WAEV v MIMIA

[2004] HCATrans 455

[2004] HCATrans 455

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P53 of 2003

B e t w e e n -

WAEV

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

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 12.39 PM

Copyright in the High Court of Australia

MR R.A. CAMERON:   May it please the Court, I appear with my learned friend, MR G.J. HOBAN, for the applicant.  (instructed by Refugee Advocacy Service of South Australia)

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

McHUGH J:   Yes, Mr Cameron.

MR CAMERON:   Your Honours, this application focuses attention on the failure to allow the applicant to address arguments to the Refugee Review Tribunal at the time of the hearing in accord with what is said to be the requirements of section 425 of the Migration Act and it focuses on what is submitted to be the failure of the Full Federal Court to address that provision when it considered the appeal to that court.

KIRBY J:   There is nothing in the subsection that you rely on that says that the arguments have to be given at the same time, is there?  It is not expressly stated.  You have to argue that it is to be inferred from that provision and from the obligation to act economically and so on that where a party in person or by their agent wishes to be heard in argument, they should have that right.

MR CAMERON:   Yes, those two sections, in our submission, your Honour, should be read in conjunction.  Whilst this Court has considered in another case the provision of section 420, it has not considered section 420 when considered in conjunction with section 425.  That case was Eshetu’s Case.  It is our submission ‑ ‑ ‑

KIRBY J:   Can it be said that this was a technical – the respondent says it was a technical breach and that no substantive injustice or error occurred because of the fact that the full opportunity was given and availed of and indeed an added statement of your client was put before the Tribunal and on the face of the reasons of the Tribunal was considered and duly given attention.

MR CAMERON:   Not so, in our respectful submission, your Honour, because, as the Full Federal Court observed, because the photograph which the applicant had at the Tribunal hearing did not get into evidence, there is a potential for serious misjustice to have occurred in the proceeding before the Tribunal.  The submission is put that the applicant was not invited to address argument.  He was asked a number of questions by the Tribunal member but then the hearing was in a sense cut short and he was not given the opportunity to address arguments in terms of the provisions of the Act.

Your Honours, I am obliged to draw the Court’s attention to the provisions contained in section 364 of the Migration Act which do not presently appear in either party’s written submissions – this is section 366A appearing at page 243 of the reprint No 7 of the Migration Act as it existed at the time.  The effect of that provision is that the applicant was entitled to have another person present to assist him but the assistant was not ‑ ‑ ‑

KIRBY J:   That had already been decided, had it not?

MR CAMERON:   Yes.

KIRBY J:   So the precondition 2 was satisfied.  But the Tribunal member, just reading the transcript, seemed to think that she had the entitlement, having granted leave to the agent to appear, to control what he said.  Is that what section 366A says or not?

MR CAMERON:   Not at all, in our submission, your Honour.  In our submission, it was quite contrary to the specific terms of section 45.

KIRBY J:   You say it is a gateway provision?

MR CAMERON:   Yes.

KIRBY J:   You either get an agent or a person to make arguments or you do not, but once you have them, they then enjoy the right to put the arguments, including as stated in section 425.

MR CAMERON:   Yes, but she gave a direction in effect that restricted the content of the submission that was put and it deprived the applicant of the opportunity of a genuine interchange and argument at that time between the Tribunal member and the applicant for the visa.

McHUGH J:   What do you say about 366A(2):

The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that ‑ ‑ ‑

MR CAMERON:   Yes –

because of exceptional circumstances, the assistant should be allowed to do so.

The Tribunal member did not directly deal with that expressly but must be implied, because of the fact that the man seeking the protection visa was not able to speak English, that she considered it appropriate in the circumstances of the application to allow him to do so.  Our submission – and your Honours may have noticed from the proposed supplementary draft notice of appeal – that we focus very much on the failure to accord the applicant himself the right to address arguments in the context of the hearing at that time.

KIRBY J:   Can it be said that he was entitled to present arguments, albeit written arguments, presented after the oral hearing?

MR CAMERON:   He was not allowed to put arguments in the sense of an argument which involves an exchange between him.

KIRBY J:   Such as we are now having.

MR CAMERON:   Yes.  He was not even given 20 minutes, with respect, your Honour, to address matters before the Tribunal there and then in the exercise of the mandate that was imposed upon the Tribunal by the law to deal with the matter in a quick economical fashion.

McHUGH J:   There seems to be a lot to be said for the point that “arguments” in 425 means oral arguments, that it is a hendiadys, that you:

invite the applicant to appear before the Tribunal to give evidence and present arguments ‑ ‑ ‑

MR CAMERON:   We would, with respect, adopt that and we would say that is why this is an appropriate case to consider the proper meaning of that provision.

KIRBY J:   Except that in this modern age we all know that arguments – we have written argument, written submissions and oral argument, oral submissions, so that more and more is being done in courts and tribunals by written arguments because you can read four times more quickly than you can speak.  Therefore, would that not be an efficient way to interpret the statute?

MR CAMERON:   In our submission, not.  The word “arguments” in the context of section 420 when read in conjunction with 421 must necessarily, because of their focus on quickness and economical approach, involve the concept of being able to prepare your argument there and then and to exchange it in a dialogue, whether it is a Socratic dialogue or a didactic argument with the Tribunal.  That is what, with respect to the Court, we would take Justice McHugh to be saying.  We would support, with respect, that interpretation of the provision because it gives an immediacy to the quickness of the whole process.

KIRBY J:   You have to reconcile that, though, with – you could get people who say, “Well, I am not really in a position today.  I want to analyse all the evidence and I would like to put a written statement in”.  You would not want to read it as “only” oral argument ‑ ‑ ‑

MR CAMERON:   Quite so, your Honour, but ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ because sometimes the facts are a bit complicated and people need a bit of time to analyse them. 

MR CAMERON:   Quite so, your Honour, but here was, on the applicant’s case, a situation where the applicant wanted to present a photograph, which the Full Federal Court acknowledged may have made a substantial difference to the approach that was taken by the Tribunal, and expressly through his agent he wanted to make submissions there and then, and he was peremptorily cut off from that. 

KIRBY J:   But would the making of oral submissions have made any difference in this case?  I mean, your point is that the Tribunal never had – first of all that the Tribunal got a bit confused about the facts ‑ ‑ ‑

MR CAMERON:   Yes. 

KIRBY J:    ‑ ‑ ‑ and an oral interchange might have sorted that out ‑ ‑ ‑

MR CAMERON:   Quite so, your Honour. 

KIRBY J:    ‑ ‑ ‑ at an important time, when the Tribunal member is thinking of the outcome of the case.  Secondly, that the Tribunal did not receive the photograph of the sign which was on the door of the printing warehouse.  Now, as to the second point, can it be said that the failure to give that opportunity would have produced that document?  We do not have an affidavit from the agent saying that he would have produced the document, and he did get the opportunity to produce it in written argument, after the oral hearing was concluded. 

MR CAMERON:   That was overlooked, but the applicant’s affidavit was that he had it there and then ‑ ‑ ‑

KIRBY J:   And had mentioned it to somebody in the Tribunal, I think. 

MR CAMERON:   Yes. 

KIRBY J:   The applicant was in South Australia, was he not? 

MR CAMERON:   No, in Derby, in Western Australia. 

KIRBY J:   In Western Australia, and the agent was in? 

MR CAMERON:   Sydney, and the interpreter was in Sydney. 

KIRBY J:   Sydney.  And where was the Tribunal? 

MR CAMERON:   Derby, Western Australia. 

KIRBY J:   So what is your explanation on the record for the failure of the agent to produce this document in the written argument?  Is that explained? 

MR CAMERON:   He has not explained it directly, but by inference – the only inference can be through overwork and press of other matters. 

KIRBY J:   Is your contention that if there had only been the facility of the oral exchange, this matter being in the forefront of the mind of the applicant, that if his agent had overlooked it in oral argument, insofar as he understood the oral argument, he would have said, “Steady on, you have forgotten my best point.  My best point is I have a photograph showing the order closing down the printing works because they were producing lies against the Islamic Republic”. 

MR CAMERON:   Yes, your Honour.  So because the hearing did not proceed in the manner that we say the law dictated, the applicant lost the opportunity to have a successful outcome to his application for a protection visa.  If the matter is reviewed in this Court, we would seek leave to add the Refugee Review Tribunal as a party to the proceedings. 

KIRBY J:   Is there disparity of decision‑making in the Federal Court on this point?  Has the point been considered in the Federal Court or not? 

MR CAMERON:   Not that I am aware, your Honour. 

McHUGH J:   Section 425 has been the subject of a number of decisions in the Federal Court, but none of them seem to touch on this particular point. 

MR CAMERON:   Yes, your Honour.  May it please the Court, they are our submissions. 

McHUGH J:   Thank you.  Yes, Mr Ritter. 

MR RITTER:   Thank you, your Honours.  Your Honours, could I first make reference to section 366A, which was mentioned during argument, and make the submission that that should not form part of the Court’s consideration of this matter.  That section is in Part 5 of the Act as it then stood, which deals with the Migration Review Tribunal.  The Refugee Review Tribunal is dealt with in Part 7, and there is no equivalent section, as I understand it, to 366A.  So it is, with respect, not a matter which need delay the Court. 

KIRBY J:   The Tribunal member did seem to have a view that the agent was speaking by her leave or permission.  She said something to the effect, “Well, you can only speak when I give you permission”.  Now, what was the foundation for that belief? 

MR RITTER:   The foundation does not materialise.  I think it is explicable, and I can suggest a way in which it might be explicable.  It is also, as part of that, relevant to consider what the member did in relation to the applicant, as opposed to the agent.  Could I take the Court briefly to the transcript of the hearing, which I think your Honours have, to explain that point.  Your Honours have, I think, the version of the transcript which is numbered at the bottom of the page.  You will see that this issue at the end of the evidence phase, if you like, commences at the bottom of page 18, at about line 34, where there is reference to: 

All right.  Now, Mr Adviser, are you there? 

It starts from then.  Going over the page, the adviser starts to make submissions, and then the Tribunal intervenes at line 15 and says that: 

Mr Jabiri, your submission is not to re‑explain the evidence that you have written with the applicant in regard to his submissions.  I will look at all of those myself –

and then there is an interchange that develops from that point.  Now, your Honour Justice Kirby, with respect, seems to be correct in saying what the Tribunal member thought that she could do, that she had a discretion as to whether or not they would permit the adviser to make submissions.  That appears at about line 40, I think, with respect, your Honour.  She says that she will give: 

seven days in writing to make that submission. 

McHUGH J:   Now, where does she get the power to control the agent in that way, assuming that the common law principle applies and that Dr Jabiri was the agent for the applicant and entitled to put on his behalf the entitlement under section 425 of the Act? 

MR RITTER:   Can I just finish this review, because it ties in with that point, your Honour ‑ ‑ ‑

McHUGH J:   Yes. 

MR RITTER:    ‑ ‑ ‑ and I will come back to section 425.  The point that she makes is, it appears to the respondent, to distinguish between the agent and the applicant themselves ‑ ‑ ‑

McHUGH J:   Yes, she does. 

MR RITTER:    ‑ ‑ ‑ and that may tie back with 425.  Your Honours will see that, although there is the vociferous disagreement with the agent, when the applicant then says at line 25 of page 20: 

Is it possible that I speak a little bit? 

The Tribunal member immediately says: 

Yes, sir.  If you would like to tell me something else, you’re more than welcome. 

Then some additional points were made, and the Tribunal member then says: 

Was there anything else, sir? 

And he makes another short point.  Then the return is back to the migration agent, where she says – and this could be significant – the Tribunal member says to the agent: 

for your information, your client has been most distressed during the course of this particular hearing and I think it is appropriate that you put your submissions in writing in order to give him the opportunity to go outside and take a breather. 

Then she says to the applicant: 

I have allowed your adviser to provide me with a submission in writing in regard to anything further that you or he wish to address me about. 

Then he says: 

I thank you very much as the lady member who came here and listened to all I had to say. 

Then she says to the adviser: 

seven days from today –

and there is some confusion, perhaps, about whether the adviser has left, but ultimately he says “Yes” and agrees to the seven days when that is put to him. 

KIRBY J:   Is your hypothesis that the member of the Tribunal stopped the adviser because she was very deeply concerned about the condition of the applicant? 

MR RITTER:   There may have been more than one purpose, your Honour.  Ultimately, that is the way in which she puts it. 

KIRBY J:   We are dealing with serious matters here.  This is a person who is applying for refugee status in relation to Iran, where he says he had a document, he mentioned it to somebody in the Tribunal, it never got to them, it is arguably important as confirming his case, and out of a tender concern for his condition she brings to an end the opportunity, his one opportunity, of a hearing, which is something that the Parliament has given to the applicant.  You would know – we are demonstrating it now – there is nothing like the interchange.  As Lord Denning said, “The case is never over until we have finished our conversation”, and he was really denied that chance. 

MR RITTER:   Indeed, your Honour, but one needs to look at the question of hearing and the question of fairness not just focused on what happened in those few seconds.  Indeed, it could be argued that, rather than give an adviser the opportunity to rattle through something then, an additional seven days were allowed to have regard to reasoned argument.  That was responded to by way of a 10 page submission.

McHUGH J:   But are there not two separate points involved, Mr Ritter?  First of all, the Tribunal can ask for further submissions under section 424.  She can seek additional information. 

MR RITTER:   Correct. 

McHUGH J:   But 425 seems to provide a statutory entitlement to a person to give evidence and present arguments, and she cut off the arguments.  This was in a context where Dr Jabiri was the agent, counsel, if you like.  It is true, as you point that, that she allowed the applicant to say a few words, but that was not what the case was about.  Dr Jabiri was the person who was going to put the submissions, and she recognised that when she directed her remarks to him to put submissions in writing.  Now, if, in accordance with the common law, he is the agent, he stands in the applicant’s shoes, then why has there not been a breach of 425? 

MR RITTER:   That very agency point, I think, is relevant, with respect, your Honour, and to some extent that may make sense of what the Tribunal member did, because she seems to be distinguishing, in what she did at that latter part of the hearing, between the applicant and the agent.  The section, as your Honour will be aware, is directed to the applicant, and it is directed in terms of “inviting” the applicant – with the emphasis on invitation of the applicant: 

to appear before the Tribunal to give evidence and present arguments relating to ‑ ‑ ‑

McHUGH J:   Where does the agent get any right of appearance? 

MR RITTER:   With respect, the agent does not get a right of appearance within that part of the Act.  There are earlier sections in the Act which say what an immigration agent may do ‑ ‑ ‑

McHUGH J:   Yes. 

MR RITTER:   One of those is to provide “immigration assistance” under section 276 as it then stood, and an immigration agent may in part – this is 276(1)(a): 

preparing, or helping to prepare, the visa application or cancellation review application –

and it goes on to deal with other matters relating to review applications; (d), I think, is the appropriate subparagraph.  They can represent the visa ‑ ‑ ‑

McHUGH J:   But it is an established common law principle that in front of a tribunal – certainly, in front of a tribunal, a person can act through an agent.  Why cannot 425 be read in the same way? 

KIRBY J:   With 276(1)(d), which, as you were about to concede, is the provision that permits such an agent to “represent the visa applicant” ‑ ‑ ‑

MR RITTER:   Yes. 

KIRBY J:    ‑ ‑ ‑ which was what he was trying to do, and he was cut off in his prime.  I mean, what if we said to you, “Well, we do not want to hear any more from you.  You can put it all in writing”?  You are dealing with something desperately important to the individual. 

McHUGH J:   Well, I think we could do that, but there is no equivalent to section 425. 

KIRBY J:   I am just asking how you would feel about it. 

MR RITTER:   Usually, your Honour, I would be pleased to hear you say you did not want to hear me any more. 

KIRBY J:   No, well, we are not going to do that.  Press on. 

MR RITTER:   No, I take that.  Your Honour, the point is here – there are two points.  One is whether the section is directed to what did happen on this particular occasion, and if what did happen breached it.  The second question, which we think answers the applicant’s overall concern, which the Full Court did deal with, is the question about the discretionary elements under section 481 of the Act as it stood.  Even if there was a breach of section 425, and if the Court was considering the ground of review under section 476(1)(a), there was then a question as to whether the discretion would be exercised under 481 to grant relief.  What we say is that in this particular case, the Full Court has, in effect, answered that question, and, we would say respectfully, answered it in the appropriate way, by saying ‑ ‑ ‑

KIRBY J:   They answered it in a rather strange way, because they concluded against giving relief, and then they said, “Well, throw yourself on the mercy of the Minister and make a submission to the Minister, and maybe the Minister out of her great bounty will give you extraordinary and peculiar relief”.  That is a funny way for a court to deal with the matter.  It shows that they were disquieted, Mr Ritter. 

MR RITTER:   They were disquieted, but the question is what was the authorship of the disquiet. 

KIRBY J:   If you are disquieted, courts should give relief. 

MR RITTER:   I am sorry, your Honour? 

KIRBY J:   I say, if courts are sufficiently disquieted to add a reference to this discretion of the Minister, it does raise a question as to why they did not exercise their powers. 

MR RITTER:   With respect, we would say the answer to that is because, in relation to the photograph which was the issue most keenly litigated at the Full Court level, as reflected in their Honours’ judgment, it seemed to be the case that the applicant and the adviser, assuming – and it seems to be accepted – that the photograph had existed – it was never tested as to its genuineness, but it certainly existed – that it was the applicant and the adviser who both failed, having the opportunity to put that before the Tribunal.  With respect, we would say that is ‑ ‑ ‑

KIRBY J:   Yes, but look at the situation of ‑ ‑ ‑

MR RITTER:    ‑ ‑ ‑ the cause of the court’s concern, not as to whether there was an error. 

KIRBY J:   Let us be realistic.  Here is a person who is in immigration detention, he speaks no or virtually no English, he has this agent who is appearing for him, he is claiming refugee status from Iran.  He goes up to the court officer and says, “I’ve got this thing”, and the court officer receives it, I think, receives the photograph or says, “You’ll have to put this in later”, but the fact is, it is on his mind.  He is a very vulnerable person.  It is not as if he is trained in the law and knows he has to jump up and bang the table and make sure it goes in.  He is in an odd country, a different country, in an odd situation in a migration centre.  There is this video link being established, and he has this person over in Sydney representing him, who is stopped from giving his arguments.  Not a very satisfactory situation, especially when one adds to that the fact that the Tribunal appears to have lost its temper with the agent. 

MR RITTER:   That may be so, but, at the end of the day, he is not someone who is so vulnerable that he was not represented.  He was represented by a migration agent, who knew about the photograph and who took the opportunity to provide a 10 page submission within the seven days allowed.  Now, for whatever reason, the migration agent and the applicant, who also provided another three page statement, did not refer to the photograph.  The question is whether you can visit that misfortune on the Refugee Review Tribunal by saying that there was a failure by it to comply with procedure, bearing in mind that the rules of natural justice did not lead to a ground of review under the Act at that stage, given section 476(2). 

McHUGH J:   Well, I think there is a lot of force in that, but nevertheless the fact that it was not tendered may have some bearing on whether or not relief should have been given under 481(a).  It may be a ground in favour of granting leave, because it is quite possible that if he had been given an opportunity to speak, he would have thought about the photograph and it would have got into evidence. 

KIRBY J:   And/or that the applicant would have started saying, “But what about the photograph?” 

MR RITTER:   But, with respect, the applicant was given opportunities to speak at the end.  What we would say is that the opportunity to speak of the applicant and, indeed, his adviser continued for a period beyond the time of the hearing. 

KIRBY J:   Well, we have it from the Tribunal that the applicant was distressed. 

MR RITTER:   Indeed. 

KIRBY J:   People do not always think logically, as we are trained, we hope, to think, when they are distressed, especially when a lot hangs on the matter. 

