Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476
Outcome: followed
It is beyond doubt that both a denial of procedural fairness and a failure to comply with the Tribunal's essential statutory obligation in s 425(1) of the Migration Act constitute jurisdictional error. Jurisdictional error means that the Tribunal's decision is not a "decision" for the purposes of the definition of "privative clause decision" under s 474 of the Migration Act , because the decision is not made under the Migration Act . The provisions of the Migration Act that would deprive the Federal Magistrates Court, and this Court, of jurisdiction to deal with the Tribunal's decision, if it were a privative clause decision, are therefore inapplicable. See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476. Because the Tribunal's hearing took place before the amendment to the Migration Act that inserted s 422B , it is unnecessary to discuss what, if any, impact that provision would now have. 53 Because of jurisdictional error, constituted by the denial of procedural fairness and the failure to comply with s 425(1) of the Migration Act , the appellant was entitled to have the Tribunal's decision set aside, and to have the matter of the review of the decision of the delegate of the Minister to refuse him a protection visa remitted to the Tribunal, so that it could fulfil its statutory obligation by providing the appellant with a proper hearing. Because of events which have occurred in the meantime, the appellant has a number of obstacles to surmount before it can be accepted that he can now avail himself of that entitlement. In the Federal Magistrates Court, the appellant did not present the deficiencies in the performance of the interpreter as a ground on which that court might overturn the Tribunal's decision. Nor was that ground in the notice of appeal to this Court. It is therefore necessary to decide whether the appellant should have leave to amend the notice of appeal by adding a ground not taken in the court below. If such leave is granted, there can be no question that the Federal Magistrate's conclusion that there was no jurisdictional error on the part of the Tribunal is incorrect, on the material now before the Court. That conclusion would not be sufficient to warrant the appeal being allowed if there were no error in the Federal Magistrate's apparent conclusion that the appellant's proceeding in the High Court was out of time, and that no enlargement of time should be granted, and her Honour's conclusion that the proceeding was barred in any event by the principles of res judicata. 54 The appellant seeks to add two grounds of appeal to the notice of appeal, specified as follows: The Tribunal breached s 425 of the Migration Act 1958 (Cth) by not providing the appellant adequate interpreting services and so failed to afford the appellant an effective opportunity to give evidence and present arguments. Alternatively, by not providing adequate interpreting services to the appellant the Tribunal committed a jurisdictional error by breaching the rules of natural justice and/or procedural fairness. 55 Also required is leave to rely on evidence that was not before the court below, in the form of the affidavit of Mr Ganegoda, filed on behalf of the appellant, and the affidavit of Mr Liyanage, filed on behalf of the Minister. 56 Although substantial time has elapsed between the Tribunal hearing and the raising of the issue as to interpretation by the appellant, there is a powerful case for granting leave to rely on the proposed new grounds. The appellant required the services of an interpreter to present his case. This suggests that, at the time, he did not believe that he had the competence in English necessary to enable him to give evidence and present his arguments to the Tribunal by himself. A person who requires the services of an interpreter in order to give evidence can hardly be expected to know that the interpreter has failed to translate the evidence accurately. It would be harsh to deny the appellant the right to rely on the interpreter's errors simply because of the lapse of time. Further, in filing his application in the High Court, the appellant did not have the benefit of legal representation. Nor did he have legal representation at any stage until after the appeal first came on for hearing, at which time he was able to procure the services of pro bono counsel, pursuant to the Court's scheme under O 80 of the Federal Court Rules . By contrast, the Minister is unable to point to any prejudice, particularly any prejudice that could not be compensated by the order for costs of the adjournment of the appeal already made.