Author: Min

Inspection of a court file by non-party

The principles governing when inspection of a court file by a non-party will be permitted are discussed in Deputy Commissioner of Taxation v Hawkins (Inspection Application by Matrix Group and Anor) [2016] FCA 164.

Pagone J discussed the authorities and considered that amongst other things, any material read in open court, such as an affidavit, ought to be accessible by non-parties by reason that the proceedings are conducted in open court.

Further, the ‘general principle that the public should have access to what is used or deployed in court proceedings does not depend upon the motives of a person seeking to obtain access’: [12].

Charter arguments can be raised even if non-charter arguments would not succeed

Sections 38 and 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) are:

38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

39 Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

It is now well-established that all that is required to raise a charter ground in an otherwise non-charter proceeding is the mere availability, in the abstract sense, of relief or remedy in the otherwise non-charter proceeding. Thus for example, if a decision is subject to judicial review whether by rule 56 of the Supreme Court (General Civil Procedure) Rules 2015 or the Administrative Law Act 1978–as most decisions are–then even if a common law ground that would give rise to jurisdictional error cannot be made out, the decision may be unlawful by reason of a Charter ground and nothing else.

See The Queen v Debono [2013] VSC 407, [75]-[82].  At [82], Kyriou J said:

the mere exercise of an available right to seek relief or remedy in respect of an act or decision of a public authority on a ground that is independent of the Charter is sufficient to satisfy the condition in s 39 of the Charter; that is, s 39 does not depend upon a successful exercise of that right based on the non-Charter ground.

Section 375 secrecy certificates issued without sustainable basis can create jurisdictional error on part of AAT

If the issue of a s 375 secrecy certificate is invalid, then the AAT’s reliance on that certificate for not producing documents to the applicant may in turn be affected by jurisdictional error. See Ahmad v Minister for Immigration and Border Protection [2015] FCCA 1038, esp [40]:

If the reason given could not sustain the public interest claim, then the Tribunal was not as a matter of law bound by the purported certificate.

Information given by a witness is not information given by an applicant in MRT/RRT

In Kanagul v Minister for Immigration [2014] FCCA 1219 it was held that the evidence from a witness was not information that was ‘given’ by the applicant for the purposes of the applicant’s review. As such, and given (on those facts) that the applicant did not otherwise adopt the witness’s evidence, s 359A required the Tribunal to (re-)put the witness’s evidence. to the applicant.

Improper questioning, frequent interruption, sarcasm, rudeness, impatience, tone and other discourteous behaviours of RRT members can amount to apprehended bias

There is a brief summary of the authorities on when discourteous behaviours of RRT members can amount to a denial of natural justice by reason of apprehended bias, in AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193.

On the facts in AZAEY, there was no apprehended bias.  This was so, even though the Court found that on some occasions the Tribunal member did interrupt the Applicant on ‘a number of occasions’, was ‘incredulous’ towards the Applicant and raised her voice towards the Applicant.  The Court also referred to a number of occasions in which the Applicant was crying, presumably as a result of the Tribunal member’s behaviour.

The Court concluded however, that when having regard to the transcript and recording of the RRT hearing as a whole, an informed person ‘would satisfactorily reach a  conclusion that the Applicant had been afforded a hearing in which the Tribunal member was “open to persuasion”‘: [29].  That is the ‘governing principle’ in relation to apprehended bias: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 to 345, cited in AZAEY at [17].

Irving Younger’s 9 Pigeonholes of Impeachment

The nine pigeonholes are:

Competence
1. Oath
2. Perception of events (ie seeing, hearing, perceiving etc)
3. Recollection of events (ie memory)
4. Communication (ie ability to give evidence to Court; use of words characteristic to witness (‘antidisestablishmentarianism’))

Credibility
5. Bias/interest/prejudice/corruption
6. Prior convictions (as to credibility: but note Evidence Act s 138)
7. Prior ‘bad acts’
8. Prior inconsistent statements

Proof
9. Other witness giving evidence that casts doubt on credibility of this witness (not relevant in Australian law)

Person cannot be removed until protection claims assessed in procedurally fair way

At [46] of SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 the Court recited the basic principle:

The Federal Court concluded in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (‘SZQRB’) at 544-546 [200] and 546 [204] that the power of removal in s 198 could not be exercised whilst a person in detention had made claims for protection (including by way of non-refoulement) until those claims had been assessed by a process which accorded an applicant procedural fairness and which addressed the correct questions according to Australian law.

This principle arises from Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.  The assessment of non-refoulement claims is the second step of the two-step process of the Minister deciding (step one) whether to exercise certain non-compellable powers (step two) such as lifting the bar (s 48A) or granting a visa (s 195A).  Procedural fairness is required in the exercise of step two: M61.

The consequence is that detention of a person who has made non-refoulement claims, but such claims are not being considered, or being considered without procedural fairness, may be unlawful: see SZSSJ [86].

 

Overview of protection visa system

This article provides a good general outline of the protection visa system, and this paper by McDonald is an excellent overview on how to identify jurisdictional error in asylum cases.

There are also some primers from training sessions run by the Law Institute of Victoria on 10 and 17 March 2016: