ngu, whether for time to run there has to be a decision under the Act, rather than a purported decision under the Act.  That is a new ground which was not considered by the primary judge or by the Full Court, both of those decisions having been handed down before the decision of this Court in S157 and also, of course, before the decision in Ngu.

The provisions as they now stand are set out in section 477 of the Act.  So far as the time limit for lodging an application for review, they are now in section 477, but at the time were in an earlier section, which also provided that an application for review had to be made within 28 days of notification of the decision, and there was also provision that the Federal Court could not extend time.  This is one of those many cases in which there has been a notice of objection to competency filed by the Minister on the basis that the application was filed outside the 28 day period.  On that basis, the applicant in this case, a 15 year‑old boy, did not have his application for review considered on the merits.

His Honour the primary judge and the Full Court followed a decision of the Full Court in Long.  The submission before the primary judge and before the Full Court was that the statutory scheme for the notification of decisions had changed since the decision in Long, and that the requirements for notification for a decision were quite different from those which prevailed at the time that Long was decided. 

The relevant section is conveniently set out in the judgment of Mr Justice Jenkinson in Long, which is No 6 on the list of authorities.  Your Honours will see that section 430 of the Migration Act in Division 5 provides that:

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

It then sets out requirements of that statement.  Section (2) provides that: 

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. 

Then there is a provision for the return of documents.  As his Honour Mr Justice Lee points out in his dissenting decision, there is no other provision in the Migration Act for the notification of decisions.

If I can now take your Honours to section 430 of the current Act, the one which was in effect at the time of the application to the primary judge, you will note that section 430 repeats, with one exception, the content of section 430 as it was prior to the amendment of the Act.  What has occurred is that subsection (2), which was the section under which Long was decided, has been omitted and the provisions for notification of the decision are now set out in a series of sections from 430A to 430D. 

I have set out – in my written submissions, I have analysed those in some detail.  I do not propose to do it in the same detail now, but I would simply draw your Honours’ attention to the provisions of section 430B(3), which makes it clear that when the Tribunal’s decision is handed down in the presence of the parties:

The Tribunal’s decision may be handed down:
(a)  by reading the outcome of the decision –

The statutory scheme, as it had applied at the time that the matter was  before the primary judge, was markedly different from that which prevailed at the time that Long was decided.  So that the new statutory scheme draws a distinction between the outcome of a decision and the decision itself.  In Long, their Honours drew a distinction between the decision and the reasons for decision.

Now, the present applicant was in immigration detention, and so particular provisions apply to a person in immigration detention.  Those are set out in section 430D.  Section 430D(2) is the relevant section.  It provides that:

If the applicant is in immigration detention –

as the present applicant was –

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.

McHUGH J:   Well, that is like the old 430(2), is it not?

MR CAMERON:   Well, in a sense, with respect, it is slightly different from section 430(2), because if one looks at the preceding section, which applies when a person is invited but is not present at the handing down, that provides that the applicant must be given a statement within 14 days, but the applicant is taken to be notified of the decision on the day on which the decision is made.  No such distinction is drawn in section 430D(2), and it would be my submission that, under the new statutory scheme, a decision is notified and engages the time constraints set out in the Act – the 28 day period – after that prepared statement has been handed to the applicant.

In my submission, it also goes further, as his Honour Mr Justice French, in fact, held, that notification must be in a form which is comprehensible to the applicant.  That would require that it be translated for his benefit, and there was no evidence in the present case that that was ever done.  Obviously, when a person is in immigration detention and has no access to other interpretation facilities, it is important that it be translated, because only when it is translated will he know whether or not he has grounds for judicial review.

KIRBY J:   That is why I was a little curious that you have withdrawn the issue of the Minister’s role as guardian under a statute enacted by the federal Parliament for minors in detention, because, at least on one view, when one puts the two statutes together, at least in the case of minors, one would think that some special obligation devolves upon the Minister as statutory guardian to make sure that that person understands the decision and the basis of the decision, so that, even without legal representation, which is not readily available, that person can pursue their rights.

MR CAMERON:   That is right, your Honour, but the ground I, in fact, withdrew, was simply that it had been signed by him and not by a parent or guardian, taking into consideration that he was under the age of 18.  The other issue is still alive in respect of the application by the Full Court of the decision in Odhiambo.  The facts in Odhiambo were quite different; it was run on a quite different basis. 

Odhiambo was run on the basis that the appellant there had not been given legal assistance before the Tribunal.  The problem with this case is that he was not given legal assistance at the time of notification, and it would be our submission that for it to be notified properly – and that was our submission before the primary judge – he would have to be given appropriate assistance to understand it, and, if necessary, file an application for review.

McHUGH J:   You keep using the term “notification”, but is not 430D(2) exhaustive of “notification”?  Or is it your argument that 430B(6) governs all forms of notification?

MR CAMERON:   It would be my submission that, in terms of notifying the decision, it governs all forms.  In other words, you cannot ‑ ‑ ‑

McHUGH J:   You are talking about subsection (6)?

MR CAMERON:   Yes.  You cannot be notified simply by telling you, “You have lost”.  In terms of section 430D(2), you have to be notified by being given the statement and in a form which is comprehensible to you.

McHUGH J:   But do you accept that 430D(2) is exhaustive of a manner of notification for a person in immigration detention?

MR CAMERON:   No, I do not, your Honour.  What I say is that, in construing 430D(2), one looks at the whole Division and the whole scheme for handing down and notification of decisions.  Now, 430B applies where there has been an invitation to the parties under 430A, and it does not apply where the applicant is in immigration detention.  That is under the provisions of section 430A(1)(b).  So the only section which applies to a person in immigration detention is under section 430D(2). 

We say that the only means of notification of the decision sufficient to engage the time limit, leaving aside the question of whether there has been a decision in terms of “No” – in other words, a decision which is not infected by jurisdictional error, which is only a purported decision – that has to be given by handing the section 431 statement to the applicant. 

Thereafter, the applicant, provided with the basis upon which his application for refugee status has been declined, has a full 28 days to get legal advice and to lodge an application for a review, if appropriate.  In S157, his Honour Justice Callinan remarked that even 35 days, which were provided for bringing proceedings in this Court, were pretty short for a person in immigration detention.  This provision is even shorter.

KIRBY J:   What is the significance of the fact that Justice French found that the applicant had the decision of the Tribunal communicated to him and that he understood it?

MR CAMERON:   With respect, I am not quite sure that his Honour did quite find that.  He found, in my submission, there was evidence from Mr Wallis that, in fact, he had handed it to him, but, in fact, the applicant’s own evidence was that it had been given to the interpreter, Ms El Ham.  His Honour, because he felt that the only relevant provision was whether he had been told of the outcome, found that he was told of the outcome, had understood it and was upset as a result, and as a result may not have understood that he was told by Mr Wallis that he had the 28 days to appeal.

KIRBY J:   Is there any significance in the interpretation of what is required to be communicated of the fact that there is no power in the Federal Court to extend the time?  In other words, does one draw an inference that enough, at least, must be communicated so that this sudden death game can be played out in an effective way?

MR CAMERON:   In my submission, one does, and that is why one gives section 430D(2) the construction which I am urging upon your Honours, and which I urged upon the primary judge and the Full Court, without effect.

KIRBY J:   So your argument is that the Full Court’s decision is flawed because it applied Long, and Long related to earlier provisions of the Act that have been repealed and replaced, and that the new provisions introduce a different regime and Long does not speak to that regime?

MR CAMERON:   Long does not speak to that regime.  Those are my submissions, yes, your Honour.

McHUGH J:   But what do you argue is comprehended by the term “decision”?

MR CAMERON:   The term “decision”, in my submission, is the whole section 430 statement.  It is not the outcome, and that is, in my submission, underlined by the provisions of section 430B(3), which draws that distinction between the decision and the outcome.  Obviously, the decision and the outcome are not the same thing.  Their Honours in the Full Court and the primary judge held that the decision was the outcome – that he is notified of the decision by being notified by the outcome.  My submission is that he is notified only by provision of the section 430(1) statement in a form which is comprehensible to him and which may enable him to seek legal advice, or, if legal advice is not available, to lodge an application for review.

McHUGH J:   That must have the effect that Parliament intended that, in many cases, the reasons should be translated.

MR CAMERON:   Yes.  And it may well be – and simply I am speculating ‑ that the amendments were made as a response to Long, which was seen as being unduly restrictive.

McHUGH J:   It would be surprising if any amendments to this Act were made in favour of people claiming refugee status.

KIRBY J:   Astonishing. 

MR CAMERON:   I do not disagree with that ‑ ‑ ‑

KIRBY J:   In any case, you say the linguistic difference points to the differentiation between outcome and decision, and whatever “decision” means, even if it is something short of the full reasons, it means enough that a person can exercise rights that are down the track.

MR CAMERON:   Yes.  It also avoids the situation ‑ ‑ ‑

KIRBY J:   One might say, especially in the case of a minor of whom the Minister is the guardian, under the legislation enacted by our Parliament.

MR CAMERON:   Especially in the case of a minor.  It also avoids the situation which was referred to by Mr Justice Mansfield, citing Mr Justice Hill in Barzideh, where their Honours said that they were “constrained by the legislature to sit idly by while injustice is done”.  If one applies the interpretation which I am urging upon the Court, that constraint may now be removed.  Those are my submissions, unless your Honours have any questions.

McHUGH J:   There is just one question.  If 430B(6) is controlling and 430D(2) is only a working out of subsection (6) of 430B, how does 441A fit into this scheme?

MR CAMERON:   Section 441A, in my submission, would be irrelevant in the circumstances of this case.

McHUGH J:   Irrelevant?

MR CAMERON:   Irrelevant, because it simply provides for notification of the decision to the secretary rather than to the applicant.

McHUGH J:   Yes, but 430B(6) says that:

The copy must be given to the applicant . . . 
(b) by one of the methods specified in section 441A.

MR CAMERON:   Well, the method which was followed in 441A in the case of the applicant would have been transmission by fax – and the evidence supported that – transmission by fax to the DIMA manager of the Curtin Detention Centre, who would then communicate it to the applicant.  So the statement would be sent by fax, in this case, to the Curtin Immigration Detention Centre and it would have been given to the applicant.

McHUGH J:   Yes, thank you.  Yes, Mr Macliver.

MR MACLIVER:   Thank you, your Honour.  Dealing with the new grounds relating to this Court’s decision in Plaintiff S157, it is the respondent’s submission that that case does not affect the regime under the former Part 8 of the Migration Act, which contained a self‑contained scheme for reviewing what were then termed “judicially reviewable decisions”. That scheme provided for the exclusive jurisdiction of the Federal Court in relation to review of judicially reviewable decisions, other than the jurisdiction of this Court under section 75(v) of the Constitution. That was in section 486.

Section 485 provided that the Federal Court must only have the jurisdiction under Part 8, and section 476 provided that review was only to be on certain grounds.  The final provision in relation to this scheme dealing with this new jurisdiction – new, exclusive and limited jurisdiction – was section 478, which provided that an application for review had to be made within 28 days of notification of the decision.

We submit that Plaintiff S157 was decided the way it was because of the use of the term “privative clause decision” and your Honours’ conclusion that such a privative clause decision was not a decision infected by jurisdictional error and therefore, of course, the time limit, in relation to bringing the applications in this Court, in relation to reviewing privative clause decisions, was similarly – that that time limit was not applicable where there was jurisdictional error.  And so, of course, it was therefore necessary, in that sort of situation, to determine first whether there was jurisdictional error.