MR RITTER:   That is so, but that manifests, we say, the sense of the approach of allowing more time for consideration and submission. 

KIRBY J:   I am not against that.  I think there is a strong argument in these cases for allowing that.  The question is whether it was within the statute to stop the representative, the agent, from making submissions. 

MR RITTER:   Correct.  What we say, within the statute, is that one cannot read it in the way of saying that in every case the Tribunal must continue until oral submissions are provided and completed by an adviser.  What would happen in a situation where an applicant was greatly distressed, it was late in the day, and everyone had to travel away from a rural centre the next morning, and the Tribunal said, “I think the appropriate course would be to provide submissions within seven days” – even if the applicant’s adviser agreed with that course, on the applicant’s construction of the section in this application, it would be the case that there would be a failure to comply with procedure which would lead to a ground of review. 

McHUGH J:   That submission raises some interesting questions concerning judgments of the Federal Court on this issue, because there seems to be different views in the Federal Court as to whether there is a continuing obligation under this section to provide the opportunity to give evidence and present arguments.  There are half a dozen or so cases, federal cases, are there not – Federal Court cases on the section? 

MR RITTER:   There are.  We would say that they come down to a consistent theme, which is that the hearing – sorry, may I start that again.  The emphasis of the section is on the invitation, but that the hearing – what happens at the hearing can reflect upon the quality of the invitation.  So that the hearing cannot effectively make the invitation an empty shell or a hollow shell.  The best example of that is in circumstances where an inadequate interpreter is provided at the hearing.  It cannot be said simply that because an invitation was sent, the section was complied with and exhausted.  So there is some relevance in looking at the hearing in that context. 

McHUGH J:   Yes. 

MR RITTER:   If I could just complete what I was going to say on that.  In this context, what we would say is that what happened at this hearing certainly did not make the invitation a hollow shell, because one needs to look at the hearing in total, including the seven days’ entitlement, which was exercised with the submission that I have mentioned.  What we say that the Full Court – where it came down to in saying that there was no unfairness in the procedure, in effect, asked and answered a question of higher test than that existed under the Act, because it answered all of the ‑ with respect to natural justice generally, I suppose, as opposed to the strictures of the Act itself and the requirements of section 476(2) and also 481 at the time. 

McHUGH J:   Yes. 

MR RITTER:   Your Honour, in addition to that, we rely, in answer to the other points made by the applicant to our supplementary outline, which I hope has been received by your Honours, including the aspect of the matter that insofar as section 420 is relied on, we say that the argument is inconsistent with Eshetu.  We say the construction that the applicant seeks to place on section 425 is inconsistent with the approach of the High Court in Project Blue Sky and also in cases which have proceeded before the Full Federal Court, of which Paul is one example, where the court looks at the nature and quality of the requirement in question, in the context of the statute as a whole in determining the matter. 

McHUGH J:   I thought that in De Silva the Full Court approved what Justice Sackville had said in Cho’s Case and that seemed to indicate that a breach of 425 was a breach of 481, or am I wrong in that? 

MR RITTER:   That may be putting it too broadly.  I think there are cases which say that a breach of 425 is capable of leading to relief under 476 ‑ ‑ ‑

McHUGH J:   Yes, under 476. 

MR RITTER:   I do not know that any case goes as far as to say that under no circumstances could a breach of section 425 not be dealt with under 481 with a non‑exercise of discretion.  I do not understand that point to have been decided. 

McHUGH J:   No, in fact, I meant 476, not 481. 

MR RITTER:   Yes.  Section 425 can be a procedure for 476(1)(a), but there is then a separate question as to even if there is a breach of a required procedure, and that is a live question, whether it leads to relief under 481.  May it please your Honours. 

McHUGH J:   Yes.  Yes, Mr Cameron. 

MR CAMERON:   Nothing to say by way of reply, your Honours. 

McHUGH J:   Yes, thank you.  There will be a grant of special leave in this matter on grounds 8, 9 and 10 of the draft supplement to the notice of appeal. 

The Court will now adjourn to reconstitute. 

AT 1.14 PM THE MATTER WAS CONCLUDED