WADP v MIMIA

[2004] HCATrans 269

[2004] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P122 of 2002

B e t w e e n -

WADP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 12.08 PM

Copyright in the High Court of Australia

MR R.L. HOOKER:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MR M.T. RITTER:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes.  Mr Hooker.

MR HOOKER:   If it please the Court, the applicant now wishes to advance two proposed grounds of appeal on this special leave application as set out in paragraph 1 of the applicant’s supplementary summary of argument.  Your Honours, before this week and since late 2002 the grounds and submissions as filed, which appear at pages 102 to 109 of the application book, were prepared by the applicant himself without legal assistance.

The grounds as now developed are, in my submission, at the very least promising vehicles for special leave in that they relate to the proper procedure and exercise of jurisdiction by the Refugee Review Tribunal and in turn the Federal Court.  They would, on that characterisation, be capable of demonstrating jurisdictional error and thus be unprotected by the privative clause provision in section 474 of the Migration Act.

The application today, your Honours, is for an adjournment of the special leave application so that the grounds can be properly particularised and subject to an application to supplement the record of the proceedings below and to adduce further evidence going to the matters set out at paragraph 2 of the applicant’s supplementary summary of argument.

It is apprehended that the application for an adjournment is opposed on at least two bases:  firstly, that the grounds have emerged simply too late in the course of the litigation and, secondly, that in the exercise by this honourable Court of its appellate jurisdiction there is simply no power to admit evidence of the kind foreshadowed in application of the principles confirmed most recently by a majority of the Court in Eastman v The Queen.

As to those points, your Honours, it is submitted firstly that a liberal approach is warranted in circumstances such as these where very late in the litigation legal representation is obtained and that that is all the more so when one takes into account the considerable difficulties in the present case of obtaining clear instructions.  I do not understand that any point is taken on behalf of the respondent to the fact that those difficulties are, in effect, asserted from the Bar table and have not been the subject of any evidence on oath.

HAYNE J:   Let it be assumed that the approach you advocate is correct.  Let us walk past that problem for a moment.  There may be a problem there, but let us walk past it.  What is the fibre in the grounds that you want to put up?  They are grounds about natural justice, but what is the real substance or meat in them?

MR HOOKER:   The fibre and – I reinforce again, your Honour, it is on the basis of what I have been instructed to date by my client - the fibre of the first proposed ground is that he said to the Tribunal at the outset of his hearing before it that he could not hear properly.  He was told that that would not and need not be addressed by the Tribunal, but it could be considered later.

If it be the case, your Honours, and if it can be demonstrated that to any significant degree he could not hear what was being said and could not understand what was going on at that hearing then, in my submission, there would be a very real issue as to whether on one view there had truly been a review undertaken by the Tribunal and further, or alternatively, whether he had literally been heard to any significant degree in the exercise of the Tribunal’s jurisdiction.

HAYNE J:   But it is surprising, even in his own preparation of documents, accepting that he has all the problems that a man in this position has, no language, in detention in a system which, if he had any familiarity with his home legal system, is utterly foreign to him and it is a rash assumption to assume he is familiar with a legal system anywhere, but do we see anything anywhere that says, “Look, I couldn’t hear, I couldn’t understand”?

MR HOOKER:   Your Honour, I cannot point to anything on the materials before the Court and I have to acknowledge that that is, to say the least, a surprising issue that my client would need to confront to satisfy this Court that special leave ought be granted.  I can only reiterate that.

HAYNE J:   Can I tell you the problem that is agitating me, and I speak only for myself.  Adjourning this concerns not only this applicant – yes, it concerns the Minister and the Minister can speak for herself – but it concerns other applicants for special leave.  If we push this one over it means somebody else probably is bumped out of the list.  Now, that presents a problem.  It presents a problem where for the first time at the 11^th hour and 59^th minute you get a complaint of a kind which – what I am asking you to comment about is – maybe characterised as one you would expect even the lay client, uninformed with all of the profound difficulties confronting that client might be expected to have raised.  “I couldn’t hear.  I couldn’t understand” and we do not find anything.

MR HOOKER:   Your Honour, I fully accept, with respect, that the nature of the claim and the lateness with which it is raised demands an explanation.

CALLINAN J:   I have a further problem.  Assuming that material is produced, potentially probative material is produced of a hearing deficiency, I am not at all sure that that will not give rise to a factual dispute anyway as to his demeanour, the extent to which he participated, whether there was, for example, evidence the other way to be drawn as to his conduct which showed that he did hear and participate.  In other words, you are putting on an affidavit containing this sort of material may not be the end of the matter anyway.  There may be a major factual dispute.  The same may well apply to claims about translations.

MR HOOKER:   Can I confront those distinct issues that your Honours have raised in this way.  The very fact that my client needs to address the concern raised by your Honour Justice Hayne, and there may be an issue as to whether these factual matters will require, in effect, a trial of some facts, the very fact that they can only sensibly be addressed, in my submission, if there is particularity and an evidentiary foundation before the Court, accepting, of course, that there is the Eastman issue we may need to overcome, but in the absence of that particularity which in the circumstances of acting on a pro bono basis I just have not been able to obtain, I can only urge upon your Honours that ‑ ‑ ‑

HAYNE J:   Do not misunderstand us, Mr Hooker.  We are not offering any criticism of you.  We are indebted to you for your assistance, but we have to bring you hard up against these problems because, yes, the problem is one of acute interest to your client but it also has these other features that we have to somehow take into account and consider.

MR HOOKER:   Addressing your Honour Justice Hayne’s particular concern about if there were an adjournment of this application it necessarily pushes someone else back, can I urge upon your Honours that the balance ought weigh firmly in favour of granting an adjournment for the reason that at present we are simply in the dark.

It may well be the case that upon supplementing the record and particularising the grounds as I have put them to date it emerges that the hurdles are too difficult to confront, but at present, without what I am seeking by way of a reasonable opportunity in the overall interests of justice, I submit the Court cannot tip the balance one way or the other in deciding whether or not to grant an adjournment and that, therefore, the proper course, I submit, is to allow my client a reasonable opportunity to provide the particularity, provide the instructions, receive advice

accordingly and for him to be given an opportunity against that background and within those parameters.

To address the point made by your Honour Justice Callinan, the different point, that it may be that these issues create the need for a trial, as it were, at least to a limited degree, it may be, I accept, that that points the applicant in the direction of ventilating these through a different kind of application and that is something that I may ask him for instructions on, but the mere prospect of ventilating these issues through a separate kind of application is not, in my submission, sufficient ground for denying the adjournment we seek of the present application.  Those are my submissions, if it please the Court.

HAYNE J:   Yes.  Yes, Mr Ritter.

MR RITTER:   May it please, your Honours, we oppose the application.  We do so on two bases.  The principal basis is simply the lack of merit, we say, in the matters sought to now be raised for the applicant.  The second reason is the delay in getting to the stage of a hearing and the matter relating to this application and others which was ventilated by your Honour Justice Hayne.

HAYNE J:   Would you go first to the question of merits?  If we were to adjourn to permit propounding of these grounds would they be grounds that would be open in this Court?

MR RITTER:   We would say not for a number of reasons.  The first reason is that the fibre on the first issue as to whether the applicant could be heard at the Refugee Review Tribunal properly heard because of his hearing deficiency is not really open.  It is not open because in part there were communications between both the applicant and his then migration agents to the Tribunal subsequent to the hearing which it conducted on 5 October 2001.  There were a number of letters which the Tribunal refers to in its reasons.  In none of those letters was this issue about not being able to hear the Tribunal properly and, therefore, participate properly raised.

HAYNE J:   I understand that, but is there not a more fundamental issue that needs to be confronted, namely, whether, even assume he could now put on evidence that demonstrated that there was an arguable case of want of procedural fairness on this account, would it be open to him for the first time in this Court to do so?

MR RITTER:   No, we would say not.

HAYNE J:   Why not?

MR RITTER:   We would say not for two reasons, your Honour.  Firstly, which is more a matter of discretion than firm substantive reason, is that he confronts the difficulty of it not being raised before Justice Nicholson or the Full Court.  The more fundamental point is the Eastman type point that my learned friend raises.  The difficulty that the applicant would have is to establish that ground he would need to put before the court evidence as to the extent of the hearing loss and as to the way in which that hearing loss affected matters before the Refugee Review Tribunal, so that there would need to be put before the court evidence additional to the record of evidence which was before Justice Nicholson and the Full Court.