McHUGH J:   You say, I take it, that even though a decision under force of 475, 476, et cetera, et cetera, may be made without jurisdiction, nevertheless it does have some effect to ground subsequent review proceedings.

MR MACLIVER:   Yes, your Honour, under the former Part 8, and, in particular, in view of the fact that, although there were limited grounds of review, one of those grounds of review was specifically jurisdictional error.

McHUGH J:   The same as in Crane v Director of Public Prosecutions [1921] 2 AC 299 it was held that, even though an order of a trial judge was a nullity, nevertheless it still had some basis which would allow the Court of Criminal Appeal to hear an appeal against orders. It was not as though it was nothing; it had some basis. It is the same in Calvin v Carr. 

KIRBY J:   Calvin v Carr, yes. 

MR MACLIVER:   And the same, we say, under the old Part 8, your Honour.

KIRBY J:   But that leaves a question of whether there has been compliance with the requirement.  It does appear as though the Full Court, in acting on Long, has acted on an incorrect principle.

MR MACLIVER:   It is true that the Full Court acted on Long.  We would say that, in doing so, it was not acting on any incorrect principle.

McHUGH J:   They follow their decision in WACA. 

MR MACLIVER:   WACA, your Honour, yes.

McHUGH J:   They dealt with the matter at length in WACA and held that there was no relevant difference, rightly or wrongly.

MR MACLIVER:   Yes.  Your Honours, we say they were correct, because the provision about notification, being notified of a decision, we say, had not relevantly changed.  Section 430(2), which was the former section applicable in Long, provided that – and this conveniently appears at paragraph 17 of our amended summary of argument, your Honours:

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.

Now, it is true that the statutory regime about notification and handing down decisions and inviting applicants to attend the handing down of decisions is now changed somewhat, with the new provisions 430B, 430C and 430D, but that former subsection, 430(2), applied, of course, equally to a person not in detention and to a person in detention. 

So far as a person in detention is concerned, we submit that the position is unchanged, because in respect of a person in detention subsection 430D(2) provides that:

If an applicant is in immigration detention, 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.

So in respect of a person in detention the scheme was unchanged; it was the case that a copy of the statement prepared under subsection 430(1) had to be given within 14 days.  Your Honours, that requirement to give a statement under 430(1) is a requirement to set out, and that has not changed, that:

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; and
(c)  sets out the findings on any material questions of fact –

So there is a clear distinction, in providing such a statement, to provide both the terms of the decision and the reasons for the decision and setting out any material findings of fact.

Your Honours, we would submit that what occurred in this case was notification of the decision within the meaning of the former section 478(1)(b).  The applicant was notified of the decision and the relevant findings of his Honour Justice French appear at page 37 of the application book.

HEYDON J:   One trouble is, they are not findings.  He summarises Mr Wallis’ evidence, then he summarises the applicant’s evidence, but he does not say which account he prefers.

McHUGH J:   Except at paragraph 34.

MR MACLIVER:   Well, at paragraph 31, page 37, your Honours, his Honour said that:

Greg Wallis gave unchallenged evidence on affidavit in these proceedings that he gave the applicant a copy of the Tribunal’s decision on 16 March 2001.  He had a standard practice which he followed, in this case, of advising the applicant through an interpreter that the Tribunal had decided not to grant him a visa and that he had twenty eight days in which to lodge an application with the Federal Court for review of the Tribunal determination.

KIRBY J:   Well, that is a great help, is it not?  That is a great help.  And it is sudden death if he does not get it in in that time.  I mean, how can he put ‑ this is a boy of 15 of whom the Minister is guardian.  It is really appalling.  I feel distressed to have to sit here and listen to this.  It is a boy of 15 who is told by the officer what the Tribunal has decided, not to give him a visa, and he has 28 days in which to lodge his application and he is expected to proceed to lodge an application without knowing what he is applying about.  And then when he does not, he is told he is out of time and there is no ability to extend the time.  Kafka could not do better.

McHUGH J:   Well, it is even – in the other list, there is a case where there is a finding that the applicant did put his document in the box at the detention centre, his application for review, and it was not cleared for two weeks, so it was out of time.  That really is Kafkaesque.

MR MACLIVER:   Yes.

KIRBY J:   It is not your fault, though, Mr Macliver.  What I said is ‑ ‑ ‑

MR MACLIVER:   I am indebted to your Honour for that observation.

KIRBY J:   What I said is relevant to how one interprets this Act in a way that is conformable with the imputation that this Court always attributes to the Federal Parliament, that is, that it acts in a way that is rational and just, unless there is a very clear indication to the contrary.

MR MACLIVER:   Yes.

McHUGH J:   Why should we not grant leave in this case?  The point is at least arguable and it is of great importance.  That being so, why should not the Court look at it?  Even if a Justice was not convinced that the applicant had made out a prima facie case, nevertheless it certainly seems to me to be an arguable point and it is a point of great importance.  So, in those circumstances, why should we not grant leave to look at the matter in more detail?

MR MACLIVER:   I could not quarrel with your Honour’s observation that it is a matter of importance.  In answer to that, my response would be that, while it is obviously a matter of importance, we would submit that the decision is not attended by sufficient doubt to warrant this Court granting special leave.  Your Honour Justice Kirby referred to the fact that this legislation is fairly draconian, in the sense that it does have a strict time limit ‑ ‑ ‑

KIRBY J:   Maybe I am affected by the fact that the Parliament has made the Minister the guardian of a minor.  That may be an irrelevant matter, and, in the end, I might be convinced that that is an irrelevant matter.  But if one imports into the notion of “guardian” the principles of equity in respect of a minor, then it is not an irrelevant matter and certain extra steps should be taken in respect of minors, so that they are not brought to this country to go through a charade of apparent procedures, which are just not just in respect of, at least, them.

MR MACLIVER:   Yes.  Your Honour, the case being made against the Minister in this matter is that notification required not only notification of the decision – and I do not understand my learned friend’s quarrel with the fact that there was notification of the decision.  He goes further and says that notification of the decision within the meaning of 478(1)(b) requires notification of the reasons, and notification of the reasons in a form that can be understood, i.e. to be interpreted or translated.

KIRBY J:   Well, he says that in the scheme of the legislation now there is a juxtaposition between decision and outcome, and that therefore you would give decision a little bit more than outcome, and you would do that especially because of the fact that, if he does not get his application in, there is no facility to extend time, and particularly in the case of a minor.

MR MACLIVER:   Well, even if that was so, your Honour, that there was some distinction to be drawn between decision and outcome, which we do not accept, but even assuming that there was, there is still a difference between an outcome and the reasons for the decision or the reasons for the outcome.  We say, on the clear evidence, what happened here was that this applicant was given notification of the decision.  It was given to him in the sense that he was given a copy of the document prepared by the Tribunal under section 431 and he was also given notification in a form which he could understand. 

Mr Wallis’ advice of the terms of the decision was translated or interpreted to him, and the fact remains that the applicant did subsequently make an application to the court, despite being a minor, he made an application to the court.  The fact is, though, that he did not make it within the jurisdictional time limits set out in 478(1).  We say that there is not sufficient doubt in relation to those aspects and, although it is a matter of importance, it is not a matter upon which this Court should grant special leave.  If it please your Honours, those are my submissions.

McHUGH J:   Yes, Mr Macliver.  Yes, Mr Cameron.

MR CAMERON:   I do not believe I could assist the Court any further.

McHUGH J:   Thank you.  Yes, there will be a grant of special leave in this matter on the two grounds upon which you rely in your amended oral applications, Mr Cameron.

MR CAMERON:    Thank you, your Honour.

McHUGH J:   The Court will now adjourn.

AT 10.45 AM THE MATTER WAS CONCLUDED