Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: discussed
In substance, what was asserted in the submissions considered by his Honour was that the invitation to a hearing in the letter of 31 March 2003 did not comply with the statutory requirements of the Act as it failed to give a prescribed notification period to the applicant. That ground has not been pressed, as I understood the argument today before me. Next the appellant submitted that the Tribunal had failed to give a prescribed notification period under s 425A(3) to him and therefore by reason of the decision of the High Court in SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 there was a jurisdictional error. 30 His Honour noted that the Minister's submissions pointed out that the contravention of s 425A(3) alleged then was that the appellant had got more than the prescribed statutory period of notice. His Honour then noted submissions on the merits that the applicant had made to him. His Honour considered and rejected the argument that there had been a non-compliance with s 424A in relation to the material in [36] of the Tribunal's reasons. However, I think that argument was well-founded and the trial judge erred in rejecting it. His Honour dismissed the argument on the basis that [36] was not 'integral' to the Tribunal's reasoning process. In my opinion, that is unlikely to be correct because of the way in which the Tribunal expressed its reasons. In [36], it stated that its earlier conclusion (that in light of the consideration that the material put forward by the applicant for review did not justify a finding that he was the subject of persecution for his political activities or that there was a real chance of him being persecuted if returned to India) was supported by the travel activities of the appellant which led to the final conclusions in [37] and [38]. 48 The appellant says that by failing to notify the appellant in the letter of 31 March 2003 of the effect of s 426(2) the Tribunal fell into the same kind of jurisdictional error as occurred in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. It was said that one of the purposes of the requirement of giving notice was to ensure that the natural justice to which the appellant was entitled by force of s 422B(1) would be provided and any failure to adhere strictly to this code constituted a jurisdictional error. 56 I do not think there was any injustice whatsoever in the failure to tell the appellant of the travel matters, the subject of [36] of the Tribunal's reason. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, it was held that where jurisdictional error occurs, it is not a proper basis, in the exercise of discretion, to refuse relief because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention. 57 However, the critical passages in that case, for present purposes are what the majority said about the issue of discretion in a case where, unlike that case, there had been delay or other circumstances which would actuate the exercise of the discretion. McHugh J said, 215 ALR 183-184 [80]: '[80] The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.' 58 Hayne J, with whom Kirby J on this point expressly agreed 215 ALR 203 [174], said at 215 ALR 212 [211]: 'For the reasons given earlier the decision reached by the tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse relief sought should be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellant said to stand in their way.'