That is where the problem created by Eastman’s Case for the applicant kicks in.  As your Honours will be aware in Eastman the Court decided in following a number of cases, including Mickelberg’s Case in relation to State courts that the power of the Court on appeal under section 73 was an appeal as a matter of strict appeal so that the record could not be supplemented by additional evidence.

CALLINAN J:   There is no doubt about that, but there may be a preliminary issue and that is whether the evidence could be put on in relation to the application for special leave.  There are questions of fact that can sometimes be ventilated.  The next stage is that even though that evidence may perhaps be receivable for the purpose of resolving a special leave application, and assume that it is credible and accepted, what happens then?  Eastman certainly would seem to stand in the way of its reception on a substantive appeal.

MR RITTER:   That is so and that is why we say the application for special leave is ultimately doomed because it would be an odd scenario if the Court were to allow an application for special leave on the basis of receipt of some evidence, when, if that appeal were to proceed then that evidence could not be received by the Court.  It would just be counterproductive.  The appeal itself would be doomed to failure, we would submit.

We would say that there are practical problems which stand in the way of some acceptance at a prima facie basis, at least, of what my learned friend’s instructions are, namely, that it was never raised previously by the advisers to the Refugee Review Tribunal and not raised before Justice Nicholson and not raised before the Full Court.  There is then the Eastman problem as well.  We would then refer to the type of discretionary factors that your Honour Justice Hayne has referred to.

To illustrate the point in relation to matters not being raised before the Tribunal, it is the case, as we referred to in our written submissions, that the applicant completed a hearing invitation form prior to the hearing by the Tribunal and there was nothing within that form completed by the applicant as to special requirements in relation to hearing.  It was also the case that the hearing record shows that the hearing was participated in not only the applicant but by his migration agent, Mrs Hamilton.

As I said, the reasons of the Tribunal then disclose at page 38 of the appeal papers that there were a number of communications and written submissions made after the hearing on 5 October 2001.  The Tribunal lists at that page 38 the communications that were made, and one can see from the dates that a number of them, four I think it is, post‑date the 5 October 2001 hearing.

We then get to the stage as to the hearing before Justice Nicholson where there was a lengthy written submission made by the applicant which was translated before Justice Nicholson.  That appears in the application book at pages 67 to 77.  Nowhere in those written submissions is this issue raised about a hearing deficiency causing a procedural problem before the Tribunal.  In particular, could I refer the Court to the application book at page 74 at point 2, where at the top of that page at point (15) of the written submissions the applicant draws the Court’s attention to page 30 of the written reasons of the Tribunal, which is in relation to a finding by the Tribunal that the applicant had not been tortured.

In the paragraph that there follows the applicant draws attention to the fact that he has damage to his left ear for the purpose of trying to persuade the Court that there was some substance in the allegation of torture, which the Tribunal had dismissed, but he does not then at that point or anywhere else go on to discuss the issue as to whether there was procedural unfairness because of the inability to hear at the Tribunal hearing.

His Honour Justice Nicholson refers, at page 85 point 8 of the appeal papers, to the fact that the applicant had provided those written submissions to his Honour and also some oral submissions which his Honour dealt with.  None of the oral submissions related to this hearing problem.  The issue was also not ventilated by the applicant before the Full Court, according to the reasons of the Full Court.  We would say that those matters raise such practical difficulties in the applicant succeeding in this ground, that in any event it is not an appropriate reason to grant the adjournment that my learned friend seeks.

The second argument that my learned friend raises in the amended summary of argument relates to a suggestion that written submissions to the Full Court were mistranslated and, therefore, the applicant was not properly heard before the Full Court.  In relation to that, could I refer the Court to the

appeal papers at page 99, which refers to what happened before the Full Court.  The court there says:

The appellant appeared in person at the hearing.  He made oral submissions to the Court.  In our view, there was nothing in those submissions which raised a possible basis for review of the Tribunal’s decision.

That summary by the court raises the question of whether there, in fact, were any written submissions to the Full Court which were mistranslated.  My instructing solicitor has this morning, and relayed to my learned friend, the fact that she has searched the court file at the Full Court and there does not appear on that Full Court file any written submissions that the applicant had prepared in Farsi that were then translated to the court, though a real issue on that is whether there were any such written submissions which were mistranslated.

Secondly, if I might say so, the decision of the Full Court was a fairly straightforward one if your Honours have regard to the reasons.  We would say that there has not been anything put before the Court as to what the applicant could have said before the Full Court which could have made a difference to the way in which the Full Court determined the matter.  There has certainly been none suggested by my learned friend, and perhaps understandably he simply seeks at this stage the opportunity to consider the matter further.

We would say in all of the circumstances that we have put before the court, the opportunity to consider the matter further is not warranted.  We would say that the application for special leave is doomed to fail and, therefore, adjourning the application at this point, even for a couple of months, would be a pointless exercise and could affect other matters in the list.  If your Honours please, they are our submissions.

HAYNE J:   Yes, thank you, Mr Ritter.  Yes, Mr Hooker.

MR HOOKER:   If I may address three points in reply, your Honour, firstly, concerning in short the Eastman point.  Even though it may be that in application of the majority judgments in Eastman there are very considerable difficulties as to whether there could be an admission on an appeal proper of evidence going to the nature and extent of the hearing disability, it is still, in my submission, very strongly arguable that even within the confines of those principles the record may be corrected and supplemented.  It may well be, depending on what the record discloses, that there could be a sufficient foundation to argue the nature of the procedural shortcomings before the Refugee Review Tribunal and how it is that those shortcomings denied my client a full opportunity to be heard, and/or meant that there was no review as a matter of substance by that Administrative Tribunal.

HAYNE J:   Let it be assumed for the purpose of debate that that were so, is the authority of this Court larger than an authority to make such order as the Full Court of the Federal Court should have made on the material before it, because if that is the relevant confines to the authority of this Court the adjournment is futile.

MR HOOKER:   Yes, I can only appreciate that difficulty, your Honour, and that would appear to flow from what the majority construed to be the nature of the appellate jurisdiction of this Court in Eastman, and it may be that that simply inevitably points me in the direction of seeking to agitate these issues through an exercise of the court’s original jurisdiction.

HAYNE J:   I am aware of that being the consequence, Mr Hooker.  I had not shut my eyes to it.

MR HOOKER:   I cannot, beyond urging upon your Honours that there would always be the capacity to, at least in this kind of case, reagitate the merit of what your Honour Justice Callinan and Justice Kirby said in dissent in Eastman, and seek to reimpress upon this Court the desirability of an appeal in the strict sense “be given a more modern contemporary flavour”.  That I apprehend would be the only basis upon which I could try and confront the difficulties I now face.  That would still be a possibility, so given that possibility, I would not concede that the application for special leave to appeal is necessarily doomed to fail.  That is the extent of the submissions I think I can put in reply, if it please the Court.

HAYNE J:   The applicant seeks an adjournment of his application for special leave so that he may, for the first time, raise two new grounds.  Those grounds depend upon his adducing evidence about the course of proceedings in the Refugee Review Tribunal in order that he might make a case of want of procedural fairness of a kind not advanced in the courts below.

For present purposes the authority of this Court on appeal from the Full Court of the Federal Court can be sufficiently described as being to make such order as the Full Court of that court should have made on the material before it:  see, for example, Eastman v The Queen (2000) 203 CLR 1.

It follows that if the adjournment sought were to be granted, no purpose would be served.  The grounds which the applicant might then seek to advance for the first time in this Court would be grounds that would not be open to him.  That being so, the application for adjournment is refused.

Now, Mr Hooker, understanding the limits on the material that the applicant advanced, is there anything you would add in amplification or support of the grant of leave on the material as it now stands?

MR HOOKER:   No, there is nothing I can add, your Honour.

HAYNE J:   Yes.  We need not trouble you, Mr Ritter, on the substance of the matter.  There is no reason to doubt the conclusions reached by the Full Court on the matters argued before it, and for that reason special leave to appeal should be refused and must be refused with costs.

Before parting with the case, however, we should say that we were indebted to Mr Hooker for the assistance that he provided to the applicant in this matter.

AT 12.36 PM THE MATTER WAS CONCLUDED